exv10w3



 







Exhibit 10.3




THE HOUSTON EXPLORATION COMPANY

2005 EXECUTIVE DEFERRED COMPENSATION PLAN




Effective as of January 1, 2005




 









 





THE HOUSTON EXPLORATION COMPANY

2005 EXECUTIVE DEFERRED COMPENSATION PLAN




Effective as of January 1, 2005




TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 
	 	ARTICLE 1	 	 	 	 
	 
	 	DEFINITIONS	 	 	 	 
	 
	 	 	 	 	 	 
	1.1
	 	ACCOUNT	 	 	1	 
	1.2
	 	BENEFICIARY	 	 	1	 
	1.3
	 	BOARD	 	 	1	 
	1.4
	 	CODE	 	 	1	 
	1.5
	 	COMPENSATION	 	 	2	 
	1.6
	 	COMPENSATION DEFERRAL ACCOUNT	 	 	2	 
	1.7
	 	COMPENSATION DEFERRALS	 	 	2	 
	1.8
	 	DESIGNATION DATE	 	 	2	 
	1.9
	 	EFFECTIVE DATE	 	 	2	 
	1.10
	 	ELIGIBLE EMPLOYEE	 	 	2	 
	1.11
	 	EMPLOYER	 	 	2	 
	1.12
	 	EMPLOYER CONTRIBUTION CREDIT ACCOUNT	 	 	2	 
	1.13
	 	EMPLOYER CONTRIBUTION CREDITS	 	 	2	 
	1.14
	 	ENTRY DATE	 	 	2	 
	1.15
	 	ERISA	 	 	2	 
	1.16
	 	401(k) PLAN	 	 	2	 
	1.17
	 	PARTICIPANT	 	 	3	 
	1.18
	 	PAYMENT ELECTION FORM	 	 	3	 
	1.19
	 	PERFORMANCE-BASED COMPENSATION	 	 	3	 
	1.20
	 	PLAN	 	 	3	 
	1.21
	 	PLAN YEAR	 	 	3	 
	1.22
	 	SECTION 409A	 	 	3	 
	1.23
	 	SEPARATION FROM SERVICE	 	 	3	 
	1.24
	 	SPECIFIED EMPLOYEE	 	 	3	 
	1.25
	 	SPONSOR	 	 	3	 
	1.26
	 	TRUST	 	 	3	 
	1.27
	 	TRUSTEE	 	 	3	 
	1.28
	 	VALUATION DATE	 	 	4	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE 2	 	 	 	 
	 
	 	ELIGIBILITY AND PARTICIPATION	 	 	 	 
	 
	 	 	 	 	 	 
	2.1
	 	REQUIREMENTS	 	 	4	 
	2.2
	 	RE-EMPLOYMENT	 	 	4	 
	2.3
	 	CHANGE OF EMPLOYMENT CATEGORY	 	 	4	 
	2.4
	 	TERMINATION OF PARTICIPATION	 	 	5	 






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	 	ARTICLE 3	 	 	 	 
	 
	 	CONTRIBUTIONS AND CREDITS	 	 	 	 
	 
	 	 	 	 	 	 
	3.1
	 	PARTICIPANT COMPENSATION DEFERRALS	 	 	5	 
	3.2
	 	EMPLOYER CONTRIBUTION CREDITS	 	 	6	 
	3.3
	 	CONTRIBUTIONS TO THE TRUST	 	 	8	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE 4	 	 	 	 
	 
	 	ALLOCATION OF FUNDS	 	 	 	 
	 
	 	 	 	 	 	 
	4.1
	 	ALLOCATION OF DEEMED EARNINGS OR LOSSES ON ACCOUNTS	 	 	8	 
	4.2
	 	ACCOUNTING FOR DISTRIBUTIONS	 	 	8	 
	4.3
	 	SEPARATE ACCOUNTS	 	 	8	 
	4.4
	 	DEEMED INVESTMENT DIRECTIONS OF PARTICIPANTS	 	 	9	 
	4.5
	 	EXPENSES AND TAXES	 	 	10	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE 5	 	 	 	 
	 
	 	ENTITLEMENT TO AND DISTRIBUTION OF BENEFITS	 	 	 	 
	 
	 	 	 	 	 	 
	5.1
	 	FIXED PAYMENT DATE(S)	 	 	10	 
	5.2
	 	SEPARATION FROM SERVICE	 	 	11	 
	5.3
	 	HARDSHIP DISTRIBUTIONS	 	 	13	 
	5.4
	 	DEATH BENEFITS	 	 	13	 
	5.5
	 	FORM AND SOURCE OF PAYMENTS	 	 	14	 
	5.6
	 	WITHHOLDING	 	 	14	 
	5.7
	 	PROHIBITED ACCELERATION/DISTRIBUTION TIMING	 	 	14	 
	5.8
	 	TRANSITION RULE FOR CERTAIN DISTRIBUTION ELECTIONS	 	 	14	 
	5.9
	 	PAYMENT OF BENEFITS	 	 	14	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE 6	 	 	 	 
	 
	 	BENEFICIARIES; PARTICIPANT DATA	 	 	 	 
	 
	 	 	 	 	 	 
	6.1
	 	DESIGNATION OF BENEFICIARIES	 	 	15	 
	6.2
	 	INFORMATION TO BE FURNISHED BY PARTICIPANTS AND BENEFICIARIES;	 	 	 	 
	 
	 	INABILITY TO LOCATE PARTICIPANTS OR BENEFICIARIES	 	 	15	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE 7	 	 	 	 
	 
	 	ADMINISTRATION	 	 	 	 
	 
	 	 	 	 	 	 
	7.1
	 	ADMINISTRATIVE AUTHORITY	 	 	16	 
	7.2
	 	UNIFORMITY OF DISCRETIONARY ACTS	 	 	17	 
	7.3
	 	LITIGATION	 	 	17	 
	7.4
	 	CLAIMS PROCEDURE	 	 	17	 






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	 	ARTICLE 8	 	 	 	 
	 
	 	AMENDMENT	 	 	 	 
	 
	 	 	 	 	 	 
	8.1
	 	RIGHT TO AMEND	 	 	19	 
	8.2
	 	AMENDMENTS TO ENSURE PROPER CHARACTERIZATION OF PLAN	 	 	19	 
	8.3
	 	CHANGES IN LAW AFFECTING TAXABILITY	 	 	19	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE 9	 	 	 	 
	 
	 	TERMINATION	 	 	 	 
	 
	 	 	 	 	 	 
	9.1
	 	SPONSOR'S RIGHT TO TERMINATE OR SUSPEND PLAN	 	 	20	 
	9.2
	 	AUTOMATIC TERMINATION OF PLAN	 	 	20	 
	9.3
	 	SUSPENSION OF DEFERRALS	 	 	20	 
	9.4
	 	ALLOCATION AND DISTRIBUTION	 	 	21	 
	9.5
	 	SUCCESSOR TO SPONSOR	 	 	21	 
	9.6
	 	WITHDRAWAL OR TERMINATION BY AN EMPLOYER	 	 	21	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE 10	 	 	 	 
	 
	 	THE TRUST	 	 	 	 
	 
	 	 	 	 	 	 
	10.1
	 	ESTABLISHMENT OF TRUST	 	 	22	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE 11	 	 	 	 
	 
	 	MISCELLANEOUS	 	 	 	 
	 
	 	 	 	 	 	 
	11.1
	 	LIMITATIONS ON LIABILITY OF SPONSOR OR EMPLOYER	 	 	22	 
	11.2
	 	CONSTRUCTION	 	 	22	 
	11.3
	 	SPENDTHRIFT PROVISION	 	 	23	 
	11.4
	 	SECURITIES LAW CONDITIONS	 	 	23	 
	11.5
	 	AGGREGATION OF EMPLOYERS	 	 	23	 
	11.6
	 	DELAY IN PAYMENT	 	 	23	 
	11.7
	 	SECTION 409A COMPLIANCE	 	 	24	 






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THE HOUSTON EXPLORATION COMPANY

2005 EXECUTIVE DEFERRED COMPENSATION PLAN




Effective as of January 1, 2005




RECITALS




     This, The Houston Exploration Company 2005 Executive Deferred Compensation Plan (the “Plan”),
is adopted by The Houston Exploration Company (the “Sponsor”) for certain executive and management
employees of the Sponsor and of those affiliates of the Sponsor which are admitted as adopting
employers under the Plan (the Sponsor, as well as each such affiliate, hereinafter is referred to
as the “Employer”). The purpose of the Plan is to offer participants an opportunity to elect to
defer the receipt of compensation in order to provide deferred compensation benefits taxable
pursuant to section 451 of the Internal Revenue Code of 1986, as amended (the “Code”), and to
provide a deferred compensation vehicle to which the Sponsor may credit certain amounts on behalf
of participants.



     The Plan is intended to be a “top-hat” plan (i.e., an unfunded deferred compensation plan
maintained for a select group of management or highly-compensated employees) under sections 201(2),
301(a)(3) and 401(a)(1) of the Employee Retirement Income Security Act of 1974, as amended
(“ERISA”). The Plan also is intended to comply with the requirements of section 409A of the Code,
as added by the American Jobs Creation Act of 2004, and the Treasury regulations or any other
authoritative guidance issued thereunder (“Section 409A”).



     Accordingly, the following Plan is adopted.



ARTICLE 1

DEFINITIONS




     1.1 ACCOUNT means the balance credited to a Participant’s or Beneficiary’s Plan
account, including amounts credited under the Compensation Deferral Account and the Employer
Contribution Credit Account, and deemed income, gains and losses (as determined by the Sponsor, in
its discretion) credited thereto. A Participant’s or Beneficiary’s Account shall be determined as
of the date of reference.



     1.2 BENEFICIARY means any person or persons so designated in accordance with the
provisions of Article 6.



     1.3 BOARD means the Sponsor’s Board of Directors, or the Compensation Committee or
another committee thereof duly authorized to make determinations and act for the Board under this
Plan.



     1.4 CODE means the Internal Revenue Code of 1986 and the Treasury regulations or any
other authoritative guidance issued thereunder, as amended from time to time.



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     1.5 COMPENSATION means the total current cash remuneration, including regular salary
and bonus awards, paid by the Employer to an Eligible Employee with respect to his or her service
for the Employer (as determined by the Employer, in its discretion). Notwithstanding the
preceding, Compensation shall exclude extraordinary bonus awards, unless and to the extent that the
Sponsor determines to include them.



     1.6 COMPENSATION DEFERRAL ACCOUNT is defined in Section 3.1.



     1.7 COMPENSATION DEFERRALS is defined in Section 3.1.



     1.8 DESIGNATION DATE means the date or dates as of which a designation of deemed
investment directions by an individual pursuant to Section 4.4, or any change in a prior
designation of deemed investment directions by an individual pursuant to Section 4.4, shall become
effective. The Designation Dates in any Plan Year shall be designated by the Sponsor.



     1.9 EFFECTIVE DATE means the effective date of the Plan, which shall be January 1,
2005.



     1.10 ELIGIBLE EMPLOYEE means, for any Plan Year (or applicable portion thereof), a
person employed by the Employer who is determined by the Sponsor to be a member of a select group
of management or highly compensated employees of the Employer and who is designated by the Board to
be an Eligible Employee under the Plan.



     By each November 1 (or before implementation of the Plan with respect to the Plan’s first Plan
Year), the Sponsor shall notify those individuals, if any, who will be Eligible Employees for the
next Plan Year. If the Sponsor determines that an individual first becomes an Eligible Employee
during a Plan Year, the Sponsor shall notify such individual of its determination and of the date
during the Plan Year on which the individual shall first become an Eligible Employee.



     1.11 EMPLOYER means the Sponsor and any affiliated or related corporation or business
organization which agrees, with the consent of the Sponsor, to become an Employer under the Plan.



     1.12 EMPLOYER CONTRIBUTION CREDIT ACCOUNT is defined in Section 3.2.



     1.13 EMPLOYER CONTRIBUTION CREDITS is defined in Section 3.2.



     1.14 ENTRY DATE with respect to an individual means the first day of the pay period
following the date on which the individual first becomes an Eligible Employee.



     1.15 ERISA means the Employee Retirement Income Security Act of 1974 and the
Department of Labor regulations or any other authoritative guidance issued thereunder, as amended
from time to time.



     1.16 401(k) PLAN means the Sponsor’s tax qualified 401(k) retirement plan, as amended
from time to time.



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     1.17 PARTICIPANT means any person so designated in accordance with the provisions of
Article 2, including, where appropriate according to the context of the Plan, any former employee
who is or may become (or whose Beneficiaries may become) eligible to receive a benefit under the
Plan.



     1.18 PAYMENT ELECTION FORM means the form or forms on which a Participant elects the
form and/or timing of the Participant’s Plan benefit (which form may take the form of an electronic
transmission, if required or permitted by the Sponsor).



     1.19 PERFORMANCE-BASED COMPENSATION means that portion of an Eligible Employee’s
Compensation which is based on the performance by the Eligible Employee of services for the
Employer over a period of at least twelve (12) months and which qualifies as “performance-based
compensation” under Section 409A.



     1.20 PLAN means this, The Houston Exploration Company 2005 Executive Deferred
Compensation Plan, as amended from time to time.



     1.21 PLAN YEAR means the twelve (12) month period ending on the December 31 of each
year during which the Plan is in effect.



     1.22 SECTION 409A means Code section 409A and the Treasury regulations or other
authoritative guidance issued under that section.



     1.23 SEPARATION FROM SERVICE means a Participant’s “separation from service,” within
the meaning of Section 409A.



     1.24 SPECIFIED EMPLOYEE means an Eligible Employee who, at any time during the twelve
(12) month period ending on the December 31 of a Plan Year, is a key employee of the Employer, as
currently defined in Code Section 416(i) (without regard to paragraph (5) thereof) to mean, as of
the Effective Date, (i) an officer of the Employer 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-percent (5%) owner of the
Employer; or (iii) a one-percent (1%) owner of the Employer having an annual compensation from
the Employer of more than one hundred fifty thousand dollars ($150,000). Any such Eligible
Employee shall be treated as a Specified Employee for the twelve (12) month period commencing the
following April 1.



     1.25 SPONSOR means The Houston Exploration Company and its successors and assigns
unless otherwise herein provided.



     1.26 TRUST means the Trust described in Article 10.



     1.27 TRUSTEE means the trustee of the Trust described in Article 10.



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     1.28 VALUATION DATE means the last day of each Plan Year and any other date(s) that
the Sponsor, in its sole discretion, designates as a Valuation Date.



ARTICLE 2

ELIGIBILITY AND PARTICIPATION




     2.1 REQUIREMENTS. Every Eligible Employee on the Effective Date shall be eligible to
become a Participant on the Effective Date. Every other Eligible Employee shall be eligible to
become a Participant on the first Entry Date occurring on or after the date on which he or she
becomes an Eligible Employee. No individual shall become a Participant, however, if he or she is
not an Eligible Employee on the date his or her participation is to begin.



          Participation in the Compensation Deferral Account portion of the Plan is voluntary. In order
to participate in that portion of the Plan, an otherwise Eligible Employee must make application in
such manner as may be required by Section 3.1 and by the Sponsor (which application may take the
form of an electronic transmission if required or permitted by the Sponsor) and must agree to make
Compensation Deferrals as provided in Article 3. Timely enrollment in the Plan for the 2005 and
2006 Plan Years, although conducted prior to the date of adoption of the Plan, is intended to
constitute good faith operational compliance with Section 409A.




          Participation in the Employer Contribution Credit Account portion of the Plan is automatic.




          Notwithstanding the preceding, as a condition to participation, each Eligible Employee may be
required to complete, execute and return to the Sponsor, by such times as the Sponsor may require,
any such forms as the Sponsor may require (which forms may take the form of an electronic
transmission, if required or permitted by the Sponsor), which may include a Plan Agreement and a
Payment Election Form.




     2.2 RE-EMPLOYMENT. Subject to Section 409A, if a Participant who has experienced a
Separation from Service is subsequently re-employed by the Employer, he or she shall become a
Participant in accordance with the provisions of Section 2.1.



     2.3 CHANGE OF EMPLOYMENT CATEGORY. During any period in which a Participant who has
not yet experienced a Separation from Service ceases to be an Eligible Employee (because, for
example, the Sponsor determines in good faith that a Participant no longer qualifies as a member of
a select group of management or highly compensated employees), the Sponsor shall have the right, in
its sole discretion, to prevent the Participant from making future Compensation Deferral elections
and/or from being credited with any further Employer Contribution Credits. Solely if and to the
extent that guidance issued under Section 409A permits, the Sponsor shall also have the right, in
its sole discretion, to (a) terminate any Compensation Deferral election the Participant has made
for the remainder of the Plan Year in which the Participant’s membership status changes and/or (b)
immediately distribute the Participant’s then vested Account and terminate the Participant’s
participation in the Plan.



4









 





     2.4 TERMINATION OF PARTICIPATION. To the extent permitted under Section 409A, the
Sponsor, in its sole discretion, may (a) permit one or more Participants during the 2005 calendar
year to terminate participation in the Plan and receive a payment of their Accounts, or (b) require
one or more Participants to terminate participation in the Plan during the 2005 calendar year and
receive a payment of their Accounts. Notwithstanding anything herein to the contrary, amounts
subject to termination shall be paid as a lump sum as soon as practicable following the date of
such termination, or if later, as soon as practicable after such amounts become vested hereunder;
provided that, any amounts subject to termination are includible in the income of the Participant
in the 2005 calendar year, or if later, the taxable year in which the amounts are earned and
vested.



ARTICLE 3

CONTRIBUTIONS AND CREDITS




     3.1 PARTICIPANT COMPENSATION DEFERRALS.



          (a) Compensation Deferral Amount. In accordance with rules established by the
Sponsor, a Participant may elect to defer annually up to eighty percent (80%) of Compensation which
is due to be earned and which would otherwise be paid to the Participant during the year, in any
fixed periodic dollar amounts or percentages designated by the Participant (which may include
designated dollar amounts or percentages which vary during the Plan Year, as permitted by the
Sponsor). Amounts so deferred will be considered a Participant’s “Compensation Deferrals.”
Compensation Deferrals shall be made through regular payroll deductions or through an election by
the Participant to defer the payment of a bonus not yet payable to him or her at the time of the
election.




          (b) Timing of Deferral Election. Except as otherwise provided in this Plan, a
Participant shall make such an election with respect to a coming Plan Year during the period
beginning on the November 1 and ending on the November 30 of the prior calendar year, or during
such other period as might be established by the Sponsor which period ends no later than the
December 31 preceding the calendar year in which the services giving rise to the Compensation to be
deferred are performed. For these purposes, to the extent permitted under Section 409A,
Compensation payable after the last day of the Plan Year for services performed during the final
payroll period containing the last day of the Plan Year shall be treated as Compensation for
services performed in the subsequent Plan Year.




               Notwithstanding the preceding, in the case of the first Plan Year in which an Eligible
Employee becomes eligible to become a Participant, to the extent permitted by the Sponsor, the
Eligible Employee may make an election, no later than thirty (30) days after the date he or she
becomes eligible to become a Participant, to defer Compensation for services to be performed after
the election.



               In addition, notwithstanding the preceding, if and to the extent permitted by the Sponsor, a
Participant may make an election to defer that portion of his or her Compensation which
constitutes Performance-Based Compensation no later than six (6) months prior to the last



5









 




day of
the period over which the services giving rise to the Performance-Based Compensation are performed.




               In addition, notwithstanding the preceding, to the extent permitted by Section 409A, the
Sponsor may, in its sole discretion, permit a Participant to make an election by as late as March
15, 2005 to defer Compensation which relates all or in part to services performed on or prior to
December 31, 2005 (including elections to defer (i) regular salary amounts for services to be
performed in the 2005 calendar year and/or (ii) bonus payment amounts payable in 2005 in respect of
services performed during the 2004 calendar year), provided such election relates to Compensation
that has not been paid or become payable to the Participant at the time of the election.



          (c) Duration of Deferral Election. Once made, a Compensation Deferral election shall
continue in force only for the Plan Year to which the election relates. Once a Plan Year has
commenced, a Participant may not elect to change his or her Compensation Deferral election that is
in effect for that Plan Year, except if and to the extent permitted by the Sponsor and made in
accordance with the provisions of Section 409A specifically relating to the change and/or
revocation of deferral elections (such as, for example, following an Unforeseeable Financial
Emergency, as defined in Section 5.3).




               Notwithstanding the preceding, the Sponsor shall, in its discretion, be permitted to cause
Compensation to be paid by the Employer to the Participant 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 Sponsor, in its discretion, shall be permitted to
allow a Participant to revoke or modify a Compensation 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 amount(s).



          (d) Crediting of Compensation Deferrals. There shall be established and maintained a
separate Compensation Deferral Account in the name of each Participant to which shall be credited
or debited: (a) amounts equal to the Participant’s Compensation Deferrals; (b) amounts equal to any
deemed earnings or losses (to the extent realized, based upon deemed fair market value of the
Compensation Deferral Account’s deemed assets, as determined by the Sponsor, in its discretion)
attributable or allocable thereto; and (c) expenses and/or taxes charged to that Account.
Compensation Deferrals shall be deducted by the Employer from the pay of a deferring Participant
and shall be credited to the Compensation Deferral Account of the deferring Participant.




          (e) Vesting of Compensation Deferrals. A Participant shall at all times be one
hundred percent (100%) vested in amounts (if any) credited to his or her Compensation Deferral
Account.




     3.2 EMPLOYER CONTRIBUTION CREDITS. There shall be established and maintained a
separate Employer Contribution Credit Account in the name of each Participant. There shall be
established the following two (2) sub-accounts under a Participant’s Employer Contribution



6









 




Credit
Account: (a) the Employer Matching Contribution Sub-Account; and (b) the Employer Discretionary
Contribution Sub-Account. Each such Sub-Account shall be credited or debited, as applicable, with
(i) amounts equal to the Employer’s Contribution Credits credited to that Sub-Account; (ii) amounts
equal to any deemed earnings and losses (to the extent realized, based upon deemed fair market
value of the Sub-Account’s deemed assets as determined by the Sponsor, in its discretion) allocated
to that Sub-Account; and (iii) expenses and/or taxes charged to that Account.




          (a) Employer Matching Contributions. Employer Contribution Credits may be credited to
the Employer Matching Contribution Sub-Accounts of Participants who are eligible to receive a
matching contribution allocation under the 401(k) Plan. The Sponsor shall credit such
contributions with such frequency, and in such amounts, as the Sponsor determines in its sole
discretion and in accordance with provisions of Section 409A (in particular, Section 409A’s
restrictions on “linking” nonqualified deferred compensation plans to qualified plans), including,
for example, crediting such contributions at the close of each Plan Year in an amount equal to the
excess of: (i) the Participant’s Compensation for the Plan Year multiplied by the rate at which
matching contributions are made by the Employer under the 401(k) Plan for that Plan Year, using the
Participant’s Compensation for the Plan Year as defined herein rather than the 401(k) Plan’s
definition of “compensation” and calculated without regard to the limits on recognizable
compensation and employee deferrals under the 401(k) Plan resulting from the application of the
Code’s non-discrimination testing requirements; over (ii) the limits under the Code on employee
deferrals to the 401(k) Plan for the Plan Year (i.e., fifteen thousand dollars ($15,000) for the
2006 Plan Year, or twenty thousand dollars ($20,000) if the Participant is age fifty (50) or over).




               Notwithstanding the above-described discretion accorded to the Sponsor to establish the amount
of the Employer Contribution Credits credited to the Participants’ Employer
Matching Contribution Sub-Accounts each Plan Year, to the extent required under Section 409A, the
Sponsor shall establish such amount (or shall establish the foundation by which such amount will be
determined) prior to the commencement of the Plan Year in which the Participant first performs
services relating to the Employer Contribution Credits.



               A Participant shall become vested in amounts (if any) credited to his or her Employer Matching
Contribution Sub-Account according to the vesting schedule applicable to matching contributions
under the 401(k) Plan.



          (b) Employer Discretionary Contributions. The Employer Contribution Credits credited
to a Participant’s Employer Discretionary Contribution Sub-Account for any particular Plan Year
shall be an amount (if any) determined by the Board, in its discretion. The Sponsor shall credit
such contributions on behalf of such individuals, in such amounts and with such frequency, and
subject to such vesting and distribution requirements, as the Board determines in its sole
discretion and as Section 409A permits.




               Notwithstanding the above-described discretion accorded to the Sponsor to establish the amount
of the Employer Contribution Credits credited to the Participants’ Employer Discretionary
Contribution Sub-Accounts each Plan Year, to the extent required under Section 409A, the Sponsor
shall establish such amount (or shall establish the foundation by which such amount will be



7









 




determined) prior to the commencement of the Plan Year in which the Participant first performs
services relating to the Employer Contribution Credits.




     3.3 CONTRIBUTIONS TO THE TRUST. An amount shall be contributed by the Employer to the
Trust maintained under Section 10.1 equal to the amount(s) required to be credited to the
Participant’s Account under Sections 3.1 and 3.2. The Employer shall make a good faith effort to
contribute these amounts to the Trust as soon as practicable following the date on which the
contribution credit amount(s) are determined.



ARTICLE 4

ALLOCATION OF FUNDS




     4.1 ALLOCATION OF DEEMED EARNINGS OR LOSSES ON ACCOUNTS. Subject to such limitations
as may from time to time be required by law, imposed by the Sponsor or the Trustee or contained
elsewhere in the Plan (including in Section 4.4), and subject to such operating rules and
procedures as may be imposed from time to time by the Sponsor, prior to the date on which a
direction will become effective, the Participant shall have the right to direct the Sponsor as to
how amounts in his or her Account shall be deemed to be invested. The Sponsor, may, but is not
required to, direct the Trustee to invest the account maintained in the Trust on behalf of the
Participant pursuant to the deemed investment directions the Sponsor properly has received from the
Participant.



          The value of the Participant’s Account shall be equal to the value of the deemed investments
maintained under the Trust on behalf of the Participant. As of each valuation date of the Trust,
the Participant’s Account will be credited or debited to reflect the Participant’s deemed
investments of the Trust. The Participant’s Plan Account will be credited or debited with the
increase or decrease in the realizable net asset value or credited interest, as applicable, of the
designated deemed investments, as follows. As of each Valuation Date, an amount equal to the net
increase or decrease in realizable net asset value or credited interest, as applicable (as
determined by the Trustee), of each deemed investment option within the Account since the preceding
Valuation Date shall be allocated among all Participants’ Accounts deemed to be invested in that
investment option in accordance with the ratio which the portion of the Account of each Participant
which is deemed to be invested within that investment option, determined as provided herein, bears
to the aggregate of all amounts deemed to be invested within that investment option.




     4.2 ACCOUNTING FOR DISTRIBUTIONS. As of the date of any distribution hereunder, the
distribution made hereunder to the Participant or his or her Beneficiary or Beneficiaries shall be
charged to such Participant’s Account. The distribution shall be charged on a pro rata basis
against all the investments of the Trust in which the Participant’s Account is deemed to be
invested.



     4.3 SEPARATE ACCOUNTS. Separate bookkeeping sub-accounts shall be established and
maintained with respect to each Participant’s Account, each attributable to the portion of the
Participant’s Account representing the same type of credited deferral or contribution. That is,
for each Plan Year, if and as applicable, one sub-account shall be attributable to the portion of
the Participant’s



8









 




Account which represents base salary Compensation Deferrals, another attributable
to the portion of the Participant’s Account which represents bonus Compensation Deferrals, another
attributable to the portion of the Participant’s Account which represents matching Employer
Contribution Credits, and another attributable to the portion of the Participant’s Account which
represents discretionary Employer Contribution Credits.




     4.4 DEEMED INVESTMENT DIRECTIONS OF PARTICIPANTS. Subject to such limitations as may
from time to time be required by law, imposed by the Sponsor or the Trustee or contained elsewhere
in the Plan, and subject to such operating rules and procedures as may be imposed from time to time
by the Sponsor, prior to and effective for each Designation Date, each Participant may communicate
to the Sponsor a direction (in accordance with (a), below) as to how his or her Account should be
deemed to be invested among such categories of deemed investments as may be made available by the
Sponsor hereunder. Such direction shall designate the percentage (in any whole percent multiples)
of each portion of the Participant’s Account which is requested to be deemed to be invested in such
categories of deemed investments, and shall be subject to the following rules:



          (a) Any initial or subsequent deemed investment direction shall be in writing, on a form
supplied by and filed with the Sponsor, and/or, as required or permitted by the Sponsor, shall be
by oral designation and/or electronic transmission designation. A designation shall be effective
as of the Designation Date next following the date the direction is received and accepted by the
Sponsor on which it would be reasonably practicable for the Sponsor to effect the designation.




          (b) All amounts credited to the Participant’s Account shall be deemed to be invested in
accordance with the then effective deemed investment direction, and as of the Designation Date with
respect to any new deemed investment direction, all or a portion of the Participant’s Account at
that date shall be reallocated among the designated deemed investment funds according to the
percentages specified in the new deemed investment direction unless and until a subsequent deemed
investment direction shall be filed and become effective. An election concerning deemed investment
choices shall continue indefinitely as provided in the Participant’s most recent investment
direction form provided by and filed with the Sponsor.




          (c) If the Sponsor receives an initial or revised deemed investment direction which it deems
to be incomplete, unclear or improper, the Participant’s investment direction then in effect shall
remain in effect (or, in the case of a deficiency in an initial deemed investment direction, the
Participant shall be deemed to have filed no deemed investment direction) until the next
Designation Date, unless the Sponsor provides for, and permits the application of, corrective
action prior thereto.




          (d) If the Sponsor possesses (or is deemed to possess as provided in (c), above) at any time
directions as to the deemed investment of less than all of a Participant’s Account, the Participant
shall be deemed to have directed that the undesignated portion of the Account be deemed to be
invested in a money market, fixed income or similar fund made available under the Plan as
determined by the Sponsor in its discretion.





9









 








          (e) Each Participant hereunder, as a condition to his or her participation hereunder, agrees
to indemnify and hold harmless the Sponsor, the Employer and their agents and representatives from
any losses or damages of any kind relating to the deemed investment of the Participant’s Account
hereunder.




          (f) Each reference in this Section to a Participant shall be deemed to include, where
applicable, a reference to a Beneficiary of a deceased Participant.




     4.5 EXPENSES AND TAXES. Expenses, including Trustee fees, associated with the
administration or operation of the Plan shall be paid by the Sponsor from its general assets unless
the Sponsor elects to charge such expenses against the appropriate Participant’s Account or
Participants’ Accounts. Any taxes allocable to an Account (or portion thereof) maintained under
the Plan which are payable prior to the distribution of the Account (or portion thereof), as
determined by the Sponsor, shall be paid by the Sponsor unless the Sponsor elects to charge such
taxes against the appropriate Participant’s Account or Participants’ Accounts.



ARTICLE 5

ENTITLEMENT TO AND DISTRIBUTION OF BENEFITS




     5.1 FIXED PAYMENT DATE(S). At the same time that a Participant elects a Compensation
Deferral for a given Plan Year, the Participant may select, on his or her Payment Election Form, a
fixed payment date for the payment or commencement of payment of that part of his or her vested
Account attributable to Compensation Deferrals, as well as Employer Contribution Credits (but only
for the 2005 and 2006 Plan Years), made by the Participant or on the Participant’s behalf
during that Plan Year, and shall elect to have such amount paid in either a lump sum or up to ten
(10) substantially equal annual installments (adjusted for gains and losses). For these purposes,
any bonus Compensation deferred pursuant to a deferral election made during a given Plan Year shall
be considered as part of the Compensation Deferrals for the Plan Year in which such Compensation
would have been payable in absence of the bonus Compensation Deferral election (e.g., bonus
Compensation deferred pursuant to a deferral election made in June 2006 shall be considered as part
of the Participant’s 2007 Compensation Deferrals). Subject to such requirements as may be imposed
by the Sponsor, a Participant may make separate fixed payment date elections in respect of each
Plan Year’s salary Compensation Deferrals and/or bonus Compensation Deferrals, and earnings or
losses thereon.



          Employer Contribution Credits (and earnings or losses thereon) for the 2005 or 2006 Plan Year
will be distributed in accordance with the fixed payment date election that may have been made with
respect to salary Compensation Deferrals for that Plan Year, to the extent such Employer
Contribution Credits have become vested at the time of such fixed payment date (as extended, as
described in the following paragraph); provided that, if in either of those Plan Years the
Participant elects only bonus Compensation Deferrals, Employer Contribution Credits (and earnings
or losses thereon) for that Plan Year will be distributed in accordance with the fixed payment date
election that may have been made with respect to bonus Compensation Deferrals for that Plan Year,
to the extent such Employer Contribution Credits have become vested at such time. If any Employer
Contribution Credits with respect to the 2005 or 2006 Plan Years are not yet vested as of the fixed
payment date for such amounts (as extended, as described in the following paragraph), such unvested
Employer Contribution Credits (and earnings or losses thereon) shall be




10









 







paid upon Separation from
Service, if permitted by Section 409A. Notwithstanding the foregoing or anything in the Plan to
the contrary, Employer Contribution Credits credited hereunder with respect to the 2007 Plan Year
and subsequent Plan Years (and any earnings or losses thereon) shall not be eligible for fixed
payment date elections under this Section 5.1. Rather, such amounts shall be payable solely upon
Separation from Service.




          Payment upon a selected fixed payment date shall be in a lump sum and/or in up to ten (10)
annual installments, as selected by the Participant as provided above (or in a lump sum to the
extent the Participant fails to so select). Subject to the terms and conditions of this Plan, each
such payment shall be made or shall commence during the month of January of any Plan Year
designated by the Participant that is at least two (2) Plan Years after the Plan Year of the
Compensation Deferrals, as specifically elected by the Participant. By way of example, if a two
(2) year fixed payment date is elected for Compensation Deferrals that are deferred in the Plan
Year commencing January 1, 2006, such Compensation Deferrals (and earnings or losses thereon) would
become payable or would commence during January of 2009. Payment shall be in an amount that is
equal to the Compensation Deferral (or applicable portion thereof) and/or Employer Contribution
Credits (or applicable portion thereof), and amounts credited or debited thereto in the manner
provided in Article 4 above, determined at the time of the fixed payment date, provided that, if
the whole or any part of a payment hereunder is to be in installments, the total to be so paid
shall continue to be deemed to be invested pursuant to Article 4 under such procedures as the
Sponsor may establish, in which case any deemed income, gain, loss or expense or tax allocable
thereto (as determined by the Sponsor, in its discretion) shall be reflected in the installment
payments, using such method for the calculation of the installments as the Sponsor shall reasonably
determine.




          Notwithstanding the preceding or any other provision of this Plan that may be construed to the
contrary (except for Sections 5.7 and 5.8), a Participant who is in active service with the
Employer may, with respect to each fixed payment date, on a form determined by the Sponsor, make
one (1) or more additional deferral elections (a “Subsequent Election”) to (i) defer payment of
such fixed payment date to the January of a Plan Year subsequent to the Plan Year originally (or
subsequently) elected and/or to (ii) change the form of distribution of the amounts payable upon
or commencing upon such fixed payment date; provided, however, any such Subsequent Election will be
null and void unless accepted by the Sponsor no later than twelve (12) months prior to the first
day of the Plan Year in which, but for the Subsequent Election, such distribution would have
occurred or commenced, and such Subsequent Election provides for a deferral of at least five (5)
Plan Years following the Plan Year in which the distribution, but for the Subsequent Election,
would have occurred or commenced.




     5.2 SEPARATION FROM SERVICE. A Participant who elects payment or commencement of
payment of any part of his or her vested Account on a fixed date or dates in accordance with
Section 5.1 shall nevertheless receive payment of such amounts upon or commencing upon the earlier
of such fixed payment date or dates (as extended, if applicable) or his or her Separation from
Service.



          Accordingly, whether or not a Participant has elected under Section 5.1 a fixed payment date
or dates with respect to a given Plan Year’s Compensation Deferrals, at the same time that a
Participant elects a Compensation Deferral that Plan Year, the Participant shall elect, on his or
her Payment Election Form, to have the portion of his or her vested Account attributable to







11









 







Compensation Deferrals and Employer Contribution Credits made by the Participant or on the
Participant’s behalf during that Plan Year paid upon the Participant’s Separation from Service in
either a lump sum or up to ten (10) substantially equal annual installments (adjusted for gains and
losses). For these purposes, any bonus Compensation deferred pursuant to a deferral election made
during a given Plan Year shall be considered as part of the Compensation Deferrals for the Plan
Year in which such Compensation would have been payable in absence of the bonus Compensation
Deferral election (e.g., bonus Compensation deferred pursuant to a deferral election made in June
2006 shall be considered as part of the Participant’s 2007 Compensation Deferrals). Subject to
such requirements as may be imposed by the Sponsor, a Participant may make separate payment
elections in respect of each Plan Year’s salary Compensation Deferrals and/or bonus Compensation
Deferrals, and earnings or losses thereon.




          Employer Contribution Credits (and earnings or losses thereon) with respect to a given Plan
Year will be distributed in accordance with the election made by the Participant with respect to
his or her salary Compensation Deferrals for that Plan Year, to the extent such Employer
Contribution Credits are vested at Separation from Service; provided that, if in any Plan Year the
Participant elects only bonus Compensation Deferrals, Employer Contribution Credits (and earnings
or losses thereon) for that Plan Year will be distributed in accordance with the election made with
respect to bonus Compensation Deferrals for that Plan Year, to the extent such Employer
Contribution Credits are vested at Separation from Service.




          Payment upon Separation from Service shall be made in a lump sum and/or in up to ten (10)
annual installments, as selected by the Participant as provided above (or in a lump sum to the
extent the Participant fails to so select, as provided below). Subject to the terms and
conditions of this Plan, payments shall be made or shall commence within ninety (90) days following
the Participant’s Separation from Service (but not later than as permitted under Section 409A), in
an aggregate amount equal to the value of the Participant’s as-yet undistributed vested Account;
provided, however, that any Participant who is a Specified Employee shall not be entitled to
receive any portion of his or her Account prior to the date which is six (6) months after the date
of his or her Separation from Service, unless Separation from Service is on account of the
Participant’s death or the Participant dies during such six (6) month period. If the whole or any
part of a payment hereunder is to be in installments, the total to be so paid shall continue to be
deemed to be invested pursuant to Article 4 under such procedures as the Sponsor may establish, in
which case any deemed income, gain, loss or expense or tax allocable thereto (as determined by the
Sponsor, in its discretion) shall be reflected in the installment payments, using such method for
the calculation of the installments as the Sponsor shall reasonably determine.




          Notwithstanding the preceding or any other provision of this Plan that may be construed to the
contrary, subject to Sections 5.7 and 5.8, a Participant may change the form of distribution of his
or her vested Account upon Separation from Service by submitting a new Payment Election Form to the
Sponsor, provided that any such form is submitted at least twelve (12) months prior to the
Participant’s scheduled distribution (or commencement of distributions) date and provides for a
distribution (or commencement of distributions) date which is at least five (5) full calendar years
after the distribution date then in effect.




          If a Participant fails to timely make an election as provided above for any particular amounts
hereunder, and the Participant experiences a Separation from Service, the Participant’s





12









 







vested
Account at the date of such Separation from Service shall be paid in a lump sum upon such
Separation from Service (or, with respect to a Specified Employee, six (6) months after such
Separation from Service (or, if earlier, his or her death)).




     5.3 HARDSHIP DISTRIBUTIONS. If a Participant experiences an Unforeseeable Financial
Emergency (defined below), the Participant may petition the Sponsor to (a) halt any Compensation
Deferrals required to be made by the Participant to the extent permitted under Section 409A and/or
(b) receive a partial or full payout from the Plan. The payout shall not exceed the lesser of the
Participant’s vested Account balance 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, by liquidation of
the Participant’s assets (to the extent the liquidation of assets would not itself cause
severe financial hardship) or by termination of Compensation Deferrals hereunder. A termination of
Compensation Deferrals or payout under this Section shall be permitted solely to the extent
permitted under Section 409A. If, subject to the sole discretion of the Sponsor (which discretion
the Sponsor is bound to exercise, however, within the limitations of Section 409A), the petition
for a termination of Compensation Deferrals and payout is approved, cessation shall take effect
upon the date of approval and any payout shall be made in a lump sum within sixty (60) days of the
date of approval.



          “Unforeseeable Financial Emergency” means a severe financial hardship to the Participant
resulting from (a) an illness or accident of the Participant, the Participant’s spouse or a
dependent (as defined in Code section 152(a)) of the Participant, (b) a loss of the Participant’s
property due to casualty (including the need to rebuild a home following damage not otherwise
covered by insurance, for example, not as a result of a natural disaster), or (c) such other
extraordinary and unforeseeable circumstances arising as a result of events beyond the control of
the Participant (e.g., imminent foreclosure of or eviction from the Participant’s primary
residence, the need to pay for medical expenses, including non-refundable deductibles and
prescription drugs, the need to pay funeral expenses of a spouse or dependent), all as determined
in the sole discretion of the Sponsor (which discretion the Sponsor is bound to exercise, however,
within the limitations of Section 409A).




     5.4 DEATH BENEFITS. Notwithstanding anything in this Article 5 or elsewhere in the
Plan to the contrary, if a Participant dies before terminating his or her employment with the
Employer and before the commencement of payments to the Participant hereunder, the entire value of
the Participant’s vested Account shall be paid, within ninety (90) days following the Participant’s
death (but not later than as permitted by Section 409A), in a lump sum, to the person or persons
designated in accordance with Section 6.1.



          Upon the death of a Participant after payments hereunder have begun but before he or she has
received all payments to which he or she is entitled under the Plan, the remaining benefit payments
shall be paid to the person or persons designated in accordance with Section 6.1, in a single lump
sum.




13









 








     5.5 FORM AND SOURCE OF PAYMENTS. All payments under the Plan shall be made in cash.
Any payment due hereunder which is not paid from the Trust for any reason will be paid by the
Employer from its general assets.



     5.6 WITHHOLDING. All distributions under the Plan, including hardship distributions,
are subject to any applicable payroll tax withholding, as determined by the Employer in its
discretion.



     5.7 PROHIBITED ACCELERATION/DISTRIBUTION TIMING. Notwithstanding anything in the Plan
to the contrary, no change submitted on a Payment Election Form shall be accepted by the Sponsor if
the change accelerates the time over which distributions shall be made to the Participant (except
as otherwise permitted by Section 409A), and the Sponsor shall deny any change made to an election
if the Sponsor determines that the change violates the requirement under Section 409A that the
election be made at least twelve (12) months in advance of the scheduled payment (or commencement
date) and/or 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.
For these purposes, installment payments shall be treated as a single payment, with the result that
an election to change from installments to a lump sum will require that the lump sum be postponed
until a date whish is at least five (5) years from the scheduled payment date of the first
installment.



          Notwithstanding the preceding, the Sponsor, in its discretion, may permit a distribution under
the Plan as may be necessary to fulfill a domestic relations order (as defined in Code section
414(p)(1)(B)) or to comply with a certificate of divestiture (as defined in Code section
1043(b)(2)) or as otherwise permitted under Section 409A (such as, for example, as provided in Q&A
15 of IRS Notice 2005-1).




     5.8 TRANSITION RULE FOR CERTAIN DISTRIBUTION ELECTIONS. Notwithstanding any Plan
provision to the contrary, effective as of January 1, 2005, to the extent permitted by the
Administrator and Section 409A (including Q&A-19(c) of IRS Notice 2005-1, 2005-2 IRB 274
(12/20/2004)), a Participant may, on or prior to December 31, 2006, choose a new distribution date
for the payment (or commencement of payment) of his or her vested Account and/or may make a new
election with respect to the form of payment of his or her vested Account in accordance Sections
5.1 and 5.2 and such elections shall not be treated as a change in the form and timing of payment
or an acceleration of payment, provided that:



          (a) the Participant may not make an election under this Section during the 2006 calendar year
with respect to payments that, but for the election, the Participant would otherwise receive during
the 2006 calendar year; and




          (b) the Participant may not make an election under this Section during the 2006 calendar year
which would cause payments to be made during the 2006 calendar year.




     5.9 PAYMENT OF BENEFITS. To the extent required by Section 409A, no payment made
under this Article 5 shall be made later than the last day of the calendar year in which the



14









 




payment event occurs, or, if later, the fifteenth (15th) day of the third
(3rd) calendar month following the date of the payment event.




ARTICLE 6

BENEFICIARIES; PARTICIPANT DATA




     6.1 DESIGNATION OF BENEFICIARIES. Each Participant from time to time may designate
any person or persons (who may be named contingently or successively) to receive such benefits as
may be payable under the Plan upon or after the Participant’s death. Notwithstanding the preceding
or anything herein to the contrary, a married Participant shall be deemed to have designated his or
her spouse as his or her Beneficiary. Such Participant may designate a non-spouse Beneficiary(ies)
solely with the consent of his or her spouse, in such manner as the Sponsor shall reasonably
require.



          A Participant’s Beneficiary designation may be changed from time to time by the Participant by
filing a new designation. Each designation will revoke all prior designations by the same
Participant, shall be in a form prescribed by the Sponsor, and will be effective only when filed in
writing with the Sponsor during the Participant’s lifetime.




          In the absence of a valid Beneficiary designation, or if, at the time any benefit payment is
due to a Beneficiary, there is no living Beneficiary validly named by the Participant, the Sponsor
shall pay any such benefit payment to the Participant’s spouse, if then living, but otherwise to
the Participant’s then living descendants, if any, per stirpes, but, if none, to the
Participant’s estate. In determining the existence or identity of anyone entitled to a benefit
payment, the Sponsor may rely conclusively upon information supplied by the Participant’s personal
representative, executor or administrator. If a question arises as to the existence or identity of
anyone entitled to receive a benefit payment as aforesaid, or if a dispute arises with respect to
any such payment, then, notwithstanding the foregoing, the Sponsor, in its sole discretion, may
direct that the Trustee or Employer distribute such payment to the Participant’s estate without
liability for any tax or other consequences which might flow therefrom, or may take such other
action as the Sponsor deems to be appropriate.




     6.2 INFORMATION TO BE FURNISHED BY PARTICIPANTS AND BENEFICIARIES; INABILITY TO LOCATE
PARTICIPANTS OR BENEFICIARIES. Any communication, statement or notice addressed to a
Participant or to a Beneficiary at his or her last post office address as shown on the Employer’s
records shall be binding on the Participant or Beneficiary for all purposes of the Plan. Neither
an Employer nor the Sponsor shall be obliged to search for any Participant or Beneficiary beyond
the sending of a registered letter to such last known address. If the Sponsor or Employer 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
Employer 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 Employer, the Sponsor
may direct distribution of such amount to any one or more or all of such next of kin, and in such
proportions as the Sponsor determines. If the location of none of the foregoing persons can be
determined, the Sponsor shall have the right to direct that the amount payable shall be



15









 




deemed to
be a forfeiture, except that the dollar amount of the forfeiture, unadjusted for deemed gains or
losses in the interim, shall be paid by the Sponsor 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
Employer nor the Sponsor shall not be liable to any person for any payment made in accordance with
such law.




ARTICLE 7

ADMINISTRATION




     7.1 ADMINISTRATIVE AUTHORITY. Except as otherwise specifically provided herein, the
Sponsor shall be the Administrator of the Plan, and, as such, shall have the sole responsibility
for and the sole control of the operation and administration of the Plan, and shall have the power
and authority to take all action and to make all decisions and interpretations which may be
necessary or appropriate in order to administer and operate the Plan, including, without limiting
the generality of the foregoing, the power, duty and responsibility to:



          (a) Resolve and determine all disputes or questions arising under the Plan, and to remedy any
ambiguities, inconsistencies or omissions in the Plan.




          (b) Adopt such rules of procedure and regulations as in its opinion may be necessary for the
proper and efficient administration of the Plan and as are consistent with the Plan.




          (c) Implement the Plan in accordance with its terms and the rules and regulations adopted as
above.




          (d) Make determinations with respect to the eligibility of any Eligible Employee as a
Participant and make determinations concerning the crediting of Plan Accounts.




          (e) Appoint any persons or firms, or otherwise act to secure specialized advice or assistance,
as it deems necessary or desirable in connection with the administration and operation of the Plan,
and the Sponsor 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 such firms or
persons. The Sponsor shall have the power and authority to delegate from time to time by written
instrument all or any part of its duties, powers or responsibilities under the Plan, both
ministerial and discretionary, as it deems appropriate, to any person or committee, and in the same
manner to revoke any such delegation of duties, powers or responsibilities. Any action of such
person or committee in the exercise of such delegated duties, powers or responsibilities shall have
the same force and effect for all purposes hereunder as if such action had been taken by the
Sponsor. Further, the Sponsor may authorize one or more persons to execute any certificate or
document on behalf of the Sponsor, in which event any person notified by the Sponsor of such
authorization shall be entitled to accept and conclusively rely upon any such certificate or
document executed by such person as representing action by the Sponsor until such notified person
shall have been notified of the revocation of such authority.





16









 








     7.2 UNIFORMITY OF DISCRETIONARY ACTS. Whenever in the administration or operation of
the Plan discretionary actions by the Sponsor are required or permitted, such actions shall be
consistently and uniformly applied to all persons similarly situated, and no such action shall be
taken which shall discriminate in favor of any particular person or group of persons.



     7.3 LITIGATION. Except as may be otherwise required by law, in any action or judicial
proceeding affecting the Plan, no Participant or Beneficiary shall be entitled to any notice or
service of process, and any final judgment entered in such action shall be binding on all persons
interested in, or claiming under, the Plan.



     7.4 CLAIMS PROCEDURE. This Section is based on final regulations issued by the
Department of Labor and published in the Federal Register on November 21, 2000 and codified at
section 2560.503-1 of the Department of Labor Regulations. If any provision of this Section
conflicts with the requirements of those regulations, the requirements of those regulations will
prevail.



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




               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 Sponsor or
appointee of the Sponsor 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 180 days after the day the claim is filed.



               If the Sponsor 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 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



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



17









 





          (b) Review Procedures. A request for review of a denied claim must be made in writing
to the Sponsor within sixty (60) days after receiving notice of denial. The decision upon review
will be made within sixty (60) days after the Employer’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 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
Sponsor. 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.



               Upon completion of its review of an adverse initial claim determination, the Sponsor 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 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.



          (c) Calculation of Time Periods. For purposes of the time periods specified in this
Section, 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.






18









 








          (d) Failure of Plan to Follow Procedures. If the Plan fails to follow the claims
procedures required by this Section, 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.




          (e) Failure of Claimant to Follow Procedures. A Claimant’s compliance with the
foregoing provisions of this Section is a mandatory prerequisite to the Claimant’s right to
commence any legal action with respect to any claim for benefits under the Plan.




ARTICLE 8

AMENDMENT




     8.1 RIGHT TO AMEND. Subject to Section 409A, the Sponsor, by action of the Board,
shall have the right to amend the Plan, at any time and with respect to any provisions hereof, and
all parties hereto or claiming any interest hereunder shall be bound by such amendment; provided,
however, that no such amendment shall deprive a Participant or a Beneficiary of a right accrued
hereunder prior to the date of the amendment.



     8.2 AMENDMENTS TO ENSURE PROPER CHARACTERIZATION OF PLAN. Notwithstanding the
provisions of Section 8.1, the Plan may be amended by the Sponsor, by action of the Board, at any
time, retroactively if required, if found necessary, in the opinion of the Sponsor, in order to
ensure that the Plan is characterized as “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), and to conform the Plan to the provisions and requirements of any
applicable law (including ERISA and the Code). No such amendment shall be considered prejudicial
to any interest of a Participant or a Beneficiary hereunder.



     8.3 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
AEarly 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). The Sponsor shall have the discretion to interpret
this Section in the manner it determines best carries out its intention to prevent unanticipated,
early taxation of Plan interests to Participants; provided that such interpretation is in
accordance with Section 409A.





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          (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 is impacted by the change in the law, then only such portion shall be
subject to this Section, with the remainder of the Account 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 Employer, 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.




ARTICLE 9

TERMINATION




     9.1 SPONSOR’S RIGHT TO TERMINATE OR SUSPEND PLAN. The Sponsor reserves the right to
terminate the Plan and/or obligations to make further credits to Plan Accounts, by action of the
Board. The Sponsor also reserves the right to suspend the operation of the Plan for a fixed or
indeterminate period of time, by action of the Board. Finally, the Sponsor reserves the right to
terminate any Employer’s participation herein as provided in Section 10.6.



     9.2 AUTOMATIC TERMINATION OF PLAN. The Plan automatically shall terminate upon the
dissolution of the Sponsor, or upon its merger into or consolidation with any other corporation or
business organization if there is a failure by the surviving corporation or business organization
to adopt specifically and agree to continue the Plan.



     9.3  SUSPENSION OF DEFERRALS. In the event of a suspension of the Plan, the Sponsor
shall continue all aspects of the Plan, other than contributions to the Plan, during the period of
the suspension, in which event payments hereunder will continue to be made during the period of the
suspension in accordance with Article 5. Solely if and to the extent that future guidance issued
under Section 409A permits, the Sponsor shall also have the right, in its sole discretion, to (a)
terminate any Compensation Deferral election the Participant has made for the remainder of the Plan
Year in which the Plan has been suspended and/or (b) immediately distribute the Participant’s then
vested Account and terminate the Participant’s participation in the Plan.



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     9.4 ALLOCATION AND DISTRIBUTION. This Section shall become operative on a complete
termination of the Plan. The provisions of this Section also shall become operative in the event
of a partial termination of the Plan, as determined by the Sponsor, but only with respect to that
portion of the Plan attributable to the Participants to whom the partial termination is applicable.
Upon the effective date of any such event, notwithstanding any other provisions of the Plan, no
persons who were not theretofore Participants shall be eligible to become Participants, the value
of the interest of all Participants and Beneficiaries shall be determined and, after deduction of
estimated expenses in liquidating and, if applicable, paying Plan benefits, paid to them as soon as
is practicable after such termination; provided however, if, due to the circumstances surrounding
the Plan termination, a distribution of a Participant’s vested Account upon Plan termination is not
permitted by Section 409A, the payment of the vested Account balance shall be made only after Plan
benefits otherwise become due hereunder.



          Without limiting the generality of the foregoing, and subject at all times to Section 409A,
the Sponsor specifically reserves the right to terminate the Plan with respect to all of its
Participants and Beneficiaries, in its discretion and by action of the Board, within the thirty
(30) days preceding or the twelve (12) months following a change in control event (as defined in
Section 409A); provided, however, that, to the extent required under Section 409A, such termination
shall be permitted only if all substantially similar arrangements sponsored by the Employer are
terminated, so that the Eligible Employees participating under the Plan and all participants under
substantially similar arrangements are required to receive all amounts of compensation deferred
under the terminated arrangements within twelve (12) months of the date of termination of the
arrangements.




     9.5 SUCCESSOR TO SPONSOR. Any corporation or other business organization which is a
successor to the Sponsor by reason of a consolidation, merger or purchase of substantially all of
the assets of the Sponsor shall have the right to become a party to the Plan by adopting the same
by resolution of the entity’s board of directors or other appropriate governing body. If, within
ninety (90) days from the effective date of such consolidation, merger or sale of assets, such new
entity does not become a party hereto, as above provided, the Plan automatically shall be
terminated, and the provisions of Section 9.4 shall become operative.



     9.6 WITHDRAWAL OR TERMINATION BY AN EMPLOYER. Any Employer, by action of its board of
directors or other governing authority and notice to the Sponsor and the Trustee, may withdraw from
the Plan and Trust at any time, or may terminate the Plan and Trust with respect to its Employees
at any time, without affecting other Employers not withdrawing or terminating. A withdrawing
Employer may arrange for the continuation of this Plan and Trust in separate forms for its own
Employees, with such amendments, if any, as it may deem proper, and may arrange for continuation of
the Plan and Trust by merger with an existing plan and trust. The Sponsor may, in its absolute
discretion, terminate an Employer’s participation in this Plan at any time, without the consent of
any Employer, Participant or Beneficiary.



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ARTICLE 10

THE TRUST




     10.1 ESTABLISHMENT OF TRUST. The Sponsor shall establish the Trust with the Trustee
pursuant to such terms and conditions as are set forth in the Trust agreement to be entered into
between the Sponsor and the Trustee or the Sponsor (directly or through an agent of the Sponsor or
the Trustee) shall cause to be maintained one or more separate subaccounts in an existing Trust
maintained with the Trustee with respect to one or more other plans of the Sponsor, which
subaccount or subaccounts represent Participants’ interests in the Plan. Any such Trust shall be
intended to be treated as a “grantor trust” under the Code and the establishment of the Trust or
the utilization of any existing Trust for Plan benefits, as applicable, shall not be intended to
cause any Participant to realize current income on amounts contributed thereto, and the Trust shall
be so interpreted.



ARTICLE 11

MISCELLANEOUS




     11.1 LIMITATIONS ON LIABILITY OF SPONSOR OR EMPLOYER. Neither the establishment of
the Plan nor any modification thereof, nor the creation of any account under the Plan, nor the
payment of any benefits under the Plan shall be construed as giving to any Participant or other
person any legal or equitable right against the Sponsor, the Employer, or any officer or employee
thereof except as provided by law or by any Plan provision. Neither the Sponsor nor the Employer
in any way guarantee any Participant’s Account from loss or depreciation, whether caused by poor
investment performance of a deemed investment or the inability to realize upon an investment due to
an insolvency affecting an investment vehicle or any other reason. In no event shall the Sponsor,
the Employer, or any successor, employee, officer, director or stockholder of the Sponsor or the
Employer, be liable to any person on account of any claim arising by reason of the provisions of
the Plan or of any instrument or instruments implementing its provisions, or for the failure of any
Participant, Beneficiary or other person to be entitled to any particular tax consequences with
respect to the Plan, or any credit or distribution hereunder. Without limiting the generality of
the preceding, neither the Sponsor nor the Employer shall be liable to any person on account of any
claim arising by reason of any action or inaction on the part of any third-party service provider
to the Plan, except to the extent such service provider is liable therefor to the Plan Sponsor or
the Employer.



     11.2 CONSTRUCTION. If any provision of the Plan is held to be illegal or void, such
illegality or invalidity shall not affect the remaining provisions of the Plan, but shall be fully
severable, and the Plan shall be construed and enforced as if said illegal or invalid provision had
never been inserted herein. For all purposes of the Plan, where the context admits, the singular
shall include the plural, and the plural shall include the singular. Headings of Articles and
Sections herein are inserted only for convenience of reference and are not to be considered in the
construction of the Plan. The laws of Texas shall govern, control and determine all questions of
law arising with respect to the Plan and the interpretation and validity of its respective
provisions, except where those laws are preempted by the laws of the United States. Participation
under the Plan will not give any



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Participant the right to be retained in the service of the
Employer nor any right or claim to any benefit under the Plan unless such right or claim has
specifically accrued hereunder.




          The Plan is intended to be and at all times shall be interpreted and administered so as to
qualify as an unfunded deferred compensation plan, and no provision of the Plan shall be
interpreted so as to give any individual any right in any assets of the Employer which is greater
than the rights of a general unsecured creditor of the Employer.




     11.3 SPENDTHRIFT PROVISION. No amount payable to a Participant or a Beneficiary under
the Plan will, except as otherwise specifically provided by law, be subject in any manner to
anticipation, alienation, attachment, garnishment, sale, transfer, assignment (either at law or in
equity), levy, execution, pledge, encumbrance, charge or any other legal or equitable process, and
any attempt to do so will be void; nor will any benefit be in any manner liable for or subject to
the debts, contracts, liabilities, engagements or torts of the person entitled thereto. Further,
(i) the withholding of taxes from Plan benefit payments, (ii) the recovery under the Plan of
overpayments of benefits previously made to a Participant or Beneficiary, (iii) if applicable, the
transfer of benefit rights from the Plan to another plan, or (iv) the direct deposit of benefit
payments to an account in a banking institution (if not actually part of an arrangement
constituting an assignment or alienation) shall not be construed as an assignment or alienation.



          In the event that any Participant’s or Beneficiary’s benefits hereunder are garnished or
attached by order of any court, the Sponsor, the Employer or the Trustee may bring an action or a
declaratory judgment in a court of competent jurisdiction to determine the proper recipient of the
benefits to be paid under the Plan. During the pendency of said action, any benefits that become
payable shall be held as credits to the Participant’s or Beneficiary’s Account or, if the Sponsor,
the Employer or the Trustee prefers, paid into the court as they become payable, to be distributed
by the court to the recipient as the court deems proper at the close of said action.




     11.4 SECURITIES LAW CONDITIONS. Notwithstanding anything herein to the contrary, if
and to the extent permitted by Section 409A, the Sponsor may but need not deny a distribution
election made by a Participant who is subject to short-swing trading liability of Section 16(b) of
the Securities and Exchange Act of 1934 under circumstances in which said distribution may result
in the imposition of such liability.



     11.5 AGGREGATION OF EMPLOYERS. To the extent required under Section 409A, if the
Employer is a member of a controlled group of corporations or a group of trades or businesses under
common control (as described in Code sections 414(b) or (c)), all members of the group shall be
treated as a single Employer for purposes of whether there has occurred a Separation from Service
and for any other purposes under the Plan as Section 409A shall require.



     11.6 DELAY IN PAYMENT. If the Sponsor determines in good faith that there is a
reasonable likelihood that any payment scheduled to be made hereunder would violate any applicable
laws or loan covenants or other contractual terms to which
the Employer is subject, and that such a violation would result in material harm to the
Employer, the Administrator may defer all or any portion of a distribution under this Plan. In
addition, the Administrator may, in its discretion, delay a



23









 




payment upon such other events and
conditions as the IRS may prescribe, such as to avoid jeopardizing the solvency of the Employer.
Any amounts deferred pursuant to this Section shall continue to be credited or debited with
additional amounts in accordance with Article 4 above, 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 Sponsor in good faith, on which such violation or
material harm would be avoided or as otherwise prescribed by the IRS. Notwithstanding the
foregoing, this Section shall apply only to the extent permitted by Section 409A




     11.7 SECTION 409A COMPLIANCE. Notwithstanding anything in the Plan to the contrary,
(i) this Plan may be amended by the Sponsor at any time, retroactively if required, to the extent
required to conform the Plan to Section 409A, (ii) no provision of the Plan shall be followed to
the extent that following such provision would result in a violation of Section 409A, and (iii) no
election made by a Participant hereunder, and no change made by a Participant to a previous
election, shall be accepted by the Sponsor if the Sponsor determines that acceptance of such
election or change could violate any of the requirements of Section 409A, resulting in early
taxation and penalties.



     IN WITNESS WHEREOF, the Sponsor has caused the Plan to be executed and its seal to be affixed
hereto, effective as of the 1st day of January, 2005.



	 	 	 	 	 	 	 
	ATTEST/WITNESS:	 	THE HOUSTON EXPLORATION COMPANY
	 
	 	 	 	 	 	 
	/s/ Carolyn M. Campbell

	 	By:
	 	/s/ Roger B. Rice
	 	(SEAL)
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	Print: Carolyn M. Campbell	 	Print Name: Roger B. Rice
	 
	 	 	 	 	 	 
	 	 	Date: 7/25/06







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