Exhibit 10.25


 





 


 


THE
EXECUTIVE NONQUALIFIED EXCESS PLAN


PLAN
DOCUMENT


 


 


	
   

  	
  © 2000 Executive Benefit Services, Inc.

  
	
   

  	
  434 Fayetteville Street, Suite 1160

  
	
   

  	
  Raleigh, NC 27601

  



 

















 


TABLE OF CONTENTS


 


THE EXECUTIVE NONQUALIFIED EXCESS PLAN


 


	
   

  	
   

  
	
  Section 1.

  	
  Purpose

  
	
   

  	
   

  
	
  Section 2.

  	
  Definitions

  
	
  2.1

  	
  “Accrued Benefit”

  
	
  2.2

  	
  “Active Participant”

  
	
  2.3

  	
  “Adoption Agreement”

  
	
  2.4

  	
  “Adjustment Date”

  
	
  2.5

  	
  “Beneficiary”

  
	
  2.6

  	
  “Board”

  
	
  2.7

  	
  “College Education Account”

  
	
  2.8

  	
  “Committee”

  
	
  2.9

  	
  “Compensation”

  
	
  2.10

  	
  “Deferred Compensation Account”

  
	
  2.11

  	
  “Dependent Subaccount”

  
	
  2.12

  	
  “Disability”

  
	
  2.13

  	
  “Effective Date”

  
	
  2.14

  	
  “Eligible Dependent”

  
	
  2.15

  	
  “Employee”

  
	
  2.16

  	
  “Employer”

  
	
  2.17

  	
  “Employer Matching Credits”

  
	
  2.18

  	
  “Employer Performance Incentive Credits”

  
	
  2.19

  	
  “Independent Contractor”

  
	
  2.20

  	
  “Normal Retirement Age”

  
	
  2.21

  	
  “Participant”

  
	
  2.22

  	
  “Participating Employer”

  
	
  2.23

  	
  “Plan”

  
	
  2.24

  	
  “Plan Administrator”

  
	
  2.25

  	
  “Plan Year”

  
	
  2.26

  	
  “Qualified Distribution Event”

  
	
  2.27

  	
  “Regular In-Service Withdrawals Account”

  
	
  2.28

  	
  “Retire” of “Retirement”

  
	
  2.29

  	
  “Salary Deferral Agreement”

  
	
  2.30

  	
  “Salary Deferral Credits”

  
	
  2.31

  	
  “Service”

  
	
  2.32

  	
  “Sponsor”

  
	
  2.33

  	
  “Spouse”
  or “Surviving Spouse”

  
	
  2.34

  	
  “Trust”

  
	
  2.35

  	
  “Trustee”

  
	
  2.36

  	
  “Years of Service”

  
	
   

  
	
  Section 3.

  	
   Credits to Deferred
  Compensation Account

  
			



 

















 


	
  3.1

  	
  Salary Deferral Credits

  
	
  3.2

  	
  Employer Matching Credits

  
	
  3.3

  	
  Employer Performance Incentive Credits

  
	
   

  	
   

  
	
  Section 4. 

  	
  Qualifiying Distribution Events

  
	
  4.1

  	
  Death of a Participant

  
	
  4.2

  	
  Disability

  
	
  4.3

  	
  Termination of Service

  
	
  4.4

  	
  Retirement

  
	
   

  	
   

  
	
  Section 5.

  	
  In-Service Withdrawals

  
	
  5.1

  	
  Regular In-Service Withdrawals

  
	
  5.2

  	
  Financial Hardship Withdrawals

  
	
  5.3

  	
  “Haircut” Withdrawals

  
	
  5.4

  	
  College Education Withdrawals

  
	
   

  	
   

  
	
  Section 6. 

  	
  Qualified Distribution Events Payment Options

  
	
  6.1

  	
  Payment Options

  
	
  6.2

  	
  Prepayment

  
	
  6.3

  	
  Benefit Exchange

  
	
   

  	
   

  
	
  Section 7. 

  	
  Vesting

  
	
   

  	
   

  
	
  Section 8. 

  	
  Account; Deemed Investment; Adjustment of Accounts

  
	
  8.1

  	
  Account

  
	
  8.2

  	
  Deemed Investments

  
	
  8.3

  	
  Adjustments to Deferred Compensation
  Accounts

  
	
   

  	
   

  
	
  Section 9. 

  	
  Administration by Committee

  
	
  9.1

  	
  Membership of Committee

  
	
  9.2

  	
  Committee officers; Subcommittee

  
	
  9.3

  	
  Committee meetings

  
	
  9.4

  	
  Transaction of business

  
	
  9.5

  	
  Committee records

  
	
  9.6

  	
  Establishment of rules

  
	
  9.7

  	
  Conflicts of interest

  
	
  9.8

  	
  Correction of errors

  
	
  9.9

  	
  Authority to interpret Plan

  
	
  9.10

  	
  Third party advisors

  
	
  9.11

  	
  Compensation of members

  
	
  9.12

  	
  Expense reimbursement

  
	
  9.13

  	
  Indemnification

  
	
   

  	
   

  
	
  Section 10. 

  	
  Contractual Liability; Trust

  
	
  10.1

  	
  Contractual Liability

  
	
  10.2

  	
  Trust

  
	
   

  	
   

  
	
  Section 11. 

  	
  Allocation of Responsibilities

  
						



 

















 


	
  11.1

  	
  Board

  
	
  11.2

  	
  Committee

  
	
  11.3

  	
  Plan Administrator

  
	
   

  	
   

  
	
  Section 12. 

  	
  Benefits Not Assignable; Facility of Payments

  
	
  12.1

  	
  Benefits not assignable

  
	
  12.2

  	
  Payments to minors and others

  
	
   

  	
   

  
	
  Section 13. 

  	
  Beneficiary

  
	
   

  	
   

  
	
  Section 14. 

  	
  Amendment and Termination of Plan

  
	
   

  	
   

  
	
  Section 15. 

  	
  Communication to Participants

  
	
   

  	
   

  
	
  Section 16. 

  	
  Claims Procedure

  
	
  16.1

  	
  Filing of a claim for benefits

  
	
  16.2

  	
  Notification to claimant of decision

  
	
  16.3

  	
  Procedure for review

  
	
  16.4

  	
  Decision on review

  
	
  16.5

  	
  Action by authorized representative of
  claimant

  
	
   

  	
   

  
	
  Section 17. 

  	
  Miscellaneous Provisions

  
	
  17.1

  	
  Set off

  
	
  17.2

  	
  Notices

  
	
  17.3

  	
  Lost distributees

  
	
  17.4

  	
  Reliance on data

  
	
  17.5

  	
  Receipt and release for payments

  
	
  17.6

  	
  Headings

  
	
  17.7

  	
  Continuation of employment

  
	
  17.8

  	
  Merger or consolidation

  
	
  17.9

  	
  Construction

  
						



 

















 


 


THE
EXECUTIVE NONQUALIFIED EXCESS PLAN


 


Section 1.                                          Purpose:


 


By execution
of the Adoption Agreement, the Employer has adopted the Plan set forth herein
to provide a means by which certain management Employees and Independent
Contractors of the Employer may elect to defer receipt of current Compensation
from the Employer in order to provide Retirement and other benefits on behalf
of such Employees and Independent Contractors. 
The Plan is not intended to be a tax-qualified retirement plan under
Section 401(a) of the Internal Revenue Code (the “Code”).  The Plan is intended to be an unfunded plan
maintained primarily for the purpose of providing deferred compensation
benefits for a select group of management or highly compensated Employees under
Sections 201(2), 301(a)(3) and 401(a)(1) of the Employee Retirement Income
Security Act of 1974.


 


Section 2.                                          Definitions:


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


2.11        “Dependent
Subaccount”  shall mean each separate subaccount to
be kept for each Participant as part of his College Education Account, as
described in Section 5.4.  To the
extent applicable, each Dependent Subaccount may be credited with Salary
Deferral Credits, Employer Matching Credits, and Employer Performance Incentive
Credits.


 


2.12        “Disability” shall mean the inability of a
Participant to perform his regular duties with the Employer or any other duties
which the Employer is willing to assign to him by reason of any medically
determinable physical or mental impairment that can be expected to result in
death or to be of long continued or indefinite duration.  The determination of the existence or nonexistence
of Disability shall be made by the Committee in a nondiscriminatory manner
pursuant to an examination by a medical doctor selected or approved by the
Committee.


 


2

















 


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


 


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


 


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


 


2.16        “Employer” shall mean the Employer identified in the
Adoption Agreement, and any Participating Employer which adopts this Plan.  The Employer may be a corporation, a
partnership or sole proprietorship.  All
references herein to the Employer shall be applied separately to each such
Employer as if the Plan were solely the Plan of that Employer.


 


2.17        “Employer
Matching Credits”
shall mean the amounts credited to the Participant’s Deferred Compensation
Account by the Employer pursuant to the provisions of Section 3.2.


 


2.18        “Employer Performance Incentive
Credits”
shall mean the amounts credited to the Participant’s Deferred Compensation
Account by the Employer pursuant to the provisions of Section 3.3.


 


2.19        “Independent
Contractor”  shall mean an individual in the
Service of the Employer if the relationship between the individual and the
Employer is not the legal relationship of employer and employee.  An individual shall cease to be an
Independent


 


3

















 


Contractor upon the termination of the
Independent Contractor’s Service.  An
Independent Contractor shall include a director of the Employer who is not an
Employee.


 


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


 


2.21        “Participant” shall mean with respect to any Plan
Year an Employee or Independent Contractor who has been designated by the
Committee as a Participant and who has entered the Plan or who has an Accrued
Benefit under the Plan. An Employee or Independent Contractor designated by the
Committee as a Participant who has not otherwise entered the Plan shall enter
the Plan and become a Participant as of the date determined by the
Committee.  A Participant who separates
from Service with the Employer and who later returns to Service will not be
eligible to defer Compensation under the Plan except upon satisfaction of such
terms and conditions as the Committee shall establish upon the Participant’s
return to Service, whether or not the Participant shall have an Accrued Benefit
remaining under the Plan on the date of his return to Service.


 


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


 


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


 


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


 


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


 


4

















 


2.26        “Qualifying
Distribution Event”  shall mean the Participant’s
Retirement or the termination of Participant’s Service with the Employer for
any reason, including as a result of his death or Disability.


 


2.27        “Regular In-Service Withdrawals
Account”
shall mean the separate account to be kept for each Participant, as described
in Section 5.1.  To the extent
applicable, the Regular In-Service Withdrawals Account may be credited with
Salary Deferral Credits.


 


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


 


2.29        “Salary
Deferral Agreement”
shall mean a written agreement entered into between a Participant and the
Employer pursuant to the provisions of Section 3.


 


2.30        “Salary
Deferral Credits”
shall mean the amounts credited to the Participant’s Deferred Compensation
Account by the Employer pursuant to the provisions of Section 3.


 


2.31        “Service” shall mean employment by the Employer as
an Employee.  If the Participant is an
Independent Contractor, “Service” shall mean the period during which the
contractual relationship exists between the Employer and the Participant.


 


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


 


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


 


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


 


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


 


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


 


5

















 


Section 3.                                          Credits to
Deferred Compensation Account:


 


3.1                               Salary Deferral Credits:  To the extent provided in the Adoption Agreement, each Active
Participant may elect, by entering into a Salary Deferral Agreement with the
Employer, to reduce his Compensation from the Employer by a dollar amount or
percentage specified in the Salary Deferral Agreement.  The amount of the Participant’s Salary Reduction
Credit shall be credited by the Employer to the Deferred Compensation Account
maintained for the Participant pursuant to Section 8.  The following special provisions shall apply
with respect to the Salary Deferral Credits of a Participant:


 


3.1.1                        The
Employer shall credit to the Participant’s Deferred Compensation Account on
each Adjustment Date an amount equal to the total Salary Reduction Credit for
the period ending on such Adjustment Date.


 


3.1.2                        An
election pursuant to Section 3.1 shall be made by the Participant by
executing and delivering a Salary Deferral Agreement to the Committee.  The Salary Deferral Agreement shall become
effective with respect to such Participant as of the first full payroll period
commencing on or immediately following the January 1 which occurs after
the date such Salary Deferral Agreement is received by the Committee; provided,
that a Participant who first becomes a Participant in the Plan during a Plan
Year may enter into a Salary Deferral Agreement to be effective as of the first
payroll period next following the date he enters the Plan.  A Participant’s election shall continue in
effect, unless earlier modified by the Participant, until the Service of the
Participant is terminated, or, if earlier, until the Participant ceases to be
an Active Participant under the Plan.


 


3.1.3                        A
Participant may unilaterally modify a Salary Deferral Agreement (either to
increase or decrease the portion of his future Compensation which is subject to
salary deferral within the percentage limits set forth in Section 3.1) by
providing a written modification of the Salary Deferral Agreement to the
Employer.  The modification shall become
effective as of the first full payroll period commencing on or immediately
following the January 1 which occurs after the date such written modification
is received by the Committee.  The
Participant may terminate the Salary Deferral Agreement effective as of the
date designated in the Adoption Agreement.


 


3.1.4                        The
Committee may from time to time establish policies or rules governing the
manner in which Salary Deferral Credits may be made.


 


6

















 


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


 


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


 


Section 4.                                          Qualifying
Distribution Events:


 


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


 


4.2                               Disability:  If a
Participant suffers a Disability while in Service prior to his Normal
Retirement Date, he shall terminate Service with the Employer as of the date of
the establishment of his Disability, whereupon he shall commence receiving
payment of his vested Accrued Benefit, determined as of the commencement date
of the payments.  Such benefit shall be
paid by the Employer as provided in Section 6.


 


4.3                               Termination of Service:  If the Service of a Participant with the Employer shall be
terminated for any reason other than Retirement, Disability or death, his
vested Accrued Benefit shall be paid to him by the Employer as provided in
Section 6, and such


 


7

















 


Accrued Benefit shall be determined as of the
commencement date of the payments.  If a
Participant’s Accrued Benefit is not fully vested at his termination of
employment, he shall forfeit that portion of his Accrued Benefit that is not
fully vested.  If he subsequently
returns to Service with the Employer, he shall be treated as a new Participant
for purposes of determining the vested portion of his Accrued Benefit.


 


4.4          Retirement:


 


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


 


4.4.2                        Early Retirement: 
If so designated by the Employer in the Adoption Agreement, and subject
to the requirements for early retirement set forth therein, a Participant may
elect early retirement effective on any date prior to his Normal Retirement
Date by filing 30 days’ written notice with the Committee before such
date.  The Participant shall commence
receiving payment of his Accrued Benefit determined as of the commencement date
of the payments. Such benefit shall be paid by the Employer as provided in
Section 6.


 


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


 


Section 5.  In-Service
Withdrawals:


 


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


 


8

















 


designated amount from his Deferred
Compensation Account at the specified time or times designated by the
Participant in the Salary Deferral Agreement, and the Participant’s Regular
In-Service Withdrawals Account shall be credited in an amount equal to the
amount so designated for regular in-service withdrawals.  The following special provisions shall apply
with respect to the regular in-service withdrawals:


 


5.1.1                        The
Regular In-Service Withdrawals Account shall be established, adjusted for
payments, credited with Salary Deferral Credits, Employer Matching Credits, and
Employer Performance Incentive Credits, and credited or debited for deemed
investment gains or losses in the same manner and at the same time as such
adjustments are made to the Deferred Compensation Account under Section 8
and in accordance with the rules and elections in effect under Section 8.


 


5.1.2                        Notwithstanding
any provision in this Section 5 to the contrary, if Participant incurs a
Qualifying Distribution Event prior to the date on which the entire balance of
his Regular In-Service Withdrawals Account has been distributed to him, then
the balance in the Regular In-Service Withdrawals Account on the date of the
Qualifying Distribution Event shall be combined with the Participant’s Deferred
Compensation Account and distributed to him in the same manner and at the same
time as his Deferred Compensation Account is distributed to him under
Section 6 and in accordance with the rules and elections in effect under
Section 6.


 


5.2                               Financial Hardship Withdrawals:  A distribution of the Deferred Compensation
Account may be made to a Participant on account of financial hardship, subject
to the following provisions:


 


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


 


9

















 


extraordinary
and unforeseeable circumstances arising as a result of events beyond the
control of the Participant.


 


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


 


5.2.3                        If a
distribution under this Section 5.2 is approved by the Committee, such
distribution will be made as soon as practicable following the date it is
approved.  The processing of the request
shall be completed as soon as practicable from the date on which the Committee
receives the properly completed written request for a distribution on account
of a financial hardship.  If a
Participant’s termination of Service occurs after a request is approved in
accordance with this Section 5.2.3, but prior to distribution of the full
amount approved, the approval of the request shall be automatically null and
void and the benefits which the Participant is entitled to receive under the
Plan shall be distributed in accordance with the applicable distribution
provisions of the Plan. Only one financial hardship distribution shall be made
within any Plan Year.


 


5.2.4                        The
Committee may from time to time adopt additional policies or rules governing
the manner in which such distributions may be made so that the Plan may be
conveniently administered.


 


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


 


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


 


10

















 


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


 


5.4.1                        The
Dependent Subaccounts shall be established, adjusted for payments, credited
with Salary Deferral Credits, Employer Matching Credits, and Employer
Performance Incentive Credits, and credited or debited for deemed investment
gains or losses in the same manner and at the same time as such adjustments are
made to the Deferred Compensation Account under Section 8 and in
accordance with the rules and elections in effect under Section 8.


 


5.4.2                        Notwithstanding
any provision in this Section 5 to the contrary, if Participant incurs a Qualifying
Distribution Event prior to the date on which the entire balance of his College
Education Account has been distributed to him, then the balance in the College
Education Account on the date of the Qualifying Distribution Event shall be
combined with the Participant’s Deferred Compensation Account and distributed
to him in the same manner and at the same time as his Deferred Compensation
Account is distributed to him under Section 6 and in accordance with the
rules and elections in effect under Section 6.


 


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Section 6.                                          Qualifying
Distribution Events Payment Options:


 


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


 


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


 


6.3                               Benefit Exchange: 
Notwithstanding any other provisions of this Plan, the Employer and
the Participant may enter into an agreement under which, in lieu of the payment
of the Participant’s vested Accrued Benefit upon a Qualifying Distribution
Event, the Participant’s vested Accrued Benefit will be exchanged for another
nonqualified benefit in accordance with rules established by the Committee.


 


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Section 7.                                          Vesting:


 


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


 


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


 


8.1                               Account:  The
Committee shall establish a book reserve account, entitled the “Deferred
Compensation Account,” on behalf of each Participant.  Such account shall be adjusted pursuant to the provisions of
Section 8.3.


 


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


 


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


 


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


 


8.3.2                        The
Deferred Compensation Account shall be credited on each Adjustment Date with
the total amount of any Salary Deferral Credits, Employer Matching Credits and
Employer Performance Incentive Credits to such account since the last preceding
Adjustment Date.


 


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


 


Section 9.                                          Administration
by Committee:


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


9.9                               Authority to interpret Plan:  Subject to the claims procedure set forth in
Section 16, the Plan Administrator and the Committee shall have the duty
and discretionary authority to interpret and construe the provisions of the
Plan and to decide any dispute which may arise regarding the rights of
Participants hereunder, including the discretionary authority to


 


15

















 


construe the Plan and to make determinations
as to eligibility and benefits under the Plan. Determinations by the Plan
Administrator and the Committee shall apply uniformly to all persons similarly
situated and shall be binding and conclusive upon all interested persons.


 


9.10                        Third party advisors:  The Committee may engage an attorney, accountant, actuary or any
other technical advisor on matters regarding the operation of the Plan and to
perform such other duties as shall be required in connection therewith, and may
employ such clerical and related personnel as the Committee shall deem
requisite or desirable in carrying out the provisions of the Plan.  The Committee shall from time to time, but
no less frequently than annually, review the financial condition of the Plan
and determine the financial and liquidity needs of the Plan.  The Committee shall communicate such needs
to the Employer so that its policies may be appropriately coordinated to meet
such needs.


 


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


 


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


 


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


 


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Section 10.                                   Contractual
Liability; Trust:


 


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


 


10.2                        Trust:  If so
designated in Section 2.34 of the Adoption Agreement, the Employer may
establish a Trust with the Trustee, pursuant to such terms and conditions as
are set forth in the Trust Agreement. 
The Trust, if and when established, is intended to be treated as a
grantor trust for purposes of the Code. 
The establishment of the Trust is not intended to cause Participants to
realize current income on amounts contributed thereto, and the Trust shall be
so interpreted and administered.


 


Section 11.                                   Allocation of
Responsibilities:


 


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


 


11.1                        Board:


 


(i)                                     To
amend the Plan;


 


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


 


(iii)                               To
terminate the Plan.


 


11.2                        Committee:


 


(i)                                     To
designate Participants;


 


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


 


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


 


(iv)                              To
account for the Accrued Benefits of Participants; and


 


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


 


11.3                        Plan Administrator:


 


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


 


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


 


Section 12.                                   Benefits Not
Assignable; Facility of Payments:


 


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


 


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


 


18

















 


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


 


Section 13.                                   Beneficiary:


 


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


 


Section 14.                                   Amendment and
Termination of Plan:


 


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


 


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


 


19

















 


termination event, the Accrued Benefit of
each Participant shall become fully vested and payable to the Participant in a
lump sum.


 


Section 15.                                   Communication to
Participants:


 


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


 


Section 16.                                   Claims Procedure:


 


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


 


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


 


16.2                        Notification to claimant of decision:  Within 90 days after receipt of a claim by
the Plan Administrator (or within 180 days if special circumstances require an
extension of time), the Plan Administrator shall notify the claimant of his
decision with regard to the claim.  In
the event of such special circumstances requiring an extension of time, there
shall be furnished to the claimant prior to expiration of the initial 90-day
period written notice of the extension, which notice shall set forth the
special circumstances and the date by which the decision shall be
furnished.  If such claim shall be
wholly or partially denied, notice thereof shall be in writing and worded in a
manner calculated to be understood by the claimant, and shall set forth:  (i) the specific reason or reasons for the
denial; (ii) specific reference to pertinent provisions of the Plan on which
the denial is based; (iii) a description of any additional material or
information necessary for the claimant to perfect the claim and an explanation
of why such material or information is necessary; and (iv) an explanation of
the procedure for review of the denial. 
If the Plan Administrator fails to notify the claimant of the decision
in timely manner, the


 


20

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


21

















 


Section 17.                                   Miscellaneous
Provisions:


 


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


 


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


 


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


 


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


 


22

















 


have no obligation to inquire into the
accuracy of any representation made at any time by a Participant or
beneficiary.


 


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


 


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


 


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


 


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


 


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


 


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