Exhibit 10.1


 


 





 


 


MERCANTILE BANKSHARES

CORPORATION


 


PLAN DOCUMENT


 


 


EFFECTIVE MAY 1, 2005


 


 





















 


TABLE OF CONTENTS


 


	
  Purpose

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 1

  	
    Definitions

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2

  	
    Selection/Enrollment/Eligibility

  	
   

  
	
  2.1

  	
  Eligibility

  	
   

  
	
  2.2

  	
  Enrollment Requirements

  	
   

  
	
  2.3

  	
  Commencement of Participation

  	
   

  
	
  2.4

  	
  Termination of Participation and/or
  Deferrals

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3

  	
    Deferral
  Commitments/Company Contributions/Crediting/Taxes

  	
   

  
	
  3.1

  	
  Minimum Deferral

  	
   

  
	
  3.2

  	
  Maximum Deferral

  	
   

  
	
  3.3

  	
  Election to Defer/Change in Election

  	
   

  
	
  3.4

  	
  Withholding of Annual Deferral Amounts

  	
   

  
	
  3.5

  	
  Annual Company Discretionary Amount

  	
   

  
	
  3.6

  	
  Annual Company Matching Amount

  	
   

  
	
  3.7

  	
  Annual Company Basic Amount

  	
   

  
	
  3.8

  	
  Investment of Trust Assets

  	
   

  
	
  3.9

  	
  Vesting

  	
   

  
	
  3.10

  	
  Crediting/Debiting of Account Balances

  	
   

  
	
  3.11

  	
  FICA and Other Taxes

  	
   

  
	
  3.12

  	
  Distributions

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4

  	
    Short-Term
  Payout/Unforeseeable Financial Emergencies

  	
   

  
	
  4.1

  	
  Short-Term Payout

  	
   

  
	
  4.2

  	
  Other Benefits Take Precedence Over
  Short-Term Payout

  	
   

  
	
  4.3

  	
  Withdrawal Payout/Suspensions for
  Unforeseeable Financial Emergencies

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5

  	
    Retirement Benefit

  	
   

  
	
  5.1

  	
  Retirement Benefit

  	
   

  
	
  5.2

  	
  Payment of Retirement Benefit

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6

  	
    Survivor Benefit

  	
   

  
	
  6.1

  	
  Pre-Retirement Survivor Benefit

  	
   

  
	
  6.2

  	
  Payment of Pre-Retirement Survivor Benefit

  	
   

  
	
  6.3

  	
  Death Prior to Completion of Retirement
  Benefit or Termination Benefit

  	
   

  
				



 


i





















 


	
  ARTICLE 7

  	
    Termination Benefit

  	
   

  
	
  7.1

  	
  Termination Benefit

  	
   

  
	
  7.2

  	
  Payment of Termination Benefit

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8

  	
    Disability
  Waiver and Benefit

  	
   

  
	
  8.1

  	
  Disability Waiver

  	
   

  
	
  8.2

  	
  Continued Eligibility/Disability Benefit

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9

  	
    Beneficiary Designation

  	
   

  
	
  9.1

  	
  Beneficiary

  	
   

  
	
  9.2

  	
  Beneficiary Designation/Change

  	
   

  
	
  9.3

  	
  Acknowledgment

  	
   

  
	
  9.4

  	
  No Beneficiary Designation

  	
   

  
	
  9.5

  	
  Doubt as to Beneficiary

  	
   

  
	
  9.6

  	
  Discharge of Obligations

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10

  	
    Leave of Absence

  	
   

  
	
  10.1

  	
  Paid Leave of Absence

  	
   

  
	
  10.2

  	
  Unpaid Leave of Absence

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 11

  	
    Termination/Amendment/Modification

  	
   

  
	
  11.1

  	
  Termination

  	
   

  
	
  11.2

  	
  Amendment

  	
   

  
	
  11.3

  	
  Effect of Payment

  	
   

  
	
  11.4

  	
  Amendment to Ensure Proper Characterization
  of the Plan

  	
   

  
	
  11.5

  	
  Changes in Law Affecting Taxability

  	
   

  
	
  11.6

  	
  Prohibited Acceleration/Distribution Timing

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 12

  	
    Administration

  	
   

  
	
  12.1

  	
  Administration

  	
   

  
	
  12.2

  	
  Determinations

  	
   

  
	
  12.3

  	
  General

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 13

  	
    Other Benefits
  and Agreements

  	
   

  
	
  13.1

  	
  Coordination with Other Benefits

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 14

  	
    Claims Procedures

  	
   

  
	
  14.1

  	
  Scope of Claims Procedures

  	
   

  
	
  14.2

  	
  Initial Claim

  	
   

  
	
  14.3

  	
  Review Procedures

  	
   

  
				



 


ii





















 


	
  14.4

  	
  Calculation of Time Periods

  	
   

  
	
  14.5

  	
  Legal Action

  	
   

  
	
  14.6

  	
  Committee Review

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 15

  	
    Trust

  	
   

  
	
  15.1

  	
  Establishment of the Trust

  	
   

  
	
  15.2

  	
  Interrelationship of the Plan and the Trust

  	
   

  
	
  15.3

  	
  Distributions from the Trust

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 16

  	
    Miscellaneous

  	
   

  
	
  16.1

  	
  Status of Plan

  	
   

  
	
  16.2

  	
  Unsecured General Creditor

  	
   

  
	
  16.3

  	
  Company’s Liability

  	
   

  
	
  16.4

  	
  Nonassignability

  	
   

  
	
  16.5

  	
  Not a Contract of Employment

  	
   

  
	
  16.6

  	
  Furnishing Information

  	
   

  
	
  16.7

  	
  Terms

  	
   

  
	
  16.8

  	
  Captions

  	
   

  
	
  16.9

  	
  Governing Law

  	
   

  
	
  16.10

  	
  Notice

  	
   

  
	
  16.11

  	
  Successors

  	
   

  
	
  16.12

  	
  Spouse’s Interest

  	
   

  
	
  16.13

  	
  Validity

  	
   

  
	
  16.14

  	
  Incompetent

  	
   

  
	
  16.15

  	
  Court
  Order

  	
   

  
	
  16.16

  	
  Distribution in the Event of Taxation

  	
   

  
	
  16.17

  	
  Insurance

  	
   

  
	
  16.18

  	
  Aggregation of Employers

  	
   

  
				



 


iii





















 


MERCANTILE BANKSHARES
CORPORATION


 


DEFERRED COMPENSATION PLAN


 


Effective May 1, 2005


 


Purpose


 


The purpose of this
Mercantile Bankshares Corporation Deferred Compensation Plan is to provide
specified benefits to a select group of management or highly compensated
employees of Mercantile Bankshares Corporation and those of its affiliates that
are participating employers under this Plan as set forth in Section 1.15.  This Plan shall be unfunded for tax purposes
and for purposes of Title I of the Employee Retirement Income Security Act of
1974, as amended.  This Plan is intended
to comply with the requirements of Section 409A of the Internal Revenue
Code of 1986, as amended, as added by the American Jobs Creation Act of 2004
and the Treasury regulations or any other authoritative guidance issued
thereunder.


 


ARTICLE 1

Definitions


 


For purposes of this Plan,
unless otherwise clearly apparent from the context, the following phrases or
terms shall have the following indicated meanings:


 


1.1           “Account Balance” shall mean, with respect to
a Participant, a credit on the records of the Company equal to the sum of (i)
the Deferral Account balance, (ii) the Company Matching Account balance, (iii)
the Company Basic Account balance, and (iv) the Company Discretionary Account
balance.  The Account Balance, and each
other specified account balance, shall be a bookkeeping entry only and shall be
utilized solely as a device for the measurement and determination of the
amounts to be paid to a Participant, or his or her designated Beneficiary,
pursuant to this Plan.


 


1.2           “Administrator” shall mean the Employee
Benefit Administration Committee, the members of which shall be appointed form
time to time by the Employee Benefit Committee of the Board of Directors of


 


1





















 


the Sponsor, which shall be
responsible for the general administration of the Plan except as otherwise
specified.


 


1.3           “Annual Base Salary” shall mean the annual
cash compensation relating to services performed during any calendar year,
whether or not paid in such calendar year or included on the Federal Income Tax
Form W-2 for such calendar year, excluding Incentive Payments, commissions,
overtime, fringe benefits, stock options, relocation expenses, non-monetary
awards, fees, automobile and other allowances paid to a Participant for
employment services rendered (whether or not such allowances are included in
the Employee’s gross income).  Annual
Base Salary shall be calculated without regard to any reductions for
compensation voluntarily deferred or contributed by the Participant pursuant to
all qualified or non-qualified plans of the Company (and therefore shall be
calculated to include amounts not otherwise included in the Participant’s
gross income under Code Sections 125, 402(e)(3) or 402(h) pursuant to plans
established by the Company).


 


1.4           “Annual Company Basic Amount” shall mean, for
the Plan Year of reference, the amount determined in accordance with Section 3.7.


 


1.5           “Annual Company Discretionary Amount” shall
mean, for the Plan Year of reference, the amount determined in accordance with Section 3.5.


 


1.6           “Annual Company Matching Amount” shall mean
for the Plan Year of reference, the amount determined in accordance with Section 3.6.


 


1.7           “Annual Deferral Amount” shall mean that
portion of a Participant’s Annual Base Salary and Incentive Payments that a
Participant elects to have, and is, deferred in accordance with Article 3,
for the Plan Year of reference.  In the
event of a Participant’s Retirement, Disability (if deferrals cease
in accordance with Section 8.1), death or a Termination of Employment
prior to the end of a Plan Year, such year’s Annual Deferral Amount shall be
the actual amount withheld prior to such event.


 


2





















 


1.8           “Beneficiary” shall mean one or more persons,
trusts, estates or other entities, designated in accordance with Article 9,
that are entitled to receive benefits under this Plan upon the death of a
Participant.


 


1.9           “Beneficiary Designation Form” shall mean the
form established from time to time by the Administrator that a Participant
completes, signs and returns to the Administrator to designate one or more
Beneficiaries.


 


1.10         “Board” shall mean the board of directors of
the Sponsor or, if the Board so directs, the Employee Benefit Committee of such
Board of Directors acting on behalf of the Board in the exercise of any and all
powers and duties of the Board pursuant to this Plan.


 


1.11         “Claimant” shall have the meaning set forth
in Section 14.2.


 


1.12         “Change In Control” shall mean a change in
control within the meaning of Section 409A(a)(2)(A)(v) and any guidance
issued thereunder from time to time by the Internal Revenue Service, including
Notice 2005-1.


 


1.13         “Code” shall mean the Internal Revenue Code
of 1986, as amended from time to time.


 


1.14         “Committee” shall mean the Employee Benefit
Committee of the Board of Directors of the Sponsor.


 


1.15         “Company” shall mean the Sponsor and any
affiliate of the Sponsor that adopts this Plan with the approval of the
President of the Sponsor, and any successor to all or substantially all of the
Company’s assets or business.


 


1.16         “Company Basic Account” shall mean (i) the
sum of the Participant’s Annual Company Basic Amounts, plus (ii) amounts
credited or debited in accordance with all the applicable crediting provisions
of this Plan that relate to the Participant’s Company Basic Account, less (iii) all distributions made to the
Participant or his or her Beneficiary pursuant to this Plan that relate to the
Participant’s Company Basic Account.


 


3





















 


1.17         “Company Discretionary Account” shall mean
(i) the sum of the Participant’s Annual Company Discretionary
Amounts, plus (ii) amounts credited or debited in accordance with all the
applicable crediting provisions of this Plan that relate to the Participant’s
Company Discretionary Account, less (iii) all distributions made to the
Participant or his or her Beneficiary pursuant to this Plan that relate to the
Participant’s Company Discretionary Account.


 


1.18         “Company Matching Account” shall mean (i) the
sum of all of a Participant’s Annual Company Matching Amounts, plus
(ii) amounts credited or debited in accordance with all the applicable
crediting provisions of this Plan that relate to the Participant’s
Company Matching Account, less (iii) all distributions made to the Participant
or his or her Beneficiary pursuant to this Plan that relate to the Participant’s
Company Matching Account.


 


1.19         “Deduction Limitation” shall mean the
following described limitation on a benefit that may otherwise be distributable
pursuant to the provisions of this Plan. 
Except as otherwise provided, this limitation shall be applied to all
distributions that are “subject to the Deduction Limitation” under this
Plan.  If the Committee determines in
good faith that there is a reasonable likelihood that any compensation paid to
a Participant for a taxable year of the Company would not be deductible by the
Company solely by reason of the limitation under Code Section 162(m), then
to the extent deemed necessary by the Committee to ensure that the entire
amount of any distribution to the Participant pursuant to this Plan is deductible,
the Committee may defer all or any portion of a distribution under this
Plan.  Any amounts deferred pursuant to
this limitation shall continue to be credited or debited with additional
amounts in accordance with Section 3.10 below, even if such amount is
being paid out in installments.  The
amounts so deferred and amounts credited or debited thereon shall be
distributed to the Participant or his or her Beneficiary (in the event of the
Participant’s death) at the earliest possible date, as determined by
the Committee in good faith, on which the deductibility of compensation paid or
payable to the Participant for the taxable year of the Company during which the
distribution is made will not be limited by Code Section 162(m).  Notwithstanding the foregoing, this Section 1.19
shall apply only to the extent permitted by Section 409A.


 


4





















 


1.20         “Deferral Account” shall mean (i) the sum of
all of a Participant’s Annual Deferral Amounts, plus (ii) amounts credited or
debited in accordance with all the applicable crediting provisions of this Plan
that relate to the Participant’s Deferral Account, less (iii) all distributions
made to the Participant or his or her Beneficiary pursuant to this Plan that
relate to his or her Deferral Account.


 


1.21         “Disability” shall mean, except as may
otherwise be required by Section 409A, a period of disability during which
a Participant (i) is 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 twelve (12) months; or (ii) is, 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
twelve (12) months, receiving income replacement benefits for a period of not
less than three (3) months under an accident and health plan covering Employees
of the Company.


 


1.22         “Disability Benefit” shall mean the benefit
set forth in Article 8.


 


1.23         “Effective Date” shall mean the effective
date of this Plan, which is May 1, 2005.


 


1.24         “Election Form” shall mean the form or forms
established from time to time by the Administrator that a Participant
completes, signs and returns to the Administrator to make an election under the
Plan (which form or forms may take the form of an electronic transmission, if
required or permitted by the Administrator).


 


1.25         “Employee” shall mean an individual who the
Company treats as an “employee” for Federal income tax withholding purposes.


 


1.26         “ERISA” shall mean the Employee Retirement
Income Security Act of 1974, as amended from time to time.


 


1.27         “401(k) Plan” shall mean the Employees’
Thrift Plan of Mercantile Bankshares Corporation and Participating Affiliates,
as amended from time to time.


 


5





















 


1.28         “Incentive Payments” shall mean any
compensation paid to a Participant under any incentive plans or bonus
arrangements of the Company with respect to which the Administrator in its
discretion permits deferrals to be made hereunder, relating to services
performed during any calendar year, whether or not paid in such calendar year or
included on the Federal Income Tax Form W-2 for such calendar year.


 


1.29         “Participant” shall mean any Employee who is
selected by the Committee to participate in the Plan, provided such individual
(i) elects to participate in the Plan, (ii) signs a Plan Agreement, an Election
Form(s) and a Beneficiary Designation Form, (iii) has his or her signed Plan
Agreement, Election Form(s) and Beneficiary Designation Form accepted by the
Administrator, (iv) commences participation in the Plan, and (v) does not have
his or her Plan Agreement terminated.  A
spouse or former spouse of a Participant shall not be treated as a Participant
in the Plan or have an Account Balance under the Plan under any circumstance.


 


1.30         “Performance-Based Compensation” shall mean
that portion of a Participant’s Incentive Payments which is based on the
performance by the Participant of services for the Company over a period of at
least twelve (12) months and which qualifies as “performance-based compensation”
under Section 409A.


 


1.31         “Plan” shall mean this Mercantile Bankshares
Corporation Deferred Compensation Plan, as evidenced by this instrument and by
each Plan Agreement, as they may be further amended from time to time.


 


1.32         “Plan Agreement” shall mean a written
agreement (which may take the form of an electronic transmission, if required
or permitted by the Administrator), as may be amended from time to time, which
is entered into by and between the Company and a Participant.  Each Plan Agreement executed by a Participant
and the Company shall provide for the entire benefit to which such Participant
is entitled under the Plan; should there be more than one Plan Agreement, the
Plan Agreement bearing the latest date of acceptance by the Company shall
supersede all previous Plan Agreements in their entirety and shall govern such
entitlement.  The terms of any Plan
Agreement may be different for any Participant, and any Plan Agreement may
provide


 


6





















 


additional benefits not set
forth in the Plan or limit the benefits otherwise provided under the Plan;
provided, however, that any such additional benefits or benefit limitations
must be agreed to by both the Company and the Participant.  In the Plan Agreement, each Participant shall
acknowledge that he or she accepts all of the terms of the Plan including the
discretionary authority of the Committee and Administrator as set forth in Article 12.


 


1.33         “Plan Year” shall mean a period beginning on January 1
of each calendar year and continuing through December 31 of such calendar
year during which this Plan is in effect.


 


1.34         “Pre-Retirement Survivor Benefit” shall mean
the benefit set forth in Article 6.


 


1.35         “Retirement”, “Retire(s)” or “Retired” shall
mean Separation from Service with the Company for any reason other than a leave
of absence, death or Disability on or after the later of attainment of (i) age
sixty-five (65), (ii) age fifty-five (55) with ten (10) Years of Service or
(iii) a combined age and Years of Service of seventy-five (75).


 


1.36         “Retirement Benefit” shall mean the benefit
set forth in Article 5.


 


1.37         “Section 409A” shall mean Code Section 409A
and the Treasury regulations or other authoritative guidance issued thereunder.


 


1.38         “Separation from Service” shall mean
separation from service within the meaning of Section 409A.


 


1.39         “Short-Term Payout” shall mean the payout set
forth in Article 4.


 


1.40         “Specified Employee” shall mean, with respect
to a corporation any stock of which is publicly traded on an established
securities market or otherwise, a key employee, as currently defined in Code Section 416(i)
(without regard to paragraph (5) thereof) to mean, as of the Effective Date, an
Employee of the Company who, at any time during the Plan Year, is (1) an
officer of the Company having an annual compensation greater than one hundred
thirty-five thousand dollars ($135,000) for 2005 (indexed for inflation in
future years); (ii) a five-


 


7





















 


percent (5%) owner of the
Company; or (iii) a one-percent (1%) owner of the Company having an annual
compensation from the Company of more than one hundred fifty thousand dollars
($150,000).


 


1.41         “Sponsor” shall mean Mercantile Bankshares
Corporation, and any successor to all or substantially all of the Sponsor’s
assets or business.


 


1.42         “Termination Benefit” shall mean the benefit
set forth in Article 7.


 


1.43         “Termination of Employment” shall mean
Separation from Service with the Company, voluntarily or involuntarily, for any
reason other than Retirement, Disability, death or an authorized leave of
absence.


 


1.44         “Trust” shall mean the trust established
pursuant to this Plan, as amended from time to time.  The assets of the Trust shall be the property
of the Company.


 


1.45         “Unforeseeable Financial Emergency” shall
mean an unanticipated emergency that is caused by an event beyond the control
of the Participant that would result in severe financial hardship to the
Participant resulting from (i) an illness or accident of the Participant, the
Participant’s spouse or a dependent of the Participant, (ii) a loss
of the Participant’s property due to casualty, or (iii) such other
extraordinary and unforeseeable circumstances arising as a result of events
beyond the control of the Participant, all as determined in the sole discretion
of the Administrator.


 


1.46         “Yearly Installment Method” shall be a yearly
installment payment over the number of years selected by the Participant in
accordance with this Plan, calculated as follows:  The Account Balance of the Participant (or
the appropriate portion thereof) shall be calculated as of the close of
business on the date of reference (or, if the date of reference is not a
business day, on the immediately following business day), and shall be paid as
soon as practicable thereafter.  The date
of reference with respect to the first (1st) yearly installment
payment shall be as provided in Section 5.2 or Section 8.2, as
applicable, and the date of reference with respect to subsequent yearly
installment payments shall be the last day of the following Plan Year.  The yearly installment shall be calculated by
multiplying this balance by a fraction, the numerator of which is one (1), and
the denominator of


 


8





















 


which is the remaining
number of yearly payments due the Participant. 
By way of example, if the Participant elects a ten (10) year Yearly
Installment Method, the first payment shall be one-tenth (1/10) of the Account
Balance, calculated as described in this definition.  The following year, the payment shall be
one-ninth (1/9) of the Account Balance, calculated as described in this
definition.


 


1.47         “Years of Service” shall mean the total
number of full years in which a Participant has been employed by the
Company.  For purposes of this
definition, a year of employment shall be a three hundred sixty-five (365) day
period (or three hundred sixty-six (366) day period in the case of a leap year)
that, for the first year of employment, commences on the Employee’s date of
hiring and that, for any subsequent year, commences on an anniversary of that
hiring date.  Any partial year of
employment shall not be counted.


 


ARTICLE 2

Selection/Enrollment/Eligibility


 


2.1           Eligibility.  As
of the Effective Date, participation in the Plan shall be limited to Employees
who the Committee designates, in its sole discretion, for participation,
provided that Employees may not participate in the Plan unless they are members
of a select group of management or highly compensated employees of the Company,
as membership in such group is determined in accordance with Sections 201(2),
301(a)(3) and 401(a)(1) of ERISA (which determination shall be made by the
Committee in its sole discretion).


 


2.2           Enrollment Requirements.  As a
condition to participation, each selected Employee shall complete, execute and
return to the Administrator a Plan Agreement, an Election Form(s) and a
Beneficiary Designation Form, all within thirty (30) days after he or she is
notified or becomes eligible to participate in the Plan.  In addition, the Administrator shall
establish from time to time such other enrollment requirements as it determines
in its sole discretion are necessary.


 


2.3           Commencement of Participation. 
Provided a selected Employee has
met all enrollment requirements set forth in this Plan and required by
the Administrator, including returning all required documents to the


 


9





















 


Administrator within the
specified time period, that individual shall commence participation in the Plan
on the first day of the month following the month in which he or she completes
all enrollment requirements (or as soon as practicable thereafter as the
Administrator may determine).  If he or
she fails to meet all such requirements within the period required, in
accordance with Section 2.2, that individual shall not be eligible to
participate in the Plan until the first day of the following Plan Year, again
subject to timely delivery to and acceptance by the Administrator of the
required documents.


 


2.4           Termination of Participation and/or Deferrals.  If
the Committee determines in good faith that a Participant no longer qualifies
as a member of a select group of management or highly compensated employees of
the Company, the Committee shall have the right, in its sole discretion and
subject to Section 409A, to (i) terminate any deferral election the
Participant has made for the remainder of the Plan Year in which the
Participant’s membership status changes, (ii) prevent the
Participant from making future deferral elections and/or (iii) immediately
distribute the Participant’s then vested Account Balance as a
Termination Benefit and terminate the Participant’s participation in
the Plan.


 


ARTICLE 3

Deferral Commitments/Company Contributions/Crediting/Taxes


 


3.1           Minimum Deferral.  For each Plan Year, a
Participant may elect to defer, as his or her Annual Deferred Amount, Annual
Base Salary and/or Incentive Payments in the minimum amount of two thousand
dollars ($2,000) of each such item of compensation.


 


Notwithstanding the
foregoing, the Administrator may, in its sole discretion, establish for any
Plan Year a different minimum amount for Annual Base Salary and/or Incentive
Payments.  If an election is made with
respect to either such item of compensation for less than the stated minimum
amount, or if no election is made, the amount deferred with respect to either
such item of compensation shall be zero (0).


 


10





















 


3.2           Maximum Deferral.


 


(a)           Annual Base Salary and Incentive Payments.  For
each Plan Year, a Participant may elect to defer, as his or her Annual Deferral
Amount, Annual Base Salary and/or Incentive Payments up to the following
maximum percentages for each deferral elected:


 


	
  Deferral

  	
   

  	
  Maximum Amount

  	
   

  
	
  Annual Base Salary

  	
   

  	
  75

  	
  %

  
	
  Incentive Payments

  	
   

  	
  100

  	
  %

  



 


(b)           Administrator’s Discretion. 
Notwithstanding the foregoing, (i) the Administrator may, in its sole
discretion, establish for any Plan Year maximum percentages which differ from
those set forth above, and (ii) if a Participant first becomes a Participant
after the first day of a Plan Year, the maximum Annual Deferral Amount with
respect to Annual Base Salary or Incentive Payments shall be limited to the
percentage of such compensation not yet earned by the Participant as of the
date the Participant submits a Plan Agreement and Election Form(s) to the
Administrator for acceptance.


 


3.3           Election to Defer/Change in Election.


 


(a)           Timing of Election. 
Except as provided below, a Participant shall make an Annual Base Salary
and/or Incentive Payments deferral election with respect to a coming twelve
(12) month Plan Year, provided that a deferral election that a Participant
makes with respect to his or her 2005 Annual Base Salary shall be effective for
the period commencing May 1, 2005 and ending December 31, 2005.  Such election must be made during such period
as shall be established by the Administrator which ends no later than the last
day of the Plan Year preceding the Plan Year in which the services giving rise
to the Annual Base Salary and/or Incentive Payments to be deferred are to be
performed.


 


Notwithstanding the
preceding, in the case of the first Plan Year in which an Employee becomes
eligible to become a Participant, if and to the extent permitted by the
Administrator, the individual may make an election no later than thirty (30)


 


11





















 


days after the date he or
she becomes eligible to become a Participant to defer Annual Base Salary and/or
Incentive Payments for services to be performed after the election.  Also, notwithstanding the preceding, if and
to the extent permitted by the Administrator, a Participant may make an
election to defer that portion (if any) of his or her Incentive Payments which
qualifies as Performance-Based Compensation no later than six (6) months prior
to the last day of the period over which the services giving rise to the
Performance-Based Compensation are performed.


 


Notwithstanding the
preceding, the Administrator shall, in its discretion, be permitted to cause to
be paid to the Participant Annual Base Salary and/or Incentive Payments rather
than being deferred under the Plan if, under Section 409A, an earlier
election was required in order to properly defer tax with respect to such
amount(s).  In addition, the
Administrator, in its discretion, shall be permitted to allow a Participant to
revoke or modify an Annual Base Salary and/or Incentive Payments deferral
election he or she has made if Section 409A provides an opportunity to later
modify a deferral election with respect to such amount(s); provided, however,
that no such revocation or modification will be effective or available if and
to the extent Section 409A provides that such revocation or modification,
or the availability thereof, prevents the proper deferral of tax with respect
to such Incentive Payments.


 


(b)           Manner of Election.  For
any Plan Year (or portion thereof), a deferral election for that Plan Year (or
portion thereof), and such other elections as the Administrator deems necessary
or desirable under the Plan, shall be made by timely delivering to the
Administrator, in accordance with its rules and procedures, by the deadline(s)
set forth above, an Election Form, along with such other elections as the
Administrator deems necessary or desirable under the Plan.  For these elections to be valid, the Election
Form(s) must be completed and signed by the Participant, timely delivered to
the Administrator (in accordance with Section 2.2 above) and accepted by
the Administrator.  If no such Election
Form(s) is timely delivered


 


12





















 


for a Plan Year (or portion
thereof), the Annual Deferral Amount shall be zero (0) for that Plan Year (or
portion thereof).


 


(c)           Change in Election.  A
Participant may not elect to change his or her deferral election that is in
effect for a Plan Year, except if and to the extent permitted by the
Administrator and made in accordance with the provisions of Section 409A
specifically relating to the change and/or revocation of deferral elections.


 


3.4           Withholding of Annual Deferral Amounts.  For each Plan Year, the Annual
Base Salary portion of the Annual Deferral Amount shall be withheld from each
regularly scheduled Annual Base Salary payroll in the percentage elected by the
Participant, as adjusted from time to time for increases and decreases in
Annual Base Salary.  The Incentive
Payments portion of the Annual Deferral Amount shall be withheld at the time
the Incentive Payments are or otherwise would be paid to the Participant,
whether or not this occurs during the Plan Year itself.


 


3.5           Annual Company Discretionary Amount.  For each Plan Year, the
Committee, acting on behalf of the Company and in its sole discretion, may, but
is not required to, credit any amount it desires to any Participant’s Company
Discretionary Account under this Plan, which amount shall be for that
Participant the Annual Company Discretionary Amount for that Plan Year.  The amount so credited to a Participant may
be smaller or larger than the amount credited to any other Participant, and the
amount credited to any Participant for a Plan Year may be zero (0), even though
one or more other Participants receive an Annual Company Discretionary Amount
for that Plan Year.  Unless otherwise
specified by the Committee, the Annual Company Discretionary Amount, if any,
shall be credited as of the last day of the Plan Year.  Unless otherwise specified by the Committee,
if a Participant to whom an Annual Company Discretionary Amount is credited is
not employed by the Company as of the last day of a Plan Year other than by
reason of his or her death or Disability, the Annual Company Discretionary
Amount for that Plan Year shall be zero (0).


 


3.6           Annual Company Matching Amount.  A
Participant’s Annual Company Matching Amount for the Plan Year of
reference shall be equal to the amount of the Company matching contribution
that would be made to the 401(k) Plan if the 401(k) Plan were permitted to


 


13





















 


include in its definition of
“compensation” for Company matching contribution purposes the Participant’s
Annual Deferral Amount, reduced by the amount of any Company matching
contributions that are made to the 401(k) Plan on the Participant’s behalf for
the plan year of the 401(k) Plan that corresponds to the Plan Year.  This Section shall not result in any
Annual Company Matching Amount hereunder that would exceed, when considering
the Company matching contribution amounts contributed to the 401(k) Plan for the
Plan Year, the total Company matching contribution that would be made on behalf
of a participant in the 401(k) Plan who earns compensation in excess of the
dollar limit on recognizable compensation under Code section 401(a)(17).  A Participant who is not eligible for the
Plan Year (or for any portion thereof) to receive an allocation of Company
matching contributions under the 401(k) Plan shall not be eligible for the Plan
Year (or for any such portion) for the allocation of an Annual Company Matching
Amount hereunder.


 


Unless otherwise specified
by the Administrator, the Annual Company Matching Amount, if any, shall be
credited as soon as practicable after the last day of the Plan Year.  Unless otherwise specified by the Administrator,
if a Participant to whom an Annual Company Matching Amount is credited is not
employed by the Company as of the last day of a Plan Year, the Annual Company
Matching Amount for that Plan Year shall be zero (0).


 


3.7           Annual Company Basic Amount.  A
Participant’s Annual Company Basic Amount for the Plan Year of
reference shall be equal to the amount of the Company basic contribution that
would be made to the 401(k) Plan if the 401(k) Plan were permitted to include
in its definition of “compensation” for Company basic contribution purposes the
Participant’s Annual Deferral Amount, reduced by the amount of any
Company basic contributions that are made to the 401(k) Plan on the Participant’s
behalf for the plan year of the 401(k) Plan that corresponds to the Plan
Year.  This Section shall not result
in any Annual Company Basic Amount hereunder that would exceed, when
considering the Company basic contribution amounts contributed to the 401(k)
Plan for the Plan Year, the total Company basic contribution that would be made
on behalf of a participant in the 401(k) Plan who earns compensation in excess
of the dollar limit on recognizable compensation under Code section 401(a)(17).  A


 


14





















 


Participant who is not
eligible for the Plan Year (or for any portion thereof) to receive an
allocation of Company basic contributions under the 401(k) Plan shall not be
eligible for the Plan Year (or for any such portion) for the allocation of an
Annual Company Basic Amount hereunder.


 


Unless otherwise specified
by the Committee, the Annual Company Basic Amount, if any, shall be credited as
soon as practicable after the last day of the Plan Year.  Unless otherwise specified by the Committee,
if a Participant to whom an Annual Company Basic Amount is credited is not
employed by the Company as of the last day of a Plan Year, the Annual Company
Basic Amount for that Plan Year shall be zero (0).


 


3.8           Investment of Trust Assets.  The trustee of the Trust shall
be authorized, upon written instructions received from the Administrator or
investment manager appointed by the Administrator, to invest and reinvest the
assets of the Trust in accordance with the applicable Trust agreement,
including the reinvestment of the proceeds in one or more investment vehicles
designated by the Administrator.


 


3.9           Vesting.


 


(a)                                  A Participant shall at all times be one
hundred percent (100%) vested in his or her Deferral Account, Company Matching
Account and Company Basic Account.


 


(b)                                 A Participant shall become vested in his or
her Company Discretionary Account pursuant to a vesting schedule, if any,
approved and documented by the Committee at the time the Annual Company
Discretionary Amount is credited to the Participant’s Company
Discretionary Account.


 


3.10         Crediting/Debiting of Account Balances.  In accordance with, and
subject to, the rules and procedures that are established from time to time by
the Administrator, in its sole discretion, amounts shall be credited or debited
to a Participant’s Account Balance in accordance with the following rules:


 


15





















 


(a)           Sub-Accounts. 
Separate sub-accounts shall be established and maintained with respect
to each Participant’s Account Balance (together, the “Sub-Accounts”), if and as
applicable, one attributable to the portion of the Participant’s Account
Balance which represents Annual Base Salary deferrals, another attributable to
the portion of the Participant’s Account Balance which represents Incentive
Payment deferrals, and another attributable to the portion of the Participant’s
Account Balance which represents Annual Company Matching Amounts, Annual
Company Basic Amounts and Annual Company Discretionary Amounts.


 


(b)           Election of Measurement Funds.  A
Participant, in connection with his or her initial deferral election in
accordance with Section 3.3 above, shall elect, on the Election Form(s),
one or more Measurement Fund(s) (as described in Section 3.10(d) below) to
be used to determine the additional amounts to be credited or debited to each
of his or her Sub-Accounts for the first business day of the Plan Year,
continuing thereafter unless changed in accordance with the next sentence.  Commencing with the first business day of the
Plan Year, and continuing thereafter for the remainder of the Plan Year (unless
the Participant ceases during the Plan Year to participate in the Plan), the
Participant may (but is not required to) elect daily, by submitting an Election
Form(s) to the Administrator that is accepted by the Administrator (which
submission may take the form of an electronic transmission, if required or
permitted by the Administrator), to add or delete one or more Measurement
Fund(s) to be used to determine the additional amounts to be credited or
debited to each of his or her Sub-Accounts, or to change the portion of each of
his or her Sub-Accounts allocated to each previously or newly elected
Measurement Fund(s).  If an election is
made in accordance with the previous sentence, it shall apply to the next
business day and continue thereafter for the remainder of the Plan Year (unless
the Participant ceases during the Plan Year to participate in the Plan), unless
changed in accordance with the previous sentence.


 


(c)           Proportionate Allocation.  In
making any election described in Section 3.10(b) above, the Participant
shall specify on the


 


16





















 


Election Form(s), in whole
percentage points, the percentage of each of his or her Sub-Account(s) to be
allocated to a Measurement Fund (as if the Participant was making an investment
in that Measurement Fund with that portion of his or her Account Balance).


 


(d)           Measurement Funds.  The
Participant may elect one or more of the Measurement Funds set forth on Schedule A
(the “Measurement Funds”) for the purpose of crediting or debiting additional
amounts to his or her Account Balance. 
The Administrator may, in its sole discretion, discontinue, substitute
or add a Measurement Fund(s).  Each such
action will take effect as of the first business day that follows by thirty
(30) days the day on which the Administrator gives Participants advance written
(which shall include e-mail) notice of such change.  If the Administrator receives an initial or
revised Measurement Fund(s) election which it deems to be incomplete, unclear
or improper, the Participant’s Measurement Fund(s) election then in effect
shall remain in effect (or, in the case of a deficiency in an initial
Measurement Fund(s) election, the Participant shall be deemed to have filed no
deemed investment direction).  If the
Administrator possesses (or is deemed to possess as provided in the previous
sentence) at any time directions as to Measurement Fund(s) of less than all of
the Participant’s Account Balance, the Participant shall be deemed to have
directed that the undesignated portion of the Account Balance be deemed to be
invested in a money market, fixed income or similar Measurement Fund made
available under the Plan as determined by the Administrator in its
discretion.  Each Participant hereunder,
as a condition to his or her participation hereunder, agrees to indemnify and
hold harmless the Committee, the Administrator and the Company, and their
agents and representatives, from any losses or damages of any kind relating to
(i) the Measurement Funds made available hereunder and (ii) any discrepancy
between the credits and debits to the Participant’s Account Balance based on
the performance of the Measurement Funds and what the credits and debits
otherwise might be in the case of an actual investment in the Measurement
Funds.


 


17





















 


(e)           Crediting or Debiting Method.  The
performance of each elected Measurement Fund (either positive or negative) will
be determined by the Administrator, in its sole discretion, based on the
performance of the Measurement Funds themselves.  A Participant’s Account Balance
shall be credited or debited on a daily basis based on the performance of each
Measurement Fund selected by the Participant, or as otherwise determined by the
Administrator in its sole discretion, as though (i) a Participant’s
Account Balance were invested in the Measurement Fund(s) selected by the
Participant, in the percentages elected by the Participant as of such date, at
the closing price on such date; (ii) the portion of the Annual Deferral Amount
that was actually deferred was invested in the Measurement Fund(s) selected by
the Participant, in the percentages elected by the Participant, no later than
the close of business on the third (3rd) business day after the day on which
such amounts are actually deferred from the Participant’s Annual Base Salary
and Incentive Payments through reductions in his or her amounts otherwise
payable, at the closing price on such date; and (iii) any distribution made to
a Participant that decreases such Participant’s Account Balance
ceased being invested in the Measurement Fund(s), in the percentages applicable
to such calendar month, no earlier than three (3) business days prior to the
distribution, at the closing price on such date.


 


(f)            No Actual Investment. 
Notwithstanding any other provision of this Plan that may be interpreted
to the contrary, the Measurement Funds are to be used for measurement purposes
only, and a Participant’s election of any such Measurement Fund, the allocation
to his or her Account Balance thereto, the calculation of additional amounts
and the crediting or debiting of such amounts to a Participant’s Account
Balance shall not be considered or construed in any manner as an actual
investment of his or her Account Balance in any such Measurement Fund.  In the event that the Company or the trustee
(as that term is defined in the Trust), in its own discretion, decides to
invest funds in any or all of the Measurement Funds, no Participant shall have
any rights in or to such investments themselves.  Without limiting the foregoing, a Participant’s
Account Balance


 


18





















 


shall at all times be a
bookkeeping entry only and shall not represent any investment made on his or
her behalf by the Company or the Trust; the Participant shall at all times
remain an unsecured general creditor of the Company.


 


(g)           Beneficiary Elections.  Each
reference in this Section 3.10 to a Participant shall be deemed to
include, where applicable, a reference to a Beneficiary.


 


3.11         FICA and Other Taxes.


 


(a)           Annual Deferral Amounts.  For
each Plan Year in which an Annual Deferral Amount is being withheld from a
Participant, the Company shall withhold from that portion of the Participant’s
Annual Base Salary and/or Incentive Payments that is not being deferred, in a
manner determined by the Company, the Participant’s share of FICA
and other employment taxes on such Annual Deferral Amount. If necessary, the
Administrator may reduce the Annual Deferral Amount in order to comply with
this Section 3.11.


 


(b)           Annual Company Matching Amounts and Annual
Company Basic Amounts.  For each Plan Year in which an Annual Company
Matching Amount and/or an Annual Company Basic Amount is credited to the
Account Balance of a Participant, the Company shall have the discretion to
withhold from the Participant’s Annual Base Salary and/or Incentive
Payments that is not deferred, in a manner determined by the Company, the
Participant’s share of FICA and other employment taxes.  If necessary, the Administrator may reduce the
vested portion of the Participant’s Annual Company Matching Amounts or Annual
Company Basic Amounts in order to comply with this Section 3.11.


 


(c)           Annual Company Discretionary Amounts.  When
a Participant becomes vested in a portion of his or her Company Discretionary
Account, the Company shall have the discretion to withhold from the Participant’s
Annual Base Salary and/or Incentive Payments that is not deferred, in a manner
determined by the Company, the Participant’s share of FICA and other


 


19





















 


employment taxes.  If necessary, the Administrator may reduce
the vested portion of the Participant’s Annual Company Discretionary
Amounts in order to comply with this Section 3.11.


 


3.12         Distributions. 
Notwithstanding anything herein to the contrary, (i) any payments made
to a Participant under this Plan shall be in cash form, and (ii) the Company,
or the trustee of the Trust, shall withhold from any payments made to a
Participant under this Plan all Federal, state and local income, employment and
other taxes required to be withheld by the Company, or the trustee of the
Trust, in connection with such payments, in amounts and in a manner to be
determined in the sole discretion of the Company and the trustee of the Trust.


 


ARTICLE 4

Short-Term Payout/Unforeseeable Financial Emergencies


 


4.1           Short-Term Payout.  In connection with each
election to defer an Annual Deferral Amount, a Participant may irrevocably
elect to receive a future “Short-Term Payout” from the Plan.  Except as otherwise required by the
Administrator, such election may be made separately with respect to each Plan
Year’s Annual Base Salary and/or Incentive Payments that have been
deferred. Subject to the Deduction Limitation and to Section 3.12, the
Short-Term Payout shall be a lump sum payment in an amount that is equal to
that year’s Annual Base Salary and/or Incentive Payment deferrals, and amounts
credited or debited thereto in the manner provided in Section 3.10 above,
determined at the time that the Short-Term Payout becomes payable (rather than
the date of a Termination of Employment). 
Subject to the terms and conditions of this Plan, each Short-Term Payout
elected shall be paid out during the month of March of the Plan Year
designated by the Participant that is at least three (3) Plan Years after the
Plan Year in which the Annual Deferral Amount is actually deferred, as
specifically elected by the Participant. 
By way of example, if a three (3) year Short-Term Payout is elected by a
Participant for Annual Base Salary or Incentive Payment deferrals that are
deferred in the Plan Year commencing May 1, 2005, the three (3) year Short-Term
Payout would become payable during March of 2009.  Notwithstanding the preceding sentences or
any other provision of this Plan that may be construed to the contrary, a
Participant who is


 


20





















 


an active Employee may, with
respect to each Short-Term Payout, on a form determined by the Administrator,
make one (1) or more additional deferral elections (a “Subsequent Election”) to
defer payment of such Short-Term Payout to a Plan Year subsequent to the Plan
Year originally (or subsequently) elected; provided, however, any such Subsequent
Election will be null and void unless accepted by the Administrator no later
than one (1) year prior to the first day of the Plan Year in which, but for the
Subsequent Election, such Short-Term Payout would be paid, and such Subsequent
Election provides for a deferral of at least five (5) Plan Years following the
Plan Year in which the Short-Term Payout, but for the Subsequent Election,
would be paid.


 


4.2           Other Benefits Take Precedence Over
Short-Term Payout. 
Should an event occur that triggers a benefit under Article 5, 6, 7
or 8, any Annual Deferral Amounts, plus amounts credited or debited thereon,
that are subject to a Short-Term Payout election under Section 4.1 shall
not be paid in accordance with Section 4.1 but shall be paid in accordance
with the other applicable Article.


 


4.3           Withdrawal Payout/Suspensions for
Unforeseeable Financial Emergencies.  If a Participant experiences
an Unforeseeable Financial Emergency, the Participant may petition the
Administrator to (i) suspend any deferrals required to be made by a Participant
and/or (ii) receive a partial or full payout from the Plan.  The payout shall not exceed the lesser of the
Participant’s vested Account Balance, calculated as if such Participant were
receiving a Termination Benefit, or the amount reasonably needed to satisfy the
Unforeseeable Financial Emergency plus amounts necessary to pay taxes
reasonably anticipated as a result of the payouts, after taking into account
the extent to which the Unforeseeable Financial Emergency is or may be relieved
through reimbursement or compensation by insurance or otherwise or by
liquidation of the Participant’s assets (to the extent the
liquidation of assets would not itself cause severe financial hardship).  A suspension or payout under this Section 4.3
shall be permitted solely to the extent permitted under Code Section 409A.  If, subject to the sole discretion of the
Administrator, the petition for a suspension and/or payout is approved,
suspension shall take effect upon the date of approval and any payout shall be
made within sixty (60) days of the


 


21










 













date of approval. 
The payment of any amount under this Section 4.3 shall not be subject to
the Deduction Limitation.


 


ARTICLE 5

Retirement Benefit


 


5.1           Retirement Benefit.  A
Participant who Retires shall receive, as a Retirement Benefit, his or her
entire Account Balance.


 


5.2           Payment of Retirement Benefit. 
Except as provided below, a Participant, in connection with his or her
commencement of participation in the Plan, shall elect on an Election Form to
receive the portion of his or her Account Balance attributable to Annual
Deferral Amounts in a lump sum or pursuant to a Yearly Installment Method of
between two (2) and fifteen (15) years. 
Except as otherwise required by the Administrator, such election may be
made separately with respect to each Plan Year’s Annual Base Salary and/or
Incentive Payments that have been deferred. 
If a Participant does not make any election with respect to the payment
of the Retirement Benefit, then such benefit shall be payable in a lump sum.


 


Notwithstanding the above or anything herein that
may suggest otherwise, the portion (if any) of the Participant’s Account
Balance attributable to Annual Company Matching Amounts and Annual Company
Basic Amounts shall be received by the Participant solely as a lump sum
payment, and the portion of the Participant’s Account Balance
attributable to Annual Company Discretionary Amounts shall be received by a
Participant solely in the form(s) of payment approved and documented by the
Committee at the time the Annual Company Discretionary Amount is credited to
the Participant’s Company Discretionary Account.


 


Unless an election is changed by the Participant as
provided below, such Retirement Benefit shall be paid (or shall commence, in
the case of installment payments) during either the March or September of the
Plan Year following the date of the Participant’s Retirement.


 


The preceding notwithstanding, (i) any Participant
who incurs a Separation from Service with the Company during January through
June of any Plan Year shall not be entitled to receive any portion of


 


22





















 


his or her Account Balance under this Section until
March of the following Plan Year, and (ii) any Participant who incurs a
Separation from Service with the Company during July through December of any
Plan Year shall not be entitled to receive any portion of his or her Account
Balance under this Section until September of the following Plan Year.


 


The Participant may change his or her election to an
allowable alternative payout period by submitting a new Election Form to the
Administrator, provided that any such Election Form is submitted at least one
(1) year prior to the Participant’s Retirement and, if required by Section
409A, provides for a distribution (or commencement of distributions) date which
is at least five (5) Plan Years from the distribution date then in effect.  The Election Form most recently accepted by
the Administrator shall govern the payout of the Retirement Benefit with
respect to the portion of the Participant’s Account Balance to which
it pertains.


 


Notwithstanding anything above or elsewhere in the
Plan to the contrary, no change submitted on an Election Form shall be accepted
by the Company if the change accelerates the time over which distributions shall
be made to the Participant (except as otherwise permitted Section 409(A)) and
the Company shall deny any change made to an election if the Administrator
determines that the change violates the requirement under Section 409A that the
first payment with respect to which such election is made be deferred for a
period of not less than five (5) years from the date such payment would
otherwise have been made.


 


ARTICLE 6

Survivor Benefit


 


6.1           Pre-Retirement Survivor Benefit.  The
Participant’s Beneficiary shall receive a Pre-Retirement Survivor Benefit equal
to the Participant’s entire Account Balance if the Participant dies
while an Employee.


 


6.2           Payment of Pre-Retirement Survivor Benefit.  The
Pre-Retirement Survivor Benefit shall be paid in a lump sum during the March
which first follows the date on which the Administrator has been provided with
proof that is satisfactory to the Administrator of the Participant’s


 


23





















 


death.  Any
payment made hereunder shall not be subject to the Deduction Limitation.


 


6.3           Death Prior to Completion of Retirement
Benefit or Termination Benefit.  If a
Participant dies after Retirement or Termination of Employment but before the
Retirement Benefit or Termination Benefit is paid in full, the Participant’s
unpaid Retirement Benefit or Termination Benefit payments shall continue and
shall be paid to the Participant’s Beneficiary over the remaining number of
years and in the same amounts as that benefit would have been paid to the
Participant had the Participant survived. 
Any payment made hereunder shall not be subject to the Deduction
Limitation.


 


ARTICLE 7

Termination Benefit


 


7.1           Termination Benefit.  A
Participant shall receive a Termination Benefit, which shall be equal to the
Participant’s vested Account Balance if the Participant experiences
a Termination of Employment prior to his or her Retirement, death or
Disability.


 


7.2           Payment of Termination Benefit.  The
Termination Benefit shall be paid in a lump sum during either the March or
September of the Plan Year following the date of the Participant’s
Termination of Employment.  The preceding
notwithstanding, (i) any Participant who incurs a Separation from Service with
the Company during January through June of any Plan Year shall not be entitled
to receive any portion of his or her vested Account Balance under this Section
until March of the following Plan Year, and (ii) any Participant who incurs a
Separation from Service with the Company during July through December of any
Plan Year shall not be entitled to receive any portion of his or her vested
Account Balance under this Section until September of the following Plan Year.


 


24





















 


ARTICLE 8

Disability Waiver and Benefit


 


8.1           Disability Waiver.


 


(a)           Cessation of Deferral. 
Subject to Section 409A, if it is determined that a Participant is
suffering from a Disability, such Participant’s deferrals shall thereupon be
suspended.


 


(b)           Return to Work.  If a
Participant returns to employment with the Company, after a Disability ceases,
the Participant may elect to defer an Annual Deferral Amount for the Plan Year
following his or her return to employment and for every Plan Year thereafter
while a Participant in the Plan, provided such deferral elections are otherwise
allowed and an Election Form is delivered to and accepted by the Administrator
for each such election in accordance with Section 3.3 above.


 


8.2           Continued Eligibility/Disability Benefit.  A
Participant suffering a Disability shall, for benefit purposes under this Plan,
continue to be considered to be employed by the Company, and shall be eligible
for the benefits provided for in Articles 4, 5, 6 or 7 in accordance with the
provisions of those Articles. 
Notwithstanding the above, subject to Section 409A, the Administrator
shall have the right to, in its sole and absolute discretion and for purposes
of this Plan only, and must in the case of a Participant who is otherwise
eligible to Retire, deem the Participant to have experienced a Termination of
Employment, or in the case of a Participant who is eligible to Retire, to have
Retired, at any time (or in the case of a Participant who is eligible to
Retire, as soon as practicable) after such Participant is determined to be
suffering a Disability, in which case the Participant shall receive a
Disability Benefit equal to his or her entire Account Balance at the time of
the Administrator’s determination; provided, however, that should
the Participant otherwise have been eligible to Retire, he or she shall be paid
in accordance with Article 5.  Subject to
Section 409A, the Disability Benefit shall be paid in a lump sum during the
March which first follows the date of the Administrator’s exercise
of such right.  Any payment made
hereunder shall not be subject to the Deduction Limitation.


 


ARTICLE 9

Beneficiary Designation


 


9.1           Beneficiary.  Each
Participant shall have the right, at any time, to designate his or her
Beneficiary(ies) (both primary as well as


 


25





















 


contingent) to receive any benefits payable under
the Plan upon the death of a Participant. 
The Beneficiary designated under this Plan may be the same as or
different from the Beneficiary designation under any other plan of the Company
in which the Participant participates.


 


9.2           Beneficiary Designation/Change.  A
Participant shall designate his or her Beneficiary by completing and signing
the Beneficiary Designation Form, and returning it to the Administrator or its
designated agent.  A Participant shall
have the right to change a Beneficiary by completing, signing and otherwise
complying with the terms of the Beneficiary Designation Form and the
Administrator’s rules and procedures, as in effect from time to
time.  Upon the acceptance by the Administrator
of a new Beneficiary Designation Form, all Beneficiary designations previously
filed shall be canceled.  The
Administrator shall be entitled to rely on the last Beneficiary Designation
Form filed by the Participant and delivered to the Administrator prior to his
or her death.


 


9.3           Acknowledgment.  No
designation or change in designation of a Beneficiary shall be effective until
received and acknowledged in writing by the Administrator or its designated
agent.


 


9.4           No Beneficiary Designation.  If a
Participant fails to designate a Beneficiary as provided in Sections 9.1, 9.2
and 9.3 above or, if all designated Beneficiaries predecease the Participant or
die prior to complete distribution of the Participant’s benefits,
then the Participant’s designated Beneficiary shall be deemed to be
his or her surviving spouse, or, if the Participant has no surviving spouse,
the benefits remaining under the Plan to be paid to a Beneficiary shall be
payable to the executor or personal representative of the Participant’s
estate.


 


9.5           Doubt as to Beneficiary.  If the Administrator has any doubt as to the
proper Beneficiary to receive payments pursuant to this Plan, the Administrator
shall have the right, exercisable in its sole discretion, to cause the Company
to withhold such payments until this matter is resolved to the Administrator’s
satisfaction.


 


26





















 


9.6           Discharge of Obligations.  The
payment of benefits under the Plan to a person believed in good faith by the
Administrator to be a valid Beneficiary shall fully and completely discharge
the Company and the Administrator from all further obligations under this Plan
with respect to the Participant, and that Participant’s Plan
Agreement shall terminate upon such full payment of benefits.  Neither the Administrator nor the Company
shall be obliged to search for any Participant or Beneficiary beyond the
sending of a registered letter to such last known address.  If the Administrator notifies any Participant
or Beneficiary that he or she is entitled to an amount under the Plan and the
Participant or Beneficiary fails to claim such amount or make his or her
location known to the Administrator within three (3) years thereafter, then,
except as otherwise required by law, if the location of one or more of the next
of kin of the Participant is known to the Administrator, the Administrator may
direct distribution of such amount to any one or more or all of such next of
kin, and in such proportions as the Administrator determines.  If the location of none of the foregoing
persons can be determined, the Administrator shall have the right to direct
that the amount payable shall be deemed to be a forfeiture and paid to the
Company, except that the dollar amount of the forfeiture, unadjusted for deemed
gains or losses in the interim, shall be paid by the Company if a claim for the
benefit subsequently is made by the Participant or the Beneficiary to whom it
was payable.  If a benefit payable to an unlocated
Participant or Beneficiary is subject to escheat pursuant to applicable state
law, neither the Committee, the Administrator nor the Company shall be liable
to any person for any payment made in accordance with such law.


 


ARTICLE 10

Leave of Absence


 


10.1         Paid Leave of Absence.  If a
Participant is authorized by the Company for any reason to take a paid leave of
absence from his or her service to the Company, the Participant shall continue
to be considered employed by the Company, and the Annual Deferral Amount shall
continue to be withheld during such paid leave of absence in accordance with
Section 3.4.


 


10.2         Unpaid Leave of Absence.  If a
Participant is authorized by the Company for any reason to take an unpaid leave
of absence from his


 


27





















 


or her service to the Company, the Participant shall
continue to be considered employed by the Company, and the Participant shall be
excused from making deferrals until the earlier of the date the leave of
absence expires or the Participant returns to a paid service status.  Upon such expiration or return, deferrals
shall resume for the remaining portion of the Plan Year in which the expiration
or return occurs, based on the deferral election, if any, made for that Plan
Year.  If no election was made for that
Plan Year, no deferral shall be withheld.


 


ARTICLE 11

Termination/Amendment/Modification


 


11.1         Termination. 
Although the Sponsor anticipates that it will continue the Plan for an
indefinite period of time, there is no guarantee that the Sponsor will continue
the Plan or will not terminate the Plan at any time in the future.  Accordingly, the Sponsor reserves the right
to discontinue its sponsorship of the Plan and/or to terminate the Plan at any
time with respect to any or all of any Company’s participating Employees, by
action of the Board.  Without limiting
the generality of the foregoing, the Sponsor reserves the right to terminate
the Plan (or for a successor of the Sponsor to terminate the Plan), in its discretion,
within twelve (12) months of a Change In Control, and to distribute to
Participants their vested Account Balances as soon as administratively
practicable following such termination. 
Upon a complete or partial termination of the Plan, the Plan Agreements
of the affected Participants shall terminate and their vested Account Balances,
determined as if they had experienced a Termination of Employment on the date
of Plan termination or, if Plan termination occurs after the date upon which a
Participant was eligible to Retire, then with respect to that Participant as if
he or she had Retired on the date of Plan termination, shall, subject to
Section 11.6, be paid to the Participants in accordance with their distribution
elections in effect at the time of the Plan termination; provided however, if
immediate distribution of a Participant’s Account Balance on
termination is not permitted by Section 409A, the payment of the Account
Balance shall be made only after Plan benefits otherwise become due
hereunder.  The termination of the Plan
shall not adversely affect any Participant or Beneficiary who has become
entitled to the payment of any benefits under the Plan as of the date of
termination.


 


28





















 


11.2         Amendment.  The
Sponsor may, at any time, amend or modify the Plan in whole or in part by the
action of the Committee; provided, however, that no amendment or modification
shall be effective to decrease or restrict the value of a Participant’s vested
Account Balance in existence at the time the amendment or modification is made,
calculated as if the Participant had experienced a Termination of Employment as
of the effective date of the amendment or modification or, if the amendment or
modification occurs after the date upon which the Participant was eligible to
Retire, the Participant had Retired as of the effective date of the amendment
or modification.  The amendment or
modification of the Plan shall not affect any Participant or Beneficiary who
has become entitled to the payment of benefits under the Plan as of the date of
the amendment or modification; provided, however, that, subject to Section
409A, the Sponsor shall have the right to accelerate installment payments by
paying the vested Account Balance in a lump sum or pursuant to a Yearly
Installment Method using fewer years.


 


11.3         Effect of Payment.  The
full payment of the applicable benefit under Articles 4, 5, 6, 7 or 8 of the
Plan shall completely discharge all obligations to a Participant and his or her
designated Beneficiaries under this Plan and the Participant’s Plan Agreement
shall terminate.


 


11.4         Amendment to Ensure Proper Characterization
of the Plan. 
Notwithstanding the previous Sections of this Article 11, the Plan may
be amended at any time, retroactively if required, or if found necessary, in
the opinion of the Committee, in order to ensure that the Plan is characterized
as a non-tax-qualified “top hat” plan of deferred compensation maintained for a
select group of management or highly compensated employees, as described under
ERISA sections 201(2), 301(a)(3) and 401(a)(1), to conform the Plan to the
provisions of Section 409A and to ensure that amounts under the Plan are not
considered to be taxed to a Participant under the Federal income tax laws prior
to the Participant’s receipt of the amounts or to conform the Plan and the
Trust to the provisions and requirements of any applicable law (including ERISA
and the Code).


 


29





















 


11.5         Changes in Law Affecting Taxability.


 


(a)           Operation.  This Section shall become
operative upon the enactment of any change in applicable statutory law or the
promulgation by the Internal Revenue Service of a final regulation or other
pronouncement having the force of law, which statutory law, as changed, or final
regulation or pronouncement, as promulgated, would cause any Participant to
include in his or her federal gross income amounts accrued by the Participant
under the Plan on a date (an “Early Taxation Event”) prior to the date on which
such amounts are made available to him or her hereunder; provided, however,
that no portion of this Section shall become operative to the extent that
portion would result in a violation of Section 409A (e.g., by causing an
impermissible distribution under Section 409A).


 


(b)           Affected Right or Feature Nullified. 
Notwithstanding any other Section of this Plan to the contrary (but
subject to subsection (c), below), as of an Early Taxation Event, the feature
or features of this Plan that would cause the Early Taxation Event shall be
null and void, to the extent, and only to the extent, required to prevent the
Participant from being required to include in his or her federal gross income
amounts accrued by the Participant under the Plan prior to the date on which
such amounts are made available to him or her hereunder.  If only a portion of a Participant’s
Account Balance is impacted by the change in the law, then only such portion
shall be subject to this Section, with the remainder of the Account Balance not
so affected being subject to such rights and features as if the law were not
changed.  If the law only impacts
Participants who have a certain status with respect to the Company, then only
such Participants shall be subject to this Section.


 


(c)           Tax Distribution.  If
an Early Taxation Event is earlier than the date on which the statute,
regulation or pronouncement giving rise to the Early Taxation Event is enacted
or promulgated, as applicable (i.e., if the change in the law is retroactive),
there shall be distributed to each Participant, as soon as practicable
following such date of enactment or promulgation, the amounts that became
taxable on the Early Taxation Event.


 


30





















 


11.6         Prohibited Acceleration/Distribution Timing.  This
Section shall take precedence over any other provision of the Plan or this
Article 11 to the contrary.  No provision
of this Plan shall be followed if following the provision would result in the
acceleration of the time or schedule of any payment from the Plan as would
require immediate income tax to Participants based on the law in effect at the
time the distribution is to be made, including Section 409A.  In addition, if the timing of any
distribution election would result in any tax or other penalty (other than
ordinarily payable Federal, state or local income or payroll taxes), which tax
or penalty can be avoided by payment of the distribution at a later time, then
the distribution shall be made (or commence, as the case may be) on (or as soon
as practicable after) the first date on which such distributions can be made
(or commence) without such tax or penalty.


 


ARTICLE 12

Administration


 


12.1         Administration. 
Except as otherwise provided herein, the Plan shall be administered by
the Administrator.  The Administrator
shall be the named fiduciary for purposes of the claims procedure pursuant to
Article 14 only and shall, except as the Committee may otherwise determine,
have authority to act to the full extent of its absolute discretion to:


 


(a)                                  Interpret the Plan;


 


(b)                                 Resolve and determine all disputes or
questions arising under the Plan, including the power to determine the rights
of Participants and Beneficiaries, and their respective benefits, and to remedy
any ambiguities, inconsistencies or omissions in the Plan;


 


(c)                                  Create and revise rules and procedures for
the administration of the Plan and prescribe such forms as may be required for
Participants to make elections under, and otherwise participate in, the Plan;
and


 


31





















 


(d)           Take any other actions and make any other
determinations as it may deem necessary and proper for the administration of
the Plan.


 


Any expenses incurred in the administration of the
Plan shall be paid by the Sponsor or the Company.


 


12.2         Determinations.  Except as the Committee may
otherwise determine (and subject to the claims procedure set forth in Article
14), all decisions and determinations by the Administrator shall be final and
binding upon all Participants and Beneficiaries.


 


12.3         General.  No member of the Administrator or
of the Committee shall participate in any matter involving any questions
relating solely to his own participation or benefits under this Plan.  The Administrator and the Committee shall be
entitled to rely conclusively upon, and shall be fully protected in any action
or omission taken by it in good faith reliance upon, the advice or opinion of
any persons, firms or agents retained by it, including but not limited to
accountants, actuaries, counsel and other specialists.  Nothing in this Plan shall preclude the
Sponsor or any Company from indemnifying the members of the Administrator and
of the Committee for all actions under this Plan, or from purchasing liability
insurance to protect such persons with respect to the Plan.


 


ARTICLE 13

Other Benefits and Agreements


 


13.1         Coordination with Other Benefits.  The
benefits provided for a Participant or a Participant’s Beneficiary under the
Plan are in addition to any other benefits available to such Participant under
any other plan or program for Employees of the Company.  The Plan shall supplement and shall not
supersede, modify or amend any other such plan or program except as may
otherwise be expressly provided.


 


ARTICLE 14

Claims Procedures


 


14.1         Scope of Claims Procedures.  This
Article is based on final regulations issued by the Department of Labor and
published in the Federal


 


32





















 


Register on November 21, 2000 and codified at 29
C.F.R. section 2560.503-1.  If any
provision of this Article conflicts with the requirements of those regulations,
the requirements of those regulations will prevail.


 


For purposes of this Article, references to
disability benefit claims are intended to describe claims made by Participants
for Disability Benefits payable pursuant to Article 8, but only if and to the
extent that such claims require an independent determination by the
Administrator that the Participant is or is not suffering from a Disability,
within the meaning of 1.21.  If the Administrator’s
determination is based entirely on a disability determination made by another
party, such as the Social Security Administration or another federal or state
agency or an insurer with respect to a disability insurance policy covering the
Participant, the Participant’s claim shall not be treated as a
disability claim for purposes of the special provisions of this Article that
apply to claims for which an independent determination of disability is
required.


 


14.2         Initial Claim.  A
Participant or Beneficiary who believes he or she is entitled to any benefit
under the Plan (a “Claimant”) may file a claim with the Administrator.  The Administrator shall review the claim
itself or appoint an individual or an entity to review the claim.


 


(a)                                  Benefit Claims that do not Require a
Determination of Disability.  If the claim is for a benefit other than a
Disability Benefit, the Claimant shall be notified within ninety (90) days
after the claim is filed whether the claim is allowed or denied, unless the
Claimant receives written notice from the Administrator or appointee of the
Administrator prior to the end of the ninety (90) day period stating that
special circumstances require an extension of the time for decision, such
extension not to extend beyond the day which is one hundred eighty (180) days
after the day the claim is filed.


 


(b)                                 Disability Benefit Claims.  In
the case of a benefits claim that requires an independent determination by the
Administrator of a Participant’s Disability status, the Administrator shall
notify the Claimant of the Plan’s adverse benefit determination within a
reasonable period of time, but not later than forty-five (45) days


 


33





















 


after receipt of the claim.  If, due to matters beyond the control of the
Plan, the Administrator needs additional time to process a claim, the Claimant
will be notified, within forty-five (45) days after the Administrator receives
the claim, of those circumstances and of when the Administrator expects to make
its decision but not beyond seventy-five (75) days.  If, prior to the end of the extension period,
due to matters beyond the control of the Plan, a decision cannot be rendered
within that extension period, the period for making the determination may be
extended for up to one hundred five (105) days, provided that the Administrator
notifies the Claimant of the circumstances requiring the extension and the date
as of which the Plan expects to render a decision.  The extension notice shall specifically
explain the standards on which entitlement to a Disability Benefit is based,
the unresolved issues that prevent a decision on the claim and the additional
information needed from the Claimant to resolve those issues, and the Claimant
shall be afforded at least forty-five (45) days within which to provide the
specified information.


 


(c)           Manner and Content of Denial of Initial
Claims.  If the Administrator denies a claim, it must
provide to the Claimant, in writing or by electronic communication:


 


(i)                                     The specific reasons for the denial;


 


(ii)                                  A reference to the Plan provision or
insurance contract provision upon which the denial is based;


 


(iii)                               A description of any additional information
or material that the Claimant must provide in order to perfect the claim;


 


(iv)                              An explanation of why such additional
material or information is necessary;


 


(v)                                 Notice that the Claimant has a right to
request a review of the claim denial and information on the steps to be taken
if the Claimant wishes to request a review of the claim denial; and


 


34





















 


(vi)                              A statement of the Participant’s
right to bring a civil action under ERISA Section 502(a) following a denial on
review of the initial denial.


 


In addition, in the case of a denial of Disability
Benefits on the basis of the Administrator’s independent determination of the
Participant’s Disability status, the Administrator will provide a copy of any
rule, guideline, protocol, or other similar criterion relied upon in making the
adverse determination (or a statement that the same will be provided upon
request by the Claimant and without charge).


 


14.3         Review Procedures.


 


(a)                                  Benefit Claims that do not Require a
Determination of Disability.  Except for claims requiring an independent
determination of a Participant’s Disability status, a request for review of a
denied claim must be made in writing to the Administrator within sixty (60)
days after receiving notice of denial. 
The decision upon review will be made within sixty (60) days after the Administrator’s
receipt of a request for review, unless special circumstances require an
extension of time for processing, in which case a decision will be rendered not
later than one hundred twenty (120) days after receipt of a request for review.  A notice of such an extension must be
provided to the Claimant within the initial sixty (60) day period and must
explain the special circumstances and provide an expected date of decision.


 


The reviewer shall afford the Claimant an
opportunity to review and receive, without charge, all relevant documents,
information and records and to submit issues and comments in writing to the
Administrator.  The reviewer shall take
into account all comments, documents, records and other information submitted
by the Claimant relating to the claim regardless of whether the information was
submitted or considered in the initial benefit determination.


 


(b)                                 Disability Benefit Claims.  In
addition to having the right to review documents and submit comments as
described in (a)


 


35





















 


above, a Claimant whose claim for Disability
Benefits requires an independent determination by the Administrator of the
Participant’s Disability status has at least one hundred eighty
(180) days following receipt of a notification of an adverse benefit
determination within which to request a review of the initial
determination.  In such cases, the review
will meet the following requirements:


 


(i)            The Plan will provide a review that does not
afford deference to the initial adverse benefit determination and that is
conducted by an appropriate named fiduciary of the Plan who did not make the
initial determination that is the subject of the appeal, nor by a subordinate
of the individual who made the determination.


 


(ii)           The appropriate named fiduciary of the Plan
will consult with a health care professional who has appropriate training and
experience in the field of medicine involved in the medical judgment before
making a decision on review of any adverse initial determination based in whole
or in part on a medical judgment.  The
professional engaged for purposes of a consultation in the preceding sentence
shall not be an individual who was consulted in connection with the initial
determination that is the subject of the appeal or the subordinate of any such
individual.


 


(iii)          The Plan will identify to the Claimant the
medical or vocational experts whose advice was obtained on behalf of the Plan
in connection with the review, without regard to whether the advice was relied
upon in making the benefit review determination.


 


(iv)          The decision on review will be made within
forty-five (45) days after the Administrator’s receipt of a request
for review, unless special circumstances require an extension of time for
processing, in which case a decision will be rendered not later than ninety
(90) days after receipt of a request for review.  A notice of such an extension must be
provided to the Claimant within the initial forty-five (45) day period and must
explain the special circumstances


 


36





















 


and provide an expected date of decision.


 


(c)                                  Manner and Content of Notice of Decision on
Review.  Upon
completion of its review of an adverse initial claim determination, the
Administrator will give the Claimant, in writing or by electronic notification,
a notice containing:


 


(i)            its decision;


 


(ii)           the specific reasons for the decision;


 


(iii)          the relevant Plan provisions or insurance
contract provisions on which its decision is based;


 


(iv)          a statement that the Claimant is entitled to
receive, upon request and without charge, reasonable access to, and copies of,
all documents, records and other information in the Plan’s files
which is relevant to the Claimant’s claim for benefits;


 


(v)           a statement describing the Claimant’s
right to bring an action for judicial review under ERISA Section 502(a); and


 


(vi)          if an internal rule, guideline, protocol or
other similar criterion was relied upon in making the adverse determination on
review, a statement that a copy of the rule, guideline, protocol or other
similar criterion will be provided without charge to the Claimant upon request.


 


14.4         Calculation of Time Periods.  For
purposes of the time periods specified in this Article, the period of time during
which a benefit determination is required to be made begins at the time a claim
is filed in accordance with the Plan procedures without regard to whether all
the information necessary to make a decision accompanies the claim.  If a period of time is extended due to a
Claimant’s failure to submit all information necessary, the period for making
the determination shall be tolled from the date the notification is sent to the
Claimant until the date the Claimant responds.


 


37





















 


14.5         Legal Action.  If the Plan fails to follow the
claims procedures required by this Article, a Claimant shall be deemed to have
exhausted the administrative remedies available under the Plan and shall be
entitled to pursue any available remedy under ERISA Section 502(a) on the basis
that the Plan has failed to provide a reasonable claims procedure that would
yield a decision on the merits of the claim. 
A Claimant’s compliance with the foregoing provisions of this
Article is a mandatory prerequisite to a Claimant’s right to commence any legal
action with respect to any claims for benefits under the Plan.


 


14.6         Committee Review.  Anything in this Plan to the
contrary notwithstanding, the Committee may determine, in its sole and absolute
discretion, to review any claim for benefits submitted by a claimant under this
Plan.


 


ARTICLE
15

Trust


 


15.1         Establishment of the Trust.  The
Company may establish the Trust, in which event the Company intends, but is not
required, to transfer over to the Trust at least annually such assets as the
Company determines, in its sole discretion, are necessary to provide for its
respective future liabilities created with respect to the Annual Deferral
Amounts, Annual Company Matching Amounts, Annual Company Basic Amounts and
Annual Company Discretionary Amounts for the Participants.


 


15.2         Interrelationship of the Plan and the Trust.  The
provisions of the Plan and the Plan Agreement shall govern the rights of a
Participant to receive distributions pursuant to the Plan.  The provisions of the Trust shall govern the
rights of the Company, Participants and the creditors of the Company to the
assets transferred to the Trust.  The
Company shall at all times remain liable to carry out its obligations under the
Plan.


 


15.3         Distributions from the Trust.  The
Company’s obligations under the Plan may be satisfied with Trust assets
distributed pursuant to the terms of the Trust, and any such distribution shall
reduce the Company’s obligations under this Plan.


 


38





















 


ARTICLE 16

Miscellaneous


 


16.1         Status of Plan.  The
Plan is intended to be a plan that is not qualified within the meaning of Code
Section 401(a) and that “is unfunded and is maintained by an employer primarily
for the purpose of providing deferred compensation for a select group of
management or highly compensated employees” within the meaning of ERISA
Sections 201(2), 301(a)(3) and 401(a)(1). 
The Plan shall be administered and interpreted to the extent possible in
a manner consistent with that intent.


 


16.2         Unsecured General Creditor. 
Participants and their Beneficiaries, heirs, successors and assigns
shall have no legal or equitable rights, interests or claims in any property or
assets of the Company.  For purposes of
the payment of benefits under this Plan, any and all of the Company’s assets
shall be, and remain, the general, unpledged unrestricted assets of the
Company.  The Company’s
obligation under the Plan shall be merely that of an unfunded and unsecured
promise to pay money in the future.


 


16.3         Company’s Liability.  The Company’s liability for the
payment of benefits shall be defined only by the Plan and the Plan Agreement,
as entered into between the Company and a Participant.  The Company shall have no obligation to a
Participant under the Plan except as expressly provided in the Plan and his or
her Plan Agreement.  Notwithstanding any
contrary provision of the Plan, each Company shall be liable only for the
payment of benefits accrued under the Plan by its Employees.  No Company shall be liable for the payment of
benefits accrued under the Plan by Employees of another Company.  In the case of a Participant employed by more
than one Company during his or her period of Plan participation, the Company
which employs the Participant as of the date of determination (and no other
Company) shall be liable for payment of his or her entire benefit.


 


16.4         Nonassignability. 
Neither a Participant nor any other person shall have any right to
commute, sell, assign, transfer, pledge, anticipate, mortgage or otherwise
encumber, transfer, hypothecate, alienate or convey in advance of actual
receipt, the amounts, if any, payable


 


39





















 


hereunder, or any part thereof, which are, and all
rights to which are expressly declared to be, unassignable and
non-transferable.  No part of the amounts
payable shall, prior to actual payment, be subject to seizure, attachment,
garnishment or sequestration for the payment of any debts, judgments, alimony
or separate maintenance owed by a Participant or any other person, be
transferable by operation of law in the event of a Participant’s or
any other person’s bankruptcy or insolvency or be transferable to a
spouse as a result of a property settlement or otherwise.


 


16.5         Not a Contract of Employment.  The
terms and conditions of this Plan shall not be deemed to constitute a contract
of employment between the Company and the Participant.  Subject to any employment agreement to which
the Company and the Participant may be parties, such employment is hereby
acknowledged to be an “at will” employment relationship that can be terminated
at any time for any reason, or no reason, with or without cause, and with or
without notice, unless expressly provided in a written employment
agreement.  Nothing in this Plan shall be
deemed to give a Participant the right to be retained in the service of the
Company or to interfere with the right of the Company to discipline or
discharge the Participant at any time.


 


16.6         Furnishing Information.  A
Participant or his or her Beneficiary will cooperate with the Administrator by
furnishing any and all information requested by the Administrator and take such
other actions as may be requested in order to facilitate the administration of
the Plan and the payments of benefits hereunder, including but not limited to
taking such physical examinations as the Administrator may deem necessary.


 


16.7         Terms.  Whenever any words are used
herein in the masculine, they shall be construed as though they were in the
feminine in all cases where they would so apply; and whenever any words are
used herein in the singular or in the plural, they shall be construed as though
they were used in the plural or the singular, as the case may be, in all cases where
they would so apply.


 


16.8         Captions.  The
captions of the articles, sections and paragraphs of this Plan are for
convenience only and shall not control or affect the meaning or construction of
any of its provisions.


 


40





















 


16.9         Governing Law. 
Subject to ERISA, the provisions of this Plan shall be construed and
interpreted according to the internal laws of the State of Maryland without
regard to its conflicts of laws principles.


 


16.10       Notice.  Any
notice or filing required or permitted to be given to the Administrator under
this Plan shall be sufficient if in writing and hand-delivered, or sent by
registered or certified mail, to the address below:


 


Hal E. Hamil, Jr.

Mercantile Bankshares Corporation

750 Old Hammonds Ferry Road

Linthicum, Maryland 21090


 


Such notice shall be deemed given as of the date of
delivery or, if delivery is made by mail, as of the date shown on the postmark
on the receipt for registration or certification.


 


Any notice or filing required or permitted to be
given to a Participant under this Plan shall be sufficient if in writing and
hand-delivered, or sent by mail, to the last known address of the Participant.


 


16.11       Successors.  The
provisions of this Plan shall bind and inure to the benefit of the Company and
its successors and assigns and the Participant and the Participant’s
designated Beneficiaries.


 


16.12       Spouse’s Interest.  The
interest in the benefits hereunder of a spouse of a Participant who has
predeceased the Participant shall automatically pass to the Participant and
shall not be transferable by such spouse in any manner, including but not
limited to such spouse’s will, nor shall such interest pass under the laws of
intestate succession.


 


16.13       Validity.  In
case any provision of this Plan shall be illegal or invalid for any reason,
said illegality or invalidity shall not affect the remaining parts hereof, but
this Plan shall be construed and enforced as if such illegal or invalid
provision had never been inserted herein.


 


16.14       Incompetent.  If
the Administrator determines in its discretion that a benefit under this Plan
is to be paid to a minor, a person declared


 


41





















 


incompetent or to a person incapable of handling the
disposition of that person’s property, the Administrator may direct
payment of such benefit to the guardian, legal representative or person having
the care and custody of such minor, incompetent or incapable person.  The Administrator may require proof of
minority, incompetence, incapacity or guardianship, as it may deem appropriate
prior to distribution of the benefit. 
Any payment of a benefit shall be a payment for the account of the
Participant and the Participant’s Beneficiary, as the case may be,
and shall be a complete discharge of any liability under the Plan for such
payment amount.


 


16.15       Court Order.  The
Administrator is authorized to make any payments directed by court order in any
action in which the Plan or the Administrator has been named as a party.  In addition, if a court determines that a
spouse or former spouse of a Participant has an interest in the Participant’s
benefits under the Plan in connection with a property settlement or otherwise,
the Administrator, in its sole discretion, shall have the right,
notwithstanding any election made by a Participant, to immediately distribute
the spouse’s or former spouse’s interest in the Participant’s
benefits under the Plan to that spouse or former spouse in accordance with
Section 409A.


 


16.16       Distribution in the Event of Taxation.


 


(a)                                  In General.  Subject to Section 409A, if,
for any reason, all or any portion of a Participant’s benefits under
this Plan becomes taxable to the Participant prior to receipt, the Participant
may petition the Administrator, for a distribution of that portion of his or
her benefit that has become taxable. 
Upon the grant of such a petition, which grant shall not be unreasonably
withheld, the Company shall distribute to the Participant immediately available
funds in an amount equal to the taxable portion of his or her benefit (which
amount shall not exceed a Participant’s unpaid vested Account
Balance under the Plan).  If the petition
is granted, the tax liability distribution shall be made within ninety (90)
days of the date when the Participant’s petition is granted.  Such a distribution shall affect and reduce
the Participant’s benefits to be paid under this Plan.


 


42





















 


(b)                                 Trust.  If the Trust terminates in
accordance with the provisions of the Trust and benefits are distributed from
the Trust to a Participant in accordance with such provisions, the Participant’s
benefits under this Plan shall be reduced to the extent of such distributions.


 


16.17       Insurance.  The
Company, on its own behalf or on behalf of the trustee of the Trust, and, in
its sole discretion, may apply for and procure insurance on the life of the
Participant, in such amounts and in such forms as the Company may choose.  The Company or the trustee of the Trust, as the
case may be, shall be the sole owner and beneficiary of any such
insurance.  The Participant shall have no
interest whatsoever in any such policy or policies, and at the request of the
Company shall submit to medical examinations and supply such information and
execute such documents as may be required by the insurance company or companies
to whom the Company has applied for insurance.


 


16.18       Aggregation of Employers.  To
the extent required under Section 409A, if the Company is a member of a
controlled group of corporations or a group of trades or business under common
control (as described in Code §414(b) or (c)), all members of the group shall
be treated as a single Company for purposes of whether there has occurred a
Separation from Service and for any other purposes under the Plan as Section
409A shall require.


 


IN WITNESS WHEREOF, the Sponsor has signed this Plan
document as of May 1, 2005.


 


	
   

  	
  MERCANTILE BANKSHARES CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
					



 


43