exv10w5



 




Exhibit 10.5




 




 




AMERICAN MANAGEMENT SYSTEMS, INCORPORATED




DEFERRED COMPENSATION PLAN FOR EXECUTIVES




 




 




 




Effective January 1, 2004




(As Amended on July 3, 2003)





 







 





TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	PAGE
	 	 	 	 	

	ARTICLE I—PURPOSE; EFFECTIVE DATE	 	 	1	 
	1.01
	 	Purpose
	 	 	1	 
	1.02
	 	Effective Date
	 	 	1	 
	ARTICLE II—DEFINITIONS	 	 	1	 
	2.01
	 	Account
	 	 	1	 
	2.02
	 	Beneficiary
	 	 	1	 
	2.03
	 	Board
	 	 	1	 
	2.05
	 	Change in Control
	 	 	1	 
	2.06
	 	Committee
	 	 	2	 
	2.07
	 	Company
	 	 	2	 
	2.09
	 	Compensation
	 	 	3	 
	2.10
	 	Deferral Commitment
	 	 	3	 
	2.11
	 	Deferral Period
	 	 	3	 
	2.13
	 	Disability
	 	 	3	 
	2.14
	 	Disability Benefit
	 	 	3	 
	2.15
	 	Discretionary Contribution
	 	 	3	 
	2.16
	 	Earnings
	 	 	3	 
	2.17
	 	Employer
	 	 	3	 
	2.18
	 	Exchange Act
	 	 	4	 
	2.19
	 	Executive
	 	 	4	 
	2.20
	 	Financial Hardship
	 	 	4	 
	2.21
	 	401(k) Plan
	 	 	4	 
	2.22
	 	Incentive Compensation
	 	 	4	 
	2.23
	 	Incentive Compensation Deferral Commitment
	 	 	4	 
	2.24
	 	Investment Crediting Rate
	 	 	4	 
	2.25
	 	Participant
	 	 	5	 
	2.26
	 	Participation Agreement
	 	 	5	 
	2.27
	 	Plan
	 	 	5	 
	2.28
	 	Prior Plan
	 	 	5	 
	2.29
	 	Prior Plan Benefit
	 	 	5	 
	2.30
	 	Retirement
	 	 	5	 
	2.31
	 	Retirement Benefit
	 	 	6	 
	2.32
	 	Salary Deferral Commitment
	 	 	6	 
	2.33
	 	SEP Make Up Contribution
	 	 	6	 
	2.36
	 	Stock Incentive Plan
	 	 	6	 
	2.37
	 	Valuation Date
	 	 	6	 
	ARTICLE III—PARTICIPATION AND DEFERRAL COMMITMENTS	 	 	6	 
	3.01
	 	Eligibility and Participation
	 	 	6	 
	3.02
	 	Deferral Commitments
	 	 	7	 
	3.03
	 	Limitations on Deferral Commitments
	 	 	7	 







(i)







 


TABLE OF CONTENTS



	 	 	 	 	 	 	 
	 	 	 	 	PAGE
	 	 	 	 	

	3.04
	 	Commitment Limited by Termination
	 	 	7	 
	3.05
	 	Modification of Deferral Commitment
	 	 	7	 
	3.06
	 	Withholding for Taxes
	 	 	8	 
	ARTICLE IV—DEFERRED COMPENSATION ACCOUNTS	 	 	8	 
	4.01
	 	Account
	 	 	8	 
	4.02
	 	Timing of Credits
	 	 	8	 
	4.03
	 	SEP Make Up Contribution
	 	 	8	 
	4.04
	 	Discretionary Contributions
	 	 	8	 
	4.05
	 	Determination of Account
	 	 	8	 
	4.06
	 	Vesting of Account
	 	 	9	 
	4.07
	 	Statement of Account
	 	 	9	 
	ARTICLE V—PLAN BENEFITS	 	 	10	 
	5.01
	 	Distributions Prior to Termination of Employment
	 	 	10	 
	5.02
	 	Termination of Employment
	 	 	10	 
	5.03
	 	Retirement Benefit
	 	 	11	 
	5.04
	 	Disability Benefit
	 	 	11	 
	5.05
	 	Accelerated Distributions
	 	 	11	 
	5.06
	 	Valuation and Settlement
	 	 	12	 
	5.07
	 	Payment to Guardian
	 	 	12	 
	5.08
	 	Company Distribution
	 	 	12	 
	ARTICLE VI—BENEFICIARY DESIGNATION	 	 	12	 
	6.01
	 	Beneficiary Designation
	 	 	12	 
	6.02
	 	Changing Beneficiary
	 	 	13	 
	6.03
	 	No Beneficiary Designation
	 	 	13	 
	ARTICLE VII—ADMINISTRATION	 	 	13	 
	7.01
	 	Committee; Duties
	 	 	13	 
	7.02
	 	Agents
	 	 	13	 
	7.03
	 	Binding Effect of Decisions
	 	 	14	 
	7.04
	 	Indemnity of Committee
	 	 	14	 
	ARTICLE VIII—CLAIMS PROCEDURE	 	 	14	 
	8.01
	 	Claim
	 	 	14	 
	ARTICLE IX—AMENDMENT AND TERMINATION OF PLAN	 	 	14	 
	9.01
	 	Amendment
	 	 	14	 
	9.02
	 	Employer’s Right to Terminate
	 	 	14	 
	9.03
	 	Transfer of Liability
	 	 	15	 







(ii)







 


TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	PAGE
	 	 	 	 	

	ARTICLE X—MISCELLANEOUS	 	 	15	 
	10.01
	 	Unfunded Plan
	 	 	15	 
	10.02
	 	Company and Employer Obligations
	 	 	15	 
	10.03
	 	Unsecured General Creditor
	 	 	15	 
	10.04
	 	Trust Fund
	 	 	16	 
	10.05
	 	Nonassignability
	 	 	16	 
	10.06
	 	Not a Contract of Employment
	 	 	16	 
	10.07
	 	Protective Provisions
	 	 	16	 
	10.08
	 	Governing Law
	 	 	16	 
	10.09
	 	Validity
	 	 	17	 
	10.10
	 	Notice
	 	 	17	 
	10.11
	 	Successors
	 	 	17	 
	10.12
	 	Change of Law
	 	 	17	 







(iii)







 



AMERICAN MANAGEMENT SYSTEMS, INCORPORATED




DEFERRED COMPENSATION PLAN FOR EXECUTIVES




 




ARTICLE I—PURPOSE; EFFECTIVE DATE



1.01    Purpose




          The purpose of this American Management Systems, Incorporated Deferred
Compensation Plan is to provide a select group of management employees with a
competitive deferred compensation plan offering a market rate of return on a
pre-tax basis. It is intended that this Plan will aid in attracting and
retaining executives of exceptional ability by providing them with these
benefits.



1.02    Effective Date




          The Plan is effective as of January 1, 2004.




ARTICLE II—DEFINITIONS




          For the purposes of this Plan, the following terms shall have the meanings
indicated, unless the context clearly indicates otherwise:



2.01    Account




          “Account” means the bookkeeping device used by the Employer to measure and
determine the amount to be paid to a Participant under the Plan.



2.02    Beneficiary




          “Beneficiary” means the person, persons or entity entitled under Article
VI to receive any Plan benefits payable after a Participant’s death.



2.03    Board




          “Board” means the Board of Directors of the Company.



2.04    Bonus Deferral Commitment




          “Bonus Deferral Commitment” means a Deferral Commitment described in
Section 3.02(c) relating to a bonus payable to a Participant during the
Deferral Period.



2.05    Change in Control




          “Change in Control” means the happening of any of the following events,
unless otherwise specified in an individual employment agreement:





PAGE 1 - DEFERRED COMPENSATION PLAN FOR EXECUTIVES








 



               (a) Any person or group (within the meaning of Sections 13(d) and 14(d) of
the Exchange Act), other than the Company or a trustee or other fiduciary
holding securities under an employee benefit plan of the Company or a
corporation owned directly or indirectly by the stockholders of the Company in
substantially the same proportions as their ownership of stock of the Company,
becomes the beneficial owner (within the meaning of Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities representing fifty percent
(50%) or more of the combined voting power of the Company’s then-outstanding
securities entitled generally to vote for the election of directors;




               (b) During any period of two consecutive years, individuals who, at the
beginning of the period, constituted the Board cease for any reason to
constitute at least a majority thereof, unless the election or the nomination
for election by the Company’s stockholders of each new director was approved by
a vote of at least two-thirds (66-2/3%) of the directors then still in office
who were directors at the beginning of the period; and provided further,
however, that any such individual whose initial assumption of office occurs as
a result of or in connection with either an actual or threatened solicitation
with respect to the election of directors (as such terms are used in Rule
14a-12(c) of Regulation 14A promulgated under the Exchange Act) or other actual
or threatened solicitation of proxies or consents by or on behalf of an entity
other than the Board shall not be so considered as a member of the Board;




               (c) The consummation of a merger or consolidation with another corporation
(other than a majority-controlled subsidiary of the Company) unless the
Company’s stockholders immediately before the merger or consolidation are to
own more than two-thirds (66-2/3%) of the combined voting power of the
resulting entity’s voting securities entitled generally to vote for the
election of directors; or




               (d) The disposition or sale of all or substantially all of the business or
assets of the Company and its subsidiaries, taken as a whole.




           Notwithstanding the foregoing, no Change in Control shall be deemed to
have occurred with respect to a Participant by reason of (A) any event
involving a transaction in which the Participant or a group of persons or
entities with whom or with which the Participant acts in concert, acquires,
directly or indirectly, fifty percent (50%) or more of the combined voting
power of the Company’s then-outstanding voting securities or the business or
assets of the Company, or (B) any event involving or arising out of a
proceeding under Title 11 of the United States Code or comparable provisions of
any future United States bankruptcy law, an assignment for the benefit of
creditors or an insolvency proceeding under state or local law.



2.06    Committee




           “Committee” means the Administrative Committee appointed to administer the
Plan pursuant to Article VII hereof.



2.07    Company




           “Company” means American Management Systems, Incorporated, a Delaware
corporation.





PAGE 2 - DEFERRED COMPENSATION PLAN FOR EXECUTIVES








 


2.09    Compensation




           “Compensation” means salary, bonuses, Incentive Compensation, and Stock
Compensation, payable to the Participant during the calendar year, before
reduction for amounts deferred under this Plan or any other salary reduction
program.



2.10    Deferral Commitment




           “Deferral Commitment” means a commitment made by a Participant to defer
Compensation pursuant to Section 3.02.



2.11    Deferral Period




           “Deferral Period” means each calendar year. The initial Deferral Period
shall be from January 1, 2004 through December 31, 2004.



2.12    Determination Date




           “Determination Date” means the last business day of each calendar month.



2.13    Disability




           “Disability” means a physical or mental condition that, in the opinion of
the Committee, shall prevent the Participant from satisfactorily performing his
usual duties for the Employer or Company for a two (2) year period or longer.
The Committee shall determine the existence of the Disability and may rely on
advice from a medical examiner, medical reports, and/or other evidence
satisfactory to the Committee.



2.14    Disability Benefit




           “Disability Benefit” means the amount payable to a Participant pursuant to
Section 5.04 of the Plan.



2.15    Discretionary Contribution




           “Discretionary Contribution” means an Employer contribution credited under
Section 4.04 to the Account of a Participant.



2.16    Earnings




           “Earnings” means the rate of investment return credited to an account on
each Determination Date in a calendar year. Unless otherwise determined by the
Company in accordance with Article IX, the Earnings rate for amounts deferred
in cash shall be the Investment Crediting Rate. “Earnings” for amounts
deferred in stock shall mean dividends paid on Company stock.



2.17    Employer




           “Employer” means the Company and any U.S. subsidiary or affiliate of the
Company designated by the Board.





PAGE 3 - DEFERRED COMPENSATION PLAN FOR EXECUTIVES








 


2.18    Exchange Act




           “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.



2.19    Executive




           “Executive” means an individual who is eligible under Section 3.01 to
participate in the Plan.



2.20    Financial Hardship




           “Financial Hardship” means severe financial hardship to the Participant
resulting from a sudden and unexpected illness or accident of the Participant
or of a dependent (as defined in Section 152(a) of the Internal Revenue Code)
of the Participant, loss of the Participant’s property due to casualty, or
other similar extraordinary and unforeseeable circumstances arising as a result
of events beyond the control of the Participant. The circumstances that will
constitute a Financial Hardship will depend upon the facts of each case, but in
any case, payment may not be made to the extent that such hardship is or may be
relieved:




     (a) Through reimbursement or compensation by insurance or otherwise;




     (b) By liquidation of the Participant’s assets, to the extent the
liquidation of such assets would not itself cause severe financial
hardship; or




     (c) By cessation of deferrals under the Plan.



2.21    401(k) Plan




           “401(k) Plan” means the American Management Systems, Inc. 401(k) Plan, as
amended from time to time.



2.22    Incentive Compensation




           “Incentive Compensation” means amounts payable in cash or stock to a
Participant by the Employer, including, but not limited to, annual bonuses,
awards under the Stock Incentive Plan, and any other incentive or bonus as
determined by the Committee.



2.23    Incentive Compensation Deferral Commitment




           “Incentive Compensation Deferral Commitment” means a Deferral Commitment
described in Section 3.02(b) relating to the Incentive Compensation payable by
the Employer to a Participant.



2.24    Investment Crediting Rate




           “Investment Crediting Rate” means a rate fixed for each Plan year, which
shall be calculated from the average end-of-day rate over the last ten business
days of the year immediately preceding the Plan year in which Earnings are
being credited, for the generic 5-year U.S. Treas-




PAGE 4 - DEFERRED COMPENSATION PLAN FOR EXECUTIVES








 




ury Note, as reported on Bloomberg, plus one percent (1%). This rate is
applied on each Determination Date and the final payment date using the actual
date count on the basis of a 365-day year (ACT/365). If such rate is not
available or is no longer reported on Bloomberg, then the most directly
comparable 5-year U.S. Treasury Note rate, as published in the Wall Street
Journal or a substantially similar publication, as determined by the Committee,
plus one percent (1%), shall be applied.



2.25    Participant




           “Participant” means any Executive who has elected to defer Compensation
under this Plan.



2.26    Participation Agreement




           “Participation Agreement” means the agreement submitted by a Participant
to the Committee prior to the beginning of a Deferral Period, with respect to a
Deferral Commitment made for such Deferral Period.



2.27    Plan




           “Plan” means this American Management Systems, Incorporated Deferred
Compensation Plan for Executives, as amended from time to time.



2.28    Prior Plan




           “Prior Plan” means the American Management Systems, Incorporated Executive
Deferred Compensation Plan.



2.29    Prior Plan Benefit




           “Prior Plan Benefit” means an amount equal to an Executive’s account
balance, if any, in the Prior Plan that is transferred to the Plan upon
termination of the Prior Plan.



2.30    Retirement




           “Retirement” means:




     (a) A termination of employment after age fifty-five (55) with five
(5) or more years of continuous service;




     (b) A change in pay status to part-time/partial benefit after age
fifty-five (55) with five (5) continuous years of service if a
Participant:




     (i) makes an election to retire for purpose of this Plan on or
before September 30 for benefits commencing on February 28 of the
following year; and




     (ii) entered part-time/partial benefit status by July 1, prior to
electing to retire and must remain in partial benefit status until
distributions begin; and





PAGE 5 - DEFERRED COMPENSATION PLAN FOR EXECUTIVES








 



     (iii) forfeits all rights to defer under this Plan at anytime in
future years; or




               (c) A termination of employment, which, in the opinion of the Committee,
based on the Participant’s facts and circumstances, is a termination for
retirement and not to pursue employment or self-employment.



2.31    Retirement Benefit




           “Retirement Benefit” means an amount payable to a Participant pursuant to
Section 5.03 of the Plan.



2.32    Salary Deferral Commitment




           “Salary Deferral Commitment” means a Deferral Commitment described in
Section 3.02(a) relating to the base salary payable by the Employer to a
Participant.



2.33    SEP Make Up Contribution




           “SEP Make Up Contribution” means a contribution credited to the Account of
a Participant pursuant to Section 4.03.



2.36    Stock Incentive Plan




           “Stock Incentive Plan” means the American Management Systems, Incorporated
2003 Stock Incentive Plan.



2.37    Valuation Date




           “Valuation Date” shall be the date on which a lump sum distribution
(whether in cash or in stock) is made to a Participant or the date on which
installment payments (whether in cash or in stock) to a Participant commence,
as applicable.




ARTICLE III—PARTICIPATION AND DEFERRAL COMMITMENTS



3.01    Eligibility and Participation




     (a) Eligibility. Eligibility to participate in the Plan shall be
limited to (1) U.S. employees of the Employer who are Vice Presidents, or
above, or (2) U.S. employees of the Employer who were participants in the
Prior Plan. The Committee, in its discretion, may deem otherwise
eligible employees to be ineligible to participate.




     (b) Participation. An Executive may elect to participate in the
Plan with respect to any Deferral Period by submitting a Participation
Agreement to the Committee by the thirtieth (30th) day of September
immediately preceding the beginning of the Deferral Period or by any
other date determined by the Committee.





PAGE 6 - DEFERRED COMPENSATION PLAN FOR EXECUTIVES








 


3.02    Deferral Commitments




           A Participant may elect Deferral Commitments in the Participation
Agreement as follows:




     (a) Salary Deferral Commitment. A Salary Deferral Commitment shall
be related to the salary payable by the Employer to a Participant during
the Deferral Period. The amount to be deferred shall be stated as a
percentage or a dollar amount.




     (b) Incentive Deferral Commitment. An Incentive Deferral Commitment
shall be related to the Incentive Compensation payable by the Employer to
a Participant during the Deferral Period. For amounts deferred in cash,
the amount to be deferred shall be stated either as a percentage or a
dollar amount. For amounts deferred in stock, the amount to be deferred
shall be stated either as a percentage or a whole number of shares.




     (c) Bonus Deferral Commitment. Subject to the discretion of the
Committee, a Participant may defer bonuses payable by the Employer during
the Deferral Period. The amount to be deferred shall be stated either as
a percentage or as a dollar amount.




           No deferral shall be permitted that is in violation of law, e.g., wage
garnishments, tax levies, or child support orders. Deferral Commitments are
valid for one Deferral Period only.



3.03    Limitations on Deferral Commitments




           The following limitations shall apply to the Deferral Commitments of a Participant:




     (a) Minimum. The minimum Salary Deferral Commitment amount shall be
one thousand dollars ($1,000) per month (or five hundred dollars ($500)
per pay period in the case of bi-weekly salary payments). The minimum
Salary Deferral Commitment for a Participant who enters participation
after the beginning of a Deferral Period shall be pro-rated based on the
number of months remaining in the Deferral Period.




     (b) Maximum. The maximum deferral amount in a Salary Deferral
Commitment shall be fifty percent (50%) of base salary. Notwithstanding
the foregoing, no Deferral Commitment shall reduce a Participant’s
compensation paid below the amount necessary to satisfy any applicable
tax withholding required under federal, state, or local law.




     (c) Changes in Minimum or Maximum. The Committee may establish new
minimum or maximum deferral amounts or change the existing minimum or
maximum deferral amounts from time to time by giving written notice to
all Participants. No such change may affect a Deferral Commitment made
prior to the Committee’s action.



3.04    Commitment Limited by Termination




           If a Participant terminates employment with the Employer prior to the end
of the Deferral Period, the Deferral Period shall end as of the date of
termination of employment.



3.05    Modification of Deferral Commitment




           Except as provided in Section 5.01(b) below, Deferral Commitments shall be
irrevocable.





PAGE 7 - DEFERRED COMPENSATION PLAN FOR EXECUTIVES








 


3.06    Withholding for Taxes




           To the extent required by law, the Employer shall withhold any taxes
required to be withheld by the federal or any state or local government with
respect to Deferral Commitment amounts or with respect to deferred Compensation
or Earnings. The Company reserves the right to limit or reduce the amount of
cash or stock to be deferred or distributed as needed to satisfy the required
tax withholding obligation.




ARTICLE IV—DEFERRED COMPENSATION ACCOUNTS



4.01    Account




           The amounts deferred by a Participant under the Plan, any Employer
contributions, a Participant’s Prior Plan Benefit, if any, and Earnings on
deferrals shall be credited to the Participant’s Account. A Participant’s
Account shall be debited to reflect distributions to the Participant and
forfeitures of unvested Employer contributions, if any. The Employer’s
liability to pay benefits under the Plan shall be measured by, and shall in no
event exceed the Participant’s vested Account balance. Separate subaccounts
may be maintained to reflect different forms of deferrals, distributions,
levels of vesting, and forms of payment. The Account shall be a bookkeeping
device utilized for the sole purpose of determining the benefits payable under
the Plan and shall not constitute a separate fund of assets.



4.02    Timing of Credits




           A Participant’s deferred Compensation shall be credited to the
Participant’s Account one (1) business day after it otherwise would have been
paid had a Deferral Commitment not been made. A Participant’s Prior Plan
Benefit, if any, shall be credited to his account on or before January 30, 2004
and shall be credited with Earnings under this Plan for the month of January
2004.



4.03    SEP Make Up Contribution




           If as a result of participation in the Plan, an eligible Participant’s SEP
contribution is reduced, the Employer shall credit an amount equal to the
foregone SEP contribution into the eligible Participant’s account on the date
the SEP contribution is made.



4.04    Discretionary Contributions




           The Employer may make Discretionary Contributions to a Participant’s
Account in the Plan. Discretionary Contributions shall be credited at such
times and in such amounts as the Board in its sole discretion shall determine.



4.05    Determination of Account




           Each Participant’s Account as of each Determination Date shall consist of
the balance of the Account as of the immediately preceding Determination Date.
The Account shall be expressed in dollars, except that the portion of an
Account attributable to deferrals of stock shall be expressed in numbers of
shares (including fractional shares) plus Earnings, which are converted




PAGE 8 - DEFERRED COMPENSATION PLAN FOR EXECUTIVES








 




to whole or fractional shares, plus the number of shares determined by any
stock split, recapitalization or other capital change affecting the Company
stock since the prior Determination Date, adjusted as follows:




     (a) New Deferrals. The Account shall be increased by any
Compensation deferred pursuant to a Deferral Commitment and credited
pursuant to Section 4.02 since such the immediately preceding
Determination Date.




     (b) Employer Contributions. The Account shall be increased by any
Discretionary Contributions and SEP Make Up Contributions credited since
the immediately preceding Determination Date.




     (c) Distributions. The Account shall be reduced by the amount of
any distributions from the Account to the Participant since the
immediately preceding Determination Date.




     (d) Earnings. The Account shall be increased by the Earnings on the
average daily balance in the Account since the immediately preceding
Determination Date, except that that the number of shares (including
fractional shares) in the portion of the Account attributable to
deferrals of stock shall be increased by Earnings (i.e. dividends) paid
at such times as shareholders of the Company are credited with dividends.



4.06    Vesting of Account




           Each Participant shall be vested in the amounts credited to the
Participant’s Account and Earnings thereon as follows:




     (a) Amounts Deferred. A Participant shall be one hundred percent
(100%) vested at all times in the amount of Compensation elected to be
deferred under this Plan and Earnings thereon.




     (b) Discretionary Contributions. A Participant’s Discretionary
Contributions and Earnings thereon shall become vested as determined by
the Company at the time the Discretionary Contribution is made. Any
Discretionary Contributions, and Earnings thereon, that are not vested at
the time a Participant terminates employment with the Employer or retires
shall be forfeited.




     (c) SEP Makeup Contributions. A Participant shall be one hundred
percent (100%) vested at all times in any SEP Make Up Contribution and
Earnings thereon.



4.07    Statement of Account




           The Committee shall give to each Participant a statement showing the
balance in the Participant’s Account on an annual basis and at such other times
and in such manner as may be determined by the Committee.





PAGE 9 - DEFERRED COMPENSATION PLAN FOR EXECUTIVES








 



ARTICLE V—PLAN BENEFITS



5.01    Distributions Prior to Termination of Employment




           A Participant’s Account may be distributed to the Participant prior to
termination of employment as follows:




     (a) In-Service Withdrawals. A Participant may elect in a
Participation Agreement to withdraw all or any portion of the amount
deferred by that Participation Agreement as of a date specified in the
election. Such date shall not be sooner than three (3) years after the
date the Deferral Period commences. The amount withdrawn shall not
exceed the amount of Compensation deferred plus Earnings on the deferral.
Such election shall be made at the time the Deferral Commitment is made
and can only be amended if such amendment is made at least one year and
one day before the calendar year in which the distribution was scheduled.
If the Participant retires, is disabled, or terminates employment prior
to the date of a scheduled in-service withdrawal, such election will be
invalid, and the amount of the scheduled in-service withdrawal will
distributed in the same form of distribution as elected for the
Participant’s retirement, disability, or termination of employment, as
applicable.




     (b) Hardship Withdrawals. Upon a finding that a Participant has
suffered a Financial Hardship, the Committee may, in its sole discretion,
(a) waive or modify the deferral commitment and/or (b) make distributions
from the Participant’s Account. The amount of such a withdrawal shall be
limited to the amount reasonably necessary to meet the Participant’s
needs resulting from the Financial Hardship and shall be made first from
the Participant’s Prior Plan Benefit until exhausted. If payment is made
from a Participant’s Account due to Financial Hardship, or if
distributions are made under the 401(k) Plan on account of hardship as
defined in the 401(k) Plan, the Participant’s deferrals under this Plan
shall cease for twelve (12) months after the date of such payment. Any
resumption of the Participant’s deferrals under the Plan after this
period shall be made only at the election of the Participant in
accordance with Article III herein.




     (c) Form of Payment and Time. Any distribution pursuant to Section
5.01(a) or 5.01(b) shall be payable in a lump sum distribution in
accordance with Section 5.06. The distribution shall be paid in the case
of a partial withdrawal, as provided in the Participation Agreement, and
in case of a Financial Hardship, within thirty (30) days after the
determination of a Financial Hardship.



5.02    Termination of Employment




           Upon a Participant’s termination of employment with the Employer for any
reason, other than Retirement or Disability, the Employer shall pay the
Participant or, in the case of the Participant’s death before Retirement, the
Participant’s Beneficiary, a lump sum benefit equal to the balance in the
Participant’s Account, less any Discretionary Contributions and Earnings
thereon that are forfeited pursuant to Section 4.06(b). Such payment will be
distributed within sixty (60) days after the termination of employment, unless
the Participant is a person described in Rule 16b of the Exchange Act, in which
case the Committee shall have the discretion to delay the distribution of the
portion of the Participant’s Account that is attributable to deferrals of stock
until




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such date that the Committee determines is practicable but that is no more than
(1) year after the termination of employment.



5.03    Retirement Benefit




           Retirement benefits shall be paid in the form elected by the Participant
at the time of the Deferral Commitment.




     (a) Form of benefit payments shall be one (1) of the following:




     (i) A lump sum distribution of the Participant’s Account balance,
less any Discretionary Contributions and Earnings thereon that are
forfeited pursuant to Section 4.06(b); or




     (ii) Distribution of the Participant’s Account balance, less any
Discretionary Contributions and Earnings thereon that are forfeited
pursuant to Section 4.06(b), in annual installments with a maximum of
ten (10).




     (b) Benefits shall commence the last day of February in the calendar
year next following the date of retirement.




     (c) Small Account(s). Notwithstanding Section 5.03(a), if the value
of a Participant’s Account is less than fifty thousand dollars ($50,000)
on the Valuation Date, the distribution shall be made in a lump sum.




     (d) Change in Form and Commencement of Payment. A Participant may
elect to file a modified election as to form and timing of payment
relating to deferrals. To be effective, such modified election must be
filed prior to a termination of employment and one year and one day prior
to the calendar year in which distributions would have occurred if the
modification had not been made.




     (e) In the case of the Participant’s death after Retirement, the
Employer shall pay to Participant’s Beneficiary the remaining portion, if
any, of the Participant’s Account in the form elected by the Participant
at the time of the Deferral Commitment.



5.04    Disability Benefit




           At the time of the Deferral Commitment, the Participant must elect, upon
disability, to receive their benefit either in a lump sum or in the same number
of annual installments as elected under Section 5.03 above.



5.05    Accelerated Distributions




     (a) Change in Control Distribution. Notwithstanding any other
provision of the Plan, upon a Change in Control, a Participant’s Account
balance shall be paid to the Participant in a lump sum within sixty (60)
days of the Change in Control, unless the Company’s obligations under
this Plan are assumed by the acquiring or successor company. Upon a
Change in Control, this Section 5.05(a) and the definition of Change in
Control in Section 2.05 shall remain in force and effect, and shall not
be subject to cancellation or modification for a period of five years.





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     (b) Penalty Withdrawal. Notwithstanding any other provision of the
Plan, a Participant shall be entitled to receive, upon written request to
the Committee, a lump sum distribution (whether cash or stock) equal to
ninety percent (90%) of the entire vested Account balance as of the
Determination Date immediately preceding the date on which the Committee
receives the written request. The remaining balance (whether cash or
stock) shall be forfeited by the Participant. The amount payable under
this section shall be paid in a lump sum within sixty-five (65) days
following the receipt of the notice by the Committee from the
Participant. Any Participant who elects to receive a benefit under this
section shall not be eligible to participate in or defer into this Plan
in the future.



5.06    Valuation and Settlement




           The amount of a lump sum payment and the initial amount of installments
shall be based on the value of the Participant’s Account on the Valuation Date.
Distributions shall be made in cash, except for the portion of the Account
attributable to deferrals of stock, which shall be distributed in shares of
Company stock (plus cash equal to any fractional shares).



5.07    Payment to Guardian




           The Committee may direct payment to the duly appointed guardian,
conservator, or other similar legal representative of a Participant or
Beneficiary to whom payment is due. In the absence of such a legal
representative, the Committee may, in it sole and absolute discretion, make
payment to a person having the care and custody of a minor, incompetent or
person incapable of handling the disposition of property upon proof
satisfactory to the Committee of incompetency, minority, or incapacity. Such
distribution shall completely discharge the Committee from all liability with
respect to such benefit.



5.08    Company Distribution




           The Committee may distribute a Participant’s Account balance to the
Participant at any time if the Committee deems it to be in the best interests
of the Company to do so. If, because of a change in law or because of a final
determination by the Internal Revenue Service, all or any portion of the
amounts deferred by a Participant under the Plan become includable in the
Participant’s income under the Internal Revenue Code of 1986 (as amended) while
deferred and prior to the scheduled distribution date or any accelerated
distribution date determined under Sections 5.01, 5.02, 5.03, 5.04, or 5.05,
the Committee shall immediately distribute the amount deferred or the portion
thereof that is currently taxable in a lump sum to the Participant.




ARTICLE VI—BENEFICIARY DESIGNATION



6.01    Beneficiary Designation




           Each Participant shall have the right, at any time, to designate one (1)
or more persons or an entity as Beneficiary (both primary as well as secondary)
to whom benefits under this Plan shall be paid in the event of Participant’s
death prior to complete distribution of the Participant’s




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Account. Each Beneficiary designation shall be in a written form prescribed by
the Committee and shall be effective only when filed with the Committee during
the Participant’s lifetime.



6.02    Changing Beneficiary




           Any Beneficiary designation may be changed by a Participant without the
consent of the previously named Beneficiary by the filing of a new designation
with the Committee. The filing of a new designation shall cancel all
designations previously filed.



6.03    No Beneficiary Designation




           If any Participant fails to designate a Beneficiary in the manner provided
above, if the designation is void, or if the Beneficiary designated by a
deceased Participant dies before the Participant or before complete
distribution of the Participant’s benefits, the Participant’s Beneficiary shall
be the person in the first of the following classes in which there is a
survivor:




     (a) The Participant’s spouse;




     (b) The Participant’s children in equal shares, except that if any
of the children predeceases the Participant but leaves issue surviving,
then such issue shall take by right of representation the share the
parent would have taken if living;




     (c) The Participant’s estate.




ARTICLE VII—ADMINISTRATION



7.01    Committee; Duties




           The Plan shall be administered by the Committee. The Committee shall be
appointed by the Compensation Committee of the Board of Directors. The
Committee shall have the complete discretion and authority to make, amend,
interpret, apply, and enforce all appropriate rules and regulations for the
administration of the Plan and to exercise such powers as the Committee may
deem necessary for the administration of the Plan. The Committee shall have
the complete discretion and authority to interpret and construe the terms of
the Plan, to apply the terms of the Plan to situations not expressly addressed
in the Plan, to make findings of fact, and to resolve any and all questions as
may arise under the terms of the Plan or in the administration of the Plan.
The Committee shall exercise its discretion in a manner that is consistent with
the terms of the Plan and with applicable law. A majority vote of the
Committee members shall control any decision. Members of the Committee may be
Participants under this Plan.



7.02    Agents




           The Committee may, from time to time, engage agents and delegate to them
such administrative duties as it sees fit. The Committee may delegate to the
officers or employees of the Company the authority to execute and deliver those
instruments and documents, to do all acts and things, and to take all other
steps deemed necessary, advisable or convenient for the effective
administration of this Plan in accordance with its terms and purpose, except
that the Committee may not delegate any authority the delegation of which would
cause this Plan to fail to satisfy the requirements of applicable law. In
making any determination or in taking or not taking any ac-




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tion under this Plan, the Committee may obtain and rely upon the advice of
experts, including professional advisors to the Company. No member of the
Committee or officer of the Company who is a Participant hereunder may
participate in any decision specifically relating to his or her individual
rights or benefits under the Plan.



7.03    Binding Effect of Decisions




           The decision or action of the Committee with respect to any question
arising out of or in connection with the administration, interpretation and
application of the Plan and the rules and regulations promulgated hereunder
shall be final, conclusive and binding upon all persons having any interest in
the Plan.



7.04    Indemnity of Committee




           Neither the Company nor any member of the Board or of the Committee, nor
any other person participating in any determination of any question under this
Plan, or in the interpretation, administration or application thereof, shall
have any liability to any party for any action taken or not taken in good faith
under this Plan or for the failure of the Plan or any Participant’s rights
under the Plan to achieve intended tax consequences, to qualify for exemption
or relief under Section 16 of the Exchange Act and the rules thereunder, or to
comply with any other law, compliance with which is not required on the part of
the Company. The Company shall indemnify and hold harmless the members of the
Committee against any and all claims, loss, damage, expense or liability
arising from any action or failure to act with respect to this Plan on account
of such person’s service on the Committee, except in the case of gross
negligence or willful misconduct.




ARTICLE VIII—CLAIMS PROCEDURE



8.01    Claim




           The Committee shall establish rules and procedures to be followed by
Participants and Beneficiaries for (a) filing claims for benefits, (b)
furnishing and verifying proofs necessary to establish the right to benefits in
accordance with the Plan, and (c) appealing denials of claims for benefits.
Such rules and procedures shall require that claims and proofs be made in
writing and directed to the Committee. The Committee shall notify Participants
of the claims procedures in accordance with applicable law.




ARTICLE IX—AMENDMENT AND TERMINATION OF PLAN



9.01    Amendment




           The Board may at any time amend the Plan (including the Investment
Crediting Rate under the Plan) by written instrument, notice of which is given
to all Participants and to Beneficiaries receiving installment payments, except
that no amendment shall modify Section 5.05(a) hereof, and no amendment shall
reduce the amount in any Account that accrued prior to the date such notice of
the amendment is given.



9.02    Employer’s Right to Terminate





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           The Board may at any time partially or completely terminate the Plan if,
in its judgment, the tax, accounting or other effects of the continuance of the
Plan, or potential payments thereunder would not be in the best interests of
Employer.




     (a) Partial Termination. The Board may partially terminate the Plan
by instructing the Committee not to accept any additional Deferral
Commitments. If such a partial termination occurs, the Plan shall
continue to operate and be effective with regard to Deferral Commitments
entered into prior to the effective date of such partial termination.




     (b) Complete Termination. The Board may completely terminate the
Plan by instructing the Committee not to accept any additional Deferral
Commitments, and by terminating all ongoing Deferral Commitments. If
such a complete termination occurs, the Plan shall cease to operate.
Unless such account balance is transferred under the terms of a new
deferred compensation plan sponsored by the Company and the Employer, the
Employer shall pay out and distribute each Account balance to the
Participant within sixty (60) days after the Board terminates the Plan.
Earnings shall continue to be credited on the unpaid Account balance as
specified in Section 4.05(d) through the date of payment.
Notwithstanding the foregoing, the Employer, in its sole discretion, may
determine that it is in the financial best interests of the Employer to
distribute any or all Accounts in installments over a payment period to
be determined by the Employer.



9.03    Transfer of Liability; Corporate Transactions




           The Board reserves the right to transfer to another entity all of the
obligations of the Company and/or the Employer with respect to a Participant
under this Plan if such entity agrees pursuant to a binding written agreement
to assume all of the obligations of the Company under this Plan with respect to
such Participant. In the event of a corporate transaction, merger,
acquisition, or other similar event, the payment of benefits in the form of
stock shall be determined in the same manner as provided in the Stock Incentive
Plan.




ARTICLE X—MISCELLANEOUS



10.01    Unfunded Plan




           This plan is an unfunded plan maintained primarily to provide deferred
compensation benefits for a select group of “management or highly-compensated
employees” within the meaning of Sections 201, 301 and 401 of the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”), and therefore is
exempt from the provisions of Parts 2, 3 and 4 of Title I of ERISA.



10.02    Company and Employer Obligations




           The obligation to make benefit payments to any Participant under the Plan
shall be a joint and several liability of the Company and the Employer that
employed the Participant.



10.03    Unsecured General Creditor




           Participants and Beneficiaries shall be unsecured general creditors, with
no secured or preferential right to any assets of Employer or any other party
for payment of benefits under this Plan. Any life insurance policies, annuity
contracts or other property purchased by Employer in




PAGE 15 - DEFERRED COMPENSATION PLAN FOR EXECUTIVES








 




connection with this Plan shall remain its general, unpledged and unrestricted
assets. The Employer’s obligation under the Plan shall be an unfunded and
unsecured promise to pay money or stock in the future.



10.04    Trust Fund




           At its discretion, the Company may establish one or more trusts, with such
trustees as the Board may approve, for the purpose of providing for the payment
of benefits owed under the Plan. Although such a trust shall be irrevocable,
its assets shall be held for payment of all the Company’s general creditors in
the event of insolvency or bankruptcy. To the extent any benefits provided
under the Plan are paid from any such trust, Employer shall have no further
obligation to pay them. If not paid from the trust, such benefits shall remain
the obligation of Employer.



10.05    Nonassignability




           Neither a Participant nor any other person shall have any right to
commute, sell, assign, transfer, pledge, anticipate, mortgage or otherwise
encumber, transfer, hypothecate or convey in advance of actual receipt the
amounts, if any, payable hereunder, or any part thereof, which are, and all
rights to which are, expressly declared to be unassignable and nontransferable.
No part of the amounts payable shall, prior to actual payment, be subject to
seizure or sequestration for the payment of any debts, judgments, alimony or
separate maintenance owed by a Participant or any other person, nor be
transferable by operation of law in the event of a Participant’s or any other
person’s bankruptcy or insolvency.



10.06    Not a Contract of Employment




           This Plan shall not constitute a contract of employment between Employer
and the Participant. Nothing in this Plan shall give a Participant the right
to be retained in the service of Employer or to interfere with the right of
Employer to discipline or discharge a Participant at any time.



10.07    Protective Provisions




           A Participant will cooperate with the Company and the Employer by
furnishing any and all information requested by the Company and the Employer in
order to facilitate the payment of benefits hereunder, and by taking such other
actions as may be requested by the Company or the Employer. If it is necessary
for a Participant to bring a legal action against the Company to obtain payment
of amounts owed the Participant under the terms of the Plan, the Company will
pay the Participant’s reasonable legal fees, costs, and expenses if the
Participant prevails in litigation.



10.08    Governing Law




           The provisions of this Plan shall be construed and interpreted according
to the laws of the Commonwealth of Virginia, except as preempted by federal
law.





PAGE 16 - DEFERRED COMPENSATION PLAN FOR EXECUTIVES








 


10.09    Validity




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



10.10    Notice




           Any notice required or permitted under the Plan shall be sufficient if in
writing and hand delivered or sent by registered or certified mail. Such
notice shall be deemed as given as of the date of delivery or, if delivery is
made by mail, as of the date shown on the postmark on the receipt for
registration or certification. Mailed notice to the Committee shall be
directed to the Chief Human Resources Officer at the Company’s address. Mailed
notice to a Participant or Beneficiary shall be directed to the individual’s
last known address in Employer’s records.



10.11    Successors




           The provisions of this Plan shall bind and inure to the benefit of
Employer and its successors and assigns. The term successors as used herein
shall include any corporate or other business entity which shall, whether by
merger, consolidation, purchase or otherwise acquire all or substantially all
of the business and assets of Employer, and successors of any such corporation
or other business entity.



10.12    Change of Law




           Notwithstanding anything to the contrary herein, if the Committee
determines in good faith, based on consultation with counsel, that the federal
income tax treatment or legal status of the Plan has or may be adversely
affected by a change in the Internal Revenue Code, Title I of the Employee
Retirement Income Security Act of 1974, or other applicable law or by an
administrative or judicial construction thereof, the Committee may direct that
the Accounts of affected Participants or of all Participants be distributed as
soon as practicable after such determination is made, to the extent deemed
necessary or advisable by the Committee to cure or mitigate the consequences,
or possible consequences of, such change in law or interpretation thereof.






PAGE 17 - DEFERRED COMPENSATION PLAN FOR EXECUTIVES