EXHIBIT 10.9 –

	
Board of Directors Nonqualified Deferred


	
 

	
Compensation Plan Adoption Agreement and


	
 

	
Lane & Waterman Prototype Nonqualified


	
 

	
Deferred Compensation Plan


	
 

	
 


	
 

	
Nonqualified Deferred Compensation Plan


	
 

	
Adoption Agreement








	
 


	
 


	
BOARD OF DIRECTORS


	
 


	
NONQUALIFIED


	
 


	
DEFERRED COMPENSATION PLAN


	
 


	
ADOPTION AGREEMENT


	
 


	
Of


	
 


	
EAST FORK BIODIESEL, LLC


	
 


	
 








	
 

	
 


	
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 2007 Lane & Waterman LLP

	
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& Waterman LLP

Nonqualified Deferred Compensation Plan Adoption Agreement


NONQUALIFIED

DEFERRED COMPENSATION PLAN

ADOPTION AGREEMENT


          The
undersigned East Fork Biodiesel, LLC (“Employer”) by execution of this Adoption Agreement hereby establishes this
Nonqualified Deferred Compensation Plan (“Plan”) consisting of the Basic Plan
Document, this Adoption Agreement and all other Exhibits and documents to which
they refer. The Employer makes the following elections concerning this Plan.
All capitalized terms used in the Adoption Agreement have the same meaning
given in the Basic Plan Document. References to “Section” followed by a number
in this Adoption Agreement are references to the Basic Plan Document.


PREAMBLE


ERISA/Code Plan Type: The Employer establishes this Plan as (choose
one of (a) or (b)):


	
 

	
 

	
 


	
x 

	
(a)     Nonqualified Deferred Compensation
Plan. An unfunded nonqualified deferred compensation plan which is (choose only one of (i), (ii), (iii) or (iv)):


	
 

	
 

	
 


	
 

	
o

	
(i) Excess benefit plan. An “excess benefit
 plan” under ERISA§3(36) and exempt from Title I of ERISA.


	
 

	
 

	
 


	
 

	
x 

	
(ii) Top-hat plan. A “SERP” or other plan primarily for a
“select group of
 management or highly compensated employees” under ERISA and partially exempt
 from Title I of ERISA.


	
 

	
 

	
 


	
 

	
o

	
(iii) Contractors only. A plan benefiting only
 Contractors (non-Employees) and exempt from Title I of ERISA.


	
 

	
 

	
 


	
 

	
o

	
(iv) Church plan. A church plan as described
 in Code §414(e) and ERISA §3(33) and maintained by a church or church
 controlled organization under Code §3121(w)(3).


	
 

	
 

	
 


	
o

	
(b)     Ineligible 457 Plan. An ineligible 457
 Plan subject to Code §457(f). The Employer is (choose only one of (i), (ii) or (iii)):


	
 

	
 

	
 


	
 

	
o

	
(i) Governmental Plan. A State.


	
 

	
 

	
 


	
 

	
o

	
(ii) Tax-Exempt Plan. A Tax-Exempt
 Organization. The Plan is intended to be a “top-hat” plan or an excess
 benefit plan as described in (a)(ii) and (a)(ii) above or the Plan benefits only Contractors.


	
 

	
 

	
 


	
 

	
o

	
(iii) Church plan. A church plan as described
 in Code §414(e) and ERISA §3(33) but which is not maintained by a church or
 church controlled organization under Code §3121(w)(3).





Note:
If the Employer elects (a)(i), the Plan benefits only Employees. If the
Employer elects (a)(ii), the Plan generally may not benefit Contractors based
on the “primarily” requirement. If the Employer elects (a)(iii), the Plan
benefits only Contractors. If the Employer elects (a)(iv), (b)(i), or (b)(iii)
the Plan may benefit Employees and Contractors. If the Employer elects (b)(ii),
the plan is either a top-hat plan, an excess benefit plan or benefits only
Contractors.


409A Plan Type: The Employer establishes this Plan (choose
one of (a) or (b)):


	
 

	
 

	
 


	
o (a)     Account Balance Plan. As the following
 type(s) of Account Balance Plan(s) under Section 1.02(choose one of (i), (ii) or (iii)):


	
 

	
 

	
 


	
 

	
o

	
(i) Elective Deferral Account Balance Plan. See Section 2.02.





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o

	
(ii) Employer Contribution Account Balance Plan.
 See Sections 2.03 and 2.04.


	
 

	
 

	
 


	
 

	
o     (iii) Both. Both an  Elective  Deferral   Account
 Balance Plan and an Employer Contribution Account 


	
Balance Plan.


	
 

	
 

	
 


	
Note:
 For purposes of aggregation under Section 1.05, a Separation Pay Plan based
 only on Voluntary Separation from Service is treated as an Account Balance
 Plan. Nevertheless, if the Employer maintains this Plan as any type of
 Separation Pay Plan, the Employer should elect (b) below.


	
 

	
 

	
 


	
o 
 (b)     Separation
 Pay Plan. As the following type(s) of Separation Pay Plan(s) under
 Section 1.42 (choose one of (i) through
 (iv)):


	
 

	
 

	
 


	
 

	
o

	
(i) Involuntary Separation.


	
 

	
 

	
 


	
 

	
o

	
(ii) Window Program. 


	
 

	
 

	
 


	
 

	
o

	
(iii) Voluntary Separation. 


	
 

	
 

	
 


	
 

	
o

	
(iv) Combination:
 __________________________________________________________(specify)


	
 

	
 

	
 


	
Note:
 Under a Separation Pay Plan, the Employer must limit its payment election to
 Separation from Service or death. Electing death as a separate payment event
 would permit a different payment election for death versus any other
 Separation from Service. Separation from Service may also result from
 Disability.


	
 

	
 

	
 


	
Uniformity
 or Nonuniformity:
 The nonuniformity provisions described in the Preamble to the Basic Plan
 Document (choose one of (a) or (b)):


	
 

	
 

	
 


	
x

	
(a)

	
Do not
 apply. All Adoption
 Agreement elections and Plan provisions apply to all Participants.


	
 

	
 

	
 


	
o

	
(b)

	
Apply. See Exhibit A to the Adoption Agreement.


	
 

	
 

	
 


	
ARTICLE I 

 DEFINITIONS


	
 


	
 

	
 

	
 


	
 

	
1.11

	
Change in
 Control. Change in
 Control means (choose (a) or choose one of
 (b), (c) or (d)):


	
 

	
 

	
 


	
o 

	
(a)

	
Not
 applicable. Change
 in Control does not apply for purposes of this Plan.


	
 

	
 

	
 


	
x

	
(b)

	
All
 events. Change in
 Control means all events under Section 1.11.


	
 

	
 

	
 


	
o 

	
(c)       Limited events. Change in
Control means
 only the following events under Section 1.11 (choose one or two of (i), (ii) and (iii)):


	
 

	
 

	
 


	
 

	
o

	
(i) Change in ownership of
 the Employer.


	
 

	
 

	
 


	
 

	
o

	
(ii) Change in the
 effective control of the Employer.


	
 

	
 

	
 


	
 

	
o

	
(iii) Change in the
 ownership of a substantial portion of the Employer’s assets.


	
 

	
 

	
 


	
o

	
(d)

	
(Specify): ______________________________________________________________________.


	
 

	
 

	
 


	
Note:
 The Employer may not use the blank in (d) to specify events not described in
 Treas. Reg. §1.409A-3(i)(5). However, the Employer may increase the
 percentages required to trigger a Change in Control under one or all three of
 the listed events.








	
 

	
 


	
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Nonqualified Deferred Compensation Plan Adoption Agreement


	
 

	
 

	
 


	
     1.15          Compensation. The
Employer makes the
 following modifications to the “gross W-2” definition of Compensation (choose (a) or at least one of (b) –
(e)):


	
 

	
 

	
 


	
x

	
(a)

	
No
 modifications.


	
 

	
 

	
 


	
o

	
(b)     Net Compensation. Exclude all elective
 deferrals to other plans of the Employer described in Section 1.15.


	
 

	
 

	
 


	
o

	
(c)

	
Base
 Salary only.
 Exclude all Compensation other than Base Salary.


	
 

	
 

	
 


	
o

	
(d)

	
Bonus
 only. Exclude all
 Compensation other than Bonus.


	
 

	
 

	
 


	
o

	
(e)

	
(Specify):
 ____________________________________________________________________.


	
 

	
 

	
 


	
Note:
 See Section 1.15(B) as to Contractor Compensation.


	
 

	
 

	
 


	
 

	
1.17

	
Disability. Disability means (choose one of (a) or
(b))):


	
 

	
 

	
 


	
x

	
(a)

	
All
 impairments. All
 impairments constituting Disability.


	
 

	
 

	
 


	
o

	
(b)

	
Limited. Only the following impairments
 constituting Disability: ________________________.


	
 

	
 

	
 


	
 

	
1.20

	
Effective
 Date. The effective
 date of the Plan is (choose one of (a) or (b)):


	
 

	
 

	
 


	
x

	
(a)

	
New Plan. This Plan is a new Plan and is effective
            September
 1, 2007.


	
 

	
 

	
 


	
Note:
 The effective date should be no earlier than January 1, 2008.


	
 

	
 

	
 


	
o

	
(b)     Restated Plan. This Plan is a restated Plan and is restated effective as of January 1,
2008. The Plan is restated to comply with Code §409A. The Plan was originally
effective ______________________. 


	
 

	
 

	
 


	
Note:

	
If the
 Plan (whether or not in written form) was in effect before January 1, 2008,
 the Plan is a restated Plan.


	
 

	
 

	
 


	
          1.38     Plan Name. The name of
the Plan as
 adopted by the Employer is:           East
 Fork Biodiesel, LLC Nonqualified Deferred Compensation Plan for Board of
 Directors                    
                       
                    
         .


	
 

	
 

	
 


	
 

	
1.39

	
Retirement
 Age. A
 Participant’s Retirement Age under the Plan is (choose only one of (a)-(d)):


	
 

	
 

	
 


	
o

	
(a)

	
Not
 applicable.
 Retirement Age does not apply for purposes of this Plan.


	
 

	
 

	
 


	
o

	
(b)

	
Age. The Participant’s attainment of age:
 ______.


	
 

	
 

	
 


	
x

	
(c)      Age and service. The
Participant’s
 attainment of age _____ with _____ Years of Service (defined under 1.57) with
 the Employer.


	
 

	
 

	
 


	
o

	
(d)

	
(Specify):
 _____________________________________________________________________.


	
 

	
 

	
 


	
          1.40 Separation
 from Service. In
 determining whether a Participant has incurred a Separation from Service
 under the Plan (choose one or both or (a)
 and (b)):


	
 

	
 

	
 


	
o

	
(a) Determination
 of “Employer.” In
 determining the “Employer” under Section 1.40(E) and Code§§414(b) and (c),
 apply the following percentage: _____________________ (specify percentage).





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Adoption Agreement 


	
 

	
 


	
Note:  

	
The
specified percentage may not be more than 80% and may not be less than 20%.
If the percentage is less than 50%, there must be legitimate business
criteria. 


	
 

	
 


	
o

	
(b)          Collectively
Bargained Multiple Employer Plan.
Under Section 1.40(H), the following reasonable definition of Separation from
Service applies:________________________________(specify). 



	
 

	
 


	
 

	
1.44          Specified
Employees-Elections. The
Employer makes the following elections relating to the determination of
Specified Employees (choose (a) or choose one or more of (b)-(e)):  


	
 

	
 


	
x

	
(a)
           Not applicable. The Employer does not
 have any Specified Employees or none which benefit under the Plan. 


	
 

	
 


	
o

	
(b)          Alternative
Code §415 Compensation. The
Employer elects the following alternative definition of Code §415 Compensation:
_________________________________________________(specify). 



	
 

	
 


	
o

	
(c)          Alternative
Specified Employee identification date.
The Employer elects the following alternative Specified Employee
identification date: __________________________________(specify).  


	
 

	
 


	
o

	
(d)          Alternative
Specified Employee effective date.
The Employer elects the following alternative Specified Employee effective
date:
_______________________________________________________(specify). 



	
 

	
 


	
o

	
(e)          Other
elections. The Employer makes the
following other elections relating to Specified Employees: ______________ (specify).  


	
 

	
 


	
Note: 

	
See Treas.
Reg. 1.409A-1(i)(8) as to uniformity requirements affecting the above
Specified Employee elections.  


	
 

	
 


	
 

	
1.51          Unforeseeable
Emergency. Unforeseeable
Emergency means (choose (a) or choose one of (b)  


	
or (c)):  


	
 

	
 


	
x

	
(a) Not applicable. Unforeseeable Emergency does not apply for purposes of this Plan. 



	
 

	
 


	
o

	
(b) All events. All events constituting Unforeseeable Emergency.  


	
 

	
 


	
o

	
(c) Limited. Only the following events constituting Unforeseeable
Emergency:____________________ 


	
 

	
_______________________________________________________________________________. 


	
 

	
 


	
 

	
1.56          Wraparound
Election. The Plan (choose one
of (a) or (b)) :  


	
 

	
 


	
o 

	
(a)          Permits.
Permits Participants who
 participate in a 401(k) plan of the Employer to make Wraparound Elections.


	
 

	
 


	
x

	
(b)          Not
permitted. Does not permit Wraparound
 Elections (or the Employer does not maintain a 401(k) plan covering any
 Participants).


	
 

	
 


	
 

	
1.57          Year of
Service. The following apply in
determining credit for a Year of Service under the 


	
Plan (choose (a) or choose
one or more of (b) – (e)): 


	
 

	
 


	
o

	
(a)          Not
applicable. Year of Service does not
 apply for purposes of this Plan. 


	
 

	
 


	
o

	
(b)          Year of
continuous service. To receive
 credit for one Year of Service, the Participant must remain in continuous
 employment with the Employer (or render contract service to the Employer) for
 the Participant’s entire Taxable Year. 








	
 

	
 

	
 


	
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x

	
(c)
           Service on any day. To receive credit for
 one Year of Service, the Participant only need be employed by the Employer
 (or render contract service to the Employer) on any day of the Participant’s
 Taxable Year. 


	
 

	
 


	
x

	
(d)
          Pre-Plan service. The Employer will treat
service before the Plan’s Effective Date for determining Years of Service as
follows (choose one of (i) or (ii)):  


	
 

	
 


	
 

	
x
           (i) Include. 


	
 

	
 


	
 

	
o
           (ii) Disregard. 


	
 

	
 


	
o 
(e)          (Specify):__________________________________________________________________.  





ARTICLE II 

PARTICIPATION


	
 

	
 


	
          2.01          Participant
Designation. The Employer
designates the following Employees or Contractors as Participants in the Plan
(choose one of (a), (b) or (c)):  


	
 


	
o

	
(a)          All top-hat
Employees. All Employees whom
 the Employer from time to time designates in writing as part of a select
 group of management or highly compensated employees. 


	
 

	
 


	
o

	
(b)          All Employees
with maximum qualified plan additions
 or benefits. All Employees who have reached or will reach their
 limit under Code §§415(b) or (c) in the Employer’s qualified plan for the
 Taxable Year or for the 415 limitation year ending in the Taxable Year. 


	
 

	
 


	
x

	
(c)          Specified
Employees/Contractors by name, job title
or classification: All members of the East Fork Biodiesel, LLC
Board of Directors. (e.g., Joe Smith, Executive Vice Presidents or those
Employees/Contractors specified in Exhibit B).  


	
 

	
 


	
Note: An
Employer might elect (c) and reference Exhibit B to maintain confidentiality
within the workforce as to the identity of some or all Participants.  


	
 


	
 

	
2.02       Elective Deferrals. Elective Deferrals by
Participants are (choose one of (a), (b) or (c)): 


	
 

	
 


	
x

	
(a)          Permitted.
Participants may make Elective
 Deferrals. 


	
 

	
 


	
o

	
(b)          Not
permitted. Participants may not make
 Elective Deferrals. 


	
 

	
 


	
o

	
(c)          Frozen
Elective Deferrals. The Plan does
 not permit Elective Deferrals as
of: ______________


	
 

	
__________________________________________________________________________________.


	
 

	
 


	
          2.02(A)
Amount limitation/conditions. A
Participant’s Elective Deferrals for a Taxable Year are subject to the
following amount limitation(s) or other conditions (choose (a) or choose at
least one of (b) – (d)):  


	
 


	
x

	
(a)          No limitation.



	
 

	
 


	
o

	
(b)          Maximum
Elective Deferral amount: ____________________________________________.


	
 

	
 


	
o

	
(c)          Minimum
Elective Deferral
 amount: ____________________________________________.


	
 

	
 


	
o

	

(d)          (Specify):______________________________________.  


	
 

	
 


	
          2.02(B)
Election timing. A Participant
must provide the Elective Deferral election under Section 2.02 to the
Employer (choose one of (a) or (b)):  





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Adoption Agreement


	
 

	
 


	
o

	
(a)          By the
 deadline. No later than the applicable election deadline under
 Section 2.02(B).


	
 

	
 


	
x

	
(b)          Specified
 date. No later than thirty (30) days before the applicable election
 deadline under Section 2.02(B).


	
 

	
 


	
          2.02(B)(6)
 Final
 payroll period. The Plan treats final payroll period Compensation
 under Section 2.02(B)(6) as (choose one of (a) or (b)):


	
 

	
 


	
o

	
(a)          Current
 Year. As Compensation for the current Taxable Year in which the
 payroll period commenced.


	
 

	
 


	
x

	
(b)          Subsequent
 Year. As Compensation for the subsequent Taxable Year in which the
 Employer pays the Compensation.


	
 

	
 


	
          2.02(C) Election
 changes/Irrevocability. A Participant who makes an Elective
 Deferral election before the applicable deadline under Section 2.02(B) (choose one
 of (a) or (b)):


	
 


	
x

	
(a)          May
 change. May change the election until the applicable election
 deadline. 


	
 

	
 


	
o

	
(b)          May not
 change. May not change the election as to the first Taxable Year
 to which the election applies.


	
 

	
 


	
Note: A payment election under Section
 4.02(A) or (B) is a separate election which is not controlled by this Section
 2.02(C). See Section 4.06(B).


	
 


	
 

	
2.02(D) Election
 duration. A Participant’s Elective Deferral election (choose one
 of (a) or (b)):


	
 

	
 


	
o

	
(a)          Taxable
 Year only. Applies only to the Participant’s Compensation for the
 Taxable Year for which the Participant makes the election.


	
 

	
 


	
x

	
(b)          Continuing.
 Applies to the Participant’s Compensation for all Taxable Years, commencing with
 the Taxable Year for which the Participant makes the election, unless the
 Participant makes a new election or revokes or modifies an existing election.


	
 

	
 


	
          2.03
 Nonelective
 Contributions. During each Taxable Year the Employer will
 contribute a Nonelective Contribution for each Participant equal to (choose (a)
 or (f) or choose one or more of (b) – (e)):


	
 


	
o

	
(a)          None.
 The Employer will not make Nonelective Contributions to the Plan.


	
 

	
 


	
o

	
(b)          Fixed
 percentage.___________________% of the Participant’s Compensation.


	
 

	
 


	
o

	
(c)          Fixed
 dollar amount. $___________________per Participant.


	
 

	
 


	
x

	
(d)          Discretionary.
 Such Nonelective Contributions (or additional Nonelective Contributions) as
 the Employer may elect, including zero.


	
 

	
 


	
o

	
(e)         
(Specify):                   
                     
                      
                     
                     
                       
     .


	
 

	
 


	
o

	
(f)          Frozen
 Nonelective Contributions. The Employer will not make any
 Nonelective Contributions as of:
 _______________________________________________________________________________.


	
 

	
 


	
          2.04
 Matching
 Contributions. During each Taxable Year, the Employer will
 contribute a Matching Contribution equal to (choose (a) or (i) or choose one or
 more of (b) – (h)):


	
 

	
 


	
x

	
(a)          None.
 The Employer will not make Matching Contributions to the Plan.








	
 

	
 


	
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Nonqualified Deferred Compensation Plan Adoption Agreement


	
 

	
 


	
o

	
(b)          Fixed
 match-flat. An amount equal to____________% of each Participant’s
 Elective Deferrals for each Taxable Year.


	
 

	
 


	
o

	
(c)          Fixed
 match-tiered. An amount equal to the following percentages for
 each specified level of a Participant’s Elective Deferrals or Years of
 Service for each Taxable Year:








	
 

	
 

	
 

	
 


	
Elective
 Deferrals

	
 

	
Matching
 Percentage


	
 

	
 

	
%

	
 


	


	
 

	


	
 


	
 

	
 

	
%

	
 


	


	
 

	


	
 


	
 

	
 

	
%

	
 


	


	
 

	


	
 


	
 

	
 

	
%

	
 


	


	
 

	


	
 





Note: Specify Elective Deferrals subject to
match as a percentage of Compensation or a dollar amount.


	
 

	
 

	
 

	
 


	
Years of
 Service

	
 

	
Matching
 Percentage


	
 

	
 

	
%

	
 


	


	
 

	


	
 


	
 

	
 

	
%

	
 


	


	
 

	


	
 


	
 

	
 

	
%

	
 


	


	
 

	


	
 


	
 

	
 

	
%

	
 


	


	
 

	


	
 








	
 

	
 


	
o

	
(d)          No other
 caps. The Employer in applying the Matching Contribution formula
 under 2.04(b) or (c) above will not limit the Participant’s Elective
 Deferrals taken into account (except as indicated above) and otherwise will
 not limit the amount of the match.


	
 

	
 


	
o

	
(e)          Limit on
 Elective Deferrals matched. The Employer in making Matching
 Contributions will disregard a Participant’s Elective Deferrals exceeding __________________________________ (specify
 percentage or dollar amount of Compensation) for the Taxable Year.


	
 

	
 


	
o

	
(f)          Limit on
 matching amount. The Matching Contribution for any Participant for
 a Taxable Year may not exceed: ____________________________ (specify
 percentage or dollar amount of Compensation).


	
 

	
 


	
o

	
(g)          Discretionary.
 Such Matching Contributions as the Employer may elect, including zero.


	
 

	
 


	
o

	
(h)         
(Specify): _____________________________________________________________________.


	
 

	
 


	
o

	
(i)          Frozen
 Matching Contributions. The Employer will not make any Matching
 Contributions as of: _________________________________________________________________________________.


	
 

	
 


	
         2.05
 Actual
 or Notional Contribution. The Employer’s Contributions will be (choose one
 of (a) or (b) and choose (c) as applicable):


	
 


	
o

	
(a)          Actual.
 Made in cash or property to Participant Accounts or to the Trust.


	
 

	
 


	
x

	
(b)          Notional.
 Credited to Participant Accounts only as a bookkeeping entry.


	
 

	
 


	
o

	
(c)          (Specify):
 ____________________________________________________________________.


	
 

	
 


	
         2.06
 Allocation
 Conditions. To receive an allocation of Employer Contributions, a
 Participant must satisfy the following conditions during the Taxable Year (choose (a)
 or choose one or both of (b) and (c)):


	
 


	
x

	
(a)          No
 allocation conditions.


	
 

	
 


	
o

	
(b)          Year of
 continuous service. The Participant must remain in continuous
 employment with the Employer (or render contract service to the Employer) for
 the entire Taxable Year.





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o

	
(c)

	
    (Specify):
 ______________________________________________________________________.


	
 

	
 

	
 


	
ARTICLE III


	
VESTING AND SUBSTANTIAL RISK OF FORFEITURE


	
 

	
 

	
 


	
          3.01    Vesting
 Schedule/Other Substantial Risk of Forfeiture. The following
 vesting schedule or other Substantial Risk of Forfeiture applies to a
 Participant’s Accrued Benefit (choose (a) or choose one or more of (b) – (f)):


	
 

	
 

	
 


	
o     (a)        Not
 applicable. The Plan does not apply a vesting schedule or other
 Substantial Risk of Forfeiture.


	
 

	
 

	
 


	
x

	
(b)        Immediate
 vesting. 100% Vested at all times with respect to the entire
 Accrued Benefit.


	
 

	
 

	
 


	
o

	
(c)        Immediate
 vesting (Elective Deferrals)/vesting schedule (Employer Contributions).
 A Participant’s Elective Deferral Account is 100% Vested at all times. A
 Participant’s Nonelective Contributions Account and Matching Contributions
 Account are subject to the following vesting schedule:








	
 

	
 

	
 

	
 

	
 


	
Years of Service

	
 

	
 

	
Vesting %


	


	
 

	
 

	



	
 

	
 

	
 

	
 

	
 


	
 

	
or less

	
 

	
0 %

	
 


	


	
 

	
 

	


	
 


	
 

	
 

	
 

	
%

	
 


	


	
 

	
 

	


	
 


	
 

	
 

	
 

	
%

	
 


	


	
 

	
 

	


	
 


	
 

	
 

	
 

	
%

	
 


	


	
 

	
 

	


	
 


	
 

	
or more

	
 

	
100 %

	
 


	


	
 

	
 

	
 

	
 








	
 

	
 


	
o

	
(d)        Vesting
 schedule - entire Accrued Benefit. The Participant’s entire
 Accrued Benefit is subject to the following vesting schedule:






	
 

	
 

	
 

	
 

	
 


	
Years of Service

	
 

	
 

	
Vesting %


	


	
 

	
 

	



	
 

	
 

	
 

	
 

	
 


	
 

	
or less

	
 

	
0 %

	
 


	


	
 

	
 

	


	
 


	
 

	
 

	
 

	
%

	
 


	


	
 

	
 

	


	
 


	
 

	
 

	
 

	
%

	
 


	


	
 

	
 

	


	
 


	
 

	
 

	
 

	
%

	
 


	


	
 

	
 

	


	
 


	
 

	
 

	
 

	
%

	
 


	


	
 

	
 

	


	
 


	
 

	
 

	
 

	
%

	
 


	


	
 

	
 

	


	
 


	
 

	
or more

	
 

	
100 %

	
 


	


	
 

	
 

	
 

	
 








	
 


	
o       (e)    Vesting
 schedule – class year or all years. The Plan’s vesting schedule
 applies as follows (Choose one of (i) or (ii)):








	
 

	
 

	
 


	
 

	
o

	
(i) Class
 year. Apply the vesting schedule separately to the Deferred
 Compensation for each Taxable Year.


	
 

	
 

	
 


	
 

	
o

	
(ii) All years.
 Apply the vesting schedule to all Deferred Compensation based on
 all Years of Service.


	
 

	
 

	
 


	
o

	
(f)

	
Other Substantial Risk of Forfeiture. (Specify):________________________________________


	
 

	
___________________________________________________________________________________.





Note: An Employer may elect both a vesting
schedule and an additional Substantial Risk of Forfeiture. In such event, a
Participant failing to satisfy the conditions resulting in a Substantial Risk
of Forfeiture will forfeit his/her Account, even if 100% Vested under any
vesting schedule. If the Plan is an Ineligible 457 Plan, the


	
 

	
 


	
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Nonqualified Deferred Compensation Plan Adoption Agreement


Employer must specify a Substantial Risk of
Forfeiture, which may be a vesting schedule provided that under any “graded”
vesting schedule, an Ineligible 457 Plan Participant will be taxed as and when
each portion of his/her Deferred Compensation vests. 


         3.02  Immediate
Vesting upon Specified Events. A Participant’s entire Accrued
Benefit is 100% Vested without regard to Years of Service if the Participant’s
Separation from Service with the Employer on or following or as a result of (choose (a)
or choose one or more of (b) – (e)):


	
 

	
 

	
 


	
o

	
(a)

	
Not Applicable. 


	
 

	
 

	
 


	
x

	
(b)

	
Retirement Age. On
 or following Retirement Age.


	
 

	
 

	
 


	
x

	
(c)

	
Death. As a result
 of death.


	
 

	
 

	
 


	
x

	
(d)

	
Disability. As a
 result of Disability.


	
 

	
 

	
 


	
x

	
(e)

	
(Specify):
No longer a member of the Board of Directors of
East Fork Biodiesel, LLC.





Note: An early vesting provision generally
does not result in prohibited acceleration of benefits under Code §409A. See
Section 4.03(C).


         3.03  Application
of Forfeitures. The Employer will (choose only one of (a) – (d)):


	
 

	
 

	
 


	
x

	
(a)     Not
 Applicable. Not apply any provision regarding allocation of
 forfeitures since there are no Plan forfeitures.


	
 

	
 

	
 


	
o

	
(b)     Retain.
Keep
 all forfeitures for the Employer’s account.


	
 

	
 

	
 


	
o

	
(c)     Allocate.
 Allocate (in the year in which the forfeiture occurs) any forfeiture to the
 Accounts of the remaining (nonforfeiting) Participants, in accordance with
 one of the following methods (choose only one):


	
 

	
 

	
 


	
 

	
o

	
(i)     Per
 Compensation. In the same ratio each Participant’s Compensation
 for the Taxable Year bears to the total Compensation of all Participants
 sharing in the forfeiture allocation for the Taxable Year.


	
 

	
 

	
 


	
 

	
o

	
(ii)    Per
 Account balances. In the same ratio each Participant’s Account
 balance at the beginning of the Taxable Year bears to the total Account
 balances of all Participants sharing in the forfeiture allocation for the
 Taxable Year.


	
 

	
 

	
 


	
o

	
(d)

	
(Specify):
 ________________________________________________________________________.





         Note:
If the Employer elects to create the Trust under Section 5.03, the Employer
should coordinate its forfeiture application elections with the provisions of
the Trust.


ARTICLE
IV

BENEFIT
PAYMENTS


        4.01   Payment
Events/Elections. The Plan payment events are (choose one or more of (a) through (i)
as applicable): 


Note: The Employer must elect
the Plan permitted payment events. The Employer may elect all of the 409A
permitted events or limit the payment events, but the Employer must elect at
least one payment event. If the Plan permits initial payment elections, change
payment elections, or both, as to any or all of the Plan permitted payment
events, the Employer should elect 4.01(d)(iv), (e)(ii) and (i) as applicable.
The Employer also should elect under 4.02(A) and 4.02(B) as to who has election
rights and to specify any limitations on 


	
 

	
 


	
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Nonqualified Deferred Compensation Plan

Adoption Agreement 


such rights. If the Plan will not offer any initial or change payment
elections, the Employer should not elect 4.01(d)(iv), (e)(ii) or (i). If the
Plan will not offer any initial payment elections the Employer also should
elect 4.02(A)(a). If the Plan will not offer change payment elections, the
Employer also should elect 4.02(B)(a).


	
 

	
 

	
 


	
x

	
(a)

	
Separation
 from Service. 


	
 

	
 

	
 


	
x

	
(b)

	
Death. 


	
 

	
 

	
 


	
x

	
(c)

	
Disability.
 


	
 

	
 

	
 


	
o 
 (d)    Specified
Time. The Plan
permits payment to a Participant at a Specified Time (choose one of (i)- (iv)):  








	
 

	
 

	
 

	
 


	
 

	
o 

	
(i)     Forfeiture Lapse. At the time that
the
 Deferred Compensation no longer is subject to a Substantial Risk of
 Forfeiture.


	
 

	
 

	
 

	
 


	
 

	
o 

	
(ii)

	
Stated
 Age. Upon
 attainment of age: ____________ (specify
 age).


	
 

	
 

	
 

	
 


	
 

	
o 

	
(iii)

	
(Specify): On:
 __________________________(e.g.,
 January 1, 2015).


	
 

	
 

	
 

	
 


	
 

	
o 

	
(iv)

	
Election. In accordance with a Participant or
 Employer election under 4.02(A) or (B).





Note: The Employer must approve any Participant payment
election. See Section 4.06. Payment at a Specified Time will be a lump-sum
payment. 


	
 

	
 

	
 


	
o   (e)
   Fixed
Schedule. The Plan Permits payment to a Participant in accordance
with the following Fixed Schedule (choose
one of (i) or (ii)): 








	
 

	
 

	
 

	
 


	
 

	
o 

	
(i)

	
Schedule:         
                            
                     
                
                      
                     
   .


	
 

	
 

	
 

	
 


	
 

	
o 

	
(ii)

	
Election. In accordance with a Participant or
 Employer election under 4.02(A) or (B).





Note: The Employer must approve any Participant payment
election. See Section 4.06. Payment pursuant to a Fixed Schedule will be
installments or an annuity commencing at a specific time. 


	
 

	
 

	
 


	
x

	
(f)

	
Change in
 Control. The Plan
 permits payment to a Participant based on a Change in Control. 


	
 

	
 

	
 


	
o  (g)
   Unforeseeable
Emergency. The Plan
permits payment to a Participant who has an Unforeseeable Emergency. 


	
 

	
 

	
 


	
o 
 
(h)    (Specify):_________________________________________________________________________
________________________________________(e.g., based 
on  Unforeseeable  Emergency, but  only as   the  Elective Deferral Accounts). 





Note: The Employer in (h) may modify any of (a)-(g) but only
if such modifications are consistent with Code §409A. 


	
 

	
 

	
 

	
 


	
 

	
o   (i)
    Election.
As to 4.01 (a), (b), (c), (f), (g) and/or (h), in accordance with a
Participant or Employer election under 4.02(A) or (B). 





Note: The Employer must approve any Participant payment
election. See Section 4.06. 


         4.01(E)   Contractor deemed
Separation from Service.
In making any payment to a Contractor based on Separation from Service, the
Plan (choose (a) or choose one of (b) or (c)):



	
 

	
 

	
 


	
x

	
(a)

	
Not
 applicable. Only
 Employees are Participants in the Plan.








	
 

	
 


	
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Nonqualified Deferred Compensation Plan Adoption Agreement


	
 

	
 

	
 


	
o  (b)     Applies deemed Separation
from Service. Applies the
deemed Separation from Service provisions            of Section 4.01(E). 


	
 

	
 

	
 


	
o 

	
(c)

	
Does not
 apply. Does not
 apply the deemed Separation from Service provisions of Section 4.01(E).





         4.02
Timing, Form and Medium of
Payment/Elections. The Plan will pay a Participant’s Vested Accrued
Benefit as follows (complete (a), (b) and
(c)): 


	
 

	
 

	
 


	
 

	
(a)

	
Timing. Payment will commence or be made (choose
 only one of (i) - (vi)):


	
 

	
 

	
 


	
 

	
x

	
(i)  30 days. On a date which is 30 days
 following the payment event, unless otherwise made at a Specified Time or in
 accordance with a Fixed Schedule.


	
 

	
 

	
 


	
 

	
o

	
(ii) 90 days. On a date which is within 90
 days following the payment event, unless otherwise made at a Specified Time
 or in accordance with a Fixed Schedule.


	
 

	
 

	
 


	
 

	
Note: A
 Participant may not designate the Taxable Year of Payment under (a)(ii).


	
 

	
 

	
 


	
 

	
o

	
(iii) 6 months. On a date that is 6 months
 following the payment event, unless otherwise made at a Specified Time or in
 accordance with a Fixed Schedule.


	
 

	
 

	
 


	
 

	
o

	
(iv) Specified Time/Fixed Schedule. At
 the Specified Time under Section 4.01(d) or pursuant to the Fixed Schedule
 under Section 4.01(e).


	
 

	
 

	
 


	
 

	
o

	
(v) (Specify):
 ____________________________________________________________________. 


	
 

	
 

	
 


	
 

	
o

	
(vi) Election. In accordance with a
 Participant or Employer election under Sections 4.02(A) or (B).





Note: The Employer must approve any Participant payment
election. See Section 4.06(C). 


Note:
See Section 4.01(D) as to restrictions on
timing of payments to Specified Employees. 


	
 

	
 

	
 


	
 

	
(b)

	
Form. The Plan will make payment in the form of
 (choose one or more of (i) – (v)):


	
 

	
 

	
 


	
 

	
x

	
(i)   Lump-sum. A single payment.


	
 

	
 

	
 


	
 

	
x

	
(ii)  Installments. In installments as follows:
 On the first day of each calendar quarter for a period not to exceed ten (10)
 years.


	
 

	
 

	
 


	
 

	
o

	
(iii) Annuity. An immediate annuity contract.


	
 

	
 

	
 


	
 

	
o

	
(iv)
(Specify):_____________________________________________________________________.


	
 

	
 

	
 


	
 

	
x

	
(v)  Election. In accordance with a
 Participant or Employer election under Sections 4.02(A) or (B).





Note: The Employer must approve any Participant payment
election. See Section 4.06. 


	
 

	
 

	
 


	
 

	
(c)

	
Medium. The form of payment will be (choose only one of (i) -
(iv)): 


	
 

	
 

	
 


	
 

	
x

	
(i)   Cash only.


	
 

	
 

	
 


	
 

	
o

	
(ii)  Property only.


	
 

	
 

	
 








	
 

	
 


	
12     07/07

	
 











Nonqualified Deferred Compensation Plan

Adoption Agreement


	
 

	
 

	
 


	
 

	
o

	
(iii) Property or cash (or both). 


	
 

	
 

	
 


	
 

	
o

	
(iv) Election. In accordance with a
 Participant or Employer election under 4.02(A) or (B).





Note: The Employer must approve all
Participant payment elections. See Section 4.06.


Note: A choice between cash or property is
not subject to Code §409A. See Treas. Reg. §1.409A-2(a)(1). The Plan treats this election as not being
subject to the timing rules applicable to payment elections.


          4.02(A)
   Initial payment elections. The
Plan (choose
only one of (a) - (d)):


	
 

	
 

	
 


	
o

	
(a)      No initial payment elections. The
Plan
 and Adoption Agreement specify the payment events and the timing, form and
 medium of payment. If there are multiple payment events, the Plan will make
 payment based on the earliest event to occur except as follows:
 ________________________________________________________________ (indicate
 no exceptions or specify sequencing).


	
 

	
 

	
 


	
x

	
(b)       Participant initial payment
election.
 Permits a Participant initially to elect the payment event and the timing,
 form and medium of payment of his/her Deferred Compensation in accordance
 with Section 4.02(A) (choose only one of (i) or (ii)):


	
 

	
 

	
 


	
 

	
x

	
(i) All Accounts. The Plan applies a
 Participant’s elections to all of the Participant’s Accounts under the Plan.


	
 

	
 

	
 


	
 

	
o

	
(ii) Elective Deferral Account. The Plan
 applies a Participant’s elections only to the Participant’s Elective Deferral
 Account. The Employer will make all payment elections as to Nonelective and
 Matching Contribution Accounts.





Note: A Participant must elect a payment
event from those which the Employer has elected under 4.01 above, unless the
Employer has permitted a Participant to elect the 409A permissible payment
events. A Participant in his/her election form may limit the payment election
to Compensation Deferred at the time of the election or also may apply the
payment election to all future Deferred Compensation.


	
 

	
 

	
 


	
o

	
(c)      Employer initial payment election.
 Permits the Employer (and not the Participant) initially to elect the payment
 events and the timing, form and medium of payment of all Participant Accounts
 in accordance with Section 4.02(A).


	
 

	
 

	
 


	
o

	
(d)      (Specify):
 ___________________________________________________ (e.g., the Participant may
 make an election only as to the Participant’s Grandfathered Amounts).


	
 


	
Note: 

	
If a
Participant or the Employer does not make an initial payment election, see
Sections 4.01(B) and 4.02(A)(5).





          4.02(B)
   Change payment elections. The Plan
(choose
only one of (a) or (b); choose (c) if (b) applies and choose (d) if applicable):


Note: Even if the Employer under 4.02(A)(a)
elects not to permit any Participant or Employer initial payment elections, the
Plan under Section 4.02(A)(1)treats a Plan designation of the payment events
and of the timing, form and medium of payment as an initial election for
purposes of applying any change election the Plan permits.


	
 

	
 


	
o

	
(a)     Change payment elections not permitted.
 Does not permit a Participant, a Beneficiary or the Employer to make a change
 payment election in accordance with Section 4.02(B).








	
 

	
 


	
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Nonqualified Deferred Compensation Plan Adoption Agreement


	
 

	
 

	
 


	
x 

	
(b)      Permits change payment elections.
Permits
 changes payment elections or changes to a change payment elections in
 accordance with Section 4.02(B) and as follows (choose one or more of (i) -(iv)):


	
 

	
 

	
 


	
 

	
x

	
(i)   Participant election. Permits a
 Participant to make change payment elections.


	
 

	
 

	
 


	
 

	
o

	
(ii)  Employer election. Permits the Employer
 to make change payment elections.


	
 

	
 

	
 


	
 

	
o

	
(iii) Beneficiary election. Permits a
 Beneficiary following the Participant’s death to make change payment
 elections.


	
 

	
 

	
 


	
 

	
o

	
(iv)
 (Specify):
 _______________________________________________________________ (e.g.,
 a Beneficiary may make a change payment election only if the Participant had
 the right to do so, OR a Participant may make a change payment election only
 after attaining age 60).


	
 

	
 

	
 


	
o

	
(c)      Limit on number of change payment
elections.
 The number of change payment elections (as to any initial payment election)
 that a Participant, a Beneficiary or the Employer (as applicable) may make is
 (choose
 one of (i) or (ii)):


	
 

	
 

	
 


	
 

	
o

	
(i)  Unlimited. Not limited except as required
 under Section 4.02(B).


	
 

	
 

	
 


	
 

	
o

	
(ii) Limited. Limited to: ________ (specify
 number).


	
 

	
 

	
 


	
o

	
(d)

	
(Specify): _____________________________________________________ (e.g.,
 permits change payment elections only as to Elective Deferral Account).





          4.02(B)(3)(b)          Installment
payments. The Plan under
Section 4.03(B)(3)(b) for purposes of application of the change payment
election provisions treats an installment payment as a (choose one of (a), (b) or (c)):


	
 

	
 

	
 


	
x

	
(a)

	
Single payment.


	
 

	
 

	
 


	
o

	
(b)

	
Series of payments.


	
 

	
 

	
 


	
x

	
(c)     Treatment for 2005 through 2007.
For the
 period spanning 2005 through 2007, treat installments as (choose one
 of (i) or (ii)):


	
 

	
 

	
 


	
 

	
x

	
(i)  Single payment.


	
 

	
 

	
 


	
 

	
o

	
(ii)  Series of payments.





Note: If the Plan is a restated Plan, and the
Employer otherwise before January 1, 2008, did not make a written designation
regarding the treatment of installment payments, the Employer in (c) may elect
to apply a different election for the period spanning 2005 through 2007, than
applies after 2007 under (a) or (b). See Treas. Reg. 1.409A-2(b)(2)(iv).


	
 

	
 

	
 


	
o

	
(d)

	
Not applicable. The Plan does not permit
 installment payments.





          4.06(B)
Election changes/Irrevocability. A
Participant who makes an initial payment election or a change payment election
which the Employer has accepted (complete (a) and (b)):


	
 

	
 

	
 


	
 

	
(a)

	
Initial payment elections. (choose one
 of (i), (ii) or (iii)):


	
 

	
 


	
 

	
x     (i) May change. May
change the initial
 payment election as to the Deferred Compensation to which the election
 applies, until the applicable election deadline under 4.02(A)(2)(a). Any
 change to an initial payment election made after the initial payment election
 becomes irrevocable is a change payment election.








	
 


	
14   07/07











Nonqualified Deferred Compensation Plan

Adoption Agreement 


	
 

	
 

	
 


	
 

	
 

	
 


	
 

	
o  (ii) May not change. May
  not change the initial election as to the Deferred Compensation to which the
  election applies.


	
 

	
 

	
 


	
 

	
o 

	
(iii) Not applicable. As elected above, a
  Participant may not make an initial payment election.


	
 

	
 

	
 


	
(b)

	
Change payment elections. (choose one
  of (i), (ii) or (iii)):


	
 

	
 

	
 


	
 

	
x      (i)
May change. May change the
change payment election as to the Deferred Compensation to which the election
applies. Where the payment event is a Specified Time or a Fixed Schedule, the
Participant may change the election until the applicable deadline under
Section 4.02(B)(1)(a). Where the change payment election relates to any other
payment event (not a Specified Time or a Fixed Schedule), the Participant
must make the change within 30 days following the Participant’s making of the
change payment election which the Participant seeks to change. Any change to
a change payment election made after the change payment election becomes
irrevocable is a new change payment election. 


	
 

	
 

	
 


	
 

	
o      (ii)
May not change. May not change
the change payment election as to the Deferred Compensation to which the
election applies. 


	
 

	
 

	
 


	
 

	
o 

	
      (iii) Not applicable. As elected above, a
  Participant may not make a change payment election.


	
 

	
 

	
 


	
Note: An Elective Deferral election under
  Section 2.02(C) is a separate election which is not controlled by this
  election 4.06(B).





ARTICLE V

TRUST ELECTION AND INVESTMENTS


          5.02
No Trust. The Employer by electing
(a) or (b) below does not create the Trust described in Section 5.03. Section
5.02 applies. The Employer will credit each Participant’s Account with (choose one
or both of (a) or (b)):


	
 

	
 

	
 


	
 

	
o 

	
(a) Actual Earnings (choose only one of (i) through
(iv)):


	
 

	
 

	
 


	
 

	
 

	
o   (i) Employer direction. As a
result of the Employer’s directed investment of the Account.  


	
 

	
 

	
 


	
 

	
 

	
o   (ii) Participant direction. As a
result of the Participant’s directed investment of his/her own Account. 


	
 

	
 

	
 


	
 

	
 

	
o  (iii) Participant direction over Elective
Deferrals. As a result of the Participant’s directed investment of
his/her own Elective Deferral Account, and the Employer’s directed investment
of the balance of the Participant’s Account. 


	
 

	
 

	
 


	
 

	
 

	
o   (iv) (Specify):              
                     
             
             
               
              
        . 


	
 

	
 

	
 


	
 

	
x 

	
(b) Notional Earnings. (choose one or both of (i) or
(ii)):


	
 

	
 

	
 


	
 

	
 

	
x   (i)
Fixed/floating interest.
Interest at the rate of one percent (1%) below the Prime Rate and
applied to (choose only one of (A), (B) or (C)): 


	
 

	
 

	
 


	
Note: use blank to specify rate, fixed or
  floating with index, time interval, simple or compounded interest, etc.


	
 

	
 

	
 


	
 

	
 

	
 x   (A) Total Account. The Participant’s
entire Account. 


	
 

	
 

	
 


	
 

	
 

	
 o   (B) Deferrals only. The Participant’s
Elective Deferral Account, with the balance of the     Account being subject to
actual investment as specified in 5.02(a). 








	
 

	
 


	
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& Waterman LLP

Nonqualified Deferred Compensation Plan Adoption Agreement


	
 

	
 

	
 


	
 

	
 

	
     
o  (C) Employer Contribution only. The
Participant’s Employer Contribution Accounts         with the balance of the Account
being subject to actual investment as specified in 5.02(a). 


	
 

	
 

	
 


	
 

	
 

	
o 
(ii) (Specify):              
                     
             
             
               
              
        . 





          5.03
Trust. The Employer by electing
(a) or (b) below will establish the Trust described in Section 5.03 and
designated as Exhibit C. The Trust will be identical in form to the Model Rabbi
Trust issued by the Internal Revenue Service under Rev. Proc. 92-64 or any
successor thereto. The Employer also may modify the Trust if necessary to
comply with Applicable Guidance. The Employer will select among the optional
and alternative features available under the Trust, and the Employer will not
establish or adopt any other trust under the Plan. The version of the Trust the
Employer adopts is (choose one of (a) or (b)):


	
 

	
 


	
o

	
(a) Individually designed version.


	
 

	
 


	
o

	
(b) Adoption agreement version. 





EMPLOYER SIGNATURE


          The
Employer hereby agrees to the provisions of this Plan, and in witness of its
agreement, the Employer, by its duly authorized officer, has executed this
Adoption Agreement on September 17, 2007, 


	
 

	
 

	
 

	
 


	
 

	
Name of
  Employer:

	
East Fork Biodiesel, LLC


	
 

	
 

	
 

	









	
 

	
 

	
 

	
 


	
 

	
Employer’s
  EIN:    20-4195009


	
 

	
 

	
 

	









	
 

	
 

	
 

	
 


	
 

	
Signed: 


	
 

	
 

	
 

	









	
 

	
 

	
 

	
 


	
 

	
 

	
Kenneth M.
  Clark, President

	
[Name/Title]




16     07/07







LANE & WATERMAN LLP

PROTOTYPE

NONQUALIFIED

DEFERRED COMPENSATION PLAN

BASIC PLAN DOCUMENT
(Including Code §409A provisions)







Lane
& Waterman LLP Nonqualified Deferred Compensation Prototype Plan


NONQUALIFIED

DEFERRED COMPENSATION PLAN

BASIC PLAN DOCUMENT


          By
execution of the Adoption Agreement associated with this Basic Plan Document,
the Employer establishes this Nonqualified Deferred Compensation Plan (“Plan”)
for the benefit of certain Employees and Contractors the Employer designates in
its Adoption Agreement. The primary purpose of the Plan is to provide
additional compensation to Participants upon termination of employment or
service with the Employer. The Employer will pay benefits under the Plan only
in accordance with the terms and conditions set forth in the Plan.


PREAMBLE


          ERISA/Code Plan Type. The Employer in its
Adoption Agreement will specify whether it establishes the Plan as a
nonqualified deferred compensation plan or as an ineligible Code §457(f) plan.
A nonqualified deferred compensation plan is an unfunded plan that may be: (i)
an “excess benefit plan” under ERISA §3(36); (ii) a plan maintained “primarily
for the purpose of providing deferred compensation for a select group of
management or highly compensated employees” (“top-hat plan”) under ERISA
§§201(2), 301(a)(3) and 401(a)(1); (iii) a plan only for Contractors and exempt
from Title I of ERISA; or (iv) a church plan under Code §414(e) and ERISA
§3(33) and maintained by a church or church-controlled organization under Code
§3121(w)(3). A top-hat plan includes a supplemental executive retirement plan
(“SERP”). A tax-exempt Code §457(f) plan may include a church plan under Code
§414(e) and ERISA §3(33) but which is not sponsored by a church or
church-controlled organization under Code §3121(w)(3).


          409A Plan Type. The Employer in its
Adoption Agreement will specify whether it establishes the Plan as an Account
Balance Plan or as a Separation Pay Plan.


          Possible Nonuniformity. The Employer in its
Adoption Agreement will specify such Plan terms as will apply to all
Participants uniformly or as may apply to a given Participant. Except where the
Plan or Applicable Guidance require uniformity in order to comply with Code
§409A, the Employer need not provide the same Plan benefits or apply the same
Plan terms and conditions to all Participants, even as to Participants who are
of similar pay, title and other status with the Employer. The elections the
Employer makes in its Adoption Agreement apply uniformly to all Participants,
except to the extent the Employer adopts inconsistent provisions with respect
to one or more Participants in a separate attachment designated as “Exhibit A”
and attached to the Adoption Agreement. The Employer may create a separate
Exhibit A for one or more Participants, specifying such terms and conditions as
are applicable to a given Participant. The Employer, in Exhibit A, may modify
any Plan provision or any Adoption Agreement election as to one or more
Participants.


I. DEFINITIONS


          1.01
“Account” means the account the
Employer establishes under the Plan for each Participant and, as applicable,
means a Participant’s Elective Deferral Account, Nonelective Contribution
Account or Matching Contribution Account.


          1.02
“Account Balance Plan” means an
Elective Deferral Account Balance Plan or an Employer Contribution Account
Balance Plan, or a combination of both, as the Employer elects in its Adoption
Agreement.


          (A)
Elective Deferral Account Balance Plan. An Elective Deferral Account
Balance Plan is a plan comprised of an Elective Deferral Account as described
under Treas. Reg. §1.409A-1(c)(2)(i)(A). 


          (B)
Employer Contribution Account Balance Plan. An Employer Contribution
Account Balance Plan is a plan comprised of Employer Nonelective Contribution
Accounts, Matching Contribution Accounts, or both, as described under Treas.
Reg. §1.409A-1(c)(2)(i)(B). 


          1.03
“Accrued Benefit” means the total
dollar amount credited to a Participant’s Account.


	
 

	
 


	
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 2007 Lane & Waterman LLP

	
07/07     1











Nonqualified Deferred
Compensation Prototype Plan


          1.04
“Adoption Agreement” means the
document the Employer executes to establish the Plan and includes all Exhibits
and other documents referenced therein. 


          1.05
“Aggregated Plans” means this Plan
and any other like-type plan of the Employer in which a given Participant
participates and as to which the Plan (see Sections 2.02(B)(2) and 6.03(B)) or
Treas. Reg. §1.409A-1 (c)(2) requires the aggregation of all such nonqualified
deferred compensation in applying Code §409A. For this purpose, the following
rules apply:


          (A)
Participants in Separate Plans. The plan for a Participant is treated as
a separate plan from the plan for any other Participant, even though such plans
may be incorporated into a single written plan in this Plan and covering all
Participants. 


          (B)
Plan Types. The following plans under clauses (i), (ii) and (iii) are
not “like-type plans” and are treated as separate from each other: (i) all
Elective Deferral Account Balance Plans (including for aggregation purposes
only, Separation Pay Plans based on Voluntary Separation from Service); (ii)
all Employer Contribution Account Balance Plans (including for aggregation
purposes only, Separation Pay Plans based on Voluntary Separation from
Service); and (iii) all Separation Pay Plans based on Involuntary Separation
from Service or under a Window Program. 


          (C)
Dual Status. If a Participant in two like-type plans participates in one
plan as an Employee and in the other as a Contractor, the plans are not
Aggregated Plans. If an Employee also serves on the Employer’s board of
directors (or in a similar capacity with regard to a non-corporate entity) and
participates in like-type plans but participates in one plan as an Employee and
in the other as a director (or similar capacity with regard to a non-corporate
entity) [a “director plan”], the plans are not Aggregated Plans provided that
the director plan is substantially similar to a plan the maintains for
non-employee directors. If the director plan is not substantially similar, for
purposes of aggregation, the director plan is treated as a plan for Employees.
Director plans and plans for Contractors are subject to aggregation under this
Section 1.05. 


          1.06
“Applicable Guidance” means as the
context requires Code §§83, 409A and 457, Treas. Reg. §1.83, Treas. Reg.
§§1.409A-1 through -6, Treas. Reg. §1.457-11, or other written Treasury or IRS
guidance regarding or affecting Code §§83, 409A or 457(f), including, as
applicable, any Code §409A guidance in effect prior to January 1, 2008. 


          1.07
“Base Salary” means a
Participant’s Compensation consisting only of regular salary and excluding any
other Compensation.


          1.08
“Basic Plan Document” means this
Nonqualified Deferred Compensation Plan document.


          1.09
“Beneficiary” means the person or
persons entitled to receive Plan benefits in the event of a Participant’s
death.


          1.10
“Bonus” means a Participant’s
Compensation consisting only of bonus and excluding any other Compensation. A
Bonus also may be Performance-Based Compensation under Section 1.37.


          1.11
“Change in Control” means, as to
an Employer which is a corporation, a change: (i) in the ownership of the
Employer (acquisition by one or more persons acting as a group of more than 50%
of the total voting power or fair market value of the Employer); (ii) in the
effective control of the Employer (acquisition or acquisition during a 12-month
period ending on the date of the latest acquisition, by one or more persons
acting as a group of 30% or more of the total voting power of the Employer or
replacement of a majority of the members of the board of directors of the Employer
[described below, but including only the entity for which no other corporation
is a majority shareholder] during any 12-month period by directors not endorsed
by a majority of the board before the appointment or election); or (iii) in the
ownership of a substantial portion of the assets of the Employer (acquisition
or acquisition during a 12-month period ending on the date of the latest
acquisition, by one or more persons [other than related persons described in
Treas. Reg. §1.409A-3(i)(5)(vii)(B)] acting as a group of assets with a total
gross fair market value of 40% or more of the total gross fair market value of
all assets of the Employer immediately before such acquisition or
acquisitions), each within the meaning of Treas. Reg. §1.409A-3(i)(5) or in
Applicable Guidance. For this purpose, the Employer includes the Employer, the
corporation which is liable for the payment of the Deferred Compensation, a 


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majority shareholder
(more than 50% of total fair market value and voting power) of the foregoing or
a corporation in a chain of corporations in which each is a majority owner of
another corporation in the chain, ending in the Employer or in the corporation
that is liable for payment of the Deferred Compensation, all in accordance with
Treas. Reg. §1.409A-3(i)(5)(ii). An event constituting a Change in Control must
be objectively determinable and any certification thereof by the Employer or
its agents may not subject to the discretion of such person. For purposes of
applying this Section 1.11, stock ownership is determined in accordance with
Code §318(a) as modified under Treas. Reg. §1.409A-3(i)(5)(iii). The Employer
in its Adoption Agreement will elect whether a Change in Control includes any
or all the events described in clauses (i), (ii) or (iii) and also may elect to
increase the percentage change required under any such event to constitute a
Change in Control. Pending the issuance of Applicable Guidance as to the application
of the Change in Control provisions to partnerships (or other non-corporate
entities), if the Employer elects in its Adoption Agreement to permit Change in
Control as a payment event, the Employer will apply clauses (i) and (iii) and
clause (ii) as it relates to a change in the composition of the board of
directors by analogy in accordance with Treas. Reg. §1.409A, Preamble, II.G. 


          1.12
“Change in the Employer’s Financial Health”
means an adverse change in the Employer’s financial condition as described in
Applicable Guidance.


          1.13
“Code” means the Internal Revenue
Code of 1986, as amended.


          1.14
“Commissions” means Compensation
or portions of Compensation consisting of Sales Commissions or of Investment
Commissions. See Section 2.02(B)(5).


          (A)
Sales Commissions. Sales Commissions means Compensation or portions of
Compensation a Participant earns if: (i) a substantial portion of Participant’s
services to the Employer consists of the direct sale of a product or a service
to a customer that is not related or treated as related to the Employer or to
the Participant (under Treas. Reg. §§1.409A-1(f)(2)(ii)) and (iv)); (ii) the
Compensation the Employer pays to the Participant consists either of a portion
of the purchase price for the product or service or of an amount substantially
all of which is calculated by reference to volume of sales; and (iii) payment
is either contingent upon the Employer receiving payment from an unrelated
customer (as described in clause (i) above) for the product or services or, if
consistently applied as to all similarly situated service providers, is
contingent upon the closing of a sales transaction and such other requirements
as the Employer may specify before the closing of the sales transaction. 


          (B)
Investment Commissions. Investment Commissions means Compensation or
portions of Compensation a Participant earns if: (i) a substantial portion of
the Participant’s services to the Employer to which the Compensation relates
consists of sales of financial products or other direct customer services to a
customer that is not related or treated as related to the Employer or to the
Participant (under Treas. Reg. §§1.409A-1(f)(2)(ii)) and (iv)) as to customer
assets or customer asset accounts; (ii) the customer retains the right to
terminate the relationship and to move or liquidate the assets or asset
accounts without undue delay (but subject to a reasonable notice period); (iii)
the Compensation is based on a portion of the value of the overall assets or
asset account balance, substantially all of the Compensation is calculated by
reference to the increase in value of the overall assets of account balance, or
both; and (iv) the value of the overall assets or account balance and Investment
Commissions are determined at least annually. 


          (C)
Related Customer Commissions. This Section 1.14 also applies to Sales
Commissions and to Investment Commissions involving a related customer
provided: (i) the Employer as to unrelated customers makes substantial sales or
provides substantial services giving rise to Commissions; and (ii) the sales,
service and Commission arrangements with the related customer are bona fide,
arise from the Employer’s ordinary course of business and are substantially the
same, in terms and in practice, as those terms and practices that apply to
unrelated customers to which substantial sales are made or substantial services
are rendered. 


          1.15
“Compensation”


          (A)
Employees. Compensation means as to an Employee, gross W-2 compensation.
“W-2 Compensation” means wages for federal income tax withholding purposes, as
defined under Code §3401(a), plus all other payments to an Employee in the
course of the Employer’s trade or business, for which the Employer must furnish
the Employee a written statement under Code §§6041, 6051 and 6052, disregarding



	
 

	
 


	
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any rules
limiting the remuneration included as wages under this definition based on the
nature or location of the employment or service performed. “Gross W-2
compensation” means W-2 compensation plus all amounts excludible from a
Participant’s gross income under Code §§125,132(f)(4), 402(e)(3), 402(h)(2),
403(b), and 408(p), contributed by the Employer, at the Participant’s election,
to a cafeteria plan, a qualified transportation fringe benefit plan, a 401(k)
arrangement, a SEP, a tax sheltered annuity, or a SIMPLE plan. 


          (B)
Contractors. Compensation as to a Contractor means all payments by the
Employer to the Contractor for services during a Taxable Year. 


          (C)
Modifications. The Employer in its Adoption Agreement will elect whether
to modify the definition of Compensation. The Employer may modify the
definition of Compensation or may specify a different definition of
Compensation either as to Employees, as to Contractors or both.


          1.16
“Contractor” means a person or
entity providing services to the Employer (not as an Employee) as described in
Treas. Reg. §1.409A-1(f)(1) and which for any Taxable Year of the Contractor
that the Contractor is on the cash receipts and disbursements method of
accounting for Federal income tax purposes. A person serving on a board of
directors is a Contractor as to Compensation for such service without regard to
whether the person is an Employee for other purposes. A Contractor is not
subject to this Plan or to Code §409A if in the Taxable Year in which the
Legally Binding Right to Compensation arises: (i) the Contractor is actively
engaged in the trade or business of performing services other than as an
Employee or as a director (or similar position as to a non-corporate Employer);
(ii) the Contractor provides significant services to the Employer and to at
least 2 other unrelated service recipients, where the Contractor, the Employer
and the other service recipient(s) are all unrelated to each other within the
meaning of Treas. Reg. §§1.409A-1(f)(2)(i)(B) and (C) as applicable; and (iii)
the services are not “management services” within the meaning of Treas. Reg.
§1.409A-1(f)(2)(iv). For purposes of clause (ii) “significant services” means
as described in Treas. Reg. §1.409A-1(f)(2)(iii). This Plan and Code §409A also
do not apply to certain other “related” Contractor services as described in
Treas. Reg. §1.409A-1(f)(2)(v). 


          1.17
“Disability” except as the Plan
otherwise provides means a condition of a Participant who by reason of any
medically determinable physical or mental impairment which can be expected to
result in death or can be expected to last for a continuous period of not less
than 12 months: (i) is unable to engage in any substantial gainful activity; or
(ii) is receiving income replacement benefits for a period of not less than 3
months under an accident and health plan covering Employees. The Employer in
its Adoption Agreement will elect whether Disability includes all impairments
constituting Disability under this Section 1.17, or only certain specified
Disabilities which satisfy the foregoing definition. The Employer will
determine whether a Participant has incurred a Disability based on its own good
faith determination and may require a Participant to submit to reasonable
physical and mental examinations for this purpose. A Participant will be deemed
to have incurred a Disability if: (i) the Social Security Administration or
Railroad Retirement Board determines that the Participant is totally disabled;
or (ii) the applicable insurance company providing disability insurance to the
Participant under an Employer sponsored disability program determines that a
Participant is disabled under the insurance contract definition of disability,
provided such definition complies with the definition in this Section 1.17. 


          1.18.“Deferred Compensation” means the
Participant’s Account Balance attributable to Elective Deferrals and Employer
Contributions and includes Earnings on such amounts except where the Plan
otherwise provides. “Compensation Deferred” is Compensation that the Participant
or the Employer has deferred under this Plan. Compensation is Deferred
Compensation if: (i) under the terms of the Plan and the relevant facts and
circumstances, the Participant has a Legally Binding Right to Compensation
during a Taxable Year that the Participant has not actually or constructively
received and included in gross income; and (ii) pursuant to the Plan terms, the
Compensation is or may be payable to or on behalf of the Participant in a later
Taxable Year. Deferred Compensation includes Separation Pay paid
pursuant to a Separation Pay Plan except as otherwise described in Treas. Reg.
§1.409A-1(b)(9) relating to certain excluded Involuntary or Voluntary
Separation from Service or Window Programs and certain reimbursements, medical
benefits, in-kind benefits and limited payments. Deferred Compensation excludes
certain “short-term deferrals” and all other items described in Treas. Reg.
§§1.409A-1(b)(3), (4), (5), (6), (8), (10), (11) and (12) or in other
Applicable Guidance.


          1.19
“Earnings” means earnings, gain or
loss applicable to a Participant’s Account provided that such amounts reflect
actual predetermined investments or notional amounts which do not exceed a
reasonable 


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rate of
interest. Amounts credited to an Account that do not reflect actual
predetermined investments or a reasonable rate of interest are Deferred
Compensation and are not Earnings. For purposes of making the determination of
whether an amount is Earnings or is Deferred Compensation, the principles of
Treas. Reg. §31.3121(v)(2)-1(d)(2) apply. 


          1.20
“Effective Date” of the Plan is
the date the Employer specifies in the Adoption Agreement, but which is not
earlier than January 1, 2008. If this Plan restates a Plan (written or
otherwise) which was in effect before January 1, 2008, for periods before
January 1, 2008, as to 409A Amounts, the standards and transition rules in
effect under Notices 2006-79, 2006-64, 2003-33, 2006-4, Prop. Treas. Reg.
§1.409A, Preamble, Section XI and Notice 2005-1 apply. See also the Treas. Reg.
§1.409A Preamble, Section XII as to the treatment of certain actions which were
in compliance with Applicable Guidance in effect before the issuance of such
409A Regulations on April 17, 2007, but which are not in compliance with such
Regulations.


          1.21
“Elective Deferral” means
Compensation a Participant elects to defer into the Participant’s Account under
the Plan.


          1.22
“Elective Deferral Account” means
the portion of a Participant’s Account attributable to Elective Deferrals and
Earnings thereon.


          1.23
“Employee” means a person
providing services to the Employer as a common law employee (and not as a
Contractor) as described in Treas. Reg. §1.409A-1(f)(1) and who, for any
Taxable Year of the Employee, is on the cash receipts and disbursements method
of accounting for Federal income tax purposes. 


          1.24
“Employer” means the person or
entity: (i) receiving the services of the Participant (even if another person
pays the Deferred Compensation); (ii) with respect to whom the Legally Binding
Right to Compensation arises; and (iii) who or which executes an Adoption
Agreement establishing the Plan. The Employer includes all persons with whom
the Employer would be considered a single employer under Code §§414(b) or (c). In the case of an Ineligible 457 Plan,
Employer means a State or a Tax-Exempt Organization. For purposes of this Plan,
“Employer” means “service recipient” as that term in used in Treas. Reg. §1.409A-1 through -6. 


          1.25
“Employer Contribution” means
amounts the Employer contributes or credits to an Account under the Plan,
including Nonelective Contributions and Matching Contributions but not
including Elective Deferrals.


          1.26
“Employer Contribution Account”
means the portion of a Participant’s Account attributable to Employer
Contributions and Earnings thereon.


          1.27
“ERISA” means the Employee
Retirement Income Security Act of 1974, as amended.


          1.28
“409A Amount” means: (i) any Compensation Deferred prior to
January 1, 2005, unless such Deferred Compensation is a Grandfathered Amount;
and (ii) any Compensation Deferred in Taxable Years beginning after December
31, 2004. In determining 409A Amounts, the rules of Section 1.05 regarding
Aggregated Plans apply. 


          1.29
“Grandfathered Amount” means an
amount of Deferred Compensation hereunder as to which, prior to January 1,
2005, a Participant: (i) had a Legally Binding Right to be paid Deferred
Compensation; and (ii) was Vested. However, if the Employer after October 3,
2004, materially modifies the Plan as described in Treas. Reg. 1.409A-6(a)(4),
then such amount ceases to be a Grandfathered Amount. In determining Grandfathered
Amounts, the rules of Section 1.05 regarding Aggregated Plans apply.


          1.30
“Ineligible 457 Plan” means this
Plan which is subject to Code §457(f) and that is not an eligible 457 plan
under Code §457(b).


          1.31
“Legally Binding Right” means, in
reference to Compensation, the grant by the Employer to the Participant of an
enforceable right (under contract, statute or other applicable law) to
Compensation where, after the Participant has performed the services which
created the Legally Binding Right, the Compensation is 


	
 

	
 


	
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not subject to unilateral
reduction or elimination by the Employer or any other person. The Employer,
based on the facts and circumstances and in accordance with Treas. Reg.
§1.409A-1(b)(1), will determine: (i) whether a Legally Binding Right exists; or
(ii) whether a Legally Binding Right does not exist on account of the existence
of negative discretion which has substantive significance to reduce or
eliminate the Compensation. Negative discretion does not exist where the
Participant has effective control over the person with the negative discretion,
has effective control over any portion of compensation of the decision maker or
is a family member of the decision maker (within the meaning of Code §267(c)(4)
applied as if the family of an individual includes the spouse of any member of
the family). Compensation is not subject to unilateral reduction or elimination
merely because: (i) it may be reduced or eliminated by operation of objective
Plan terms, such as a Substantial Risk of Forfeiture; (ii) the Compensation is
determined under a formula that provides for an offset based on benefits
provided under another plan, including a qualified plan; or (iii) benefits are
reduced on account of actual or notional investment losses, or, in a final
average pay plan, because of subsequent decreases in compensation. 


          1.32
“Matching Contribution” means a
fixed or discretionary Employer contribution made with respect to a
Participant’s Elective Deferral. 


          1.33
“Matching Contribution Account”
means the portion of a Participant’s Account attributable to Matching
Contributions and Earnings thereon.


          1.34
“Nonelective Contribution” means a
fixed or discretionary Employer Contribution that is unrelated to a
Participant’s Elective Deferrals.


          1.35
“Nonelective Contribution Account”
means the portion of a Participant’s Account attributable to Nonelective Contributions
and Earnings thereon.


          1.36
 “Participant” means an Employee or Contractor the
Employer designates under Adoption Agreement Section 2.01 or in Exhibit “B” to
the Adoption Agreement to participate in the Plan. For purposes of this Plan, “Participant”
means a “service provider” as that term in used in Treas. Reg. 1.409A-1
through-6, who is a participant in the Plan. A reference herein to “service
provider” means another service provider to the Employer, whether or not that
person is a Participant.


          1.37
“Performance-Based Compensation”
means Compensation (including a Bonus) where the amount of, or entitlement to,
the Compensation is contingent on satisfaction of preestablished organizational
or individual performance criteria relating to a performance period of at least
12 consecutive months. The Employer must establish the organizational or
individual performance criteria in writing not later than 90 days after
commencement of the performance period and the outcome must be substantially
uncertain at the time that the Employer establishes the performance criteria.
The Employer may establish performance criteria without the necessity of action
by its shareholders, board of directors, compensation committee or similar
entities in the case of a non-corporate Employer. Performance-Based
Compensation does not include any amount that will be paid regardless of
performance or that will be paid based on a level of performance that is
substantially certain to be met at the time the criteria are established. If
the Plan will pay the Participant’s Performance-Based Compensation in the event
of the Participant’s death or disability or if a Change in Control occurs,
without regard to whether the performance criteria have been satisfied, the Compensation
is not Performance-Based Compensation (and therefore is not entitled to the
election timing under Section 2.02(B)(4)) if payment occurs as a result of any
of such events. “Disability” for purposes of this Section 1.37 means any
medically determinable physical or mental impairment resulting form the
Participant’s inability to perform the duties of his/her position or of any
substantially similar position, where such impairment can be expected to result
in death or to last for a continuous period of not less than 6 months.
Performance-Based Compensation does not include an amount of Compensation which
is based on a specified number of shares of stock multiplied by the share price
at the end of the performance period, but may include an amount of Compensation
based on an increase in share price over the performance period or which is not
payable unless the share price is at or above a specified price.
Performance-Based Compensation may be based on subjective performance criteria
provided: (i) the criteria are bona fide and relate the Participant’s
performance, a group of service providers that includes the Participant or a
business unit for which the Participant provides services which may include the
Employer; and (ii) the person who decides whether the subjective performance
criteria have been met is someone other than the Participant, the Participant’s
family member (within the meaning of Code §267(c)(4) applied as if the family
of an individual includes the spouse of any member of the family), or 


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a person under
the effective control of the Participant or such a family member. In addition,
the decision maker’s compensation may not be controlled in whole or in part by
the Participant or such a family member. The Employer will determine the status
of Compensation as Performance-Based Compensation in accordance with Treas.
Reg. §1.409A-1(e) and Applicable Guidance.


          1.38
“Plan” means the Nonqualified
Deferred Compensation Plan of the Employer established by and including the
Adoption Agreement, the Basic Plan Document, the Trust, if any, and all
notices, forms, elections and other written documentation to which the Plan
refers. The Employer will set forth the name of the Plan in its Adoption
Agreement. For purposes of applying Code §409A requirements this Plan, as the
Employer elects in its Adoption Agreement, is an Elective Deferral Account
Balance Plan, an Employer Contribution Account Balance Plan or both, or is a Separation
Pay Plan. This Plan does not constitute: (i) a Code §401(a) plan with and
exempt trust under Code §501(a); (ii) a Code §403(a) annuity plan; (iii) a Code
§403(b) annuity; (iv) a Code §408(k) SEP; (v) a Code §408(p) Simple IRA; (vi) a
Code §501(c)(18) trust to which an active participant makes deductible
contributions; (vii) a Code §457(b) plan; or (viii) a Code §415(m) plan.


          1.39
“Retirement Age” means the date
(if any) the Employer elects in the Adoption Agreement. 


          1.40
“Separation from Service” 


          (A)
Employees. Separation from Service means in the case of an Employee, the
Employee’s termination of employment with the Employer whether on account of
death, retirement, Disability or otherwise.


                    
(1) Insignificant or Significant Service/Presumptions. The Employer will
determine whether an Employee has terminated employment (and incurred a
Separation from Service) based on whether the facts and circumstances as
described in Treas. Reg. §1.409A-1(h)(1)(ii). An Employee incurs a Separation
from Service if the parties reasonably anticipate, based on the facts and
circumstances, the Employee will not perform any additional services after a
certain date or that the level of bona fide services (whether performed as an
Employee or as a Contractor) will permanently decrease to no more than 20% of
the average level of bona fide services performed (whether performed as an
Employee or as a Contractor) over the immediately preceding 36-month period
(or, if less, the period the employee has rendered service to the Employer)
(“average prior service”). An Employee is presumed to have incurred a
Separation from Service if the Employee’s service level decreases to 20% or
less than the average prior service and an Employee is presumed to not have
incurred a Separation from Service if the Employee’s service level continues at
a rate which is 50% or more of the average prior service. No presumption
applies where the Employee’s service level is more than 20% and less than 50% of
the average prior service.


                    (2)
Effect of Leave. An Employee does not incur a Separation from Service if
the Employee is on military leave, sick leave, or other bona fide leave of
absence if such leave does not exceed a period of 6 months, or if longer, the
period for which a statute or contract provides the Employee with the right to
reemployment with the Employer. If a Participant’s leave exceeds 6 months but
the Participant is not entitled to reemployment under a statute or contract,
the Participant incurs a Separation from Service on the next day following the
expiration of 6 months. A leave of absence constitutes a bona fide leave of
absence for this Section 1.40 only if there is a reasonable expectation that
the Employee will return to perform services for the Employer. Where a leave of
absence is due to any medically determinable physical or mental impairment that
can be expected to result in death or to last for a continuous period of at
least 6 months, and where the Participant cannot perform his/her duties or the
duties of any substantially similar position, in determining when a Separation
from Service occurs, the above 6 month period is 29 months unless the Employer
or the Employee terminate the leave sooner. For purposes of determining average
prior service under Section 1.40 (A)(1), during a paid leave of absence which
is not a Separation From Service, the Employee is treated as rendering bona
fide services at a level that would have been required to earn the amount paid
during the leave. If the leave of absence is unpaid, the leave period is
disregarded in determining average prior service.


                    (3)
Alternative Definition. In lieu of applying Section 1.40(A)(1), the
Employer or Participant in an initial payment election or in a change payment
election may elect a percentage of reduced bona fide services resulting in a
Separation from Service which percentage must be greater than 20% and less than
50% of prior average service, determined over the immediately preceding 36
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          (B)
Contractors. Separation from Service, in the case of a Contractor, means
the expiration of the contract (or all contracts) under which the Contractor
performs services for the Employer provided that the expiration constitutes a
good-faith and complete termination of the contractual relationship between the
Contractor and the Employer. A good-faith and complete termination does not
occur if the Employer anticipates a renewal of the service contract or the
Employer anticipates the Contractor becoming an Employee. The Employer
anticipates the renewal of the contract if the Employer intends to contract
again for the services provided under the expired contract and neither the
Employer nor the Contractor has eliminated the Contractor as a possible
provider of such additional services. The Employer is deemed to intend renewal
of the Contractor’s expired contract if renewal is conditioned only upon
incurring a need for services, the Employer’s ability to pay for the services,
or both. See Section 4.01(E) as to Contractor “deemed” Separation from Service
provisions. 


          (C)
Involuntary Separation from Service (including for “good reason”).
“Involuntary Separation from Service” means a Separation from Service due to
the Employer’s independent exercise of unilateral authority to terminate the
Participant’s services (other than due the Participant’s implicit or explicit
request), where the Participant was willing and able to continue performing
services for the Employer. Involuntary Separation from Service may include the
Employer’s failure to renew the service contract at the time the contract
expires provided that the Participant was willing and able to execute a new
contract on substantially the same terms and conditions as the expiring
contract and to continue providing such services. The Employer will make the
determination as to whether an Involuntary Separation from Service has occurred
based on all of the facts and circumstances and in accordance with Treas. Reg.
§1.409A-1(n). For this purpose, a Participant’s voluntary Separation from
Service is treated as an Involuntary Separation from Service if it is for “good
reason” as described in Treas. Reg. §§1.409A-1(n)(2). For this purpose, the
Separation from Service is deemed to be for a good reason if it occurs during a
limited period not to exceed 2 years following the initial existence of the
following without the Participant’s: consent (i) a material reduction in the
Participant’s base compensation (including Base Salary); (ii) a material
reduction in the Participant’s authority, duties or responsibilities; (iii) a
material reduction in the authority, duties or responsibilities of the
Participant’s supervisor, including a change in the Participant’s reporting
responsibilities to a lower level than the board of directors or similar
authority in a non-corporate entity; (iv) a material reduction in the
Participant’s budget; (v) a material change in the location at which the
Participant renders service; or (vi) any other action or inaction that
constitutes the Employer’s material breach of the agreement under which the
Participant provides services to the Employer. In addition, to be a deemed
“good reason” the amount, time and form of payment upon Separation from Service
must be substantially identical to the amount payable upon an actual
Involuntary Separation from Service, if such right exists, and the Participant
must provide notice to the Employer within 90 days of the initial existence of
the condition and afford the Employer at least 30 days to remedy the condition
without having to pay the Compensation.


          (D)
Voluntary Separation from Service. “Voluntary Separation from Service”
means a Separation from Service which is not an Involuntary Separation from
Service under Section 1.40(C).


          (E)
“Employer” for Purposes of Separation Rules. The “Employer” for purposes
of applying this Section 1.40 (determining Separation from Service under the
Plan) means as defined under Section 1.24 but by applying 50% in lieu of 80% in
applying Code §§414(b) and (c). The Employer in lieu of applying the previous
sentence may elect in its Adoption Agreement to use a percentage equal to not
less than 20% and not more than 80% in determining related employers under Code
§§414(b) and (c); provided that the Employer may not elect to apply a
percentage which is less than 50% unless there are legitimate business criteria
for doing so. 


          (F)
Dual Capacity. If a Participant renders service to the Employer both in
the capacity as an Employee and as a Contractor (or changes status from
Employee to Contractor or vice versa), the Participant must incur a Separation
from Service in both capacities to constitute a Separation from Service. For
this purpose, if a Participant renders service both as an Employee and as a
member of the Employer’s board of directors (or an analogous position in the
case of a non-corporate Employer) the director services (or the Employee
services if this Plan relates to director services) are disregarded in
determining whether the Participant has incurred a Separation from Service as
to this Plan provided that the plans are not Aggregated Plans. 


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          (G)
Certain Asset Sales. In accordance with and subject to Treas. Reg.
§1.409A-1(h)(4), if the Employer sells its assets to an unrelated party
purchaser where the Participants otherwise would incur a Separation from
Service and where such Participants will provide services to the purchaser
after the sale closing, the Employer and the purchaser retain discretion no
later than the asset sale closing date to specify in writing whether the
Participants will incur a Separation from Service. In making such
determination, the Employer and the purchaser must treat all affected
Participants consistently.


          (H)
Collectively Bargained Multiple Employer Plan. If the Plan is
established pursuant to a bona fide collective bargaining agreement covering
services rendered for multiple employers, the Employer (which for this purpose
means the employer which executes the Adoption Agreement) in its Adoption
Agreement may elect to define Separation from Service in a reasonable manner
that treats an Employee as not having separated during periods in which the
Employee is not providing services but is available to do so for one or more
employers. However, such alternative definition must also provide that the
Employee is deemed to have incurred a Separation from Service at a specified
date not later than the end of any period of at least 12 consecutive months
during which time the Employee has not provided any service covered by the
collective bargaining agreement to any participating employer. The Employer
will apply this section in accordance with the requirements of Treas. Reg.
§1.409A-1(h)(6).


          1.41
“Separation Pay” means any
Deferred Compensation (applied before application of any exclusion applicable
to Separation Pay Plans under Treas. Reg. §1.409A-1(b)(9)) that will not be
paid under any circumstances unless the Participant incurs a Separation from
Service, whether voluntary or involuntary, including payments in the form of
reimbursements for expenses incurred and provision of in-kind benefits.
Deferred Compensation that a Participant may receive without incurring a
Separation from Service is not Separation Pay merely because the Participant
elects to receive or receives payment upon or after Separation from Service.
Deferred Compensation does not fail to constitute Separation Pay merely because
the Participant must execute a release of claims, noncompetition agreement or
nondisclosure agreement or is subject to similar requirements. Any amount or
entitlement that acts as a substitute for, or replacement of, Deferred
Compensation is a payment of Deferred Compensation and is not Separation Pay. 


          1.42
“Separation Pay Plan” means any
plan that provides for Separation Pay, including the portion of any plan that
provides for Separation Pay, under Treas. Reg. §§1.409A-1(m). The Employer in
its Adoption Agreement will elect whether this Plan is a Separation Pay Plan
and will elect whether the plan pays benefits in the event of Involuntary Separation
from Service, Voluntary Separation from Service, pursuant to a Window Program
or a combination thereof.


          1.43
“Service Year” means a
Participant’s Taxable Year in which the Participant performs services which
give rise to Compensation. A “service period” or “performance period” means a
Service Year or such other period in which a Participant performs services for
the Employer giving rise to Compensation. 


          1.44
“Specified Employee” means a
Participant who is a key employee as described in Code §416(i)(1)(A),
disregarding paragraph (5) thereof and using compensation as defined under
Treas. Reg. §1.415(c)-2(a). However, a Participant is not a Specified Employee
unless any stock of the Employer is publicly traded on an established securities
market or otherwise and the Participant is a Specified Employee on the date of
his/her Separation from Service. If a Participant is a key employee at any time
during the 12 months ending on the Specified Employee identification date, the
Participant is a Specified Employee for the 12 month period commencing on the
Specified Employee effective date. The Specified Employee identification date
is December 31. The Specified Employee effective date is the April 1 following
the Specified Employee identification date. The Employer, in determining
whether this Section 1.44 and all related Plan provisions apply, will determine
whether the Employer has any publicly traded stock as of the date of a
Participant’s Separation from Service. In the case of certain corporate
transactions (a merger, acquisition, spin-off or initial public offering), or
in the case of nonresident alien Employees, the Employer will apply the
Specified Employee provisions of the Plan in accordance with Treas. Reg.
§1.409A-1(i) and other Applicable Guidance. Notwithstanding the foregoing, the
Employer in its Adoption Agreement, and in accordance with Treas. Reg.
§1.409A-1(i) and other Applicable Guidance, may make the following elections:
(i) use of any Code §415 definition of compensation for Specified Employee
determination; (ii) designation of an alternative Specified Employee
identification date; (iii) designation of an alternative Specified Employee
effective date; (iv) use of an alternative method to identify Participants who
will be subject to the 6 month delay rule in Section 4.01(D); (v) certain
elections in the context of corporate transactions; and (vi) certain elections
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alien
Employees. The Employer’s election under clauses (ii) or (iii) regarding an
identification date or effective date made on or before December 31, 2007,
applies to any Separation from Service occurring on or after January 1, 2005,
unless the Employer subsequently changes the identification date and/or
effective date. Such elections are effective as of the date that all necessary
corporate action has been taken to make the election binding as to all
nonqualified deferred compensation plans in which service providers of the
Employer who would become a Specified Employees participate. The Employer must
apply all such elections consistently as to all service providers. The Employer
will apply the Specified Employee provisions of the Plan, including the
elections described in this Section 1.44, in accordance with Treas. Reg.
§1.409A-1(i) and other Applicable Guidance.


          1.45
“Specified Time or Fixed Schedule”
means, in reference to a payment of Deferred Compensation, the Employer, at the
time of the deferral of the Compensation can objectively determine: (i) the
amount payable; and (ii) the payment date or dates. An amount is objectively
determinable if the deferral election specifically identifies the amount or if
the Employer can determine the amount at the time it is due pursuant to an
objective, nondiscretionary formula specified at the time of deferral. 


          (A)
Dates and Period(s). A payment is scheduled to occur at a specified time
if it is a lump sum payment on a specific date, or a specific, objectively
determinable date, including following the lapse of a substantial risk of
forfeiture. A payment is scheduled to occur on a fixed schedule if it is a
series of payments (which may include an annuity or a series of installments)
payable on specific dates or on specifically, objectively determinable dates
including following the lapse of a substantial risk of forfeiture. The
designation of a Taxable Year of the Participant, or a defined period within a
Taxable Year of the Participant, in which payment will occur is adequate
designation of a specific date. For purposes of Sections 4.02 and 4.05, if the
date specified is only a designated Taxable Year of the Participant, or a
period of time during such a Taxable Year, the date specified under the plan is
treated as the first day of such Taxable Year or the first day of the period of
time, as applicable.


          (B)
Limitations and Link to Employer Receipts. A Fixed Schedule may include
certain: (i) limitations on the amount payable at a specified time of during a
specified period expressed either as a stated limit or based on an objective
nondiscretionary formula; and (ii) payment schedules based on the timing of
payments received by the Employer as described in Treas. Reg. §§1.409A-3(i)(1)(ii)
and (iii) and other Applicable Guidance. 


          (C)
Tax Gross-Up Payments. A Specified Time or Fixed Schedule may include
tax gross-up payments made by the end of the Participant’s Taxable Year which
follows the Taxable Year in which the Participant remits the related taxes
resulting from compensation paid or made available to the Participant by the
Employer, as described in Treas. Reg. §1.409A-3(i)(1)(v) and other Applicable
Guidance.


          1.46
“State” means: (i) one
of the fifty states of the United States or the District of Columbia, or (ii) a
political subdivision of a State, or any agency or instrumentality of a State
or its political subdivision. A State does not include the federal government
or an agency or instrumentality thereof.


          1.47
“Substantial Risk of Forfeiture” 


          (A)
409A Amounts. Substantial Risk of Forfeiture means as to 409A Amounts,
and other than for purposes of application of Code §457(f), Compensation which
is payable conditioned: (i) on the performance of substantial future services
by any person including the Participant; or (ii) on the occurrence of a
condition related to a purpose of the Compensation, and where under clause (i)
or (ii) the possibility of forfeiture is substantial. A condition related to
the purpose of the Compensation relates to the Participant’s performance for
the Employer or to the Employer’s business activities or organizational goals.
A Substantial Risk of Forfeiture includes conditioning payment on the
Participant’s Involuntary Separation from Service without cause provided the
possibility of not incurring such a Separation from Service is substantial.
Except as to payment of Compensation related to a Change in Control, a
Substantial Risk of Forfeiture does not include any addition of a condition
after a Legally Binding Right to the Compensation arises or any extension of a
period during which the Compensation is subject to a Substantial Risk of
Forfeiture. Compensation is not subject to a Substantial Risk of Forfeiture
merely because payment is conditioned on the Participant’s refraining from
performing services. Compensation is not subject to a Substantial Risk of
Forfeiture beyond the date or time that the 


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Participant
otherwise could have elected to receive the Compensation unless the present
value of the amount subject to the Substantial Risk of Forfeiture (determined
without regard to the Substantial Risk of Forfeiture) is materially greater
than the present value of the amount that the Participant otherwise could have
elected to receive, absent the Substantial Risk of Forfeiture. As such, a
Participant’s Elective Deferrals generally may not be made subject to a
Substantial Risk of Forfeiture if the Participant could have elected to receive
an equivalent amount in cash. In addition, Compensation the Participant would
receive for continuing to perform service for the Employer (such as through the
extension of an employment contract) is disregarded in determining whether the
present value of such nonvested payment amount is materially greater than the
Compensation which the Participant could have elected to receive presently. In
determining whether the possibility of forfeiture is substantial in the case of
rights to Compensation granted to a Participant who owns significant voting
power or value in the Employer, the Employer in accordance with Treas. Reg.
§1.409A-1(d)(3) and Applicable Guidance, will take into account all relevant facts
and circumstances.


          (B)
Grandfathered Amounts. A Substantial Risk of Forfeiture for
Grandfathered Amounts is defined in Treas. Reg. §1.83-3(c) and in Notice
2005-1, Q/A-16(b) or in Applicable Guidance. 


          (C)
Ineligible 457 Plan. A Substantial Risk of Forfeiture for purposes of
application of Code §457(f) under an Ineligible 457 Plan is described in Code
§457(f)(3)(B), Treas. Reg. §1.83-3(c) and Applicable Guidance.


          1.48
“Tax-Exempt Organization”
means any tax-exempt organization other than: (i) a governmental unit; or (ii)
a church or a qualified church-controlled organization within the meaning of
Code §§3121(w)(3)(A) and 3121(w)(3)(B).


          1.49
“Taxable Year” means as to the
Participant, the Participant’s taxable year and means as to the Employer, the
Employer’s taxable year, in each case as the Plan provides or as the context
otherwise requires. 


          1.50
“Trust” means the trust, if any,
described in Section 5.03 of the Basic Plan Document and which the Employer in
its Adoption Agreement elects to create.


          1.51
“Unforeseeable Emergency” means:
(i) a severe financial hardship to the Participant resulting from an illness or
accident of the Participant, the Participant’s spouse, a Beneficiary or the
Participant’s dependent (as defined in Code §152 but without regard to Code
§§152(b)(1), (b)(2) and (d)(1)(B)); (ii) loss of the Participant’s property due
to casualty; or (iii) other similar extraordinary and unforeseeable
circumstances arising as a result of events beyond the Participant’s control.
The Employer in its Adoption Agreement will elect whether to permit payment
based on a Participant’s Unforeseeable Emergency. The Employer will determine
whether a Participant incurs an Unforeseeable Emergency based on the relevant
facts and circumstances and in accordance with Treas. Reg. §1.409A-3(i)(3) or
Applicable Guidance, but in any case, the Plan may not make payment to the
extent that the Unforeseeable Emergency may be relieved: (i) through
reimbursement or compensation from insurance or otherwise; (ii) by liquidation
of the Participant’s assets to the extent that such liquidation of assets would
not itself cause severe financial hardship; or (iii) by the Participant’s
cessation of Elective Deferrals under the Plan. The Plan must limit the amount
of any payment based on Unforeseeable Emergency to the amount that is
reasonably necessary to satisfy the emergency need, which may include amounts
necessary to pay any Federal, state, local or foreign income taxes or penalties
reasonably anticipated to result from the payment. The Employer in making the
determination as to the amount of payment must take into account any additional
Compensation available to the Participant upon cancellation of an Elective
Deferral election under Section 4.03(D)(vii). However, the Employer in
determining “necessity” may disregard amounts available as a hardship
distribution or a loan from a qualified plan or as an unforeseeable emergency
distribution from another nonqualified plan, regardless of whether such amount
is 409A Amount or is a Grandfathered Amount. If the Employer in its Adoption
Agreement elects to permit payment based on Unforeseeable Emergency, the
Employer further will elect whether to permit payment based on all events that will
constitute an Unforeseeable Emergency or to limit such events to a subset of
specific events which will so qualify. The Employer will not pay a Participant
any Deferred Compensation based an Unforeseeable Emergency unless the
Participant requests such payment on a form the Employer provides for this
purpose, the Employer determines that the payment would qualify under the Plan
terms as being based on the Participant’s Unforeseeable Emergency, and the
Employer in its sole discretion otherwise approves the payment. Neither a
Participant’s request or failure to request an Unforeseeable Emergency payment
nor the Employer’s acceptance or rejection of such a request is a change
payment election under Section 4.02(B).


	
 

	
 


	
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          1.52
“USERRA” means the Uniformed
Services Employment and Reemployment Rights Act of 1994, as amended.


          1.53
“Valuation Date” means the last
day of each of the Employer’s Taxable Year and such other dates as the Employer
may determine.


          1.54
“Vested” means an amount of
Deferred Compensation which is not subject to a Substantial Risk of Forfeiture
or to a requirement to perform further services for the Employer. For purposes
of determining whether an amount satisfies the vesting requirement for
Grandfathered Amounts under Article VII, the definition of Substantial Risk of
Forfeiture in Section 1.47(B) applies.


          1.55
“Window Program” means a program
the Employer establishes in connection with an impending Separation from
Service to provide Separation Pay to separated Participants and which program
is available only for a period of up to 12 months for Participants who separate
during such period or who separate during such period under specified
circumstances. A Window Program does not include a program the Employer
establishes under which there is a pattern of repeated provision of similar
Separation Pay in similar situations for substantially consecutive limited
periods of time. Whether a recurrent program constitutes such a pattern depends
upon all of the facts and circumstances, including whether the benefits are
account of a specific event or condition, the degree to which the separation
pay relates to the event or condition and whether the event or condition is
temporary or discrete or is a permanent aspect of the Employer’s business. 


          1.56
“Wraparound Election” means as to
a Participant who also is a participant in a 401(k) plan of the Employer, an
election (or elections, if made separately) to defer compensation under both
plans with the result that the Participant will achieve under the 401(k) plan,
the maximum amount of elective deferrals and matching contributions, if any, as
is permissible under the 401(k) plan terms and under Code §§402(g), 401(k)(3),
401(m), 415 and 414(v). For any Participant’s Taxable Year, the maximum amount
of Elective Deferrals the Plan will transfer as to the Participant (and
corresponding decrease in amounts of Compensation Deferred to this Plan) may
not exceed the Code §402(g) limit (but increased by catch-up contributions
under Code §414(v) for any year in which the Participant is catch-up eligible).
For any Participant’s Taxable Year, the maximum amount of Matching Contributions
the Plan will transfer as to the Participant (and corresponding decrease in
amounts of Compensation Deferred to this Plan) may not exceed the maximum
amount of matching contributions that would be provided under the 401(k) plan
absent any plan-based restrictions which reflect Code limits on qualified plan
contributions. Under a Wraparound Election, the Plan promptly following
completion of 401(k) plan testing and within any time required under Applicable
Guidance, will transfer from the Participant’s Account such Elective Deferrals
and related Matching Contributions for the Taxable Year (but without Earnings
thereon) as are consistent with the Wraparound Election, to the Participant’s
account under the 401(k) plan to be held and administered in accordance with
the 401(k) plan. Any remaining amounts not transferred to the 401(k) plan will
remain in and be administered in accordance with this Plan. The Employer in its
Adoption Agreement will specify whether a participant may make a Wraparound Election.
A Participant will make a Wraparound Election subject to any timing
requirements of Applicable Guidance and on a form the Employer provides for
this purpose.


          1.57
“Year of Service” means the
requirements, if any, the Employer specifies in its Adoption Agreement.


II. PARTICIPATION


          2.01
Participants Designated. The Employer will designate from time to time
in its Adoption Agreement those Employees or Contractors (by name, job title or
other classification) who are Participants in the Plan.


          2.02
Elective Deferrals. The Employer will specify in its Adoption Agreement
whether Participants may elect to make Elective Deferrals to their Accounts. 


          (A)
Limitations. The Employer will specify in its Adoption Agreement any amount
limitations or conditions applicable to Elective Deferrals.


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          (B)
Election Form and Timing. A Participant must make his/her Elective
Deferral election on an election form the Employer provides for that purpose.
The Participant must make the election no later than the latest of the
applicable times specified below. The Employer in its Adoption Agreement will
elect that a Participant must make and deliver his/her election to the Employer
no later than: (i) such applicable time; or (ii) the number of days prior to
such applicable time as the Employer sets forth in its Adoption Agreement. The
Employer will disregard any Elective Deferral election which is not timely
under this Section 2.02(B).See Section 6.04.


                    (1)
General Timing Rule. Except as otherwise provided in this Section
2.02(B), a Participant must deliver to the Employer his/her Elective Deferral
election regarding Service Year Compensation no later than the end of the
Participant’s Taxable Year which is prior to the Service Year. 


                    (2)
New Participant/New Plan. As to the Service Year in which an Employee or
a Contractor first becomes a Participant (a “newly eligible Participant”), the
Participant must make and deliver an Elective Deferral election for that
Service Year not later than 30 days after the Employee or Contractor becomes a
Participant. All Participants who are eligible to participate on the Effective
Date of a new plan are newly eligible Participants as of the Effective Date.


                              (a)
Participant status. For purposes of this Section 2.02(B)(2), an Employee
or Contractor is eligible to participate in the Plan at any time during which,
under the Plan terms and without further amendment or action by the Employer,
the Employee or Contractor is eligible to accrue Deferred Compensation under
the Plan (other than Earnings on prior Deferred Compensation), even if the
Employee or Contractor has elected not to accrue any such Deferred Compensation
(or has made no election). 


                              (b)
Changes in status. For purposes of this Section 2.02(B)(2),if a
Participant has been paid all Deferred Compensation and on or before the last
payment ceases to be eligible to participate in the Plan, but thereafter
becomes eligible to participate, the Employee or Contractor is treated as a
newly eligible Participant. If a Participant ceases to be eligible to
participate, other than as to Earnings, regardless of whether the Participant
has been fully paid all Deferred Compensation under the Plan, and subsequently
becomes eligible to participate, the Employee or Contractor is treated as a
newly eligible Participant provided that the period during which the Employee
or Contractor was ineligible was at least 24 months.


                              (c)
Compensation to which election applies. Under this Section 2.02(B)(2), a
Participant’s election may apply only to Compensation for services the Participant
performs subsequent to the date the Participant delivers the election to the
Employer. For Compensation that is earned for a specified performance period,
including an annual bonus, if the newly eligible Participant makes an Elective
Deferral election after the performance period commences, the Employer will pro
rate the election by multiplying the performance period Compensation by the
ratio of the number of days left in the performance period at the time of the
election, over the total number of days in the entire performance period. 


                              (d)
Excess benefit plan. For purposes of this Section 2.02(B)(2), if this
Plan is an excess benefit plan, an Employee is a newly eligible Participant in
the Plan as of the first day of the Employee’s Taxable Year immediately
following the first year in which he or she accrues a benefit under the Plan.
Any election the Employee makes within 30 days following such date applies to
any benefits accrued for services provided before the election. An excess
benefit plan for purposes of this Section 2.02(B)(2)(d) means a plan under
which all Deferred Compensation is attributable to Employer Contributions and
is based on the amount the Participant would have accrued under the Employer’s
qualified plan(s) but for one or more Code limits which apply to the qualified
plan(s) over the benefits the Participant actually accrues in such plan(s).
Once a Participant has accrued a benefit or deferred compensation in any year,
the Participant is not eligible to use the delayed election in this Section
2.02(B)(2)(d).


                              (e)
Aggregated Plans. All references to the Plan in this Section 2.02(B)(2)
include Aggregated Plans. As such, an Employee or Contractor who participates
in an Aggregated Plan is not a newly eligible Participant and this Section
2.02(B)(2) does not apply.


                    (3)
Certain Forfeitable Rights. If payment of Deferred Compensation is
subject to a condition requiring the Participant to perform services for the Employer
for at least 12 months after the Participant obtains the Legally Binding Right
to the Compensation to avoid forfeiture of the payment, the Participant may 


	
 

	
 


	
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make an
Elective Deferral election no later than 30 days after the Participant obtains
the Legally Binding Right to the Compensation, provided the Participant makes
the election at least 12 months prior to the earliest date on which the service
forfeiture condition could lapse. If the Plan provides for a waiver of the
service condition upon the Participant’s death, Disability or upon a Change in
Control, and such event occurs before the end of the 12 month minimum service
period, the Participant’s elective Deferral election is valid only if the
election is timely under the Plan without regard to this Section 2.02(B)(3).


                    (4)
Performance-Based Compensation. As to any Performance-Based
Compensation, a Participant may elect no later than 6 months before the end of
the performance period to defer such Compensation, provided that the
Participant: (i) continuously performs services from the later of the beginning
of the performance period or the date the Employer establishes the performance
criteria and at least through the date of the Participant’s election; and (ii)
may not make an election after the Compensation has become readily
ascertainable. For purposes of this Section 2.02(B)(4), if the
Performance-Based Compensation is a specified or calculable amount, the
Compensation is readily ascertainable if and when the amount is first
substantially certain to be paid. If the Performance-Based Compensation is not
a specified or calculable amount, the Compensation or any portion thereof is
readily ascertainable when the amount is first both calculable and
substantially certain to be paid. In applying this Section 2.02(B)(4), the
Employer will bifurcate any right to payment as between amounts which are
readily ascertainable and amounts which are not readily ascertainable.


                    (5)
Commissions. 


                              (a)
Sales Commissions. For purposes of election timing under this Section
2.02(B), if Compensation consists of Sales Commissions, the Participant is treated
as providing the services giving rise to the Commissions in the Participant’s
Taxable Year in which the customer remits payment to the Employer, or, if
applied consistently to all similarly situated service providers, the
Participant’s Taxable Year in which the sale occurs.


                              (b)
Investment Commissions. For purposes of election timing under this
Section 2.02(B), if Compensation consists of Investment Commissions, the
Participant is treated as providing the services giving rise to the Commissions
over the 12 months preceding the date as of which the overall value of the
assets or the asset accounts is determined for purposes of calculation of the
Investment Commissions.


                    (6)
Final Payroll Period. If Compensation is payable after the last day of
the Participant’s Taxable Year, but is Compensation for the Participant’s
services during the final payroll period within the meaning of Code §3401(b)
(or, as to a Contractor, a period not longer than such period) which contains
the last day of the Participant’s Taxable Year, the Compensation is treated for
purposes of an election under this Section 2.02(B), as Compensation: (i) for
the current Taxable Year in which the final payroll period commenced; or (ii)
for the subsequent Taxable Year in which the Employer pays the Compensation, as
the Employer elects in its Adoption Agreement. This Section 2.02(B)(6) does not
apply to Compensation for services performed over any period other than the
final payroll period as described herein, including an annual bonus. If the
Employer amends its Adoption Agreement after December 31, 2007, to alter the
timing rule of this Section 2.02(B)(6), any such amendment may not take effect
until 12 months after the later of the date the amendment is executed and is
effective. If the Plan is a restated Plan, whatever election the Employer makes
in it Adoption Agreement on or before December 31, 2007, applies to any period
spanning 2005 through 2007, as applicable, unless the Employer indicates
otherwise in its election.


                    (7)
Separation Pay/Window Program. If the Participant’s election relates to
Separation Pay (based on voluntary or involuntary Separation from Service) and
the Separation Pay is the subject of bona-fide, arm’s length negotiations at
the time of Separation from Service, the Participant may make an election under
this Section 2.02(B) at any time up to the time that the Participant has a
Legally Binding Right to the Separation Pay. This Section 2.02(B)(7) does not
apply to any Separation Pay to which the Participant obtained a Legally Binding
Right before the negotiations at the time of Separation from Service, including
a right to payment subject to a condition. If the Separation Pay results from a
Window Program, the Participant may make the election at any time up to the
time that the Participant’s election to participate in the Window Program
becomes irrevocable. 


                    (8)
Fiscal Year Employer. In the event that the Employer’s Taxable Year is a
not the same as the Participant’s Taxable Year, a Participant may elect to
defer Compensation which is co-extensive with one 


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or more of the
Employer’s consecutive Taxable Years, and no amount of which is paid or payable
during the Employer’s Taxable Year or Years constituting the period of service,
by making an election no later than the end of the Employer’s Taxable Year
which precedes the Employer’s first Taxable Year in which the Participant
performs the service for which the Compensation is payable. 


          (C)
Election Changes/ Irrevocability. The Employer in its Adoption Agreement
will elect whether a Participant’s Elective Deferral election made prior to the
Section 2.02(B) deadline becomes irrevocable as to a Taxable Year: (i)
following the last day on which a Participant may make an election under
Section 2.02(B) for such Taxable Year; or (ii) if earlier, when the Participant
makes the election for a Taxable Year. For this purpose, a Participant’s
Elective Deferral election is considered made when the Employer accepts the
election. If the Employer elects to permit changes to an election up to the
Section 2.02(B) election deadline, a Participant may make any number of changes
to his/her Elective Deferral election during the period prior to the election
becoming irrevocable. If the Employer elects in its Adoption Agreement and
under Section 2.02(D) that a Participant’s election is continuing, the
Participant is deemed to have made an irrevocable election as to each Taxable
Year on the last day that the Participant could have made an election under
Section 2.02(B). As such, the Participant may revoke or modify a continuing
election for a Taxable Year up to the date that such election is deemed made
and irrevocable for that Taxable Year. A change payment election under Section
4.02(B) or a permissible acceleration under Section 4.02(C)(3) does not render
an Elective Deferral election and an accompanying initial payment election
under Section 4.02(A) revocable within the meaning of this Section 2.02(C).


          (D)
Election Duration/Cancellation. As the Employer elects in its Adoption
Agreement, a Participant’s Elective Deferral election remains in effect: (i)
only for the duration of the Taxable Year for which the Participant makes the
election; or (ii) for the duration of the Taxable Year for which the
Participant makes the election and for all subsequent Taxable Years unless the
Participant executes a subsequent timely election, modification or revocation.
A Participant, subject to Plan requirements regarding election timing, may make
a new election, or may revoke or modify an existing election effective no
earlier than for the next Taxable Year, provided that under Section 4.02(C)(3),
a Participant may cancel an existing and otherwise irrevocable election for a
Taxable Year at any time following the Participant’s receipt of an
Unforeseeable Emergency distribution or of a distribution from the Employer’s
401(k) plan based upon hardship within the meaning of Treas. Reg.
§1.401(k)-1(d)(3).


          (E)
“Non-Elections” or Deemed Compliance.


                    (1)
Linkage to Qualified or Certain Foreign Plans. The following are not
elections under Section 2.02(B): (i) the amount of Compensation Deferred under
this Plan is determined under a formula for determining benefits under the
Employer’s qualified plan or broad-based foreign retirement plan (but applied
without regard to Code or foreign law imposed limitations); or (ii) the amount
of Compensation Deferred under this Plan is offset by some or all benefits
provided under the Employer’s qualified plan or broad-based foreign plan and
where in either case the amount of Compensation Deferred under the Plan
increases on account of changes in the Code or foreign law imposed benefit
limitations applicable to the qualified plan or foreign plan, provided in
either case such operation does not result in a change in the time or form for
payment under this Plan and that the change in the amounts of Compensation
Deferred do not exceed the change in amounts deferred under the qualified plan
or foreign plan. 


                    (2)
Actions/Inactions (including Wraparound Elections). The following
Participant actions or in actions are not elections under Section 2.02(B), even
if they result in an increase in Compensation Deferred under the Plan: (i)
election or non-election under the Employer’s qualified plan or broad-based
foreign plan as to receipt of a subsidized or ancillary benefit under such
plans; (ii) an amendment of such other plans’ benefits to add or remove a
subsidized or ancillary benefit or to freeze or limit future accruals under the
qualified plan or foreign plan or to reduce existing benefits under the foreign
plan; or (iii) a Participant’s Wraparound Election, provided in all cases such
action or inaction does not result in a change in the time or form for payment
under this Plan and that under clauses (i) and (ii) above, the change in the
amounts of Compensation Deferred do not exceed the change in amounts deferred
under the qualified plan or foreign plan. 


                    (3)
Elections under a Cafeteria (125) Plan. If a Participant who is also a
participant in a cafeteria (Code §125) plan of the Employer, changes an election
under the cafeteria plan with the result that the amount of Compensation
Deferred under this Plan changes on account of an increase or decrease in
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under this
Plan as a result of the cafeteria plan election, the cafeteria plan election is
not an election for purposes of Section 2.02(B).


                    (4)
USERRA Rights. The requirements of Section 2.02(B) are deemed satisfied as
to any Elective Deferral election (including an initial payment election) which
the Plan provides to satisfy the requirements of USERRA. 


                    (5)
Annualizing Recurrent Partial Year Compensation. If a Participant is
receiving recurring part-year Compensation, the Participant’s election to defer
all or a portion of such Compensation to be earned during a particular service
period is deemed to satisfy the requirements of Section 2.02(B) if the
Participant makes the election before the services giving rise to the
Compensation begin and the election does not defer payment of any of such
Compensation to a date beyond the last day of the 13th month
following the first date of the service period. For purposes of this Section
2.02(E)(5), recurring part-year Compensation means Compensation paid for
services rendered as to a position the Participant and the Employer reasonably
anticipate will continue on similar terms and on similar conditions in
subsequent years, and will require services to be provided in successive
service periods, each of which comprises less than 12 months and each of which
begins in one Taxable Year of the Participant and ends in the next Taxable
Year. This Section 2.02(E)(5) applies only once to Compensation Deferred such
that the same amount may not again be treated as recurring part-year
Compensation and subject to a second deferral election.


          2.03
Nonelective Contributions. The Employer will specify in its Adoption
Agreement whether the Employer will or may make Nonelective Contributions to
the Plan, and the terms and conditions applicable to any Nonelective
Contributions. 


          2.04
Matching Contributions. The Employer will specify in its Adoption
Agreement whether the Employer will or may make Matching Contributions to the
Plan, and the terms and conditions applicable to any Matching Contributions.


          2.05
Actual or Notional Contribution. The Employer will specify in its
Adoption Agreement whether it will make any Employer Contribution as a notional
contribution or as an actual contribution. If the Employer establishes the
Trust, any Employer Contributions to the Trust will be actual contributions.


          2.06
Allocation Conditions. The Employer will specify in its Adoption
Agreement or an exhibit thereto any employment or other condition applicable to
the allocation of Employer Contributions for a Taxable Year.


          2.07
Timing. The Employer may elect to make any Employer Contribution for a
Taxable Year at such times as Code §409A or Applicable Guidance may permit. The
Employer is not required to contribute any actual contribution (or to post any
notional contribution) to an Account at the time that the Employer makes its
contribution election. 


          2.08
Administration. The Employer will administer all Employer Contributions
in the same manner as Elective Deferrals, and will treat the Employer’s
election to make Employer Contributions as an Elective Deferral election,
except as the Plan otherwise provides. If the Employer establishes the Trust, the
Employer will remit any Elective Deferrals to the Trust and will make any
Employer Contributions to the Trust. Any Employer Contribution is not subject
to an immediate Participant right to elect a cash payment in lieu of the
Employer Contribution and such amounts are payable only in accordance with the
Plan terms.


III. VESTING AND SUBSTANTIAL RISK OF
FORFEITURE


          3.01
Vesting Schedule or other Substantial Risk of Forfeiture. The Employer
will specify in its Adoption Agreement any vesting schedule or other
Substantial Risk of Forfeiture applicable to Participant Accounts. If the Plan
is an Ineligible 457 Plan, the Employer must specify a Substantial Risk of
Forfeiture.


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          3.02
Immediate Vesting on Specified Events. The Employer will specify in its
Adoption Agreement whether a Participant’s Account is Vested without regard to
Years of Service if the Participant Separates from Service on or following
Retirement Age, or as a result of death, Disability, or other events.


          3.03
Application of Forfeitures. A Participant will forfeit any non-Vested
Accrued Benefit (where vesting is based on a service condition) upon Separation
from Service. A Participant will forfeit any other non-Vested Accrued Benefit
when the condition constituting a Substantial Risk of Forfeiture can no longer
be satisfied, such as its expiration date. The Employer will specify in its
Adoption Agreement how it will apply Participant forfeitures under the Plan. 


IV. BENEFIT PAYMENTS


          4.01
Payment Events. The Employer in its Adoption Agreement will specify the
Plan permissible payment events as all or some of the following payment events
affecting a Participant: (i) Separation from Service; (ii) death; (iii)
Disability; (iv) a Specified Time or pursuant to a Fixed Schedule; (v) Change
in Control; or (vi) Unforeseeable Emergency. As to payment events (i),
(ii),(iii) (v) and (vi), the Plan will pay to the Participant the Vested Accrued
Benefit held in the Participant’s Account on the applicable payment event or on
another specified payment date as provided in Section 4.01(A). Payment will
commence at the time and payment will be made in the form and medium specified
under Section 4.02. See Section 4.02 as to payment elections, including as to
payment events under this Section 4.01.


          (A)
Payment on Objective and Nondiscretionary (Specified) Payment Date(s).
The Plan or an initial payment election or change payment election must provide
for a payment date that the Employer, at the time of the payment event, can
determine objectively and without the exercise of discretion. Such payment date
may, but need not, coincide with a payment event, but any payment date must be
on or following and must relate to a Plan payment event. 


                    (1)
Payment Schedule as Payment Date. A specified payment date may include a
payment schedule which is objectively determinable and nondiscretionary based
on the date of the payment event and that would qualify as a Fixed Schedule if
the payment event were a fixed date. An election of a payment schedule must be
made at the time of the election of the payment event. 


                    (2)
Designation of Year or Other Period. A specified payment date or a
specified payment schedule with regard to any payment event other than a
Specified Time or pursuant to a Fixed Schedule may include: (i) a Participant’s
Taxable Year or Years; or (ii) a designated period of time but only if the
designated period both begins and ends within one Taxable Year of the
Participant or the designated period is not more than 90 days and the
Participant does not have the right to designate the Taxable Year of payment
except under a change payment election under Section 4.02(B). For purposes of
clause (ii), this includes designation of payment on or before the last date of
the designated (maximum 90 day) period but after the payment event occurs. 


                    (3)
Deemed Payment Date. If the Adoption Agreement or any such election
provides for payment only in a designated Taxable Year or Years, the payment
date is deemed to be January 1 of that Year or Years. If the Adoption Agreement
or any such election provides for payment only in a designated period, the
payment date is deemed to be the first day in the relevant period. 


          (B)
Payment Event Default. This Section 4.01(B) applies if the
Employer in its Adoption Agreement fails to elect one or more payment events
described in this Section 4.01, if a Participant or the Employer under Section
4.02 fails to elect one of more payment events where the Adoption Agreement
affords them such an election, or if the Employer under Section 4.06 rejects
the election and the Participant does not timely file a new election the
Employer accepts. In such event, the Plan will pay the affected Participant’s
Vested Benefit held in the Participant’s Account following the earlier of the
Participant’s Separation from Service or death. See Section 4.02(A)(5) as to
the applicable default for the time, form and medium of such payments. If this
default provision applies, the default payment is deemed to be an initial
payment election under the Plan.


          (C)
Multiple Payment Events; Sequencing. The Plan or an initial payment
election or a change payment election may provide for more than one permissible
payment event and may provide for payment upon the earliest or latest of more
than one permissible payment event. See Section 4.02(A)(4) as to limitations 


	
 

	
 


	
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on the number
of time and form of payment elections which may apply to a single payment
event. In a Separation Pay Plan, the Plan or any election may provide for any
payment only upon Separation from Service (including as a result of death or
Disability).


          (D)
Payment to Specified Employees. Notwithstanding anything to the contrary
in the Plan or in a Participant or Employer payment election, the Plan may not
make payment, based on Separation from Service to a Participant who, on the
date of Separation from Service is a Specified Employee, earlier than 6 months
following Separation from Service (or if earlier, upon the Specified Employee’s
death), except as permitted under this Section 4.01(D). This limitation applies
regardless of the Participant’s status as a Specified Employee or otherwise on
any other date including the next Specified Employee effective date had the
Participant continued to render services through such date. The Employer,
operationally and without any direct or indirect Participant election, will
elect whether any payments that otherwise would be payable to the Specified
Employee during the foregoing 6 month period: (i) will be accumulated and payment
delayed until the first day of the seventh month that is after the 6 month
period; or (ii) will be delayed by 6 months as to each installment otherwise
payable during the 6 month period. This Section 4.01(D) does not apply to
payments made on account of a domestic relations order, payments made because
of a conflict of interest, or payment of employment taxes, all as described in
Treas. Reg. 1.409A-3(i)(2)(i). This Section 4.01(D) also does not apply to any
reimbursement or in-kind benefit which is Separation Pay but which is not
Deferred Compensation under Section 1.18(A).


          (E)
Deemed Separation of Contractor. The Employer in its Adoption Agreement
may elect to apply the special payment timing rules in this Section 4.01(E) as
to Contractors. Compliance with this Section 4.01(E) results in the Contractor
being deemed to have incurred a Separation from Service under Section 1.39.
Under this Section 4.01(E): (i) the Plan will not pay a Contractor’s Account,
or any portion thereof, before a date that is at least 12 months after the
expiration of the contract (or all contracts) under which the Contractor
performs services for the Employer; and (ii) no amount payable under clause (i)
will be paid to the Contractor if the Contractor (whether as a Contractor or an
Employee) performs services for the Employer after the contract(s)’ expiration
and before the payment date.


          4.02
Timing, Form and Medium/ Payment Elections. Unless the Employer under
Section 4.02(A) and/or 4.02(B) permits Employer or Participant elections, the
Employer (in addition to its election of permissible payment events under
Section 4.01) will elect in its Adoption Agreement the permissible: (i) payment
timing; (ii) payment form (lump-sum, installments, annuity or other form, including
a combination thereof); and (iii) payment medium (cash or property) applicable
to Plan Accounts (all of which elections are collectively, “payment
elections”). Until the Plan pays a Participant’s entire Vested Accrued Benefit,
the Plan will continue to credit the Participant’s Account with Earnings, in
accordance with Section 5.02(A) or Section 5.03(B) as applicable. A permissible
payment medium election may, but is not required to be, made at the same time
as the initial payment election or change payment election, but must be made a
reasonable time before any payment date. No election as to payment medium may
change the time or form of payment.


          (A)
Initial Payment Election. The Employer will elect in its Adoption
Agreement: (i) whether a Participant or the Employer may make an initial
payment election or whether there are no Participant or Employer initial
payment elections and the payment events, timing, form and medium are
controlled by the Employer’s Adoption Agreement elections; and (ii) whether any
Participant payment election applies to all Account types or only applies to a
Participant’s Elective Deferral Account. A Participant must make any
permissible initial payment election on a form the Employer provides for that
purpose.


                    (1)
No elections are a Deemed Initial Election. If the Employer elects in
its Adoption Agreement not to provide any Participant or Employer initial
payment elections, the elected Adoption Agreement and applicable Plan
provisions constitute an initial payment election under the Plan.


                    (2)
Timing. 


                              (a)
Participant Election. A Participant must make an initial payment
election at the time of the Participant’s Elective Deferral election under
Section 2.02(B), or in the absence of such an Elective Deferral election but
where the Participant may make an initial payment election as to Employer
Contributions, within the same time period as such an Elective Deferral
election would be permitted. 


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                              (b)
Employer Election. The Employer must make an initial payment election as
to a Participant at the time that the Employer grants a Legally Binding Right
to Deferred Compensation to the Participant, or, if later, by the time that the
Participant would have had to make such election, if the Plan had permitted the
Participant to make such an election. In the case of a newly eligible
Participant or a new Plan described under Section 2.02(B)(2), the Employer must
make the initial payment election no later than 30 days after the date the
Employee or Contractor becomes a Participant and the pro ration provisions of
Section 2.02(B)(2)(c) do not apply to such Employer election. 


                    (3)
Future Deferred Compensation and Earnings. A payment election may apply
only to the Deferred Compensation that is the subject of the Elective Deferral
election or the Employer Contribution or may apply to such Deferred
Compensation and to all future Deferred Compensation, as the payment election
indicates. A payment election separately may apply to Deferred Compensation and
to the Earnings thereon provided that the Plan credits Earnings at least
annually.


                    (4)
Limitations on Payment Time and Form; Multiple Payment Events. Except as
otherwise provided in this Section 4.02(A)(4), the Plan or a payment election
may designate only one time and form of payment for each of the following
payment events: Separation from Service, Disability, death or Change in
Control. 


                              (a)
Disability, Death or Change in Control. In the case of payment in the
event of Disability, death or Change in Control, the Plan or payment election
may provide for one time and/or method of payment if the event occurs on or
before one specified date and may provide for an alternative time and form of
payment if the event occurs after the specified date. 


                              (b)
Separation From Service. In the case of payment in the event of
Separation from Service, the Plan or payment election may provide for an
alternative time and form of payment where: (i) Separation from Service occurs
within a limited period of time not exceeding two years following a Change in
Control; (ii) Separation from Service occurs before or after a specified date
or Separation occurs before or after the combination of a specified date and a
specified period of service determined under a predetermined, nondiscretionary
objective formula or pursuant to the method for crediting service under a
qualified plan of the Employer (but not both of the options under clause (ii));
and Separation from Service which is not described in clause (i) or (ii).
However, neither the Plan nor a payment election may provide for a different
time and form of payment based on whether Separation from Service is Voluntary
or Involuntary or based on the Participant’s marital status at the time of
Separation from Service. 


                              (c)
Unforeseeable Emergency. If the Employer in its Adoption Agreement
elects to permit Unforeseeable Emergency as a payment event, a Participant at
any time may request payment based on Unforeseeable Emergency by submitting to
the Employer a form the Employer provides for this purpose. The Plan will make
payment to the Participant within 90 days following the Employer’s acceptance
of the Participant’s Unforeseeable Emergency payment request. If that 90-day
period spans more than one Taxable Year of the Participant, the Participant
will not have any discretion over the Taxable Year of payment. See Section 1.51
as to additional requirements relating to an Unforeseeable Emergency payment.


                              (d)
Addition, Change or Deletion of Time and Form. The addition, change, or
deletion of an alternative time and form of payment (after the initial payment
election has become irrevocable) as permitted under this Section 4.02(A)(4) is
a change payment election subject to Section 4.02(B) and is subject to Section
4.02(C). 


                    (5)
Time, Form and Medium Default. If the Participant or the Employer
as applicable has the right to make an initial payment election but fails to do
so, or if the Employer rejects the Participant’s election under Section 4.06
and the Participant does not make a new timely election the Employer accepts,
the Plan will pay the affected Participant’s Vested Accrued Benefit
attributable to the non-election under this default provision, in a lump-sum
cash payment 13 months following the earliest event permitting payment of the
Participant’s Account under Section 4.01 (including, if applicable, the default
payment events under Section 4.01(B)). If this default provision applies, the
default payment is deemed to be an initial payment election under the Plan. 


	
 

	
 


	
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          (B)
Change Payment Election. The Employer will elect in its Adoption
Agreement whether the Employer or a Participant may make a change payment
election under this Section 4.02(B). If the Plan permits change elections, the
Employer in its Adoption Agreement will elect whether to limit the number of
change payment elections. If the Plan permits a Participant or the Employer to
change existing payment elections (initial or change payment elections) as to
any or all Deferred Compensation, including any Plan specified initial payment
election or a default payment applicable in the absence of an actual initial
payment election, any such change payment election must comply with this
Section 4.02(B). A change payment election may add or delete payment events,
may delay payment and/or may change the form of payment, provided the change
does not result in an impermissible acceleration under Section 4.02(C). The
Employer in its Adoption Agreement will elect whether a Beneficiary following a
Participant’s death may make a change payment election under this Section
4.02(B). A Participant’s change of Beneficiary is not a change payment election
provided that the time and method of payment is not otherwise changed. See
Section 4.02(B)(3) as to changes of Beneficiary where the payment method is a
life annuity. A Participant or Beneficiary must make any change payment election
on a form the Employer provides for such purpose. 


                    (1)
Conditions on Change Payment Elections. 


                              (a)
Election Timing/Deferral of Payment. Any change payment election: (i)
may not take effect until at least 12 months following the date the change
payment election is made; (ii) if the change payment election relates to a
payment based on Separation from Service or on Change in Control, or if the
payment is at a Specified Time or pursuant to a Fixed Schedule, the change
payment election must result in payment being made not earlier than 5 years
following the date upon which the payment otherwise would have been made (or,
in the case of a life annuity or installment payments treated as a single
payment, 5 years from the date the first amount was scheduled to be paid); and
(iii) if the change payment election relates to payment at a Specified Time or
pursuant to a Fixed Schedule, the Participant or Employer must make the change
payment election not less than 12 months prior to the date the payment is
scheduled to be made (or, in the case of a life annuity or installment payments
treated as a single payment, 12 months prior to the date the first amount was
scheduled to be paid).


                              (b)
Application of Other Rules. A change payment election must satisfy the
Plan provisions applicable to initial payment elections under Section
4.02(A)(4) related to multiple payment events and Section 4.02(A)(3) regarding
scope and Earnings also applies to change payment elections. For purposes of
application of Section 4.02(A)(4), Section 4.02(B)(1)(a) applies separately as
to each Payment described under Section 4.02(B)(2) and due upon each payment
event.


                              (c)
Rejection. If the Employer under Section 4.06 rejects a Participant or
Beneficiary change payment election, the Participant’s initial payment election
or deemed initial payment election continues to apply unless and until the
Participant makes another change payment election which the Employer accepts.


                              (d)
USERRA Rights. The requirements of Section 4.02(B) are deemed satisfied as
to any change payment election which the Plan provides to satisfy the
requirements of USERRA. Such elections are not an acceleration under Section
4.02(C).


                    (2)
Definition of “Payment.” Except as otherwise provided in Section
4.02(B)(3), a “payment” for purposes of applying Section 4.02(B)(1) is each
separately identified amount the Plan is obligated to pay to a Participant on a
determinable date and includes amounts paid for the benefit of the Participant.
An amount is “separately identified” only if the amount is objectively
determinable under a nondiscretionary formula. A payment includes the provision
of any taxable benefit, including payment in cash or in-kind. A payment
includes, but is not limited to, the transfer, cancellation or reduction of an
amount of Deferred Compensation in exchange for benefits under a welfare
benefit plan, fringe benefits excludible under Code §§119 or 132, or any other
benefit that is excluded from gross income. In the case of a Specified Time or
a Fixed Schedule, “payment” for purposes of Section 4.02(B)(1) means as further
described in Treas. Reg. §1.409A-3(i)(1).


                    (3)
Life Annuities and Installment Payments. 


                              (a)
Life Annuities. A life annuity is treated as a single payment. For
purposes of this Section 4.02(B)(3), a “life annuity” is a series of
substantially equal periodic payments, payable not less frequently than
annually, for the life (or life expectancy) of the Participant, or the joint
lives (or life expectancies) of the 


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Participant
and of his/her Beneficiary. A change of Beneficiary which occurs before the
initial payment of a life annuity is not a change payment election. A change in
the form of payment before any annuity payment has been made from one type of
life annuity to another with the same scheduled date for the first payment is
not subject to the change payment election requirements provided that the
annuities are actuarially equivalent applying reasonable actuarial assumptions
and that at any given time, the same actuarial assumptions and methods are used
to value each annuity. The requirement of actuarial equivalence applies for the
duration of the Participant’s participation in the Plan such that the annuity
payment must be actuarially equivalent at all times for the annuity payment
options to be treated as a single time and method of payment. The Plan over
time may change actuarial assumptions and methods provided such methods and
assumptions are reasonable. The following features are disregarded in
determining if the payment is a life annuity but are taken into account in
determining if one life annuity is the actuarial equivalent of another: (i)
term certain features under which payments continue for the longer of the
annuitant’s life or for a fixed period of time; (ii) pop-up features under
which payments increase upon the death of the Beneficiary or other event which
eliminates the survivor annuity; (iii) cash refund features under which there
is a payment on the death of the last annuitant in an amount not greater than
the excess of the present value of the annuity at the annuity starting state
over the total payments before the last annuitant’s death; (iv) a feature under
which the annuity provides higher periodic payments before the expected
commencement of Social Security or Railroad Retirement Act benefits and lower
payments after the expected commencement of such benefits, such the combined
payments are approximately level before and after the expected commencement
date; and (v) features providing for a cost-of-living increase in the annuity
payment in accordance with Treas. Reg. §1.409A-6, Q & A-14(A)(1) or (2). A
joint and survivor annuity does not fail to be actuarially equivalent to a
single life annuity solely due to the value of a subsidized survivor benefit provided
the annual lifetime annuity to the Participant is not greater than the annual
lifetime benefit to the Participant under the single life annuity and the
annual survivor annuity benefit is not greater than the annual lifetime annuity
to the Participant under the joint and survivor annuity.


                              (b)
Installments. The Employer in its Adoption Agreement will elect whether
to treat a series of installment payments which are not a life annuity as a
single payment or as a series of separate payments. If the Employer fails to so
elect, the Employer must treat the installments as a single payment. Any
election to treat installments as separate payments applies at all times with
respect to the amount deferred. For purposes of this Section 4.02(B)(3), a
“series of installment payments” means payment of a series of substantially
equal periodic amounts to be paid over a predetermined number of years, except
to the extent that any increase in the payment amounts reflects reasonable
Earnings through the date of payment. For this purpose, a series of installment
payments over a predetermined period and: (i) a series of installments over a
shorter or longer period; and (ii) a series of installments over the same
period but with a difference commencement date, are different times and methods
of payment and a change in the predetermined period or commencement date is
subject to this Section 4.02(B). An installment payment does not fail to be an
installment solely because the plan provides for an immediate payment of all
remaining installments if the present value of the Deferred Compensation to be
paid in the remaining installments falls below a predetermined amount, and the
immediate payment in not an acceleration under Section 4.02(C) provided that
the payment election establishes this feature, including the predetermined
amount triggering immediate payment and that any change to the feature is
subject to this Section 4.02(B). If the Plan is a restated Plan, whatever
election the Employer makes in it Adoption Agreement on or before December 31,
2007, applies to any period spanning 2005 through 2007, as applicable, unless
the Employer indicates otherwise in its election.


                    (4)
Coordination with Anti-Acceleration Rule. The definition of “payment” in
Sections 4.02(B)(2) and (3) also applies to Section 4.02(C). A change payment
election may change the form of payment to a more rapid schedule (including a
change from installments to a lump-sum payment) without violating Section
4.02(C), provided any such change remains subject to the change payment
election provisions under this Section 4.02(B). 


                    (5)
Multiple Payment Events. If the Plan permits multiple payment events,
the change payment election provisions of Section 4.02(B)(1) apply separately
as to each payment due upon each payment event. The addition or deletion of a
permissible payment event to Deferred Compensation previously deferred is
subject to the change election provisions of Section 4.02(B)(1) where the additional
event may cause a change in the time or form of payment. However the addition
of death, Disability or Unforeseeable Emergency as an “earliest of” payment
event is not a change payment election and is not an impermissible acceleration
under Section 4.02(C).


	
 

	
 


	
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                    (6)
Domestic Relations Orders. An election, pursuant to or reflected in a
domestics relations order under Code §414(p)(1)(B), by someone other than the
Participant, as to payments to a person other than the Participant, is not a
change payment election subject to this Section 4.02(B).


                    (7)
Certain Payment Delays not Subject to Change Payment Election Rules. The
Employer operationally will elect whether to apply the some or all of the
following payment delay provisions. The Employer in applying such provisions
must treat all payments to similarly situated service providers on a reasonably
equivalent basis. If applicable, these provisions do not result in the Plan
failing to provide for payment upon a permissible event as Code §409A requires
nor are the delays treated as a change payment election under this Section
4.02(B). 


                              (a)
Non-deductible Payment. The Plan may delay payment to a Participant if
the Employer reasonably anticipates that the Employer’s deduction for the
scheduled payment of the Participant’s Deferred Compensation will be barred
under Code §162(m). In such event, the Plan (without any Participant election
as to timing) will pay such Deferred Compensation either in the Participant’s
first Taxable Year in which the Employer reasonably anticipates or should
reasonably anticipate that Code §162(m) will not apply or during the period
beginning on the date the affected Participant Separates from Service and
ending on the later of the last day of the Participant’s Taxable Year in which
the Separation occurs or the 15th day of the third month following
the Separation. If the Employer fails to delay under this Section 4.02(B)(7)(a)
all scheduled payments during a Taxable Year which could be so delayed, the
Employer’s delay of any payment is a change payment election subject to this
Section 4.02(B). If the Employer delays payment until the Participant’s
Separation from Service, the payment is considered as made based on Separation
from Service for purpose of application of Section 4.01(D) and payment to a
Specified Employee will be made on the date that is six months after Separation
from Service.


                              (b)
Securities or Other Laws. The Plan may delay payment to a Participant if
the Employer reasonably anticipates that the payment will violate Federal
securities law or other applicable law. The Plan will pay such Deferred
Compensation at the earliest date at which the Employer reasonably anticipates
that the payment will not cause a violation of such laws. For purposes of this
Section 4.02(B)(7)(b), a violation of “other applicable law” does not include a
payment which would cause inclusion of the Deferred Compensation in the
Participant’s gross income or which would subject the Participant to any Code
penalty or other Code provision.


                              (c)
Change in Control. The Plan may delay payment to a Participant related
to a Change in Control and that occur under the circumstances described in
Treas. Reg. 1.409A-3(i)(5)(iv).


                             
(d) Other. The Plan may delay payment to a Participant upon such other
events as Applicable Guidance may permit.


	
 

	
 


	
 

	
          (8)
 Extension of Short-Term Deferral. A Participant who, after the
 deadline for an initial payment election under Section 4.02(A)(2)(a), makes
 an election to defer payment of an amount which, but for the election, would
 be a short-term deferral under Treas. Reg. 1.409A-1(b)(4) and not subject to
 409A, makes a change payment election subject to this Section 4.02(B) and in
 applying Section 4.02(B), the Plan treats the scheduled payment date as the
 date the Substantial Risk of Forfeiture lapses; provided that a Participant
 making such an election may provide for payment upon a Change in Control
 without regard to the 5 year requirement under clause (ii) of Section
 4.02(B)(1)(a).





          (C)
No Acceleration.


                    (1)
General Rule. No person may accelerate the time or schedule of any Plan
payment or amount scheduled to be paid under the Plan. For this purpose, the
payment of an amount substituted for the Deferred Compensation is a payment of
the Deferred Compensation, as provided in Treas. Reg. §1.409A-3(f). 


                    (2)
Not an Acceleration. Certain actions as described in Treas. Reg.
§§1.409A-3(j)(1), (2), (3), (5) and (6) are not an acceleration including: (i)
certain payments made as a result of an intervening payment event and made in
accordance with Plan provisions or pursuant to an initial payment election
under Section 4.02(A) or a change payment election under Section 4.02(B); (ii)
the Employer’s waiver or acceleration of the satisfaction of any condition
constituting a Substantial Risk of Forfeiture provided that payment is made
only 


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upon a
permissible payment event; (iii) the addition of death, Disability or
Unforeseeable Emergency as payment events where such addition results in an
earlier payment than would have occurred without the addition of such events
(iv) an election to change Beneficiaries (including before the commencement of
a life annuity) the if the time and form of payment does not change (except
where under a life annuity a change in time of payments results solely from the
different life expectancy of the new Beneficiary); (v) a decrease in the
Compensation Deferred under the Plan as a result of certain linkage to
qualified plans or broad-based foreign plans or certain other actions or
inactions, including related to Wraparound Elections; or (vi) a change to a
cafeteria plan election (under Code §125(d)) resulting in a change in the Compensation
Deferred under this Plan. 


                    (3)
Permissible Accelerations/ Including Cash-Out. Notwithstanding Section
4.02(C)(1), the Employer in its sole discretion and without any Participant
discretion or election, operationally may elect accelerations of the time or
schedule of payment from the Plan in any or all of the circumstances described
in Treas. Reg. §§1.409A-3(j)(4)(ii) through (xiv). Such circumstances include,
but are not limited to, the mandatory lump-sum payment of the Participant’s
entire Vested Accrued Benefit at any time provided that the Employer evidences
its discretion to make such payment in writing no later than the date of
payment, the payment results in the termination and liquidation of the
Participant’s interest under the Plan and under all Aggregated Plans, and the
payment amount does not exceed the applicable dollar amount under Code
§402(g)(1)(B). The Employer in applying this Section 4.02(C)(3) must treat all
similarly situated service providers on a reasonably equivalent basis. See
Section 6.03 as to Plan termination which also results in a permissible
acceleration.


          4.03
Withholding. The Employer will withhold from any payment made under the
Plan and from any amount taxable under Code §409A, all applicable taxes, and
any and all other amounts required to be withheld under Applicable Guidance.


          4.04
Beneficiary Designation. A Participant may designate a Beneficiary
(including one or more primary and contingent Beneficiaries) to receive payment
of any Vested Accrued Benefit remaining in the Participant’s Account at death.
The Employer will provide each Participant with a form for this purpose and no
designation will be effective unless made on that form and delivered to the
Employer. A Participant may modify or revoke an existing designation of
Beneficiary by executing and delivering a new designation to the Employer. In
the absence of a properly designated Beneficiary, the Employer will pay a
deceased Participant’s Vested Accrued Benefit to the Participant’s surviving
spouse and if none, to the Participant’s then living lineal descendants, by
right of representation, and if none, to the Participant’s estate. If a
Beneficiary is a minor or otherwise is a person whom the Employer reasonably
determines to be legally incompetent, the Employer may cause the Plan or Trust
to pay the Participant’s Vested Accrued Benefit to a guardian, trustee or other
proper legal representative of the Beneficiary. The Plan’s or Trust’s payment
of the deceased Participant’s Vested Accrued Benefit to the Beneficiary or
proper legal representative of the Beneficiary completely discharges the
Employer, the Plan and Trust of all further obligations under the Plan.


          4.05
Payments Treated as Made on Payment Date. 


          (A)
Certain Late Payments. The Plan’s payment of Deferred Compensation is
deemed made on the Plan required payment date or payment election required
payment date even if the Plan makes payment after such date, provided the
payment is made by the latest of: (i) the end of the Taxable Year in which the
payment is due; (ii) the 15th day of the third calendar month
following the payment due date provided that the Participant is not able,
directly or indirectly, to designate the Taxable Year of payment; (iii) in case
the Employer cannot calculate the payment amount on account of administrative
impracticality which is beyond the Participant’s control (or the control of the
Participant’s Beneficiary), in the first Taxable Year of the Participant in
which payment is practicable; (iv) in case the making of the payment on the
specified date would jeopardize the Employer’s ability to continue as a going
concern, in the first Taxable Year of the Participant in which the payment
would not have such effect. The Employer may cause the Plan or Trust to pay a
Participant’s Vested Accrued Benefit on any date which satisfies this Section
4.05(A) and that is administratively practicable following any Plan specified
payment date or the date specified in any valid payment election. 


                    (1)
Change in Control. In the case of certain Change in Control events, as
described in Treas. Reg. §1.409A-3(i)(5)(iv), certain transaction based
compensation paid on the same schedule and on the same


	
 

	
 


	
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terms as apply to shareholders generally with respect the
Employer’s stock or as the payments to the Employer, is treated as paid on the
designated payment date. Further, such payments made within 5 years after the
Change in Control event are deemed compliant with Sections 4.02(A) and (B). 


                    (2)
Disputed Payments. In the event of a dispute between the Employer and a
Participant as to whether Deferred Compensation is payable to the Participant
or as to the amount thereof, or any other failure to pay, payment is treated as
paid on the designated payment date if such payment is made in accordance with
Treas. Reg. §1.409A-3(g).


          (B)
Early Payments. The Employer also may cause the Plan or Trustee to pay
on a date no earlier than 30 days before the specified payment date provided
the Participant is not able, directly or indirectly, to designate the Taxable
Year of the payment. Such “early” payments are not an accelerated payment under
Section 4.02(C).


          4.06
Payment Election Requirements. The term “payment election,” for purposes
of this Section 4.06(B) and the Plan generally, means either an initial payment
election under Section 4.02(A) or a change payment election under Section
4.02(B).


          (A)
Compliance with Plan Terms. All initial payment elections and change
payment elections must be consistent with the Plan and with the Adoption
Agreement. 


          (B)
When Election is Considered Made; Irrevocability. 


                    (1)
Participant Elections. A Participant’s payment election is not
considered made for any purpose under the Plan until both: (i) the Employer
approves the election; and (ii) the election has become irrevocable. A Participant’s
payment election is always revocable until the Employer accepts the election,
which acceptance must occur within the time period described in Section
4.06(C). A Participant’s payment election becomes irrevocable as the Employer
elects in its Adoption Agreement.


                    (2)
Employer Elections. The Employer’s payment election is not considered
made for any purpose under the Plan until the election has become irrevocable.
The Employer’s initial payment election is irrevocable after the last
permissible date for making the election under Section 4.02(A)(2)(b). The
Employer’s change payment election relating to payment at a Specified Time or
pursuant to a Fixed Schedule is irrevocable after the last permissible date for
making the election under Section 4.02(B)(1)(a). The Employer’s change payment
election relating to payment based on any other payment event (not a Specified
Time or Fixed Schedule) remains revocable for 30 days following the Employer’s
execution of the change payment election.


                    (3)
Effect of Changes While Election is Revocable. Any change made to a
payment election while the election remains revocable is not a change payment
election, either for purposes of Section 4.02(B)(1)(a) timing rules or in
applying any Plan limit on the number of change payment elections a Participant
may make as to any amount of Deferred Compensation. Any modification to a
payment election after the election has become irrevocable is a change payment
election (if made with respect to an initial payment election) or is a new
change payment election (if made with respect to a change payment election).


                    (4)
Continuing Elections. If an initial payment election is continuing under
Section 4.02(A)(3), such that it applies to Compensation Deferred in one or
more Taxable Years beginning after the first Taxable Year to which the payment
election applies, the payment election is revocable as to such future Taxable
Years until the last permissible date under Section 402(A)(2)(b) for making the
election with regard to such future Taxable Year or Years.


          (C)
Employer Approval of Participant and Beneficiary Elections. The Employer
expressly and in writing must approve any Participant or Beneficiary payment
election as to timing, form and medium, even if the Plan and Adoption Agreement
permit such election. The Employer, in its absolute discretion, may withhold
approval for any reason, including, but not limited to, non-compliance with
Plan terms. However, the Employer must approve or reject any such election
within the time period during which the Participant or Beneficiary would have
had to make the election. If the Employer does not so approve or reject a
payment election, the election is deemed rejected within such time period. With
regard to initial payment elections, 


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& Waterman LLP Nonqualified Deferred Compensation Prototype Plan


unless the
Participant subsequently makes a timely initial payment election the Employer
accepts, the Employer will pay the Participant’s Vested Accrued Benefit under
the payment event, timing, form and medium default provisions of Sections
4.01(B) and 4.02(A)(5). 


          (D)
Preservation of Pre-2008 Payment Elections. If the Plan is a restatement
of a Plan which was in effect before January 1, 2008, as to pre-2008 Deferred
Compensation (and Earnings thereon) which is a 409A Amount, the Plan preserves
any 409A permissible payment elections under the Plan which elections are not
available under the Plan as to Compensation Deferred after 2007, subject to any
change payment election made as to such pre-2008 Deferred Compensation. 


V. TRUST ELECTION AND PLAN EARNINGS


          5.01
Unfunded Plan. The Employer as it elects in its Adoption Agreement
intends this Plan to be an unfunded plan that is wholly or partially exempt
under ERISA. No Participant, Beneficiary or successor thereto has any legal or
equitable right, interest or claim to any property or assets of the Employer,
including assets held in any Account under the Plan except as the Plan
otherwise permits. The Employer’s obligation to pay Plan benefits is an
unsecured promise to pay. Any assets held in Plan Accounts remain subject to
claims of the Employer’s general creditors and no Participant’s or
Beneficiary’s claim to Plan assets has any priority over any general unsecured
creditor of the Employer. Except as otherwise provided in the Plan or Trust,
all Plan assets, including all incidents of ownership thereto, at all times
will be the sole property of the Employer.


          5.02
No Trust. Except as provided in its Adoption Agreement, this Plan does
not create a trust for the benefit of any Participant. If the Employer does not
establish the Trust: (i) the Employer may elect to make notional contributions
in lieu of actual contributions to the Plan; and (ii) the Employer may elect
not to invest any actual Plan contributions. If the Employer elects to invest
any actual Plan contributions, such investments may be held for the Employer’s
benefit in providing for the Employer’s obligations under the Plan or for such
other purposes as the Employer may determine.


          (A)
Earnings. If the Employer does not establish the Trust, the Employer
will elect in its Adoption Agreement whether the Plan periodically will credit
actual or notional Plan contributions with a determinable amount of notional
Earnings (at a specified fixed or floating interest rate or other specified
index) or will credit or charge each Participant’s Account with the Earnings
actually incurred by the Account. 


          (B)
Investment Direction. If the Account is credited and charged with actual
Earnings, the Employer will specify in the Adoption Agreement whether the
Employer or the Participant has the right to direct the investment of the
Participant’s Account and also may specify any limitations on the Participant’s
right of investment direction. If the Adoption Agreement provides for Employer
investment direction, the Employer may make any investment of Plan assets it
deems reasonable or appropriate. If the Adoption Agreement provides for
Participant investment direction, this right is limited strictly to investment
direction and the Participant will not be entitled to the distribution of any
Account asset except as the Plan otherwise permits.


          5.03
Trust. If the Employer elects in its Adoption Agreement to create the
Trust, the applicable provisions of the Basic Plan Document continue to apply,
including those of Section 5.01. The Trustee will pay Plan benefits in
accordance with the Plan terms or upon the Employer’s direction consistent with
Plan terms.


          (A)
Restriction on Trust Assets. If an Employer establishes, directly or
indirectly, the Trust (or any other arrangement Applicable Guidance may
describe), the Trust and the Trust assets must be and must remain located
within the United States, except with respect to a Participant who performs
outside the United States substantially all services giving rise to the
Deferred Compensation. The Trust may not contain any provision limiting the Trust
assets to the payment of Plan benefits upon a Change in the Employer’s
Financial Health, even if the assets remain subject to claims of the Employer’s
general creditors. For this purpose, the Employer, upon a Change in the
Employer’s Financial Health, may not transfer Deferred Compensation to the
Trust. The Employer (and any member of a controlled group which includes the
Employer) during the “restricted period” also may not transfer Deferred
Compensation to the Trust and the Trust may not be restricted to payment of
Plan benefits, to the extent that such transfer or restriction would violate
the at-risk limitation of Code §409A(b)(3). Any Trust the Employer establishes
under this Plan shall be further subject to Applicable Guidance, compliance
with which is necessary to avoid the transfer of assets to the Trust being
treated as a transfer of property under Code §83.


	
 

	
 


	
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          (B)
Trust Earnings and Investment. If the Employer establishes the Trust,
the Trust earnings provisions apply to all Plan contributions and constitute
Earnings for purposes of the Plan. The Trustee will invest the assets held in
the Trust in accordance with the Trust terms but are not subject to Participant
direction of investment.


VI. MISCELLANEOUS


          6.01
No Assignment. No Participant or Beneficiary has the right to
anticipate, alienate, assign, pledge, encumber, sell, transfer, mortgage or
otherwise in any manner convey in advance of actual receipt, the Participant’s
Account. Prior to actual payment, a Participant’s Account is not subject to the
debts, judgments or other obligations of the Participant or Beneficiary and is
not subject to attachment, seizure, garnishment or other process applicable to
the Participant or Beneficiary.


          6.02
Not Employment Contract. This Plan is not a contract for employment
between the Employer and any Employee who is a Participant. This Plan does not
entitle any Participant to continued employment with the Employer, and benefits
under the Plan are limited to payment of a Participant’s Vested Accrued Benefit
in accordance with the terms of the Plan.


          6.03
Amendment and Termination. 


          (A)
Amendment. The Employer reserves the right to amend the Plan at any time
to comply with Code §409A, Treas. Reg. §1.409A and other Applicable Guidance or
for any other purpose, provided that such amendment will not result in taxation
to any Participant under Code §409A. Except as the Plan and Applicable Guidance
otherwise may require, the Employer may make any such amendments effective
immediately.


          (B)
Termination. The Employer may terminate, but is not required to
terminate and liquidate the Plan which includes the distribution of all Plan
Accounts under the following circumstances: 


                    (1)
Dissolution/Bankruptcy. The Employer may terminate and liquidate the
Plan within 12 months following a dissolution of a corporate Employer taxable
under Code §331 or with approval of a Bankruptcy court under 11 U.S.C.
§503(b)(1)(A), provided that the Deferred Compensation is paid to the
Participants and is included in the Participants’ gross income in the latest of
(or, if earlier, the Taxable Year in which the amount is actually or
constructively received): (i) the calendar year in which the plan termination
and liquidation occurs; (ii) the first calendar year in which the amounts no
longer are subject to a Substantial Risk of Forfeiture; or (iii) the first
calendar year in which the payment is administratively practicable.


                    (2)
Change in Control. The Employer may terminate and liquidate the Plan by
irrevocable action taken within the 30 days preceding or the 12 months
following a Change in Control, provided the Employer distributes all Plan
Accounts (and must distribute the accounts under any Aggregated Plans which
plan the Employer also must terminate and liquidate as to each Participant who
has experienced the Change in Control) within 12 months following the date of
Employer’s irrevocable action to terminate and liquidate the Plan and
Aggregated Plans. Where the Change in Control results from an asset purchase
transaction, the “Employer” with discretion to terminate and liquidate the Plan
is the Employer that is primarily liable after the transaction to pay the
Deferred Compensation.


                    (3)
Other. The Employer may terminate the Plan for any other reason in the
Employer’s discretion provided that: (i) the termination and liquidation does
not occur proximate to a downturn in the Employer’s financial health; (ii) the
Employer also terminates all Aggregated Plans in which any Participant also is
a participant; (ii) the Plan makes no payments in the 12 months following the
date of Employer’s irrevocable action to terminate and liquidate the Plan other
than payments the Plan would have made irrespective of Plan termination; (iii)
the Plan makes all payments within 24 months following the date of Employer’s
irrevocable action to terminate and liquidate the Plan; and (iv) the Employer
within 3 years following the date of Employer’s irrevocable action to terminate
and liquidate the Plan does not adopt a new plan covering any Participant that
would be an Aggregated Plan. 


                    (4)
Applicable Guidance. The Employer may terminate and liquidate the Plan
under such other circumstances as Applicable Guidance may permit.


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          (C)
Effect on Vesting. Any Plan amendment or termination will not reduce the
Vested Accrued Benefit held in any Participant Account at the date of the
amendment or termination and will not accelerate vesting except as the Employer
may expressly provide for in connection with the amendment or termination,
provided that any such vesting acceleration does not subject any Participant to
taxation under Code §409A.


          (D)
Cessation of Future Contributions. The Employer in its Adoption
Agreement may elect at any time to amend the Plan to cease future Elective
Deferrals, Nonelective Contributions or Matching Contributions as of a
specified date. In such event, the Plan remains in effect (except those
provisions permitting the frozen contribution type) until all Accounts are paid
in accordance with the Plan terms, or, if earlier, upon the Employer’s
termination of the Plan.    


          6.04
Fair Construction. The Employer, Participants and Beneficiaries intend
that this Plan in form and in operation comply with Code 409A, the regulations
thereunder, and all other present and future Applicable Guidance. The Employer
and any other party with authority to interpret or administer the Plan will
interpret the Plan terms in a manner which is consistent with Applicable Law.
However, as required under Treas. Reg. §1.409A-1(c)(1), the “interpretation” of
the Plan does not permit the deletion of material terms which are expressly
contrary to Code §409A and the regulations thereunder and also does not permit
the addition of missing terms necessary to comply therewith. Such deletions or
additions may be accomplished only be means of a Plan amendment under Section
6.03(A). Any Participant, Beneficiary or Employer permitted Elective Deferral
election, initial payment election, change payment election or any other Plan
permitted election, notice or designation which is not compliant with
Applicable Law is not an “election” or other action under the Plan and has no
effect whatsoever. In the event that a Participant, Beneficiary or the Employer
fail to make an election or fail to make a compliant election, the Employer
will apply the Plan’s default terms under Sections 4.01(B) and 4.02(A)(5). 


          6.05
Notice and Elections. Any notice given or election made under the Plan
must be in writing and must be delivered or mailed by certified mail, to the
Employer, the Trustee or to the Participant or Beneficiary as appropriate. The
Employer will prescribe the form of any Plan notice or election to be given to
or made by Participants. Any notice or election will be deemed given or made as
of the date of delivery, or if given or made by certified mail, as of 3
business days after mailing.


          6.06
Administration. The Employer will administer and interpret the Plan,
including making a determination of the Vested Accrued Benefit due any
Participant or Beneficiary under the Plan. As a condition of receiving any Plan
benefit to which a Participant or Beneficiary otherwise may be entitled, a
Participant or Beneficiary will provide such information and will perform such
other acts as the Employer reasonably may request. The Employer may cause the
Plan to forfeit any or all of a Participant’s Vested Accrued Benefit, if the
Participant fails to cooperate reasonably with the Employer in the
administration of the Participant’s Plan Account, provided that this provision
does not apply to a bona fide dispute under Section 4.05(A)(2). The Employer
may retain agents to assist in the administration of the Plan and may delegate
to agents such duties as it sees fit. The decision of the Employer or its
designee concerning the administration of the Plan is final and is binding upon
all persons having any interest in the Plan. The Employer will indemnify,
defend and hold harmless any Employee designated by the Employer to assist in
the administration of the Plan from any and all loss, damage, claims, expense
or liability with respect to this Plan (collectively, “claims”) except claims
arising from the intentional acts or gross negligence of the Employee.


          6.07
Account Statements. The Employer from time to time will provide each
Participant with a statement of the Participant’s Vested Accrued Benefit as of
the most recent Valuation Date. The Employer also will provide Account
statements to any Beneficiary of a deceased Participant with a Vested Accrued
Benefit remaining in the Plan. Any such statements are for information purposes
only prior to an actual Plan payment, are subject to adjustment or correction,
and are not binding upon the Employer.


          6.08
Accounting. The Employer will maintain for each Participant as is
necessary for proper administration of the Plan, an Elective Deferral Account,
a Matching Contribution Account, a Nonelective Contribution Account, and
separate sub-accounts reflecting 409A Amounts and Grandfathered Amounts in
accordance with Section 7.03.


	
 

	
 


	
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          6.09
Costs and Expenses. Investment charges which will be borne by the
Account to which they pertain. The Employer will pay the other costs, expenses
and fees associated with the operation of the Plan, excluding those incurred by
Participants or Beneficiaries. The Employer will pay costs, expenses or fees
charged by or incurred by the Trustee only as provided in the Trust or other
agreement between the Employer and the Trustee.


          6.10
Reporting. The Employer will report Deferred Compensation for Employee
Participants on Form   W-2 for and on Form 1099-MISC for Contractor Participants
in accordance with Applicable Guidance.


          6.11
ERISA Claims Procedure. If this Plan is established as a “top-hat plan”
within the meaning of DOL Reg. §2520.104-23, the following claims procedure
under DOL Reg. §2560.503-1 applies. For purposes of the Plan’s claims procedure
under this Section 6.11, the “Plan Administrator” means the Employer. A
Participant or Beneficiary may file with the Plan Administrator a written claim
for benefits, if the Participant or Beneficiary disputes the Plan Administrator’s
determination regarding the Participant’s or Beneficiary’s Plan benefit.
However, the Plan Administrator will cause the Plan to pay only such benefits
as the Plan Administrator in its discretion determines a Participant or
Beneficiary is entitled to receive. The Plan Administrator under this Section
6.11 will provide a separate written document to affected Participants and
Beneficiaries which explains the Plan’s claims procedure and which by this
reference is incorporated into the Plan. If the Plan Administrator makes a
final written determination denying a Participant’s or Beneficiary’s claim, the
Participant or Beneficiary must file an action with respect to the denied claim
within 180 days following the date of the Plan Administrator’s final determination.


VII. 409A
AMOUNTS AND GRANDFATHERED AMOUNTS


          7.01
409A Amounts. The terms of this Plan control as to any 409A Amount. 


          7.02
Grandfathered Amounts. A Grandfathered Amount remains subject to the
terms of the Plan as in effect before January 1, 2005, unless the Employer
makes a material modification to the Plan as described in Treas. Reg.
§1.409A-6(a)(4).


          7.03
Separate Accounting/Earnings. The Employer will account separately for
409A Amounts and for Grandfathered Amounts within each Participant’s Account.
The Employer also will account separately for Earnings on the 409A Amounts and
Earnings on the Grandfathered Amounts. Post-2004 Earnings on Grandfathered
Amounts are included in the Grandfathered Amount.


*  *  *  *  *  *  *  *  *  *  *  *  *  *  *


28     07/07