exv10w32



 





EXHIBIT 10.32




THE EXECUTIVE NONQUALIFIED EXCESS PLANSM

PLAN DOCUMENT





 









 








TABLE OF CONTENTS




THE EXECUTIVE NONQUALIFIED EXCESS PLANSM




	 	 	 	 	 
	 	 	Page
	Section 1. Purpose:
	 	 	1	 
	Section 2. Definitions:
	 	 	1	 
	2.1 “Active Participant”
	 	 	1	 
	2.2 “Adoption Agreement”
	 	 	2	 
	2.3 “Beneficiary”
	 	 	2	 
	2.4 “Board”
	 	 	2	 
	2.5 “Change in Control”
	 	 	2	 
	2.6 “Committee”
	 	 	3	 
	2.7 “Compensation”
	 	 	3	 
	2.8 “Crediting Date”
	 	 	4	 
	2.9 “Deferred Compensation Account”
	 	 	4	 
	2.10 “Disabled”
	 	 	4	 
	2.11 “Education Account”
	 	 	4	 
	2.12 “Effective Date”
	 	 	5	 
	2.13 “Employee”
	 	 	5	 
	2.14 “Employer”
	 	 	5	 
	2.15 “Employer Credits”
	 	 	5	 
	2.16 “Independent Contractor”
	 	 	5	 
	2.17 “In-Service Account”
	 	 	6	 
	2.18 “Normal Retirement Age”
	 	 	6	 
	2.19 “Participant”
	 	 	6	 
	2.20 “Participant Deferral Agreement”
	 	 	6	 






 









 






	 	 	 	 	 
	 	 	Page
	2.21 “Participant Deferral Credits”
	 	 	6	 
	2.22 “Participating Employer”
	 	 	6	 
	2.23 “Performance-Based Compensation”
	 	 	6	 
	2.24 “Plan”
	 	 	7	 
	2.25 “Plan Administrator”
	 	 	7	 
	2.26 “Plan-Approved Domestic Relations Order”
	 	 	7	 
	2.27 “Plan Year”
	 	 	9	 
	2.28 “Qualifying Distribution Event”
	 	 	9	 
	2.29 “Retirement Account”
	 	 	9	 
	2.30 “Service”
	 	 	9	 
	2.31 “Service Bonus”
	 	 	10	 
	2.32 “Specified Employee”
	 	 	10	 
	2.33 “Spouse” or “Surviving Spouse”
	 	 	10	 
	2.34 “Student”
	 	 	10	 
	2.35 “Trust”
	 	 	10	 
	2.36 “Trustee”
	 	 	10	 
	2.37 “Unforeseeable Emergency”
	 	 	11	 
	2.38 “Years of Service”
	 	 	11	 
	Section 3. Participation:
	 	 	11	 
	Section 4. Credits to Deferred Compensation Account:
	 	 	11	 
	4.1 Participant Deferral Credits
	 	 	11	 
	4.2 Employer Credits
	 	 	13	 
	4.3 Deferred Compensation Account
	 	 	14	 
	Section 5. Qualifying Distribution Events:
	 	 	14	 
	5.1 Separation from Service
	 	 	14	 






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	 	 	Page
	5.2 Disability
	 	 	14	 
	5.3 Death
	 	 	14	 
	5.4 In-Service Distributions
	 	 	15	 
	5.5 Education Distributions
	 	 	15	 
	5.6 Change in Control
	 	 	16	 
	5.7 Unforeseeable Emergency
	 	 	17	 
	Section 6. Qualifying Distribution Events Payment Options:
	 	 	18	 
	6.1 Payment Options
	 	 	18	 
	6.2 De Minimis Amounts
	 	 	19	 
	6.3 Subsequent Elections
	 	 	19	 
	6.4 Acceleration Prohibited
	 	 	20	 
	Section 7. Vesting:
	 	 	20	 
	Section 8. Accounts; Deemed Investment; Adjustments to Account:
	 	 	20	 
	8.1 Accounts
	 	 	20	 
	8.2 Deemed Investments
	 	 	21	 
	8.3 Adjustments to Deferred Compensation Account
	 	 	21	 
	Section 9. Administration by Committee:
	 	 	21	 
	9.1 Membership of Committee
	 	 	21	 
	9.2 Committee Officers; Subcommittee
	 	 	22	 
	9.3 Committee Meetings
	 	 	22	 
	9.4 Transaction of Business
	 	 	22	 
	9.5 Committee Records
	 	 	22	 
	9.6 Establishment of Rules
	 	 	23	 
	9.7 Conflicts of Interest
	 	 	23	 
	9.8 Correction of Errors
	 	 	23	 






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	 	 	Page
	9.9 Authority to Interpret Plan
	 	 	23	 
	9.10 Third Party Advisors
	 	 	23	 
	9.11 Compensation of Members
	 	 	24	 
	9.12 Expense Reimbursement
	 	 	24	 
	9.13 Indemnification
	 	 	24	 
	Section 10. Contractual Liability; Trust:
	 	 	25	 
	10.1 Contractual Liability
	 	 	25	 
	10.2 Trust
	 	 	25	 
	Section 11. Allocation of Responsibilities:
	 	 	25	 
	11.1 Board
	 	 	25	 
	11.2 Committee
	 	 	26	 
	11.3 Plan Administrator
	 	 	26	 
	Section 12. Benefits Not Assignable; Facility of Payments:
	 	 	26	 
	12.1 Benefits Not Assignable
	 	 	26	 
	12.2 Plan-Approved Domestic Relations Orders
	 	 	27	 
	12.3 Payments to Minors and Others
	 	 	27	 
	Section 13. Beneficiary:
	 	 	28	 
	Section 14. Amendment and Termination of Plan:
	 	 	28	 
	14.1 Termination in the Discretion of the Employer
	 	 	29	 
	14.2 Termination Upon Change in Control
	 	 	29	 
	14.3 Termination On or Before December 31, 2005
	 	 	29	 
	14.4 No Financial Triggers
	 	 	30	 
	Section 15. Communication to Participants:
	 	 	30	 
	Section 16. Claims Procedure:
	 	 	30	 
	16.1 Filing of a Claim for Benefits
	 	 	30	 






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	 	 	Page
	16.2 Notification to Claimant of Decision
	 	 	30	 
	16.3 Procedure for Review
	 	 	31	 
	16.4 Decision on Review
	 	 	31	 
	16.5 Action by Authorized Representative of Claimant
	 	 	32	 
	Section 17. Miscellaneous Provisions:
	 	 	32	 
	17.1 Set off
	 	 	32	 
	17.2 Notices
	 	 	32	 
	17.3 Lost Distributees
	 	 	33	 
	17.4 Reliance on Data
	 	 	33	 
	17.5 Receipt and Release for Payments
	 	 	33	 
	17.6 Headings
	 	 	33	 
	17.7 Continuation of Employment
	 	 	34	 
	17.8 Merger or Consolidation; Assumption of Plan
	 	 	34	 
	17.9 Construction
	 	 	34	 






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THE EXECUTIVE NONQUALIFIED EXCESS PLANSM




          Section 1. Purpose:




          By execution of the Adoption Agreement, the Employer has adopted the Plan set forth herein to
provide a means by which certain management Employees or Independent Contractors of the Employer
may elect to defer receipt of current Compensation from the Employer in order to provide retirement
and other benefits on behalf of such Employees or Independent Contractors of the Employer, as
selected in the Adoption Agreement. The Plan is intended to be a nonqualified deferred compensation
plan that complies with the provisions of Section 409A of the Internal Revenue Code (the “Code”).
The Plan is intended to be an unfunded plan maintained primarily for the purpose of providing
deferred compensation benefits 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 and independent contractors.




          Section 2. Definitions:




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




          2.1 “Active Participant” means, with respect to any day or date, a Participant who is in
Service on such day or date; provided, that a Participant shall cease to be an Active Participant
immediately upon a determination by the Committee that the Participant has ceased to be an Employee
or Independent Contractor, or that the Participant no longer meets the eligibility requirements of
the Plan.




 









 








          2.2 “Adoption Agreement” means the written agreement pursuant to which the Employer adopts the
Plan. The Adoption Agreement is a part of the Plan as applied to the Employer.




          2.3 “Beneficiary” means the person, persons, entity or entities designated or determined
pursuant to the provisions of Section 13 of the Plan.




          2.4 “Board” means the Board of Directors of the Employer, if the Employer is a corporation. If
the Employer is not a corporation, “Board” shall mean the Employer.




          2.5 “Change in Control” of a corporation (or, to the extent permitted in this Section 2.5, a
partnership or other entity) shall occur on the earliest of the following events:





     2.5.1 Change in Ownership: A change in ownership of a corporation occurs on the
date that any one person, or more than one person acting as a group, acquires
ownership of stock of the corporation that, together with stock held by such person
or group, constitutes more than 50% of the total fair market value or total voting
power of the stock of the corporation, excluding the acquisition of additional stock
by a person or more than one person acting as a group who is considered to own more
than 50% of the total fair market value or total voting power of the stock of the
corporation.




     2.5.2 Change in Effective Control: A change in effective control of a
corporation occurs on the date that either:




     (i) Any one person, or more than one person acting as a group, acquires
(or has acquired during the 12-month period ending on the date of the most
recent acquisition by such person or persons) ownership of stock of the
corporation possessing 35% or more of the total voting power of the stock of
the corporation; or




     (ii) A majority of the members of the board of directors of the
corporation is replaced during any 12-month period by directors whose
appointment or election is not endorsed by a majority of the members of the
board of directors prior to the date of the appointment or election;
provided, that this paragraph (ii) shall apply only to a corporation for
which no other corporation is a majority shareholder.




     2.5.3 Change in Ownership of Substantial Assets: A change in the ownership of a
substantial portion of a corporation’s assets occurs on the date that any one
person, or more than one person acting as a group, acquires (or has acquired during
the 12-month period ending on the date of the most recent



2









 









acquisition by such person or persons) assets from the corporation that have a
total gross fair market value equal to or more than 40% of the total gross fair
market value of the assets of the corporation immediately prior to such acquisition
or acquisitions. For this purpose, gross fair market value means the value of the
assets of the corporation, or the value of the assets being disposed of, determined
without regard to any liabilities associated with such assets.


For this purpose, the Change in Control must relate to (i) a corporation that is the Employer of
the Participant; (ii) a corporation that is liable for the payment of benefits under this Plan;
(iii) a corporation that is a majority shareholder of the corporation described in (i) or (ii); or
(iv) any corporation in a chain of corporations in which each corporation is a majority shareholder
of another corporation in the chain, ending with the corporation described in (i) or (ii). To the
extent provided in regulations and administrative guidance promulgated under Section 409A of the
Code, the provisions of this Section 2.5 may be applied to changes in the ownership of a
partnership and changes in the ownership of a substantial portion of the assets of a partnership. A
Change in Control shall not be deemed to have occurred until a majority of the members of the Board
receive written certification from the Committee that one of the events set forth in this Section
2.5 has occurred. The occurrence of an event described in this Section 2.5 must be objectively
determinable by the Committee and, if made in good faith on the basis of information available at
the time, such determination shall be conclusive and binding on the Committee, the Employer, the
Participants and their Beneficiaries for all purposes of the Plan.




          2.6 “Committee” means the person designated in the Adoption Agreement. If the Committee
designated in the Adoption Agreement is unable to serve, the Employer shall satisfy the duties of
the Committee provided for in Section 9.




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




3









 








          2.8 “Crediting Date” means the date designated in the Adoption Agreement for crediting the
amount of any Participant Deferral Credits to the Deferred Compensation Account of a Participant.
Employer Credits may be credited to the Deferred Compensation Account of a Participant on any day
that securities are traded on a national securities exchange.




          2.9 “Deferred Compensation Account” means the account maintained with respect to each
Participant under the Plan. The Deferred Compensation Account shall be credited with Participant
Deferral Credits and Employer Credits, credited or debited for deemed investment gains or losses,
and adjusted for payments in accordance with the rules and elections in effect under Section 8. The
Deferred Compensation Account of a Participant shall include any In-Service Account or Education
Account of the Participant, if applicable.




          2.10 “Disabled” means a Participant who 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 12
months, or 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 12
months, receiving income replacement benefits for a period of not less than three months under an
accident and health plan covering Employees of the Employer.




          2.11 “Education Account” means a separate account to be kept for each Participant that has
elected to take education distributions as described in Section 5.5. The Education Account shall be
adjusted in the same manner and at the same time as the Deferred Compensation Account under Section
8 and in accordance with the rules and elections in effect under Section 8.




4









 








          2.12 “Effective Date” shall be the date designated in the Adoption Agreement as of which the
Plan first becomes effective. Notwithstanding the foregoing, any amounts credited to the account of
a Participant pursuant to the terms of a predecessor plan of the Employer which are not earned and
vested before January 1, 2005, shall be subject to the terms of this Plan.




          2.13 “Employee” means an individual in the Service of the Employer if the relationship between
the individual and the Employer is the legal relationship of employer and employee and if the
individual is a highly compensated or management employee of the Employer. An individual shall
cease to be an Employee upon the Employee’s termination of Service.




          2.14 “Employer” means the Employer identified in the Adoption Agreement, and any Participating
Employer which adopts this Plan. The Employer may be a corporation, a limited liability company, a
partnership or sole proprietorship. All references herein to the Employer shall include each trade
or business (whether or not incorporated) that is required to be aggregated with the Employer under
rules similar to subsections (b) and (c) of Section 414 of the Code.




          2.15 “Employer Credits” means the amounts credited to the Participant’s Deferred Compensation
Account by the Employer pursuant to the provisions of Section 4.2.




          2.16 “Independent Contractor” means an individual in the Service of the Employer if the
relationship between the individual and the Employer is not the legal relationship of employer and
employee. An individual shall cease to be an Independent Contractor upon the termination of the
Independent Contractor’s Service. An Independent Contractor shall include a director of the
Employer who is not an Employee.




5









 








          2.17 “In-Service Account” means a separate account to be kept for each Participant that has
elected to take in-service distributions as described in Section 5.4. The In-Service Account shall
be adjusted in the same manner and at the same time as the Deferred Compensation Account under
Section 8 and in accordance with the rules and elections in effect under Section 8.




          2.18 “Normal Retirement Age” of a Participant means the age designated in the Adoption
Agreement.




          2.19 “Participant” means with respect to any Plan Year an Employee or Independent Contractor
who has been designated by the Committee as a Participant and who has entered the Plan or who has a
Deferred Compensation Account under the Plan.




          2.20 “Participant Deferral Agreement” means a written agreement entered into between a
Participant and the Employer pursuant to the provisions of Section 4.1




          2.21 “Participant Deferral Credits” means the amounts credited to the Participant’s Deferred
Compensation Account by the Employer pursuant to the provisions of Section 4.1.




          2.22 “Participating Employer” means any trade or business (whether or not incorporated) which
adopts this Plan with the consent of the Employer identified in the Adoption Agreement.




          2.23 “Performance-Based Compensation” means compensation where the amount of, or entitlement
to, the compensation is contingent on the satisfaction of pre-established organizational or
individual performance criteria relating to a performance period of at least twelve months in which
the service provider performs services. Organizational or individual performance criteria are
considered preestablished if established in writing at least 90




6









 







days after the commencement of the period of service to which the criteria relates, provided
that the outcome is substantially uncertain at the time the criteria are established.
Performance-based compensation may include payments based upon subjective performance criteria in
accordance as provided in regulations and administrative guidance promulgated under Section 409A of
the Code.




          2.24 “Plan” means The Executive Nonqualified Excess Plan, as herein set out or as duly
amended. The name of the Plan as applied to the Employer shall be designated in the Adoption
Agreement.




          2.25 “Plan Administrator” means the person designated in the Adoption Agreement. If the Plan
Administrator designated in the Adoption Agreement is unable to serve, the Employer shall be the
Plan Administrator.




          2.26 “Plan-Approved Domestic Relations Order” shall mean a court order that is lawfully
directed to this Plan and that is served upon the Plan Administrator before the Participant
receives a distribution of his benefit that pursuant to a state domestic relations law creates or
recognizes the existence of the right of an alternate payee to receive all or a portion of a
Participant’s benefit and that meets all of the following requirements. An order shall not be a
Plan-Approved Domestic Relations Order unless the Plan Administrator determines that the court
order on its face and without reference to any other document states all of the following:




          (a) The court order expressly states that it relates to the provision of child support,
alimony, or marital property rights to a spouse, former spouse, or child of a Participant and is
made pursuant to State domestic relations law.




          (b) The court order clearly and unambiguously specifies that it refers to this Plan.




          (c) The court order clearly and unambiguously specifies the name of the Participant’s
Employer.




7









 








          (d) The court order clearly specifies: the name, mailing address, and social security number
of the Participant; and the name, mailing address, and social security number of each alternate
payee.




          (e) The court order clearly specifies the amount or percentage, or the manner in which the
amount or percentage is to be determined, of the Participant’s benefit to be paid to or segregated
for the separate account of the alternate payee.




          (f) The court order expressly states that the alternate payee’s segregated account shall bear
all fees and expenses as though the alternate payee were a Participant.




          (g) The court order clearly specifies that any distribution to the alternate payee becomes
payable only after a Qualifying Distribution Event of the Participant and only upon the alternate
payee’s written claim made to the Administrator.




          (h) The court order clearly specifies that any distribution to any alternate payee shall be
payable only as a lump sum.




          (i) The court order expressly states that it does not require this Plan to provide any type or
form of benefit or any option not otherwise provided under this Plan.




          (j) The court order expressly states that the order does not require this Plan to provide
increased benefits.




          (k) The court order expressly states that any provision of it that would have the effect of
requiring any distribution to an alternate payee of deferred compensation that is required to be
paid to another person under any court order is void.




          (l) The court order expressly states that nothing in the order shall have any effect
concerning any party’s tax treatment, and that nothing in the order shall direct any person’s tax
reporting or withholding.



An order shall not be a Plan-approved Domestic Relations Order if it includes any provision that
does not relate to this Plan. Without limiting the comprehensive effect of the preceding sentence,
an order shall not be a Plan-Approved Domestic Relations Order if the order includes any provision
relating to any pension plan, retirement plan, deferred compensation plan, health plan, welfare
benefit plan, or employee benefit plan other than this Plan. An order shall not be a Plan-Approved
Domestic Relations Order unless the order provides for only one alternate payee. An order shall not
be a Plan-Approved Domestic Relations Order if the order includes any provision that would permit
the alternate payee to designate any beneficiary for any purpose. However, an




8









 







order does not fail to qualify as a Plan-approved Domestic Relations Order because it provides that
any rights not paid before the alternate payee’s death shall be payable to the duly appointed and
then-currently serving personal representative of the alternate payee’s estate. The Plan
Administrator may assume that the alternate payee named by the court order is a proper payee and
need not inquire into whether the person named is a spouse or former spouse or child of the
Participant.




          2.27 “Plan Year” means the twelve-month period ending on the last day of the month designated
in the Adoption Agreement; provided, that the initial Plan Year may have fewer than twelve months.




          2.28 “Qualifying Distribution Event” means (i) the separation from Service of the Participant,
(ii) the date the Participant becomes Disabled, (iii) the death of the Participant, (iv) the time
specified by the Participant for an in-service or education distribution, (v) a Change in Control,
or (vi) an Unforeseeable Emergency, each to the extent provided in Section 5.




          2.29 “Retirement Account” means the portion of the Deferred Compensation Account of a
Participant, excluding any In-Service Account or any Education Account. The Retirement Account
shall be adjusted in the same manner and at the same time as the Deferred Compensation Account
under Section 8 and in accordance with the rules and regulations in effect under Section 8.




          2.30 “Service” means employment by the Employer as an Employee. For purposes of the Plan, the
employment relationship is treated as continuing intact while the Employee is on military leave,
sick leave, or other bona fide leave of absence if the period of such leave does not exceed six
months, or if longer, so long as the Employee’s right to reemployment is provided either by statue
or contract. If the Participant is an Independent




9









 







Contractor, “Service” shall mean the period during which the contractual relationship exists
between the Employer and the Participant. The contractual relationship is not terminated if the
Participant anticipates a renewal of the contract or becomes an Employee.




          2.31 “Service Bonus” means any bonus paid to a Participant by the Employer which is not
Performance-Based Compensation.




          2.32 “Specified Employee” means an employee who meets the requirements of Section
416(i)(1)(A)(i), (ii) or (iii) of the Code (applied in accordance with the regulations thereunder
and without regard to Section 416(i)(5) of the Code) at any time during the twelvemonth period
ending on December 31 of each year (the “identification date”). If the person is a key employee as
of any identification date, the person is treated as a Specified Employee for the twelve-month
period beginning on the first day of the fourth month following the identification date.




          2.33 “Spouse” or “Surviving Spouse” means, except as otherwise provided in the Plan, a person
who is the legally married spouse or surviving spouse of a Participant.




          2.34 “Student” means the individual designated by the Participant in the Participant Deferral
Agreement with respect to whom the Participant will create an Education Account.




          2.35 “Trust” means the trust fund established pursuant to Section 10.2, if designated by the
Employer in the Adoption Agreement.




          2.36 “Trustee” means the trustee, if any, named in the agreement establishing the Trust and
such successor or additional trustee as may be named pursuant to the terms of the agreement
establishing the Trust.




10









 








          2.37 “Unforeseeable Emergency” means a severe financial hardship to the Participant resulting
from a sudden or unexpected illness or accident of the Participant, the Participant’s Spouse or
dependent (as defined in Section 152(a) of the Code), loss of the Participant’s property due to
casualty, or other similar extraordinary and unforeseeable circumstances arising as a result of
events beyond the control of the Participant.




          2.38 “Years of Service” means each Plan Year of Service completed by the Participant. For
vesting purposes, Years of Service shall be calculated from the date designated in the Adoption
Agreement.




          Section 3. Participation:




          The Committee in its discretion shall designate each Employee or Independent Contractor who is
eligible to participate in the Plan. An Employee or Independent Contractor designated by the
Committee as a Participant who has not otherwise entered the Plan shall enter the Plan and become a
Participant as of the date determined by the Committee. A Participant who separates from Service
with the Employer and who later returns to Service will not be an Active Participant under the Plan
except upon satisfaction of such terms and conditions as the Committee shall establish upon the
Participant’s return to Service, whether or not the Participant shall have a balance remaining in
the Deferred Compensation Account under the Plan on the date of the return to Service.




          Section 4. Credits to Deferred Compensation Account:




          4.1 Participant Deferral Credits. To the extent provided in the Adoption Agreement, each
Active Participant may elect, by entering into a Participant Deferral Agreement with the Employer,
to defer the receipt of Compensation from the Employer by a dollar amount or percentage specified
in the Participant Deferral Agreement. The amount of the Participant

11









 








Deferral Credit shall be credited by the Employer to the Deferred Compensation Account
maintained for the Participant pursuant to Section 8. The following special provisions shall apply
with respect to the Participant Deferral Credits of a Participant:





     4.1.1 The Employer shall credit to the Participant’s Deferred Compensation
Account on each Crediting Date an amount equal to the total Participant Deferral
Credit for the period ending on such ‘Crediting Date.




     4.1.2 An election pursuant to this Section 4.1 shall be made by the Participant
by executing and delivering a Participant Deferral Agreement to the Committee.
Except as otherwise provided in this Section 4.1, the Participant Deferral Agreement
shall become effective with respect to such Participant as of the first day of
January following the date such Participant Deferral Agreement is received by the
Committee. A Participant’s election may be changed at any time prior to the last
permissible date for making the election as permitted in this Section 4.1, and shall
thereafter be irrevocable. The election of a Participant shall continue in effect
for subsequent years until modified by the Participant as permitted in this Section
4.1, or until the earlier of the date the Participant separates from Service or
ceases to be an Active Participant under the Plan.




     4.1.3 In the case of the first year in which the Participant becomes eligible
to participate in the Plan, the Participant may execute and deliver a Participant
Deferral Agreement to the Committee within 30 days after the date the Participant
enters the Plan to be effective as of the first payroll period next following the
date the Participant Deferral Agreement is received by the Committee. For
Compensation that is earned based upon a specified performance period (for example,
an annual bonus), where a deferral election is made in the first year of eligibility
but after the beginning of the service period, the election will be deemed to apply
to Compensation paid for services subsequent to the election if the election applies
to the portion of the Compensation equal to the total amount of the Compensation for
the service period multiplied by the ratio of the number of days remaining in the
performance period after the election over the total number of days in the
performance period.




     4.1.4 A Participant may unilaterally modify a Participant Deferral Agreement
(either to terminate, increase or decrease the portion of his future Compensation
which is subject to deferral within the percentage limits set forth in Section 4.1
of the Adoption Agreement) by providing a written modification of the Participant
Deferral Agreement to the Employer. The modification shall become effective as of
the first day of January following the date such written modification is received by
the Committee. Notwithstanding the foregoing, at any time during the calendar year
2005, a Participant may terminate a Participant Deferral Agreement, or modify a
Participant Deferral Agreement to reduce the amount of Compensation subject to the
deferral election, so long as the Compensation subject to the terminated or modified
Participant Deferral



12









 







Agreement is includible in the income of the Participant in calendar year 2005
or, if later, in the taxable year in which the amounts are earned and vested.




     4.1.5 If the Participant performed services continuously from a date no later
than the date upon which the performance criteria are established through a date no
earlier than the date upon which the Participant makes an initial deferral election,
a Participant Deferral Agreement relating to the deferral of Performance-Based
Compensation may be executed and delivered to the Committee no later than the date
which is 6 months prior to the end of the performance period, provided that in no
event may an election to defer Performance-Based Compensation be made after such
Compensation has become both substantially certain to be paid and readily
ascertainable.




     4.1.6 If the Employer has a fiscal year other than the calendar year,
Compensation relating to service in the fiscal year of the Employer (such as a bonus
based on the fiscal year of the Employer), of which no amount is paid or payable
during the fiscal year, may be deferred at the Participant’s election only if the
election to defer is made not later than the close of the Employer’s fiscal year
next preceding the first fiscal year in which the Participant performs any services
for which such Compensation is payable.




     4.1.7 Compensation payable after the last day of the Participant’s taxable year
solely for services provided during the final payroll period containing the last day
of the Participant’s taxable year (i.e., December 31) is treated for purposes of
this Section 4.1 as Compensation for services performed in the subsequent taxable
year.




     4.1.8 The Committee may from time to time establish policies or rules
consistent with the requirements of Section 409A of the Code to govern the manner in
which Participant Deferral Credits may be made.




     4.1.9 The requirements of Section 4.1.2 relating to the timing of the
Participant Deferral Agreement shall not apply to any deferral elections made on or
before March 15, 2005, provided that (a) the amounts to which the deferral election
relate have not been paid or become payable at the time of the election, (b) the
Plan was in existence on or before December 31, 2004, (c) the election to defer
compensation is made in accordance with the terms of the Plan as in effect on
December 31, 2005 (other than a requirement to make a deferral election after March
15, 2005), (d) the Plan is otherwise operated in accordance with the requirements of
Section 409A of the Code, and (e) the Plan is amended to comply with Section 409A in
accordance with Q&A 19 of Notice 2005-1.



          4.2 Employer Credits. If designated by the Employer in the Adoption Agreement, the Employer
shall cause the Committee to credit to the Deferred Compensation




13









 







Account of each Active Participant an Employer Credit as determined in accordance with the
Adoption Agreement.




          4.3 Deferred Compensation Account. All Participant Deferral Credits and Employer Credits shall
be credited to the Deferred Compensation Account of the Participant.




          Section 5. Qualifying Distribution Events:




          5.1 Separation from Service. If the Participant separates from Service with the Employer, the
vested balance in the Deferred Compensation Account shall be paid to the Participant by the
Employer as provided in Section 6. Notwithstanding the foregoing, no distribution shall be made
earlier than six months after the date of separation from Service (or, if earlier, the date of
death) with respect to a Participant who is a Specified Employee of a corporation the stock in
which is traded on an established securities market or otherwise. Any payments to which a Specified
Employee would be entitled during the first six months following the date of separation from
Service shall be accumulated and paid on the first day of the seventh month following the date of
separation from service.




          5.2 Disability. If the Participant becomes Disabled while in Service, the vested balance in
the Deferred Compensation Account shall be paid to the Participant by the Employer as provided in
Section 6.




          5.3 Death. If the Participant dies while in Service, the Employer shall pay a benefit to the
Participant’s Beneficiary in the amount designated in the Adoption Agreement. Payment of such
benefit shall be made by the Employer as provided in Section 6. If a Participant dies following his
separation from Service for any reason, and before all payments under the Plan have been made, the
vested balance in the Deferred Compensation Account shall be paid by the Employer to the
Participant’s Beneficiary in a single lump sum.




14









 








          5.4 In-Service Distributions. If the Employer designates in the Adoption Agreement that
in-service distributions are permitted under the Plan, a Participant may designate in the
Participant Deferral Agreement to have a specified amount credited to the Participant’s In-Service
Account for in-service distributions at the later of the date specified by the Participant or as
specified in the Adoption Agreement. In no event may an in-service distribution be made prior to
two years following the establishment of the In-Service Account of the Participant. If the
Participant elects to receive in-service distributions in annual installment payments, the payment
of each annual installment shall be made on the anniversary of the date of the first installment
payment, and the amount of the annual installment shall be adjusted on such anniversary for credits
or debits to the Participant’s account pursuant to Section 8 of the Plan. Such adjustment shall be
made by dividing the balance in the In-Service Account on such date by the number of annual
installments remaining to be paid hereunder; provided that the last annual installment due under
the Plan shall be the entire amount credited to the Participant’s In-Service Account on the date of
payment. Notwithstanding the foregoing, if a Participant incurs a Qualifying Distribution Event
prior to the date on which the entire balance in the In-Service Account has been distributed, then
the balance in the In-Service Account on the date of the Qualifying Distribution Event shall be
distributed to the Participant in the same manner and at the same time as the balance in the
Deferred Compensation Account is distributed under Section 6 and in accordance with the rules and
elections in effect under Section 6.




          5.5 Education Distributions. If the Employer designates in the Adoption Agreement that
education distributions are permitted under the Plan, a Participant may designate in the
Participant Deferral Agreement to have a specified amount credited to the Participant’s Education
Account for education distributions at the later of the date specified by the Participant

15









 








or the date specified in the Adoption Agreement. If the Participant designates more than one
Student, the Education Account will be divided into a separate Education Account for each Student,
and the Participant may designate in the Participant Deferral Agreement the percentage or dollar
amount to be credited to each Education Account. In the absence of a clear designation, all credits
made to the Education Account shall be equally allocated to each Education Account. The Employer
shall pay to the Participant the balance in the Education Account with respect to the Student at
the time and in the manner designated by the Participant in the Participant Deferral Agreement. If
the Participant elects to receive education distributions in annual installment payments, the
payment of each annual installment shall be made on the anniversary of the date of the first
installment payment, and the amount of the annual installment shall be adjusted on such anniversary
for credits or debits to the Participant’s Education Account pursuant to Section 8 of the Plan.
Such adjustment shall be made by dividing the balance in the Education Account on such date by the
number of annual installments remaining to be paid hereunder; provided that the last annual
installment due under the Plan shall be the entire amount credited to the Participant’s Education
Account on the date of payment. Notwithstanding the foregoing, if the Participant incurs a
Qualifying Distribution Event prior to the date on which the entire balance of the Education
Account has been distributed, then the balance in the Education Account on the date of the
Qualifying Distribution Event shall be distributed to the Participant in the same manner and at the
same time as the Deferred Compensation Account is distributed under Section 6 and in accordance
with the rules and elections in effect under Section 6.




          5.6 Change in Control. If the Employer designates in the Adoption Agreement that distributions
are permitted under the Plan in the event of a Change in Control, the Participant may designate in
the Participant Deferral Agreement to have the vested balance in




16









 







the Deferred Compensation Account paid to the Participant upon a Change in Control by the
Employer as provided in Section 6.




          5.7 Unforeseeable Emergency. A distribution from the Deferred Compensation Account may be made
to a Participant in the event of an Unforeseeable Emergency, subject to the following provisions:





     5.7.1 A Participant may, at any time prior to his separation from Service for
any reason, make application to the Committee to receive a distribution in a lump
sum of all or a portion of the vested balance in the Deferred Compensation Account
(determined as of the date the distribution, if any, is made under this Section 5.7)
because of an Unforeseeable Emergency. A distribution because of an Unforeseeable
Emergency shall not exceed the amount required to satisfy the Unforeseeable
Emergency plus amounts necessary to pay taxes reasonably anticipated as a result of
such distribution, after taking into account the extent to which the Unforeseeable
Emergency 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 such assets would not itself cause severe financial hardship).




     5.7.2 The Participant’s request for a distribution on account of Unforeseeable
Emergency must be made in writing to the Committee. The request must specify the
nature of the financial hardship, the total amount requested to be distributed from
the Deferred Compensation Account, and the total amount of the actual expense
incurred or to be incurred on account of the Unforeseeable Emergency.




     5.7.3 If a distribution under this Section 5.7 is approved by the Committee,
such distribution will be made as soon as practicable following the date it is
approved. The processing of the request shall be completed as soon as practicable
from the date on which the Committee receives the properly completed written request
for a distribution on account of an Unforeseeable Emergency. Any deferral election
of the Participant in effect at the time of a distribution on account of an
Unforeseeable Emergency may be cancelled upon the Participant’s request, and if so
cancelled, any subsequent deferral by the Participant shall be made pursuant to a
new Participant Deferral Agreement which shall become effective as of the first day
of January following the date such Participant Deferral Agreement is received by the
Committee. If a Participant’s separation from Service occurs after a request is
approved in accordance with this Section 5.7.3, but prior to distribution of the
full amount approved, the approval of the request shall be automatically null and
void and the benefits which the Participant is entitled to receive under the Plan
shall be distributed in accordance with the applicable distribution provisions of
the Plan.



17









 






     5.7.4 The Committee may from time to time adopt additional policies or rules
consistent with the requirements of Section 409A of the Code to govern the manner in
which such distributions may be made so that the Plan may be conveniently
administered.



          Section 6. Qualifying Distribution Events Payment Options:




          6.1 Payment Options. The Employer shall designate in the Adoption Agreement the payment
options which may be elected by the Participant. The Participant shall elect in the Participant
Deferral Agreement the method under which the vested balance in the Deferred Compensation Account
will be distributed from among the designated payment options. Payment shall be made in the manner
elected by the Participant and shall commence upon the date of the Qualifying Distribution Event. A
payment shall be treated as made upon the date of the Qualifying Distribution Event if it is made
on such date or a later date within the same calendar year or, if later, by the 15th day of the
third calendar month following the Qualifying Distribution Event. A payment may be further delayed
to the extent permitted in accordance with regulations and guidance under Section 409A of the Code.
The Participant may elect a different method of payment for each Qualifying Distribution Event as
specified in the Adoption Agreement. If the Participant elects the installment payment option, the
payment of each annual installment shall be made on the anniversary of the date of the first
installment payment, and the amount of the annual installment shall be adjusted on such anniversary
for credits or debits to the Participant’s account pursuant to Section 8 of the Plan. Such
adjustment shall be made by dividing the balance in the Deferred Compensation Account on such date
by the number of annual installments remaining to be paid hereunder; provided that the last annual
installment due under the Plan shall be the entire amount credited to the Participant’s account on
the date of payment. In the event the Participant fails to make a valid election of the payment
method, the distribution will be made in a single lump sum payment upon the Qualifying




18









 







Distribution Event. Notwithstanding the provisions of Sections 6.3 or 6.4 of the Plan, a
Participant may elect on or before December 31, 2006, the method of payment of amounts subject to
Section 409A of the Code provided that such election applies only to amounts that would not
otherwise be payable in 2006 and does not cause an amount to paid in 2006 that would not otherwise
be payable in such year.




          6.2 De Minimis Amounts. Notwithstanding any payment election made by the Participant, the
vested balance in the Deferred Compensation Account of the Participant will be distributed in a
single lump sum payment if the payment accompanies the termination of the Participant’s entire
interest in the Plan and the amount of such payment does not exceed the amount designated by the
Employer in the Adoption Agreement. Such payment shall be made on or before the later of (i)
December 31 of the calendar year in which the Participant separates from Service from the Employer,
or (ii) the date that is 2-1/2 months after the Participant separates from Service from the
Employer.




          6.3 Subsequent Elections. With the consent of the Committee, a Participant may delay or change
the method of payment of the Deferred Compensation Account subject to the following requirements:





     6.3.1 The new election may not take effect until at least 12 months after the
date on which the new election is made.




     6.3.2 If the new election relates to a payment for a Qualifying Distribution
Event other than the death of the Participant, the Participant becoming Disabled, or
an Unforeseeable Emergency, the new election must provide for the deferral of the
first payment for a period of at least five years from the date such payment would
otherwise have been made.




     6.3.3 If the new election relates to a payment from the In-Service Account or
Education Account, the new election must be made at least 12 months prior to the
date of the first scheduled payment from such account.



19









 




For purposes of this Section 6.3 and Section 6.4, a payment is each separately identified amount to
which the Participant is entitled under the Plan; provided, that entitlement to a series of
installment payments is treated as the entitlement to a single payment.




          6.4 Acceleration Prohibited. The acceleration of the time or schedule of any payment due under
the Plan is prohibited except as provided in regulations and administrative guidance promulgated
under Section 409A of the Code. It is not an acceleration of the time or schedule of payment if the
Employer waives or accelerates the vesting requirements applicable to a benefit under the Plan.




          Section 7. Vesting:




          A Participant shall be fully vested in the portion of his Deferred Compensation Account
attributable to Participant Deferral Credits, and all income, gains and losses attributable
thereto. A Participant shall become fully vested in the portion of his Deferred Compensation
Account attributable to Employer Credits, and income, gains and losses attributable thereto, in
accordance with the vesting schedule and provisions designated by the Employer in the Adoption
Agreement. If a Participant’s Deferred Compensation Account is not fully vested upon separation
from Service, the portion of the Deferred Compensation Account that is not fully vested shall
thereupon be forfeited.




          Section 8. Accounts; Deemed Investment; Adjustments to Account:




          8.1 Accounts. The Committee shall establish a book reserve account, entitled the “Deferred
Compensation Account,” on behalf of each Participant. The Committee shall also establish an
In-Service Account and Education Account as a part of the Deferred Compensation Account of each
Participant, if applicable. The amount credited to the Deferred Compensation Account shall be
adjusted pursuant to the provisions of Section 8.3.




20









 








          8.2 Deemed Investments. The Deferred Compensation Account of a Participant shall be credited
with an investment return determined as if the account were invested in one or more investment
funds made available by the Committee. The Participant shall elect the investment funds in which
his Deferred Compensation Account shall be deemed to be invested. Such election shall be made in
the manner prescribed by the Committee and shall take effect upon the entry of the Participant into
the Plan. The investment election of the Participant shall remain in effect until a new election is
made by the Participant. In the event the Participant fails for any reason to make an effective
election of the investment return to be credited to his account, the investment return shall be
determined by the Committee.




          8.3 Adjustments to Deferred Compensation Account. With respect to each Participant who has a
Deferred Compensation Account under the Plan, the amount credited to such account shall be adjusted
by the following debits and credits, at the times and in the order stated:





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




     8.3.2 The Deferred Compensation Account shall be credited on each Crediting
Date with the total amount of any Participant Deferral Credits and Employer Credits
to such account since the last preceding Crediting Date.




     8.3.3 The Deferred Compensation Account shall be credited or debited on each
day securities are traded on a national stock exchange with the amount of deemed
investment gain or loss resulting from the performance of the investment funds
elected by the Participant in accordance with Section 8.2. The amount of such deemed
investment gain or loss shall be determined by the Committee and such determination
shall be final and conclusive upon all concerned.



          Section 9. Administration by Committee: 




          9.1 Membership of Committee. If elected in the Adoption Agreement, the Committee shall consist
of at least three individuals who shall be appointed by the Board to serve




21









 







at the pleasure of the Board. Any member of the Committee may resign, and his successor, if
any, shall be appointed by the Board. The Committee shall be responsible for the general
administration and interpretation of the Plan and for carrying out its provisions, except to the
extent all or any of such obligations are specifically imposed on the Board.




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




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




          9.4 Transaction of Business. A majority of the members of the Committee at the time in office
shall constitute a quorum for the transaction of business. All resolutions or other actions taken
by the Committee at any meeting shall be by vote of a majority of those present at any such meeting
and entitled to vote. Resolutions may be adopted or other action taken without a meeting upon
written consent thereto signed by all of the members of the Committee.




          9.5 Committee Records. The Committee shall maintain full and complete records of its
deliberations and decisions. The minutes of its proceedings shall be conclusive proof of the facts
of the operation of the Plan.




22









 








          9.6 Establishment of Rules. Subject to the limitations of the Plan, the Committee may from
time to time establish rules or by-laws for the administration of the Plan and the transaction of
its business.




          9.7 Conflicts of Interest. No individual member of the Committee shall have any right to vote
or decide upon any matter relating solely to himself or to any of his rights or benefits under the
Plan (except that such member may sign unanimous written consent to resolutions adopted or other
action taken without a meeting), except relating to the terms of his Participant Deferral
Agreement.




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




          9.9 Authority to Interpret Plan. Subject to the claims procedure set forth in Section 16 the
Plan Administrator and the Committee shall have the duty and discretionary authority to interpret
and construe the provisions of the Plan and to decide any dispute which may arise regarding the
rights of Participants hereunder, including the discretionary authority to construe the Plan and to
make determinations as to eligibility and benefits under the Plan. Determinations by the Plan
Administrator and the Committee shall apply uniformly to all persons similarly situated and shall
be binding and conclusive upon all interested persons.




          9.10 Third Party Advisors. The Committee may engage an attorney, accountant, actuary or any
other technical advisor on matters regarding the operation of the Plan




23









 







and to perform such other duties as shall be required in connection therewith, and may employ
such clerical and related personnel as the Committee shall deem requisite or desirable in carrying
out the provisions of the Plan. The Committee shall from time to time, but no less frequently than
annually, review the financial condition of the Plan and determine the financial and liquidity
needs of the Plan. The Committee shall communicate such needs to the Employer so that its policies
may be appropriately coordinated to meet such needs.




          9.11 Compensation of Members. No fee or compensation shall be paid to any member of the
Committee for his Service as such.




          9.12 Expense Reimbursement. The Committee shall be entitled to reimbursement by the Employer
for its reasonable expenses properly and actually incurred in the performance of its duties in the
administration of the Plan.




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




24









 








          Section 10. Contractual Liability; Trust: 




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




          10.2 Trust. If so designated in the Adoption Agreement, the Employer may establish a Trust
with the Trustee, pursuant to such terms and conditions as are set forth in the Trust Agreement.
The Trust, if and when established, is intended to be treated as a grantor trust for purposes of
the Code and all assets of the Trust shall be held in the United States. The establishment of the
Trust is not intended to cause Participants to realize current income on amounts contributed
thereto, and the Trust shall be so interpreted and administered.




          Section 11. Allocation of Responsibilities:




          The persons responsible for the Plan and the duties and responsibilities allocated to each are
as follows:




          11.1 Board.





     (i) To amend the Plan;




     (ii) To appoint and remove members of the Committee; and




     (iii) To terminate the Plan as permitted in Section 14.



25









 





          11.2 Committee.





     (i) To designate Participants;




     (ii) To interpret the provisions of the Plan and to determine the
rights of the Participants under the Plan, except to the extent otherwise
provided in Section 16 relating to claims procedure;




     (iii) To administer the Plan in accordance with its terms, except to
the extent powers to administer the Plan are specifically delegated to
another person or persons as provided in the Plan;




     (iv) To account for the amount credited to the Deferred Compensation
Account of a Participant; and




     (v) To direct the Employer in the payment of benefits.



          11.3 Plan Administrator.





     (i) To file such reports as may be required with the United States
Department of Labor, the Internal Revenue Service and any other government
agency to which reports may be required to be submitted from time to time;
and




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



          Section 12. Benefits Not Assignable; Facility of Payments:




          12.1 Benefits Not Assignable. No portion of any benefit credited or paid under the Plan with
respect to any Participant shall be subject in any manner to anticipation, alienation, sale,
transfer, assignment, pledge, encumbrance or charge, and any attempt so to anticipate, alienate,
sell, transfer, assign, pledge, encumber or charge the same shall be void, nor shall any portion of
such benefit be in any manner payable to any assignee, receiver or any one trustee, or be liable
for his debts, contracts, liabilities, engagements or torts. Notwithstanding the foregoing, in the
event that all or any portion of the benefit of a Participant is transferred to the former spouse
of the Participant incident to a divorce, the Committee shall maintain such amount for the benefit
of the former spouse until distributed in the manner required by an order of any court




26









 







having jurisdiction over the divorce, and the former spouse shall be entitled to the same
rights as the Participant with respect to such benefit.




          12.2 Plan-Approved Domestic Relations Orders. The Plan Administrator shall establish written
procedures for determining whether an order directed to the Plan is a Plan-Approved Domestic
Relations Order.





     12.2.1 Review by Plan Administrator: The Plan Administrator shall make a
determination on each final court order directed to the Plan as to whether the order
is a Plan-Approved Domestic Relations Order. The Plan Administrator may delay the
commencement of its consideration of any order until the later of the date that is
30 days after the date of the order or the date that the Plan Administrator is
satisfied that all rehearing and appeal rights with respect to the order have
expired.




     12.2.2 Payment to Alternate Payee: If the Plan Administrator determines that an
order is a Plan-approved Domestic Relations Order, the Plan Administrator shall
cause the payment of amounts pursuant to or segregate a separate account as provided
by (and to prevent any payment or act which might be inconsistent with) the
Plan-Approved Domestic Relations Order.




     12.2.3 Expenses: The Employer and the Plan Administrator shall not be obligated
to incur any cost to defend against or set aside any judgment, decree, or order
relating to the division, attachment, garnishment, or execution of or levy upon the
Participant’s account or any distribution, including (but not limited to) any
domestic relations proceeding. Notwithstanding the foregoing, if any such person is
joined in any proceeding, the party may take such action as it considers necessary
or appropriate to protect any and all of its legal rights, and the Participant (or
Beneficiary) shall reimburse all actual fees of lawyers and legal assistants and
expenses reasonably incurred by such party.



          12.3 Payments to Minors and Others. If any individual entitled to receive a payment under the
Plan shall be physically, mentally or legally incapable of receiving or acknowledging receipt of
such payment, the Committee, upon the receipt of satisfactory evidence of his incapacity and
satisfactory evidence that another person or institution is maintaining him and that no guardian or
committee has been appointed for him, may cause any payment otherwise payable to him to be made to
such person or institution so maintaining him.




27









 







Payment to such person or institution shall be in full satisfaction of all claims by or
through the Participant to the extent of the amount thereof.




          Section 13. Beneficiary:




          The Participant’s beneficiary shall be the person or persons designated by the Participant on
the beneficiary designation form provided by and filed with the Committee or its designee. If the
Participant does not designate a beneficiary, the beneficiary shall be his Surviving Spouse. If the
Participant does not designate a beneficiary and has no Surviving Spouse, the beneficiary shall be
the Participant’s estate. The designation of a beneficiary may be changed or revoked only by filing
a new beneficiary designation form with the Committee or its designee. If a beneficiary (the
“primary beneficiary”) is receiving or is entitled to receive payments under the Plan and dies
before receiving all of the payments due him, the balance to which he is entitled shall be paid to
the contingent beneficiary, if any, named in the Participant’s current beneficiary designation
form. If there is no contingent beneficiary, the balance shall be paid to the estate of the primary
beneficiary. Any beneficiary may disclaim all or any part of any benefit to which such beneficiary
shall be entitled hereunder by filing a written disclaimer with the Committee before payment of
such benefit is to be made. Such a disclaimer shall be made in a form satisfactory to the Committee
and shall be irrevocable when filed. Any benefit disclaimed shall be payable from the Plan in the
same manner as if the beneficiary who filed the disclaimer had predeceased the Participant.




          Section 14. Amendment and Termination of Plan:




          The Employer may amend any provision of the Plan or terminate the Plan at any time; provided,
that in no event shall such amendment or termination reduce the balance in any Participant’s
Deferred Compensation Account as of the date of such amendment or termination,




28









 







nor shall any such amendment affect the terms of the Plan relating to the payment of such
Deferred Compensation Account. Notwithstanding the foregoing, the following special provisions
shall apply:




          14.1 Termination in the Discretion of the Employer. Except as otherwise provided in Sections
14.2 or 14.3, the Employer in its discretion may terminate the Plan and distribute benefits to
Participants subject to the following requirements:





     14.1.1 All arrangements sponsored by the Employer that would be aggregated with
the Plan under Section 1.409A-1(c) of the Treasury Regulations are terminated.




     14.1.2 No payments other than payments that would be payable under the terms of
the Plan if the termination had not occurred are made within 12 months of the
termination date.




     14.1.3 All benefits under the Plan are paid within 24 months of the termination
date.




     14.1.4 The Employer does not adopt a new arrangement that would be aggregated
with the Plan under Section 1.409A-1(c) of the Treasury Regulations providing for
the deferral of compensation at any time within five years following the date of
termination of the Plan.



          14.2 Termination Upon Change in Control. If the Employer terminates the Plan within thirty
days preceding or twelve months following a Change in Control, the Deferred Compensation Account of
each Participant shall become fully vested and payable to the Participant in a lump sum within
twelve months following the date of termination.




          14.3 Termination On or Before December 31, 2005. The Employer may terminate the Plan on or
before December 31, 2005, and distribute the vested balance in the Deferred Compensation Account to
each Participant so long as all amounts deferred under the Plan are included in the income of the
Participant in the taxable year in which the termination occurs.




29









 








          14.4 No Financial Triggers. The Employer may not terminate the Plan and make distributions to
a Participant due solely to a change in the financial health of the Employer. This provision shall
apply to amounts earned and vested before, on or after December 31, 2004.




          Section 15. Communication to Participants:




          The Employer shall make a copy of the Plan available for inspection by Participants and their
beneficiaries during reasonable hours at the principal office of the Employer.




          Section 16. Claims Procedure:



          The following claims procedure shall apply with respect to the Plan:




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




          16.2 Notification to Claimant of Decision. Within 90 days after receipt of a claim by the Plan
Administrator (or within 180 days if special circumstances require an extension of time), the Plan
Administrator shall notify the claimant of the decision with regard to the claim. In the event of
such special circumstances requiring an extension of time, there shall be furnished to the claimant
prior to expiration of the initial 90-day period written notice of the extension, which notice
shall set forth the special circumstances and the date by which the decision shall be furnished. If
such claim shall be wholly or partially denied, notice thereof shall be in writing and worded in a
manner calculated to be understood by the claimant, and shall set




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forth: (i) the specific reason or reasons for the denial; (ii) specific reference to pertinent
provisions of the Plan on which the denial is based; (iii) a description of any additional material
or information necessary for the claimant to perfect the claim and an explanation of why such
material or information is necessary; and (iv) an explanation of the procedure for review of the
denial and the time limits applicable to such procedures, including a statement of the claimant’s
right to bring a civil action under ERISA following an adverse benefit determination on review.
Notwithstanding the forgoing, if the claim relates to a Participant who is Disabled, the Plan
Administrator shall notify the claimant of the decision within 45 days (which may be extended for
an additional 30 days if required by special circumstances).




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




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





     16.4.1 Within 60 days following receipt by the Committee of the request for
review (or within 120 days if special circumstances require an extension of time),
the Committee shall notify the claimant in writing of its decision with regard to
the claim. In the event of such special circumstances requiring an extension of
time, written notice of the extension shall be furnished to the claimant prior to
the commencement of the extension. Notwithstanding the forgoing, if the claim
relates to a Participant who is Disabled, the Committee shall notify the claimant of
the decision within 45 days (which may be extended for an additional 45 days if
required by special circumstances).



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     16.4.2 With respect to a claim that is denied in whole or in part, the decision
on review shall set forth specific reasons for the decision, shall be written in a
manner calculated to be understood by the claimant, and shall cite specific
references to the pertinent Plan provisions on which the decision is based.




     16.4.3 The decision of the Committee shall be final and conclusive.



          16.5 Action by Authorized Representative of Claimant. All actions set forth in this Section 16
to be taken by the claimant may likewise be taken by a representative of the claimant duly
authorized by him to act in his behalf on such matters. The Plan Administrator and the Committee
may require such evidence as either may reasonably deem necessary or advisable of the authority to
act of any such representative.




          Section 17. Miscellaneous Provisions:




          17.1 Set off. Notwithstanding any other provision of this Plan, the Employer may reduce the
amount of any payment otherwise payable to or on behalf of a Participant hereunder (net of any
required withholdings) by the amount of any loan, cash advance, extension of credit or other
obligation of the Participant to the Employer that is then due and payable, and the Participant
shall be deemed to have consented to such reduction.




          17.2 Notices. Each Participant who is not in Service and each Beneficiary shall be responsible
for furnishing the Committee or its designee with his current address for the mailing of notices
and benefit payments. Any notice required or permitted to be given to such Participant or
Beneficiary shall be deemed given if directed to such address and mailed by regular United States
mail, first class, postage prepaid. If any check mailed to such address is returned as
undeliverable to the addressee, mailing of checks will be suspended until the Participant or
beneficiary furnishes the proper address. This provision shall not be construed as requiring the
mailing of any notice or notification otherwise permitted to be given by posting or by other
publication.




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          17.3 Lost Distributees. A benefit shall be deemed forfeited if the Plan Administrator is
unable to locate the Participant or Beneficiary to whom payment is due on or before the fifth
anniversary of the date payment is to be made or commence; provided, that the deemed investment
rate of return pursuant to Section 8.2 shall cease to be applied to the Participant’s account
following the first anniversary of such date; provided further, however, that such benefit shall be
reinstated if a valid claim is made by or on behalf of the Participant or Beneficiary for all or
part of the forfeited benefit.




          17.4 Reliance on Data. The Employer, the Committee and the Plan Administrator shall have the
right to rely on any data provided by the Participant or by any Beneficiary. Representations of
such data shall be binding upon any party seeking to claim a benefit through a Participant, and the
Employer, the Committee and the Plan Administrator shall have no obligation to inquire into the
accuracy of any representation made at any time by a Participant or beneficiary.




          17.5 Receipt and Release for Payments. Subject to the provisions of Section 17.1, any payment
made from the Plan to or with respect to any Participant or Beneficiary, or pursuant to a
disclaimer by a Beneficiary, shall, to the extent thereof, be in full satisfaction of all claims
hereunder against the Plan and the Employer with respect to the Plan. The recipient of any payment
from the Plan may be required by the Committee, as a condition precedent to such payment, to
execute a receipt and release with respect thereto in such form as shall be acceptable to the
Committee.




          17.6 Headings. The headings and subheadings of the Plan have been inserted for convenience of
reference and are to be ignored in any construction of the provisions
hereof.




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          17.7 Continuation of Employment. The establishment of the Plan shall not be construed as
conferring any legal or other rights upon any Employee or any persons for continuation of
employment, nor shall it interfere with the right of the Employer to discharge any Employee or to
deal with him without regard to the effect thereof under the Plan.




          17.8 Merger or Consolidation; Assumption of Plan. No Employer shall consolidate or merge into
or with another corporation or entity, or transfer all or substantially all of its assets to
another corporation, partnership, trust or other entity (a “Successor Entity”) unless such
Successor Entity shall assume the rights, obligations and liabilities of the Employer under the
Plan and upon such assumption, the Successor Entity shall become obligated to perform the terms and
conditions of the Plan. Nothing herein shall prohibit the assumption of the obligations and
liabilities of the Employer under the Plan by any Successor Entity.




          17.9 Construction. The Employer shall designate in the Adoption Agreement the state according
to whose laws the provisions of the Plan shall be construed and enforced, except to the extent that
such laws are superseded by ERISA and the applicable requirements of the Code.





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