Filed by Bowne Pure Compliance







EXHIBIT 10.16





NONQUALIFIED

SUPPLEMENTAL DEFERRED COMPENSATION PLAN

— PLAN DOCUMENT — 




SECTION 1 INTRODUCTION




  1.1 Adoption of Plan and Purpose



     This Plan is an unfunded, nonqualified deferred compensation plan. With the consent of the
Employer (as defined in subsection 2.16) the plan may be adopted by executing the Adoption
Agreement (as defined in subsection 2.3) in the form attached hereto. The Plan contains certain
variable features which the Employer has specified in the Adoption Agreement. Only those variable
features specified by the Employer in the Adoption Agreement will be applicable to the Employer.



     The purpose of the Plan is to provide certain supplemental benefits under the Plan to a select
group of management or highly compensated Employees of the Employer (in accordance with Sections
201, 301 and 401 of ERISA), Members of the Board(s) of the Employer, or Other Service Providers to
the Employer (as defined below), and to allow such Employees, Board Members or Other Service
Providers the opportunity to defer a portion of their salaries, bonuses and other compensation,
subject to the terms of the Plan. Participants (and their Beneficiaries) shall have only those
rights to payments as set forth in the Plan and shall be considered general, unsecured creditors of
the Employer with respect to any such rights. The Plan is designed to comply with the American
Jobs Creation Act of 2004 (the “Jobs Act”) and Code Section 409A. It is intended that the Plan be
interpreted according to a good faith interpretation of the Jobs Act and Code Section 409A, and
consistent with published IRS guidance, including proposed and final IRS regulations under Code
Section 409A. Treatment of amounts in the Plan under any transition rules provided under all IRS
and other guidance in connection with the Jobs Act or Code Section 409A shall be expressly
authorized hereunder in accordance with procedures developed by the Administrator. In the event of
any inconsistency between the terms of the Plan and the Jobs Act or Code Section 409A (and
regulations thereunder), the terms of the Jobs Act and Code Section 409A (and the regulations
thereunder) shall control. The Plan is intended to constitute an account balance plan (as defined
in IRS Notice 2005-1, Q&A-9).



     By becoming a Participant and making deferrals under this Plan, each Participant agrees to be
bound by the provisions of the Plan and the determinations of the Employer and the Administrator
hereunder.



  1.2 Adoption of the Plan



     The Employer may adopt the Plan by completing and signing the Adoption Agreement in the form
attached hereto.



  1.3 Plan Year



     The Plan is administered on the basis of a Plan Year, as defined in subsection 2.27.



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  1.4 Plan Administration



     The plan shall be administered by a plan administrator (the “Administrator,” as that term is
defined in Section 3(16)(A) of ERISA) designated by the Employer in the Adoption Agreement. The
Administrator has full discretionary authority to construe and interpret the provisions of the Plan
and make factual determinations thereunder, including the power to determine the rights or
eligibility of employees or participants and any other persons, and the amounts of their benefits
under the plan, and to remedy ambiguities, inconsistencies or omissions, and such determinations
shall be binding on all parties. The Administrator from time to time may adopt such rules and
regulations as may be necessary or desirable for the proper and efficient administration of the
Plan and as are consistent with the terms of the Plan. The administrator may delegate all or any
part of its powers, rights, and duties under the Plan to such person or persons as it may deem
advisable, and may engage agents to provide certain administrative services with respect to the
Plan. Any notice or document relating to the Plan which is to be filed with the Administrator may
be delivered, or mailed by registered or certified mail, postage pre-paid, to the Administrator, or
to any designated representative of the Administrator, in care of the Employer, at its principal
office.



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SECTION 2 DEFINITIONS




  2.1 Account



     “Account” means all notional accounts and subaccounts maintained for a Participant in order to
reflect his interest under the Plan, as described in Section 6.



  2.2 Administrator



     “Administrator” means the individual or individuals (if any) delegated authority by the
Employer to administer the Plan, as defined in subsection 1.4.



  2.3 Adoption Agreement



     “Adoption Agreement” shall mean the form executed by the Employer and attached hereto, which
Agreement shall constitute a part of the Plan.



  2.4 Beneficiary



     “Beneficiary” means the person or persons to whom a deceased Participant’s benefits are
payable under subsection 9.5.



  2.5 Board



     “Board” means the Board of Directors of the Employer (if applicable), as from time to time
constituted.



  2.6 Board Member



     “Board Member” means a member of the Board.



  2.7 Bonus



     “Bonus” (also referred to herein as a “Non-Performance-Based Bonus) means an award of cash
that is not a Performance-Based Bonus (as defined in subsection 2.25) that is payable to an
Employee (or Board Member or Other Service Provider, as applicable) in a given year, with respect
to the immediately preceding Bonus performance period, which may or may not be contingent upon the
achievement of specified performance goals.



  2.8 Code



     “Code” means the Internal Revenue Code of 1986, as amended. Reference to a specific section
of the Code shall include such section, any valid regulation promulgated thereunder, and any
comparable provision of any future legislation amending, supplementing, or superseding such
section.



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  2.9 Compensation



     “Compensation” shall mean the amount of a Participant’s remuneration from the Employer
designated in the Adoption Agreement. Notwithstanding the foregoing, the Compensation of an Other
Service Provider (as defined in subsection 2.22) shall mean his remuneration from the Employer
pursuant to an agreement to provide services to the Employer. With respect to any Participant who
is a Member of the Board (if applicable), “Compensation” means all cash remuneration which, absent
a deferral election under the Plan, would have otherwise been received by the Board Member in the
taxable year, payable to the Board Member for service on the Board and on Board committees,
including any cash payable for attendance at Board meetings and Board committee meetings, but not
including any amounts constituting reimbursements of expenses to Board Members. To the extent the
Employer has designated “401(k) Refunds” in the Adoption Agreement (and to the extent elected by
the Participant), an amount equal to the Participant’s “401(k) Refund” shall be deferred from the
Participant’s Compensation otherwise payable to the Participant in the next subsequent Compensation
pay period (or such later pay period as the Administrator determines shall be administratively
feasible), and shall be credited to the Participant’s Compensation Deferral Account in accordance
with subsection 4.1. For purposes of this subsection, “401(k) Refund” means any amount distributed
to the applicable Participant from the Employer’s qualified retirement plan intended to comply with
Section 401(k) of the Code that is in excess of the maximum deferral for the prior calendar year
allowable under such qualified retirement plan. Notwithstanding the foregoing, the definition of
compensation for purposes of determining key employees under subsection 9.3 of the Plan shall be
determined solely in accordance with subsection 9.3. To the extent not otherwise designated by the
Employer in a separate document forming part of the Plan, Compensation payable after December 31 of
a given year solely for services performed during the Employer’s final payroll period containing
December 31, is treated as Compensation payable for services performed in the subsequent year in
which the non-deferred portion of the payroll payment is actually made.



  2.10 Compensation Deferrals



     “Compensation Deferrals” means the amounts credited to a Participant’s Compensation Deferral
Account pursuant to the Participant’s election made in accordance with subsection 4.1.



  2.11 Deferral Election



     “Deferral Election” means an election by a Participant to make Compensation Deferrals or
Performance-Based Bonus Deferrals in accordance with Section 4.



  2.12 Disability



     “Disability” for purposes of this Plan shall mean the occurrence of an event as a result of
which the Participant is considered disabled, as designated by the Employer in the Adoption
Agreement.



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  2.13 Effective Date



     “Effective Date” means the Effective Date of the Plan, as indicated in the Adoption Agreement.



  2.14 Eligible Individual



     “Eligible Individual” means each Board Member, Other Service Provider, or Employee of an
Employer who satisfies the eligibility requirements set forth in the Adoption Agreement, for the
period during which he is determined by the Employer to satisfy such requirements.



  2.15 Employee



     “Employee” means a person who is employed by an Employer and is treated and/or classified by
the Employer as a common law employee for purposes of wage withholding for Federal income taxes.
If a person is not considered to be an Employee of the Employer in accordance with the preceding
sentence, a subsequent determination by the Employer, any governmental agency, or a court that the
person is a common law employee of the Employer, even if such determination is applicable to prior
years, will not have a retroactive effect for purposes of eligibility to participate in the Plan.



  2.16 Employer



     “Employer” means the business entity designated in the Adoption Agreement, and its successors
and assigns unless otherwise herein provided, or any other corporation or business organization
which, with the consent of the Employer, or its successors or assigns, assumes the Employer’s
obligations hereunder, and any affiliate or subsidiary of the Employer, as defined in Subsections
414(b) and (c) of the Code, or other corporation or business organization that has adopted the Plan
on behalf of its Eligible Individuals with the consent of the Employer.



  2.17 Employer Contributions



     “Employer Contributions” means the amounts other than Matching Contributions that are credited
to a Participant’s Employer Contributions Account under the Plan by the Employer in accordance with
subsection 4.4.



  2.18 ERISA



     “ERISA” means the Employee Retirement Income Security Act of 1974, as amended. Reference to a
specific section of ERISA shall include such section, any valid regulation promulgated thereunder,
and any comparable provision of any future legislation amending, supplementing, or superseding such
section.



  2.19 Fiscal Year Compensation



     “Fiscal Year Compensation” means Compensation relating to a period of service coextensive with
one or more consecutive non-calendar-year fiscal years of the Employer, where



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no amount of such Compensation is paid or payable during the service period. For example, a
Bonus based upon a service period of two consecutive fiscal years payable after the completion of
the second fiscal year would be “Fiscal Year Compensation,” but periodic salary payments or Bonuses
based on service periods other than the Employer’s fiscal year would not be Fiscal Year
Compensation.



  2.20 Investment Funds



     “Investment Funds” means the notional funds or other investment vehicles designated pursuant
to subsection 5.1.



  2.21 Matching Contributions



     “Matching Contributions” means the amounts credited to a Participant’s Employer Contribution
Account under the Plan by the Employer that are based on the amount of Participant Deferrals made
by the Participant under the Plan, or that are based upon such other formula as designated by the
Employer in the Adoption Agreement, in accordance with subsection 4.3.



  2.22 Other Service Providers



     “Other Service Providers” shall mean independent contractors, consultants, or other similar
providers of services to the Employer, other than Employees and Board Members. To the extent that
an Other Service Provider is unrelated to the Employer, as described in Code Section 409A and other
applicable regulations, guidance, etc. thereunder, the provisions of such guidance shall not apply.
To the extent that an Other Service Provider uses an accrual method of accounting for a given
taxable year, amounts deferred under the Plan in such taxable year shall not be subject to Code
Section 409A and other applicable guidance thereunder, notwithstanding any provision of the Plan to
the contrary.



  2.23 Participant



     “Participant” means an Eligible Individual who meets the requirements of Section 3 and elects
to make Compensation Deferrals pursuant to Section 4, or who receives Employer Contributions or
Matching Contributions pursuant to subsection 4.3 or 4.4. A Participant shall cease being a
Participant in accordance with subsection 3.2 herein.



  2.24 Participant Deferrals



     “Participant Deferrals” means all amounts deferred by a Participant under this Plan, including
Participant Compensation Deferrals and Participant Performance-Based Bonus Deferrals.



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  2.25 Performance-Based Bonus



     “Performance-Based Bonus” generally means Compensation where the amount of, or entitlement to,
the compensation is contingent on the satisfaction of previously established organizational or
individual performance criteria relating to a performance period of at least 12 consecutive months
in which the Eligible Individual performs services, pursuant to rules described in Treasury
Regulation Section 1.409A-1(e).



  2.26 Performance-Based Bonus Deferrals



     “Performance-Based Bonus Deferrals” means the amounts credited to a Participant’s Compensation
Deferral Account from the Participant’s Performance-Based Bonus pursuant to the Participant’s
election made in accordance with subsection 4.2.



  2.27 Plan Year



     “Plan Year” means each 12-month period specified in the Adoption Agreement, on the basis of
which the Plan is administered.



  2.28 Retirement



     “Retirement” for purposes of this Plan means the Participant’s Termination Date, as defined in
subsection 2.30, after attaining any age and/or service minimums with respect to Retirement or
Early Retirement as designated by the Employer in the Adoption Agreement.



  2.29 Spouse



     “Spouse” means the person to whom a Participant is legally married under applicable state law
at the earlier of the date of the Participant’s death or the date payment of the Participant’s
benefits commenced and who is living on the date of the Participant’s death.



  2.30 Termination Date



     “Termination Date” means (i) with respect to an Employee Participant, the Participant’s
separation from service (within the meaning of Section 409A of the Code and the regulations,
notices and other guidance thereunder, including death or Disability) with the Employer, and any
subsidiary or affiliate of the Employer as defined in Sections 414(b) and (c) of the Code; (ii)
with respect to a Board Member Participant, the Participant’s resignation or removal from the Board
(for any reason, including death or Disability); and (iii) with respect to any Other Service
Provider, the expiration of all agreements to provide services to the Employer (for any reason,
including death or Disability). The date that an Employee’s, Board Member’s, or Other Service
Provider’s performance of services for all the Employers is reduced to a level less than 20% of the
average level of services performed in the preceding 36-month period, shall be considered a
Termination Date, and the performance of services at a level of 50% or more of the average level of
services performed in the preceding 36-month period shall not be considered a Termination Date,
based on the parties’ reasonable expectations as of the applicable date. If a Participant is



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both a Board Member Participant and an Employee Participant, “Termination Date” means the date
the Participant satisfies both criteria (i) and (ii) above.



  2.31 Valuation Date



     “Valuation Date” means the last day of each Plan Year and any other date that the Employer, in
its sole discretion, designates as a Valuation Date, as of which the value of an Investment Fund is
adjusted for notional deferrals, contributions, distributions, gains, losses, or expenses.



  2.32 Other Definitions



     Other defined terms used in the Plan shall have the meanings given such terms elsewhere in the
Plan.



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SECTION 3 ELIGIBILITY AND PARTICIPATION




  3.1 Eligibility



     Each Eligible Individual on the Effective Date of the Plan shall be eligible to become a
Participant by properly making a Deferral Election on a timely basis as described in Section 4, or,
if applicable and eligible as designated by the Employer in the Adoption Agreement, by receiving a
Matching Contribution or other Employer Contribution under the Plan. Each other Eligible
Individual may become a Participant by making a Deferral Election on a timely basis as described in
Section 4 or, if applicable and eligible as designated by the Employer in the Adoption Agreement,
by receiving a Matching Contribution or other Employer Contribution under the Plan. Each Eligible
Individual’s decision to become a Participant by making a Deferral Election shall be entirely
voluntary. The Employer may require the Participant to complete any necessary forms or other
information as it deems necessary or advisable prior to permitting the Eligible Individual to
commence participation in the Plan.



  3.2 Cessation of Participation



     If a Termination Date occurs with respect to a Participant, or if a Participant otherwise
ceases to be an Eligible Individual, no further Compensation Deferrals, Performance-Based Bonus
Deferrals, Matching Contributions or other Employer Contributions shall be credited to the
Participant’s Accounts after the Participant’s Termination Date or date the Participant ceases to
be eligible (or as soon as administratively feasible after the date the Participant ceases to be
eligible), unless he is again determined to be an Eligible Individual, but the balance credited to
his Accounts shall continue to be adjusted for notional investment gains and losses under the terms
of the Plan and shall be distributed to him at the time and manner set forth in Section 9. An
Employee, Board Member or Other Service Provider shall cease to be a Participant after his
Termination Date or other loss of eligibility as soon as his entire Account balance has been
distributed.



  3.3 Eligibility for Matching or Employer Contributions



     An Employee Participant who has satisfied the requirements necessary to become an Eligible
Individual with respect to Matching Contributions as specified in the Adoption Agreement, and who
has made a Compensation Deferral election pursuant to subsection 4.1 herein or who has satisfied
such other criteria as specified in the Adoption Agreement, shall be eligible to receive Matching
Contributions described in subsection 4.3. An Employee Participant who has satisfied the
requirements necessary to become an Eligible Individual with respect to Employer Contributions
other than Matching Contributions as specified in the Adoption Agreement, shall be eligible to
receive Employer Contributions described in subsection 4.4.



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SECTION 4 DEFERRALS AND CONTRIBUTIONS




  4.1 Compensation Deferrals Other Than Performance-Based Bonus Deferrals



     Each Plan Year, an Eligible Individual may elect to defer receipt of no less than the minimum
and no greater than the maximum percentage or amount selected by the Employer in the Adoption
Agreement with respect to each type of Compensation (other than Performance-Based Bonuses) earned
with respect to pay periods beginning on and after the effective date of the election; provided,
however, that Compensation earned prior to the date the Participant satisfies the eligibility
requirements of Section 3 shall not be eligible for deferral under this Plan. Except as otherwise
provided in this subsection, a Participant’s Deferral Election for a Plan Year under this
subsection must be made not later than December 31 of the preceding Plan Year (or such earlier date
as determined by the Administrator) with respect to Compensation (other than Performance-Based
Bonuses) earned in pay periods beginning on or after the following January 1 in accordance with
rules established by the Administrator.



     An Employee, Board Member or Other Service Provider who first becomes an Eligible Individual
during a Plan Year (by virtue of a promotion, Compensation increase, commencement of employment
with the Employer, commencement of Board service, execution of an agreement to provide services to
an Employer, or any other reason) shall be provided enrollment documents (including Deferral
Election forms) as soon as administratively feasible following such initial notification of
eligibility. Such Eligible Individual must make his Deferral Elections within 30 days after first
becoming an Eligible Individual, with respect to his Compensation (other than Performance-Based
Bonuses) earned on or after the effective date of the Deferral Election (provided, however, that if
such Eligible Individual is participating in any other account balance plan maintained by the
Employer or any member of the Employer’s “controlled group” (as defined in subsections 414(b) and
(c) of the Code), such Eligible Individual must make his Compensation Deferral Election no later
than December 31 of the preceding Plan Year (or such earlier date as determined by the
Administrator), or he may not elect to make Compensation Deferrals for that initial Plan Year). If
an Eligible Individual does not elect to make Compensation Deferrals during that initial 30-day
period, he may not later elect to make Compensation Deferrals for that year under this subsection.
In the event that an Eligible Individual first becomes eligible during a Plan Year with respect to
which Fiscal Year Compensation is payable, such Eligible Individual must make his Fiscal Year
Compensation Deferral Election on or before the end of the fiscal year of the Employer immediately
preceding the first fiscal year in which any services are performed for which the Fiscal Year
Compensation is payable.



     In the case of an Employee, Board Member or Other Service Provider who is rehired (or who
recommences Board Service or recommences providing services to an Employer as an Other Service
Provider) after having previously been an Eligible Individual, the phrase “first becomes an
Eligible Individual” in the first sentence of the preceding paragraph shall be interpreted to apply
only where the Eligible Individual either (i) previously received payment of his total Account
balances under the Plan, or (ii) did not previously receive payment of his total Account balances
under the Plan, but is rehired (or recommences Board Service or recommences



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providing services to an Employer as an Other Service Provider) at least 24 months after his
last day as a previously Eligible Individual prior to again becoming such an Eligible Individual.
In all other cases such rehired Employee, Board Member or Other Service Provider may not elect to
make Compensation Deferrals until the next date determined by the Administrator with respect to
Compensation earned after the following January 1. Similarly, in the case of an Employee who
recommences status as an Eligible Individual for any other reason after having previously lost his
status as an Eligible Individual (due to Compensation fluctuations, transfer from an ineligible
location or job classification, or otherwise), the phrase “first becomes an Eligible Individual”
shall be interpreted to apply only where the Eligible Individual either: (i) previously received
payment of his total Account balances under the Plan, or (ii) did not previously receive payment of
his total Account balances under the Plan, but regains his status as an Eligible Individual at
least 24 months after his last day as a previously Eligible Individual prior to again becoming such
an Eligible Individual. In all other cases such Re-Eligible Participant may not elect to make
Compensation Deferrals until the next date determined by the Administrator with respect to
Compensation earned after the following January 1.



     An election to make Compensation Deferrals under this subsection 4.1 shall remain in effect
through the last pay period commencing in the calendar year to which the election applies (except
as provided in subsection 4.5), shall apply with respect to the applicable type of Compensation
(other than Performance-Based Bonuses) to which the Deferral Election relates earned for pay
periods commencing in the applicable calendar year to which the election applies while the
Participant remains an Eligible Individual, and shall be irrevocable (provided, however, that a
Participant making a Deferral Election under this subsection may change his election at any time
prior to December 31 of the year preceding the year for which the Deferral Election is applicable,
subject to rules established by the Administrator). If a Participant fails to make a Compensation
Deferral election for a given Plan Year, such Participant’s Compensation Deferral Election for that
Plan Year shall be deemed to be zero; provided, however, that if the Employer has elected in the
Adoption Agreement that a Participant’s Compensation Deferral Election shall be “evergreen”, then
such Participant’s Compensation Deferral Election shall be deemed to be identical to the most
recent applicable Deferral Election on file with the Administrator with respect to the applicable
type of Compensation; provided, however, that no In-Service Distribution shall be applicable to any
amounts deferred in a year in which the Participant fails to make an affirmative election, and
payment of such amounts for such year shall be made in accordance with his most recent election on
file with the Administrator (if no election is on file, then such amounts shall be paid to him in a
single lump sum).



     Compensation Deferrals shall be credited to the Participant’s Compensation Deferral Account as
soon as administratively feasible after such amounts would have been payable to the Participant.



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  4.2 Performance-Based Bonus Deferrals



     Each Plan Year, an Eligible Individual may elect to defer receipt of no less than the minimum
and no greater than the maximum percentage or amount selected by the Employer in the Adoption
Agreement with respect to Performance-Based Bonuses earned with respect to the performance period
for which the Performance-Based Bonus is earned; provided, however, that the Eligible Individual
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 Eligible Individual
makes a Performance-Based Bonus Deferral Election; and further provided that in no event may an
election to defer Performance-Based Bonuses be made after such Bonuses have become readily
ascertainable. Except as otherwise provided in this subsection, a Participant’s Performance-Based
Bonus Deferral Election under this subsection must be made not later than six months (or such
earlier date as determined by the Administrator) prior to the end of the performance period.



     An Employee, Board Member or Other Service Provider who first becomes an Eligible Individual
during a Plan Year (by virtue of a promotion, Compensation increase, commencement of employment
with the Employer, commencement of Board service, execution of an agreement to provide services to
an Employer, or any other reason) shall be provided enrollment documents (including Deferral
Election forms) as soon as administratively feasible following such initial notification of
eligibility. Such Eligible Individual must make his Performance-Based Bonus Deferral Election
within 30 days after first becoming an Eligible Individual (provided, however, that if such
Eligible Individual is participating in any other account balance plan maintained by the Employer
or any member of the Employer’s “controlled group” (as defined in subsections 414(b) and (c) of the
Code), such Eligible Individual must make his Performance-Based Bonus Deferral Election no later
than six months (or such earlier date as determined by the Administrator) prior to the end of the
performance period, or he may not elect to make Performance-Based Bonus Deferrals for such initial
Plan Year. In the case of a Deferral Election in the first year of eligibility that is made after
the beginning of the Performance-Based Bonus performance period, the Deferral Election will apply
to the portion of the Performance-Based Bonus equal to the total amount of the Performance-Based
Bonus for the performance period multiplied by the ratio of the number of days remaining in the
performance period after the effective date of the Deferral Election over the total number of days
in the Performance Period. If an Eligible Individual does not elect to make a Performance-Based
Bonus Deferral during that initial 30-day period, he may not later elect to make a
Performance-Based Bonus Deferral for that performance period under this subsection. Rules relating
to the timing of elections to make a Performance-Based Bonus Deferral with respect to an Employee,
Board Member or Other Service Provider who becomes an Eligible Individual (due to rehire or other
similar event) after having previously been an Eligible Individual shall be applied in a manner
similar to rules described applicable to rehired and other Re-Eligible Participants in subsection
4.1 above.



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     An election to make Performance-Based Bonus Deferrals under this subsection 4.2 shall remain
in effect through the end of the performance period to which the election applies (except as
provided in subsection 4.5), and shall be irrevocable (provided, however, that a Participant making
a Performance-Based Bonus Deferral Election under this subsection may change his election at any
time prior to the first day of the six-month period ending on the last day of the performance
period for which the Performance-Based Bonus Deferral Election is applicable, subject to rules
established by the Administrator). If a Participant fails to make a Performance-Based Bonus
Deferral Election for a given performance period, such Participant’s Performance-Based Bonus
Deferral Election for that performance period shall be deemed to be zero; provided, however, that
if the Employer has elected in the Adoption Agreement that a Participant’s Performance-Based
Deferral Election shall be “evergreen”, then such Participant’s Performance-Based Bonus Deferral
Election shall be deemed to be identical to the most recent applicable Performance-Based Bonus
Deferral Election on file with the Administrator; provided, however, that no In-Service
Distribution shall be applicable to any amounts deferred in a year in which the Participant fails
to make an affirmative election, and payment of such amounts for such year shall be made in
accordance with his most recent election on file with the Administrator (if no election is on file,
then such amounts shall be paid to him in a single lump sum).



     Performance-Based Bonus Deferrals shall be credited to the Participant’s Compensation
Deferral Account as soon as administratively feasible after such amounts would have been payable to
the Participant.



  4.3 Matching Contributions



     Matching Contributions shall be determined in accordance with the formula specified in the
Adoption Agreement, and shall be credited to the Employer Contribution Accounts of Participants who
have satisfied the eligibility requirements for Matching Contributions specified in the Adoption
Agreement. Matching Contributions under this Plan shall be credited to such Participants’ Employer
Contribution Accounts as soon as administratively feasible after the Applicable Period selected in
the Adoption Agreement, but only with respect to Participants eligible to receive such Matching
Contributions as described in the Adoption Agreement.



  4.4 Other Employer Contributions



     Employer Contributions other than Matching Contributions shall be discretionary from year to
year, and shall be credited to the Employer Contribution Accounts of Participants who have
satisfied the eligibility requirements for Employer Contributions, all as determined by the
Employer and documented in writing, and such writings will form part of the Plan, as specified in
the Adoption Agreement. Employer Contributions under this Plan shall be credited to such
Participants’ Employer Contributions Accounts as soon as administratively feasible.



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  4.5 No Election Changes During Plan Year



     A Participant shall not be permitted to change or revoke his Deferral Elections (except as
otherwise described in subsections 4.1 and 4.2), except that, if a Participant’s status changes
such that he becomes ineligible for the Plan, the Participant’s Deferrals under the Plan shall
cease as described in subsection 3.2. Notwithstanding the foregoing, in the event the Employer
maintains a qualified plan designed to comply with the requirements of Code Section 401(k) that
requires the cessation of all deferrals in the event of a hardship withdrawal under such plan, the
Participant’s Deferrals under this Plan shall cease as soon as administratively feasible upon
notification to the Administrator that the participant has taken such a hardship withdrawal.
Notwithstanding the foregoing, if the Employer has elected in the Adoption Agreement to permit
Unforeseeable Emergency Withdrawals pursuant to subsection 9.8, the Participant’s Deferrals under
this Plan shall cease as soon as administratively feasible upon approval by the Administrator of a
Participant’s properly submitted request for an Unforeseeable Emergency Withdrawal under subsection
9.8.



  4.6 Crediting of Deferrals



     The amount of deferrals pursuant to subsections 4.1 and 4.2 shall be credited to the
Participant’s Accounts as of a date determined to be administratively feasible by the
Administrator.



  4.7 Reduction of Deferrals or Contributions



     Any Participant Deferrals or Employer Contributions to be credited to a Participant’s Account
under this Section may be reduced by an amount equal to the Federal or state income, payroll, or
other taxes required to be withheld on such deferrals or contributions or to satisfy any necessary
employee welfare plan contributions. A Participant shall be entitled only to the net amount of
such deferral or contribution (as adjusted from time to time pursuant to the terms of the Plan).
The Administrator may limit a Participant’s Deferral Election if, as a result of any election, a
Participant’s Compensation from the Employer would be insufficient to cover taxes, withholding, and
other required deductions applicable to the Participant.



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SECTION 5 NOTIONAL INVESTMENTS




  5.1 Investment Funds



     The Employer may designate, in its discretion, one or more Investment Funds for the notional
investment of Participants’ Accounts. The Employer, in its discretion, may from time to time
establish new Investment Funds or eliminate existing Investment Funds. The Investment Funds are
for recordkeeping purposes only and do not allow Participants to direct any Employer assets
(including, if applicable, the assets of any trust related to the Plan). Each Participant’s
Accounts shall be adjusted pursuant to the Participant’s notional investment elections made in
accordance with this Section 5, except as otherwise determined by the Employer or Administrator in
their sole discretion.



  5.2 Investment Fund Elections



     The Employer shall have full discretion in the direction of notional investments of
Participants’ Accounts under the Plan; provided, however, that if the Employer so elects in the
Adoption Agreement, each Participant may elect from among the Investment Funds for the notional
investment of such of his Accounts as are permitted under the Adoption Agreement from time to time
in accordance with procedures established by the Employer. The Administrator, in its discretion,
may adopt (and may modify from time to time) such rules and procedures as it deems necessary or
appropriate to implement the notional investment of the Participant’s Accounts. Such procedures
may differ among Participants or classes of Participants, as determined by the Employer or the
Administrator in its discretion. The Employer or Administrator may limit, delay or restrict the
notional investment of certain Participants’ Accounts, or restrict allocation or reallocation into
specified notional investment options, in accordance with rules established in order to comply with
Employer policy and applicable law, to minimize regulated filings and disclosures, or under any
other circumstances in the discretion of the Employer. Any deferred amounts subject to a
Participant’s investment election that must be so limited, delayed or restricted under such
circumstances may be notionally invested in an Investment Fund designated by the Administrator, or
may be credited with earnings at a rate determined by the Administrator, which rate may be zero. A
Participant’s notional investment election shall remain in effect until later changed in accordance
with the rules of the Administrator. If a Participant does not make a notional investment
election, all deferrals by the Participant and contributions on his behalf will be deemed to be
notionally invested in the Investment Fund designated by the Employer for such purpose, or, at the
Employer’s election, may remain uninvested until such time as the Administrator receives proper
direction, or may be credited with earnings at a rate determined by the Administrator or Employer,
which rate may be zero.



  5.3 Investment Fund Transfers



     A Participant may elect that all or a part of his notional interest in an Investment Fund
shall be transferred to one or more of the other Investment Funds. A Participant may make such
notional Investment Fund transfers in accordance with rules established from time to time by the
Employer or the Administrator, and in accordance with subsection 5.2.




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SECTION 6 ACCOUNTING




  6.1 Individual Accounts



     Bookkeeping Accounts shall be maintained under the Plan in the name of each Participant, as
applicable, along with any subaccounts under such Accounts deemed necessary or advisable from time
to time, including a subaccount for each Plan Year that a Participant’s Deferral Election is in
effect. Each such subaccount shall reflect (i) the amount of the Participant’s Deferral during
that year, any Matching Contributions or Employer Contributions credited during that year, and the
notional gains, losses, expenses, appreciation and depreciation attributable thereto.



     Rules and procedures may be established relating to the maintenance, adjustment, and
liquidation of Participants’ Accounts, the crediting of deferrals and contributions and the
notional gains, losses, expenses, appreciation, and depreciation attributable thereto, as are
considered necessary or advisable.



  6.2 Adjustment of Accounts



     Pursuant to rules established by the Employer, Participants’ Accounts will be adjusted on
each Valuation Date, except as provided in Section 9, to reflect the notional value of the various
Investment Funds as of such date, including adjustments to reflect any deferrals and contributions,
notional transfers between Investment Funds, and notional gains, losses, expenses, appreciation, or
depreciation with respect to such Accounts since the previous Valuation Date. The “value” of an
Investment Fund at any Valuation Date may be based on the fair market value of the Investment Fund,
as determined by the Administrator in its sole discretion.



  6.3 Accounting Methods



     The accounting methods or formulae to be used under the Plan for purposes of monitoring
Participants’ Accounts, including the calculation and crediting of notional gains, losses,
expenses, appreciation, or depreciation, shall be determined by the Administrator in its sole
discretion. The accounting methods or formulae selected by the Administrator may be revised from
time to time.



  6.4 Statement of Account



     At such times and in such manner as determined by the Administrator, but at least annually,
each Participant will be furnished with a statement reflecting the condition of his Accounts.



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SECTION 7 VESTING




     A Participant shall be fully vested at all times in his Compensation Deferral Account (if
applicable). A Participant shall be vested in his Matching Contributions and/or Employer
Contributions (if applicable), in accordance with the vesting schedule elected by the Employer
under the Adoption Agreement. Vesting Years of Service shall be determined in accordance with the
election made by the Employer in the Adoption Agreement. Amounts in a Participant’s Accounts that
are not vested upon the Participant’s Termination Date (“forfeitures”) shall be used to reinstate
amounts previously forfeited by other Participants who are subsequently rehired, or shall be
returned to the Employer, in the discretion of the Employer or the Administrator.



     If a Participant has a Termination Date with the Employer as a result of the Participant’s
Misconduct (as defined by the Employer in the Adoption Agreement), or if the Participant engages in
Competition with the Employer (as defined by the Employer in the Adoption Agreement), and the
Employer has so elected in the Adoption Agreement, the Participant shall forfeit all amounts
allocated to his or her Matching Contribution Account and/or Employer Contribution Accounts (if
applicable). Such forfeitures shall be returned to the Employer.



     Neither the Administrator nor the Employer in any way guarantee the Participant’s Account
balance from loss or depreciation. Notwithstanding any provision of the Plan to the contrary, the
Participant’s Account balance is subject to Section 8.



     Vesting Years of Service in the event of the rehire of a Participant shall be reinstated, and
amounts previously forfeited by such Participants shall be reinstated from forfeitures made by
other Participants, or shall be reinstated by the Employer.



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SECTION 8 FUNDING




     No Participant or other person shall acquire by reason of the Plan any right in or title to
any assets, funds, or property of the Employer whatsoever, including, without limiting the
generality of the foregoing, any specific funds, assets, or other property of the Employer.
Benefits under the Plan are unfunded and unsecured. A Participant shall have only an unfunded,
unsecured right to the amounts, if any, payable hereunder to that Participant. The Employer’s
obligations under this Plan are not secured or funded in any manner, even if the Employer elects to
establish a trust with respect to the Plan. Even though benefits provided under the Plan are not
funded, the Employer may establish a trust to assist in the payment of benefits. All investments
under this Plan are notional and do not obligate the Employer (or its delegates) to invest the
assets of the Employer or of any such trust in a similar manner.



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SECTION 9 DISTRIBUTION OF ACCOUNTS




  9.1 Distribution of Accounts



     With respect to any Participant who has a Termination Date that precedes his Retirement date,
an amount equal to the Participant’s vested Account balances shall be distributed to the
Participant (or, in the case of the Participant’s death, to the Participant’s Beneficiary), in the
form of a single lump sum payment, or, if subsection 9.2 applies, in the form of installment
payments as designated by the Employer in the Adoption Agreement. Subject to subsection 9.3
hereof, distribution of a Participant’s Accounts shall be made within the 90-day period following
the Participant’s Termination Date (provided, however, that if calculation of the amount of the
payment is not administratively practicable due to events beyond the control of the Participant,
the payment will be made as soon as administratively practicable for the Administrator to make such
payment). Notwithstanding any provision of the Plan to the contrary, for purposes of this
subsection, a Participant’s Accounts shall be valued as of a Valuation Date as soon as
administratively feasible preceding the date such distribution is made, in accordance with rules
established by the Administrator. A Participant’s Accounts may be offset by any amounts owed by
the Participant to the Employer, but such offset shall not occur in excess of or prior to the date
distribution of the amount would otherwise be made to the Participant.



     Notwithstanding the foregoing, to the extent designated by the Employer in the Adoption
Agreement, a Participant may elect, in accordance with this subsection, a distribution date for his
Compensation Deferral Accounts that is prior to his Termination Date (an “In-Service
Distribution”). A Participant’s election of an In-Service Distribution date must: (i) be made at
the time of his Deferral Election for a Plan Year; and (ii) apply only to amounts deferred pursuant
to that election, and any earnings, gains, losses, appreciation, and depreciation credited thereto
or debited therefrom with respect to such amounts. To the extent permitted by the Employer, a
Participant may elect an In-Service Distribution date with respect to Performance-Based Bonus
Deferrals that is separate from an In-Service Distribution date with respect to Compensation
Deferrals other than Performance-Based Bonus Deferrals for the same year, provided that the
applicable In-Service Distribution date may not be earlier than the number of years designated by
the Employer in the Adoption Agreement following the year in which the applicable Compensation
would have been paid absent the deferral, or as further determined or limited in accordance with
rules established by the Administrator. Payments made pursuant to an In-Service Distribution
election shall be made in a lump sum as soon as administratively feasible following January 1 of
the calendar year in which the payment was elected to be made, but in no event later than the end
of the calendar year in which the payment was elected to be made (provided, however, that if
calculation of the amount of the payment is not administratively practicable due to events beyond
the control of the Participant, the payment will be made as soon as administratively practicable
for the Administrator to make such payment). For purposes of such payment, the value of the
Participant’s Accounts for the applicable Plan Year shall be determined as of a Valuation Date
preceding the date that such distribution is made, in accordance with rules established by the
Administrator. In the event a Participant’s Termination Date occurs (or, if elected by the
Employer in the Adoption Agreement, in the event a Change in Control of the Employer occurs) prior
to the date the Participant had previously elected to have



- 19 -









 




an In-Service Distribution payment made to him, such amount shall be paid to the Participant
under the rules applicable for payment on Termination of Employment in accordance with this
subsection 9.1 and subsection 9.2. No In-Service Distribution shall be applicable to any amounts
deferred in a year in which the Participant fails to make an affirmative election, and payment of
such amounts for such year shall be made in accordance with his most recent election on file with
the Administrator (if no election is on file, then such amounts shall be paid to him in a single
lump sum).




     To the extent elected by the Employer in the Adoption Agreement, Participants whose
Termination Date has not yet occurred may elect to defer payment of any In-Service Distribution,
provided that such election is made in accordance with procedures established by the Administrator,
and further provided that any such election must be made no later than 12 calendar months prior to
the originally elected In-Service Distribution Date. Participants may elect any deferred payment
date, but such date must be no fewer than five years from the original In-Service Distribution
Date.



  9.2 Installment Distributions



     To the extent elected by the Employer in the Adoption Agreement, a Participant may elect to
receive payments from his Accounts in the form of a single lump sum, as described in Section 9.1,
or in annual installments over a period elected by the Employer in the Adoption Agreement. To the
extent a Participant fails to make an election, the Participant shall be deemed to have elected to
receive his distribution for that Plan Year in the form of a single lump sum. To the extent
elected by the Employer in the Adoption Agreement, a Participant may make a separate election with
respect to his Performance-Based Bonus Deferrals for each year (as adjusted for gains and losses
thereon) that provides for a different method of distribution from the method of distribution he
elects with respect to his Compensation Deferrals (as adjusted for gains and losses thereon) for
that year. The Participant’s Employer Contributions Account attributable to such year, if any (as
adjusted for gains and losses thereon), shall be distributed in the same manner as his Compensation
Deferral Account for such year.




	 	(a)	 	Installment Elections. A Participant will be required to make his
distribution election prior to the commencement of each calendar year (or, in the event
of an election with respect to Performance-Based Bonuses, prior to six months before
the end of the applicable performance period), or such earlier date as determined by
the Administrator.
	 
	 	(b)	 	Installment Payments. The first installment payment shall generally be
within the 90-day period following the Participant’s Termination Date (provided,
however, that if calculation of the amount of the payment is not administratively
practicable due to events beyond the control of the Participant, the payment will be
made as soon as administratively practicable for the Administrator to make such
payment). Succeeding payments shall generally be made by January 1 of each succeeding
calendar year, but in no event later than the end of each succeeding calendar year
(provided, however, that if calculation of the amount of the payment is not
administratively practicable due to events beyond the control of the Participant,




- 20 -









 












	 	 	 	the payment will be made as soon as administratively practicable for
the Administrator to make such payment). The amount to be distributed in each
installment payment shall be determined by dividing the value of the
Participant’s Accounts as of a Valuation Date preceding the date of each
distribution by the number of installment payments remaining to be made, in
accordance with rules established by the Administrator. In the event of the
death of the Participant prior to the full payment of his Accounts, payments
will continue to be made to his Beneficiary in the same manner and at the same
time as would have been payable to the Participant, but substituting the
Participant’s date of death for the Participant’s Retirement Date.





     To the extent elected by the Employer in the Adoption Agreement, Participants who have elected
payment in installments may make a subsequent election to elect payment of that amount in the form
of a lump sum, if payment of installments with respect to that year’s deferrals has not yet
commenced. Such election must be made in accordance with procedures established by the
Administrator, and any such election must be made no later than 12 calendar months prior to the
originally elected payment date of the first installment. The new payment date for the installment
with respect to which such election is made must be deferred to the later of: (i) five years from
the date such payment would otherwise have been made, or (ii) the last payment date of the last
installment with respect to that year’s deferrals. To the extent elected by the Employer in the
Adoption Agreement, Participants who have elected payment in installments may make a subsequent
election to change the number of such installment payments so long as no acceleration of
distribution payments occurs (but no fewer than the minimum number, and not to exceed the maximum
number of installments elected by the Employer in the Adoption Agreement), if payment of
installments with respect to that year’s Deferral Elections has not yet commenced. Such election
must be made in accordance with procedures established by the Administrator, and any such election
must be made no later than 12 calendar months prior to the originally elected payment date of the
first installment. The new payment date for any installment with respect to which such election is
made must be deferred for a period of not less than five years from the date such payment would
otherwise have been made. In the event payment has been elected by the Participant in the form
of installments (to the extent elected by the Employer in the Adoption Agreement), each installment
payment shall be considered a separately identifiable payment. In the event payment has been
elected by the Participant in the form of a lump sum (or in the event payment shall be made to the
Participant in the form of a lump sum under the terms of the Plan in the absence of or in lieu of
the Participant’s election), then the lump sum form shall be deemed to be a separately identifiable
form of payment, and the Participant may make a subsequent deferral election to elect payment of
that amount in the form of installments (to the extent elected by the Employer in the Adoption
Agreement) in accordance with the procedures described above for changing installment payment
elections. Participants will be permitted to make such a change only once with respect to any
year’s Deferral Elections.



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  9.3 Key Employees



     Notwithstanding anything herein to the contrary, and subject to Code Section 409A, payment
under subsections 9.3 or 9.4 shall not be made or commence as a result of the Participant’s
Termination Date to any Participant who is a key employee (defined below) before the date that is
not less than six months after the Participant’s Termination Date. For this purpose, a key
employee includes a “specified employee” (as defined in Treasury Regulation Section 1.409A-1(i))
during the entire 12-month period determined by the Administrator ending with the annual date upon
which key employees are identified by the Administrator, and also including any Employee identified
by the Administrator in good faith with respect to any distribution as belonging to the group of
identified key employees, to a maximum of 200 such key employees, regardless of whether such
Employee is subsequently determined by the Employer, any governmental agency, or a court not to be
a key employee. In the event amounts are payable to a key employee in installments in accordance
with subsection 9.2, the first installment shall be delayed by six months, with all other
installment payments payable as originally scheduled. To the extent not otherwise designated by
the Employer in a separate document forming a part of the Plan applicable to all its nonqualified
deferred compensation plans, the identification date for determining the Employer’s key employees
is each December 31 (and the new key employee list is updated and effective each subsequent April
1). To the extent not otherwise designated by the Employer in a separate document forming a part
of the Plan, the definition of compensation used to determine key employee status shall be
determined under Treasury Regulation Section 1.415(c)-2(a). This subsection 9.3 is applicable only
with respect to companies whose stock is publicly traded on an “established securities market” (as
defined in Treasury Regulation Section 1.409A-1(k)), and is not applicable to privately held
companies unless and until such companies become publicly traded as defined in the Treasury
regulations.



  9.4 Mandatory Cash-Outs of Small Amounts



     If the value of a Participant’s total Accounts at his Termination Date (or his death), or at
any time thereafter, is equal to or less than such amount as stated in the Adoption Agreement
(which amount shall not exceed the limit described in Section 402(g) of the Code from time to
time), the Accounts will be paid to the Participant (or, in the event of his death, his
Beneficiary) in a single lump sum, notwithstanding any election by the Participant otherwise.
Payments made under this subsection 9.4 on account of the Participant’s Termination Date shall be
made within the 90-day period following the Participant’s Termination Date (provided, however, that
if calculation of the amount of the payment is not administratively practicable due to events
beyond the control of the Participant, the payment will be made as soon as administratively
practicable for the Administrator to make such payment).



  9.5 Designation of Beneficiary



     Each Participant from time to time may designate any individual, trust, charity or other
person or persons to whom the value of the Participant’s Accounts (plus any applicable Survivor
Benefit, if elected by the Employer in the Adoption Agreement) will be paid in the event the
Participant dies before receiving the value of all of his Accounts. A Beneficiary designation



- 22 -









 




must be made in the manner required by the Administrator for this purpose. Primary and
secondary Beneficiaries are permitted. A married participant designating a Beneficiary other than
his Spouse must obtain the consent of his Spouse to such designation (in accordance with rules
determined by the Administrator). Payments to the Participant’s Beneficiary(ies) shall be made in
accordance with subsection 9.1, 9.2 or 9.4, as applicable, after the Administrator has received
proper notification of the Participant’s death.




     A Beneficiary designation will be effective only when the Beneficiary designation is filed
with the Administrator while the Participant is alive, and a subsequent Beneficiary designation
will cancel all of the Participant’s Beneficiary designations previously filed with the
Administrator. Any designation or revocation of a Beneficiary shall be effective as only if it is
received by the Administrator. Once received, such designation shall be effective as of the date
the designation was executed, but without prejudice to the Administrator on account of any payment
made before the change is recorded by the Administrator. If a Beneficiary dies before payment of
the Participant’s Accounts have been made, the Participant’s Accounts shall be distributed in
accordance with the Participant’s Beneficiary designation and pursuant to rules established by the
Administrator. If a deceased Participant failed to designate a Beneficiary, or if the designated
Beneficiary predeceases the Participant, the value of the Participant’s Accounts shall be payable
to the Participant’s Spouse or, if there is none, to the Participant’s estate, or in accordance
with such other equitable procedures as determined by the Administrator.



  9.6 Reemployment



     If a former Participant is rehired by an Employer, the Employer or any affiliate or subsidiary
of the Employer described in Section 414(b) and (c) of the Code, regardless of whether he is
rehired as an Eligible Individual (with respect to an Employee Participant), or a former
Participant returns to service as a Board member, any payments being made to such Participant
hereunder by virtue of his previous Termination Date shall continue to be made to him without
regard to such rehire. If a former Participant is rehired by the Employer (with respect to an
Employee Participant) or returns to service as a Board member, and in either case any payments to
be made to the Participant by virtue of his previous Termination Date have not been made or
commenced, any payments being made to such Participant hereunder by virtue of his previous
Termination Date shall continue to be made to him without regard to such rehire or return to
service. See subsections 4.1 and 4.2 of the Plan for special rules applicable to deferral
elections for rehired or Re-Eligible Participants.



  9.7 Special Distribution Rules



     Except as otherwise provided herein and in Section 12, Account balances of Participants in
this Plan shall not be distributed earlier than the applicable date or dates described in this
Section 9. Notwithstanding the foregoing, in the case of payments: (i) the deduction for which
would be limited or eliminated by the application of Section 162(m) of the Code; (ii) that would
violate securities or other applicable laws; (iii) that would violate loan covenants or other
contractual terms to which an Employer is a party, where such a violation would result in material
harm to an Employer, deferral of such payments may be made by the Employer at the Employer’s
discretion. In the case of a payment described in (i) above, the payment must be



- 23 -









 




deferred either to a date in the first year in which the Employer or Administrator reasonably
anticipates that a payment of such amount would not result in a limitation of a deduction with
respect to the payment of such amount under Section 162(m), or the year in which the Participant’s
Termination Date occurs. In the case of a payment described in (ii) or (iii) above, payment will
be made in the first calendar year in which the Employer or Administrator reasonably anticipates
that the payment would not violate loan or other similar contractual terms, the violation would not
result in material harm to an Employer, or the payment would not result in a violation of
securities or other applicable laws. Payments intended to pay employment taxes or payments made as
a result of income inclusion of an amount in a Participant’s Accounts as a result of a failure to
satisfy Section 409A of the Code shall be permitted at the Employer or Administrator’s discretion
at any time and to the extent provided in Treasury Regulations under Section 409A of the Code and
IRS Notice 2005-1, Q&A-15, and any applicable subsequent guidance. “Employment taxes” shall
include Federal Income Contributions Act (FICA) tax imposed under Sections 3101 and 3121(v)(2) of
the Code on compensation deferred under the Plan (the “FICA Amount”), the income tax imposed under
Section 3401 of the Code on the FICA Amount, and to pay the additional income tax under Section
3401 of the Code attributable to the pyramiding Section 3401 wages and taxes. A distribution may
be accelerated as may be necessary to comply with a certificate of the sale of business holdings or
part of a company, especially under legal compulsion (as defined in Section 1043(b)(2) of the Code)
with respect to certain conflict of interest rules. With respect to a subchapter S corporation, a
distribution may be accelerated to avoid a nonallocation year under Code Section 409(p) with
respect to a subchapter S corporation in the discretion of the Employer or Administrator, provided
that the amount distributed does not exceed 125 percent of the minimum amount of distribution
necessary to avoid the occurrence of a nonallocation year, in accordance with Treasury Regulation
Section 1.409A-3(j)(4)(x).




  9.8 Distribution on Account of Unforeseeable Emergency



     If elected by the Employer in the Adoption Agreement, if a Participant or Beneficiary incurs a
severe financial hardship of the type described below, he may request an Unforeseeable Emergency
Withdrawal, provided that the withdrawal is necessary in light of severe financial needs of the
Participant or Beneficiary. To the extent elected by the Employer in the Adoption Agreement, the
ability to apply for an Unforeseeable Emergency Withdrawal may be restricted to Participants whose
Termination Date has not yet occurred. Such a withdrawal shall not exceed the amount required
(including anticipated taxes on the withdrawal) to meet the severe financial need and not
reasonably available from other resources of the Participant (including reimbursement or
compensation by insurance, cessation of deferrals under this Plan for the remainder of the Plan
Year, and liquidation of the Participant’s assets, to the extent liquidation itself would not cause
severe financial hardship). Each such withdrawal election shall be made at such time and in such
manner as the Administrator shall determine, and shall be effective in accordance with such rules
as the Administrator shall establish and publish from time to time. Severe financial needs are
limited to amounts necessary for:




	 	(a)	 	A sudden unexpected illness or accident incurred by the Participant, his
Spouse, or dependents (as defined in Code Section 152(a)).




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	 	(b)	 	Uninsured casualty loss pertaining to property owned by the Participant.
	 
	 	(c)	 	Other similar extraordinary and unforeseeable circumstances involving an
uninsured loss arising from an event outside the control of the Participant.




Withdrawals of amounts under this subsection shall be paid to the Participant in a lump sum as soon
as administratively feasible following receipt of the appropriate forms and information required by
and acceptable to the Administrator.




  9.9 Distribution Upon Change in Control



     In the event of the occurrence of a Change in Control of the Employer or a member of the
Employer’s controlled group (as designated by the Employer in the Adoption Agreement, and to the
extent certified by the Administrator that a Change in Control has occurred), distributions shall
be made to Participants to the extent elected by the Employer in the Adoption Agreement, in the
form elected by the Participants as if a Termination Date had occurred with respect to each
Participant, or as otherwise specified by the Employer in the Adoption Agreement. The Change in
Control shall relate to: (i) the corporation for whom the Participant is performing services at
the time of the Change in Control event; (ii) the corporation that is liable for the payment from
the Plan to the Participant (or all corporations so liable if more than one corporation is liable);
(iii) a corporation that is a majority shareholder of a corporation described in (i) or (ii) above;
or (iv) any corporation in a chain of corporations in which each such corporation is a majority
shareholder of another corporation in the chain, ending in a corporation described in (i) or (ii)
above, as elected by the Employer in the Adoption Agreement. A “majority shareholder” for these
purposes is a shareholder owning more than 50% of the total fair market value and total voting
power of such corporation. Attribution rules described in section 318(a) of the Code apply to
determine stock ownership. Stock underlying an option (whether vested or unvested) is considered
owned by the individual who holds the vested (or unvested) option. Notwithstanding the foregoing,
if a vested option is exercisable for stock that is not substantially vested (as defined in section
1.83-3(b) and (j) of the Code), the stock underlying the option is not treated as owned by the
individual who holds the option. If plan payments are made on account of a Change in Control and
are calculated by reference to the value of the Employer’s stock, such payments shall be completed
not later than 5 years after the Change in Control event. To the extent designated by the Employer
in the Adoption Agreement, the Change in Control shall occur upon the date that: (v) a person or
“Group” (as defined in Treasury Regulation Sections 1.409A-3(i)(5)(v)(B) and (vi)(D)) acquires more
than 50% of the total fair market value or voting power of stock of the corporation designated in
(i) through (iv) above; (vi) a person or Group acquires ownership (“effective control”) of stock of
the corporation with at least 30% of the total voting power of the corporation designated in (i)
through (iv) above and as further limited by Treasury Regulation Section 1.409A-3(i)(5)(vi)); (vii)
a majority of the board of directors of the corporation designated in (i) through (iv) above is
replaced during any 12-month period by directors whose appointment or election is not endorsed by a
majority of the board as constituted prior to the appointment or election; or (viii) a person or
Group acquires assets from the corporation designated in (i) through (iv) above having a total fair
market value of at least 40% of the value of all assets of the corporation immediately prior to such acquisition; as



- 25 -









 




designated by the Employer in the Adoption Agreement. For purposes of (vi) above, if any one
person, or more than one person acting as a Group, is considered to own more than 50 percent of the
total fair market value or total voting power of the stock of a corporation, the acquisition of
additional stock by the same person or persons is not considered to cause a change in the ownership
of the corporation (or to cause a change in the effective control of the corporation under (vi)
above). An increase in the percentage of stock owned by any one person, or persons acting as a
Group, as a result of a transaction in which the corporation acquires its stock in exchange for
property will be treated as an acquisition of stock for purposes of this subsection. For purposes
of (v) through (viii) above, a Change in Control shall be further limited in accordance with
Treasury Regulation Sections 1.409A-3(i)(5)(v), (vi) and (vii). Distributions under this
subsection shall be made as soon as administratively feasible following such Change in Control.




  9.10 Supplemental Survivor Death Benefit



          A supplemental survivor death benefit shall be paid to the Beneficiary of an eligible
Participant who has satisfied the following criteria prior to his death:




	 	(a)	 	The Participant is eligible to participate in the Plan and, at the time of his
death, had a current Account balance (regardless of whether or not the Participant
actually was making Compensation Deferrals at the time of his death);
	 
	 	(b)	 	The Participant was an active Employee with the Employer at the time of his
death;
	 
	 	(c)	 	The Participant completed and submitted an insurance application to the
Administrator; and
	 
	 	(d)	 	The Employer subsequently purchased an insurance policy on the life of the
Participant, with a death benefit payable, which policy is in effect at the time of
the Participant’s death.




Notwithstanding any provision of this Plan or any other document to the contrary, the supplemental
survivor death benefit payable pursuant to this Subsection 9.10 shall be paid only if an insurance
policy has been issued on the Participant’s life and such policy is in force at the time of the
Participant’s death and the Employer shall have no obligation with respect to the payment of the
supplemental survivor death benefit, or to maintain an insurance policy for any Participants.




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SECTION 10 GENERAL PROVISIONS




  10.1 Interests Not Transferable



     The interests of persons entitled to benefits under the Plan are not subject to their debts or
other obligations and, except as may be required by the tax withholding provisions of the Code or
any state’s income tax act, may not be voluntarily or involuntarily sold, transferred, alienated,
assigned, or encumbered; provided, however, that a Participant’s interest in the Plan may be
transferable pursuant to a qualified domestic relations order, as defined in Section 414(p) of the
Code to the extent designated by the Employer in the Adoption Agreement.



  10.2 Employment Rights



     The Plan does not constitute a contract of employment, and participation in the Plan shall not
give any Employee the right to be retained in the employ of an Employer, nor any right or claim to
any benefit under the Plan, unless such right or claim has specifically accrued under the terms of
the Plan. The Employer expressly reserve the right to discharge any Employee at any time.



  10.3 Litigation by Participants or Other Persons



     If a legal action begun against the Administrator (or any member or former member thereof), an
Employer, or any person or persons to whom an Employer or the Administrator has delegated all or
part of its duties hereunder, by or on behalf of any person results adversely to that person, or if
a legal action arises because of conflicting claims to a Participant’s or other person’s benefits,
the cost to the Administrator (or any member or former member thereof), the Employer or any person
or persons to whom the Employer or the Administrator has delegated all or part of its duties
hereunder of defending the action shall be charged to the extent permitted by law to the sums, if
any, which were involved in the action or were payable to the Participant or other person
concerned.



  10.4 Indemnification



     To the extent permitted by law, the Employer shall indemnify each member of the Administrator
committee, and any other employee or member of the Board with duties under the Plan, against losses
and expenses (including any amount paid in settlement) reasonably incurred by such person in
connection with any claims against such person by reason of such person’s conduct in the
performance of duties under the Plan, except in relation to matters as to which such person has
acted fraudulently or in bad faith in the performance of duties. Notwithstanding the foregoing,
the Employer shall not indemnify any person for any expense incurred through any settlement or
compromise of any action unless the Employer consents in writing to the settlement or compromise.



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  10.5 Evidence



     Evidence required of anyone under the Plan may be by certificate, affidavit, document, or
other information which the person acting on it considers pertinent and reliable, and signed, made,
or presented by the proper party or parties.



  10.6 Waiver of Notice



     Any notice required under the Plan may be waived by the person entitled to such notice.



  10.7 Controlling Law



     Except to the extent superseded by laws of the United States, the laws of the state indicated
by the Employer in the Adoption Agreement shall be controlling in all matters relating to the Plan.



  10.8 Statutory References



     Any reference in the Plan to a Code section or a section of ERISA, or to a section of any
other Federal law, shall include any comparable section or sections of any future legislation that
amends, supplements, or supersedes that section.



  10.9 Severability



     In case any provision of the Plan shall be held illegal or invalid for any reason, such
illegality or invalidity shall not affect the remaining provisions of the Plan, and the Plan shall
be construed and enforced as if such illegal and invalid provision had never been set forth in the
Plan.



  10.10 Action By the Employer or the Administrator



     Any action required or permitted to be taken by the Employer under the Plan shall be by
resolution of its Board of Directors (which term shall include any similar governing body for any
Employer that is not a corporation), by resolution or other action of a duly authorized committee
of its Board of Directors, or by action of a person or persons authorized by resolution of its
Board of Directors or such committee. Any action required or permitted to be taken by the
Administrator under the Plan shall be by resolution or other action of the Administrator or by a
person or persons duly authorized by the Administrator.



  10.11 Headings and Captions



     The headings and captions contained in this Plan are inserted only as a matter of convenience
and for reference, and in no way define, limit, enlarge, or describe the scope or intent of the
Plan, nor in any way shall affect the construction of any provision of the Plan.



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  10.12 Gender and Number



     Where the context permits, words in the masculine gender shall include the feminine and neuter
genders, the singular shall include the plural, and the plural shall include the singular.



  10.13 Examination of Documents



     Copies of the Plan and any amendments thereto are on file at the office of the Employer where
they may be examined by any Participant or other person entitled to benefits under the Plan during
normal business hours.



  10.14 Elections



     Each election or request required or permitted to be made by a Participant (or a Participant’s
Spouse or Beneficiary) shall be made in accordance with the rules and procedures established by the
Employer or Administrator and shall be effective as determined by the Administrator. The
Administrator’s rules and procedures may address, among other things, the method and timing of any
elections or requests required or permitted to be made by a Participant (or a Participant’s Spouse
or Beneficiary). All elections under the Plan shall comply with the requirements of the Uniformed
Services Employment and Reemployment Rights Act of 1994, as amended (“USERRA”).



  10.15 Manner of Delivery



     Each notice or statement provided to a Participant shall be delivered in any manner
established by the Administrator and in accordance with applicable law, including, but not limited
to, electronic delivery.



  10.16 Facility of Payment



     When a person entitled to benefits under the Plan is a minor, under legal disability, or is in
any way incapacitated so as to be unable to manage his financial affairs, the Administrator may
cause the benefits to be paid to such person’s guardian or legal representative. If no guardian or
legal representative has been appointed, or if the Administrator so determines in its sole
discretion, payment may be made to any person as custodian for such individual under any applicable
state law, or to the legal representative of such person for such person’s benefit, or the
Administrator may direct the application of such benefits for the benefit of such person. Any
payment made in accordance with the preceding sentence shall be a full and complete discharge of
any liability for such payment under the Plan.



  10.17 Missing Persons



     The Employer and the Administrator shall not be required to search for or locate a
Participant, Spouse, or Beneficiary. Each Participant, Spouse, and Beneficiary must file with the
Administrator, from time to time, in writing the Participant’s, Spouse’s, or Beneficiary’s post
office address and each change of post office address. Any communication, statement, or notice



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addressed to a Participant, Spouse, or Beneficiary at the last post office address filed with
the Administrator, or if no address is filed with the Administrator, then in the case of a
Participant, at the Participant’s last post office address as shown on the Employer’s records,
shall be considered a notification for purposes of the Plan and shall be binding on the Participant
and the Participant’s Spouse and Beneficiary for all purposes of the Plan.




     If the Administrator is unable to locate the Participant, Spouse, or Beneficiary to whom a
Participant’s Accounts are payable, the Participant’s Accounts shall be frozen as of the date on
which distribution would have been completed under the terms of the Plan, and no further notional
investment returns shall be credited thereto.



     If a Participant whose Accounts were frozen (or his Beneficiary) files a claim for
distribution of the Accounts within 7 years after the date the Accounts are frozen, and if the
Administrator or Employer determines that such claim is valid, then the frozen balance shall be
paid by the Employer to the Participant or Beneficiary in a lump sum cash payment as soon as
practicable thereafter. If the Administrator notifies a Participant, Spouse, or Beneficiary of the
provisions of this Subsection, and the Participant, Spouse, or Beneficiary fails to claim the
Participant’s, Spouse’s, or Beneficiary’s benefits or make such person’s whereabouts known to the
Administrator within 7 years after the date the Accounts are frozen, the benefits of the
Participant, Spouse, or Beneficiary may be disposed of, to the extent permitted by applicable law,
by one or more of the following methods:




	 	(a)	 	By retaining such benefits in the Plan.
	 
	 	(b)	 	By paying such benefits to a court of competent jurisdiction for judicial
determination of the right thereto.
	 
	 	(c)	 	By forfeiting such benefits in accordance with procedures established by the
Administrator. If a Participant, Spouse, or Beneficiary is subsequently located, such
benefits shall be restored (without adjustment) to the Participant, Spouse, or
Beneficiary under the Plan.
	 
	 	(d)	 	By any equitable manner permitted by law under rules adopted by the
Administrator.





  10.18 Recovery of Benefits



     In the event a Participant, Spouse, or Beneficiary receives a benefit payment from the Plan
that is in excess of the benefit payment that should have been made to such Participant, Spouse, or
Beneficiary, or in the event a person other than a Participant, Spouse, or Beneficiary receives an
erroneous payment from the Plan, the Administrator or Employer shall have the right, on behalf of
the Plan, to recover the amount of the excess or erroneous payment from the recipient. To the
extent permitted under applicable law, the Administrator or Employer may, at its option, deduct the
amount of such excess or erroneous payment from any future benefits payable to the applicable
Participant, Spouse, or Beneficiary.



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  10.19 Effect on Other Benefits



     Except as otherwise specifically provided under the terms of any other employee benefit plan
of the Employer, a Participant’s participation in this Plan shall not affect the benefits provided
under such other employee benefit plan.



  10.20 Tax and Legal Effects



     The Employer, the Administrator, and their representatives and delegates do not in any way
guarantee the tax treatment of benefits for any Participant, Spouse, or Beneficiary, and the
Employer, the Administrator, and their representatives and delegates do not in any way guarantee or
assume any responsibility or liability for the legal, tax, or other implications or effects of the
Plan. In the event of any legal, tax, or other change that may affect the Plan, the Employer may,
in its sole discretion, take any actions it deems necessary or desirable as a result of such
change.



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SECTION 11 THE ADMINISTRATOR




  11.1 Information Required by Administrator



     Each person entitled to benefits under the Plan must file with the Administrator from time to
time in writing such person’s mailing address and each change of mailing address. Any
communication, statement, or notice addressed to any person at the last address filed with the
Administrator will be binding upon such person for all purposes of the Plan. Each person entitled
to benefits under the Plan also shall furnish the Administrator with such documents, evidence,
data, or information as the Administrator considers necessary or desirable for the purposes of
administering the Plan. The Employer shall furnish the Administrator with such data and
information as the Administrator may deem necessary or desirable in order to administer the Plan.
The records of the Employer as to an Employee’s or Participant’s period of employment or membership
on the Board, termination of employment or membership and the reason therefor, leave of absence,
reemployment, and Compensation will be conclusive on all persons unless determined to the
Administrator’s or Employer’s satisfaction to be incorrect.



  11.2 Uniform Application of Rules



     The Administrator shall administer the Plan on a reasonable basis. Any rules, procedures, or
regulations established by the Administrator shall be applied uniformly to all persons similarly
situated.



  11.3 Review of Benefit Determinations



     Benefits will be paid to Participants and their beneficiaries without the necessity of formal
claims. Participants or their beneficiaries, however, may make a written request to the
Administrator for any Plan benefits to which they may be entitled. Participants’ written request
for Plan benefits will be considered a claim for Plan benefits, and will be subject to a full and
fair review. If the claim is wholly or partially denied, the Administrator will furnish the
claimant with a written notice of this denial. This written notice will be provided to the
claimant within 90 days after the receipt of the claim by the Administrator. If notice of the
denial of a claim is not furnished to the claimant in accordance with the above within 90 days, the
claim will be deemed denied. The claimant will then be permitted to proceed to the review stage
described in the following paragraphs.



     Upon the denial of the claim for benefits, the claimant may file a claim for review, in
writing, with the Administrator. The claim for review must be filed no later than 60 days after
the claimant has received written notification of the denial of the claim for benefits or, if no
written denial of the claim was provided, no later than 60 days after the deemed denial of the
claim. The claimant may review all pertinent documents relating to the denial of the claim and
submit any issues and comments, in writing, to the Administrator. If the claim is denied, the
Administrator must provide the claimant with written notice of this denial within 60 days after the
Administrator’s receipt of the claimant’s written claim for review. The Administrator’s decision
on the claim for review will be communicated to the claimant in writing and will include specific
references to the pertinent Plan provisions on which the decision was based. If



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the Administrator’s decision on review is not furnished to the claimant within the time limitations
described above, the claim will be deemed denied on review. If the claim for Plan benefits is
finally denied by the Administrator (or deemed denied), then the claimant may bring suit in federal
court. The claimant may not commence a suit in a court of law or equity for benefits under the
Plan until the Plan’s claim process and appeal rights have been exhausted and the Plan benefits
requested in that appeal have been denied in whole or in part. However, the claimant may only
bring a suit in court if it is filed within 90 days after the date of the final denial of the claim
by the Administrator.




     With respect to claims for benefits payable as a result of a Participant being determined to
be disabled, the Administrator will provide the claimant with notice of the status of his claim for
disability benefits under the Plan within a reasonable period of time after a complete claim has
been filed, but no later than 45 days after receipt of the claim for benefits. The Administrator
may request an additional 30-day extension if special circumstances warrant by notifying the
claimant of the extension before the expiration of the initial 45-day period. If a decision still
cannot be made within this 30-day extension period due to circumstances outside the Plan’s control,
the time period may be extended for an additional 30 days, in which case the claimant will be
notified before the expiration of the original 30-day extension.



     If the claimant has not submitted sufficient information to the Administrator to process his
disability benefit claim, he will be notified of the incomplete claim and given 45 days to submit
additional information. This will extend the time in which the Administrator has to respond to the
claim from the date the notice of insufficient information is sent to the claimant until the date
the claimant responds to the request. If the claimant does not submit the requested missing
information to the Administrator within 45 days of the date of the request, the claim will be
denied.



     If a disability benefit claim is denied, the claimant will receive a notice which will
include: (i) the specific reasons for the denial, (ii) reference to the specific Plan provisions
upon which the decision is based, (iii) a description of any additional information the claimant
might be required to provide with an explanation of why it is needed, and (iv) an explanation of
the Plan’s claims review and appeal procedures, and (v) a statement regarding the claimant’s right
to bring a civil action under Section 502(a) of ERISA following a denial on appeal.



     The claimant may appeal a denial of a disability benefit claim by filing a written request
with the Administrator within 180 days of the claimant’s receipt of the initial denial notice. In
connection with the appeal, the claimant may request that the Plan provide him, free of charge,
copies of all documents, records and other information relevant to the claim. The claimant may
also submit written comments, records, documents and other information relevant to his appeal,
whether or not such documents were submitted in connection with the initial claim. The
Administrator may consult with medical or vocational experts in connection with deciding the
claimant’s claim for benefits.



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     The Administrator will conduct a full and fair review of the documents and evidence submitted
and will ordinarily render a decision on the disability benefit claim no later than 45 days after
receipt of the request for review on appeal. If there are special circumstances, the decision will
be made as soon as possible, but not later than 90 days after receipt of the request for review on
appeal. If such an extension of time is needed, the claimant will be notified in writing prior to
the end of the first 45-day period. The Administrator’s final written decision will set forth: (i)
the specific reasons for the decision, (ii) references to the specific Plan provisions on which the
decision is based, (iii) a statement that the claimant is entitled to receive, upon request and
free of charge, access to and copies of all documents, records and other information relevant to
the benefit claim, and (iv) a statement regarding the claimant’s right to bring a civil action
under Section 502(a) of ERISA following a denial on appeal. The Administrator’s decision made in
good faith will be final and binding.



  11.4 Administrator’s Decision Final



     Benefits under the Plan will be paid only if the Administrator decides in its sole discretion
that a Participant or Beneficiary (or other claimant) is entitled to them. Subject to applicable
law, any interpretation of the provisions of the Plan and any decisions on any matter within the
discretion of the Administrator made by the Administrator or its delegate in good faith shall be
binding on all persons. A misstatement or other mistake of fact shall be corrected when it becomes
known and the Administrator shall make such adjustment on account thereof as it considers equitable
and practicable.



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SECTION 12 AMENDMENT AND TERMINATION




     While the Employer expects and intends to continue the Plan, the Employer and the
Administrator reserve the right to amend the Plan at any time and for any reason, including the
right to amend this Section 12 and the Plan termination rules herein; provided, however, that each
Participant will be entitled to the amount credited to his Accounts immediately prior to such
amendment. The Employer’s power to amend the Plan includes (without limitation) the power to
change the Plan provisions regarding eligibility, contributions, notional investments, vesting, and
distribution forms, and timing of payments, including changes applicable to benefits accrued prior
to the effective date of any such amendment; provided, however, that amendments to the Plan (other
than amendments relating to Plan termination) shall not cause the Plan to provide for acceleration
of distributions in violation of Section 409A of the Code and applicable regulations thereunder.



     The Employer reserves the right to terminate the Plan at any time and for any reason;
provided, however, that each Participant will be entitled to the amount credited to his Accounts
immediately prior to such termination (but such Accounts shall not be adjusted for future notional
income, losses, expenses, appreciation and depreciation).



     In the event that the Plan is terminated pursuant to this Section 12, the balances in affected
Participants’ Accounts shall be distributed at the time and in the manner set forth in Section 9.
Notwithstanding the foregoing, the Employer and the Administrator reserve the right to make all
such distributions within the second twelve-month period commencing with the date of termination of
the Plan; provided, however, that no such distribution will be made during the first twelve-month
period following such date of Plan termination other than those that would otherwise be payable
under Section 9 absent the termination of the Plan. In the event of a Plan termination due to a
Change in Control of the Employer, distributions shall be made within 12 months of the date of the
Change in Control.




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