Exhibit 10.1


 


The CORPORATEplan for
RetirementSM  

EXECUTIVE PLAN


 


BASIC PLAN DOCUMENT


 


IMPORTANT NOTE


 


This document has not been
approved by the Department of Labor, the Internal
Revenue Service or any other governmental entity.  The Employer
must determine whether the plan is subject to the Federal securities
laws and the securities laws of the various states.  The Employer
may not rely on this document to ensure any particular tax consequences or to
ensure that the Plan is “unfunded and maintained primarily for the purpose of providing deferred compensation to a select
group of management or highly compensated employees” under the Employee Retirement Income Security Act with
respect to the Employer’s particular situation.  Fidelity Management Trust Company, its affiliates and employees cannot and do not
provide legal or tax advice or
opinions in connection with this document.  This document does not constitute legal
or tax advice or opinions and is not intended or written to be used, and it cannot be used by any taxpayer, for the purposes of avoiding penalties that may be imposed
on the taxpayer. This document must
be reviewed by the Employer’s attorney prior to adoption.


 


	
  (07/2007)

  	
   

  	
  ECM NQ 2007 BPD

  
	
   

  	
   

  	
   

  
	
   

  	
  © 2007 Fidelity Management &
  Research Company

  	
   

  



 

















 


CORPORATEplan for Retirement EXECUTIVE 

BASIC PLAN DOCUMENT


 


	
  ARTICLE 1

  
	
  ADOPTION AGREEMENT

  
	
   

  
	
  ARTICLE 2

  
	
  DEFINITIONS

  
	
   

  
	
  2.01 - Definitions

  
	
   

  
	
  ARTICLE 3

  
	
  PARTICIPATION

  
	
   

  
	
  3.01 - Date of Participation

  
	
  3.02 - Participation Following a Change in Status

  
	
   

  
	
  ARTICLE 4

  
	
  CONTRIBUTIONS

  
	
   

  
	
  4.01 - Deferral Contributions

  
	
  4.02 - Matching Contributions

  
	
  4.03 - Employer Contributions

  
	
  4.04 - Election Forms

  
	
   

  
	
  ARTICLE 5

  
	
  PARTICIPANTS’ ACCOUNTS

  
	
   

  
	
  ARTICLE 6

  
	
  INVESTMENT OF ACCOUNTS

  
	
   

  
	
  6.01 - Manner of Investment

  
	
  6.02 - Investment Decisions, Earnings and Expenses

  
	
   

  
	
  ARTICLE 7

  
	
  RIGHT TO BENEFITS

  
	
   

  
	
  7.01 - Retirement

  
	
  7.02 - Death

  
	
  7.03 - Separation from Service

  
	
  7.04 - Vesting after Partial Distribution

  
	
  7.05 - Forfeitures

  
	
  7.06 - Change in Control

  
	
  7.07 - Disability

  
	
  7.08 - Directors

  
	
   

  
	
  ARTICLE 8

  
	
  DISTRIBUTION OF BENEFITS

  
	
   

  
	
  8.01 - Events Triggering and Form of Distributions

  
	
  8.02 - Notice to Trustee

  
	
  8.03 - Unforeseeable Emergency Withdrawals

  



 


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  ARTICLE 9

  
	
  AMENDMENT AND TERMINATION

  
	
   

  
	
  9.01 - Amendment by Employer

  
	
  9.02 - Termination

  
	
   

  
	
  ARTICLE 10

  
	
  MISCELLANEOUS

  
	
   

  
	
  10.01 - Communication to Participants

  
	
  10.02 - Limitation of Rights

  
	
  10.03 - Nonalienability of Benefits

  
	
  10.04 - Facility of Payment

  
	
  10.05 - Plan Records

  
	
  10.06 - USERRA

  
	
  10.07 - Governing Law

  
	
   

  
	
  ARTICLE 11

  
	
  PLAN ADMINISTRATION

  
	
   

  
	
  11.01 - Powers and Responsibilities of the Administrator

  
	
  11.02 - Claims and Review Procedures

  



 


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PREAMBLE


 


It is the intention of the Employer
to establish herein an unfunded plan maintained solely for the  purpose of providing deferred
compensation for a select group of management or highly  compensated employees as provided
in ERISA.  The Employer further intends
that this Plan comply with Code section 409A, and the Plan is to be construed
accordingly.


 


If the Employer has previously
maintained the Plan described herein pursuant to a previously existing plan
document or description, the Employer’s adoption of this Plan document is an
amendment and complete restatement of, and supersedes, such previously existing
document or description with respect to benefits accrued or to be paid on or
after the effective date of this document (except to the extent expressly
provided otherwise herein).


 


Article 1.  Adoption Agreement.


 


Article 2.  Definitions.


 


2.01.  Definitions.


 


(a) 
Wherever used herein, the following terms have the meanings set forth below,
unless a different meaning is clearly required by the context:


 


(1)  “Account” means an account established on the books of
the Employer for the purpose of recording amounts credited to a Participant and
any income, expenses, gains, or losses attributable thereto.


 


(2)          “Active Participant” means a Participant who is eligible to accrue
benefits under a plan other than earnings on amounts previously deferred)
within the 24-month period ending on the date the Participant becomes a
Participant under Section 3.01.  Notwithstanding the above, however, a
Participant is not an Active Participant if he has been paid all amounts deferred
under the plan, provided that he was, on and before the date of the last
payment, ineligible to continue or to elect to continue to participate in the
plan for periods after such last payment (other than through an election of a different
time and form of payment with respect to the amounts paid).


 


(A)   For purposes of Section 4.01(d), as used
in the first paragraph of the definition of “Active Participant”  above, “plan”  means an account balance plan (or portion thereof) of the Employer or a Related Employer
subject to Code section 409A pursuant to which the Participant is
eligible to accrue benefits only if the Participant elects to defer compensation thereunder, and the “date the Participant
becomes a Participant under Section 3.01”
refers only to the date the Participant becomes a Participant with
respect to Deferral Contributions.


 


(B)   For purposes of Section 8.01(a)(2), as
used in the first paragraph of the definition of “Active Participant”  above, “plan”  means an account balance plan (or portion thereof) of the Employer or a Related Employer
subject to Code section 409A pursuant to which the Participant is
eligible to accrue benefits without any election by the Participant to defer compensation thereunder, and the “date the
Participant becomes a Participant
under Section 3.01” refers only to the date the Participant becomes
a Participant with respect to Matching or Employer Contributions.


 


1

















 


(3)   “Administrator” means the Employer adopting this
Plan (but excluding Related Employers) or other person designated by the
Employer in Section 1.01(c).


 


(4)   “Adoption Agreement” means Article 1, under
which the Employer establishes and adopts or amends the Plan and selects certain
provisions of the Plan. The provisions of the Adoption Agreement are an
integral part of the Plan.


 


(5)   “Beneficiary” means the person or persons entitled
under Section 7.02 to receive benefits under the Plan upon the death of a
Participant.


 


(6)   “Bonus” means any Performance-based Bonus or any
Non-performance-based Bonus as listed and identified in the table in Section 1.05(a)(2) hereof.


 


(7)   “Change in Control” means a change in control with
respect to the applicable corporation, as
defined in 26 CFR section 1.409A-3(i)(5). 
For purposes of this definition “applicable corporation” means:


 


(A) The corporation for
which the Participant is performing services at the time of the change in
control event;


 


(B) The
corporation(s) liable for payment hereunder (but only if either the
accrued benefit hereunder
is attributable to the performance of service by the Participant for such
corporation(s) or there is a bona fide business purpose for such
corporation(s) to be liable for such
payment and, in either case, no significant purpose of making such corporation(s) liable
for such benefit is the avoidance of Federal income tax); or


 


(C) A corporate
majority shareholder of one of the corporations described in (A) or (B) above
or any corporation in a chain of corporations
in which each corporation is a majority shareholder of another
corporation in the chain, ending in a corporation identified in (A)   or (B) above.


 


(8)   “Code” means the Internal Revenue Code of 1986, as
amended from time to time.


 


(9)   “Compensation” means for purposes of Article 4:


 


(A) 
If the Employer elects Section 1.04(a), such term as defined in such Section 1.04(a).


 


(B) If the Employer elects Section 1.04(b),
wages as defined in Code section 3401(a) and all other payments of compensation to an Employee by the Employer (in the
course of the Employer’s trade or business) for which the Employer is
required to furnish the Employee a written
statement under Code sections 6041(d) and 6051(a)(3), excluding any
items elected by the Employer in Section 1.04(b), reimbursements or other
expense allowances, fringe benefits (cash and non-cash), moving expenses, deferred compensation
and welfare benefits, but including amounts that are not includable in the gross income of the Employee under a salary reduction
agreement by reason of the application of Code section 125, 132(f)(4),
402(e)(3), 402(h) or 403(b).  Compensation shall be determined without
regard to any rules under Code section 3401(a) that limit the remuneration
included in wages based on the nature or location of the employment or the services
performed (such as the exception for agricultural
labor in Code section 3401 (a)(2)).


 


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(C) If
the Employer elects Section 1.04(c), any and all monetary remuneration
paid to the Director by the
Employer, including, but not limited to, meeting fees and annual retainers, and
excluding items listed in Section 1.04(c).


 


For
purposes of this Section 2.01(a)(9), Compensation shall also include
amounts deferred pursuant to an election under Section 4.01.


 


(10)  “Deferral Contribution”
means a hypothetical contribution credited to a Participant’s Account as
the result of the Participant’s election to reduce his Compensation in exchange
for such credit, as described in Section 4.01.


 


(11)  “Director” means a person,
other than an Employee, who is elected or appointed as a member of the board of directors of the Employer,
with respect to a corporation, or to an analogous position with respect
to an entity that is not a corporation.


 


(12)  “Disability” is described in Section 1.07(a)(2).


 


(13)  “Employee” means any employee of the Employer.


 


(14)  “Employer” means the employer named in Section 1.02(a) and
any Related Employers listed in Section 1.02(b).


 


(15)  “Employer Contribution” means a hypothetical contribution
credited to a Participant’s Account under the Plan as a result of the Employer’s
crediting of such amount, as described in Section 4.03.


 


(16)  “Employment Commencement Date” means the date on which the
Employee commences employment with the Employer.


 


(17)  “ERISA” means the Employee Retirement Income Security Act of
1974, as from time to time amended.


 


(18)  “Inactive Participant” means a Participant who is not an
Employee or Director.


 


(19)  “Matching Contribution” means a hypothetical contribution
credited to a Participant’s Account under the Plan as a result of the Employer’s
crediting of such amount, as described in Section 4.02.


 


(20)  “Non-performance-based Bonus” means any Bonus listed under
the column entitled “non performance based” in Section 1.05(a)(2).


 


(21)
 “Participant” means any Employee or Director who participates in the Plan
in accordance with Article 3 (or formerly participated in the Plan and has
an amount credited to his Account).


 


(22)  “Performance-based Bonus” means
any Bonus listed under the column entitled “performance based” in Section 1.05(a)(2),
which constitutes compensation, the amount of, or entitlement to, which is contingent on the satisfaction of
pre-established organizational or individual performance criteria relating to a
performance period of at least 12 consecutive months and which is
further defined in 26 CFR section 1.409A-1(e).


 


(23)
 “Permissible Investment” means the investments specified by the Employer
as available for hypothetical investment of Accounts.  The Permissible Investments under the Plan are
listed in the Service Agreement, and the provisions of the Service Agreement
listing the Permissible Investments are hereby incorporated herein.


 


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(24)
 “Plan” means the plan established by the Employer as set forth herein as
a new plan or as an amendment to an existing
plan, such establishment to be evidenced by the Employer’s execution of
the Adoption Agreement, together with any and all amendments hereto.


 


(25)  “Related Employer” means any employer other
than the Employer named in Section  1.02 (a), if the Employer and such
other employer are members of a controlled group of corporations (as defined in Code section 414(b)) or trades or
businesses (whether or not incorporated)
under common control (as defined in Code section 414(c)).


 


(26)  “Separation from Service”
means the date the Participant retires or otherwise has a termination of
employment (or a termination of the contract pursuant to which the Participant has provided services as a Director, for a Director
Participant) with the Employer and all Related Employers, as further
defined in 26 CFR section 1.409A-1(h); provided, however, that


 


(A)
 For purposes of this paragraph (26), the
definition of “Related Employer” shall be modified as follows:


 


(i)            In applying Code section
1563(a)(1), (2) and (3) for purposes of
determining
a controlled group of corporations under Code section 414(b), the phrase “at least 50%” shall be used instead
of “at least 80 percent” each place “at least 80 percent” appears in Code
section 1563(a)(1), (2) and (3); and


 


(ii)           In applying 26 CFR
section 1.414(c)-2 for purposes of determining trades or business (whether or
not incorporated) under common control for purposes of Code section 414(c), the
phrase “at least 50%” shall be used instead of “at least 80 percent” each place
“at least 80 percent” appears in 26 CFR section 1.414(c)-2.


 


(B)  In the event a Participant
provides services to the Employer or a Related Employer as an Employee and a Director,


 


(i)            The Employee
Participant’s services as a Director are not taken into account in determining whether
the Participant has a Separation from Service as an Employee; and


 


(ii)           The Director Participant’s
services as an Employee are not taken into account in determining whether the
Participant has a Separation from Service as a Director


 


provided that this Plan is not aggregated with a plan
subject to Code section 409A in which the Director Participant participates as an employee of the
Employer or a Related Employer or in which
the Employee Participant participates as a director (or a similar position
with respect to a non-corporate entity) of the Employer or a Related Employer,
as applicable, pursuant to 26 CFR section 1.409A-1(c)(2)(ii).


 


(27)  “Service Agreement” means the agreement between the Employer
and Trustee regarding the arrangement between the parties for recordkeeping
services with respect to the Plan.


 


(28)  “Specified Employee,” (unless
defined by the Employer in a separate writing, in which case such writing is hereby incorporated herein) means
a Participant who meets the requirements in 26 CFR section 1.409A-1(i) applying the default definition components
provided in such regulation (those that would apply absent elections, as
described in 26 CFR section 1.409A-1(i)(8)), including an identification
date of December 31.  In the event
that such default definition components are applicable, the Employer has
elected Section 1.01(b)(2) and, immediately prior to the date in Section 1.01(b)(2),
the Plan applied an identification date (the “prior date”) other than the December 31,
the prior date shall continue to apply, and December 31 shall not apply,
until the date that is 12 months after the date in Section 1.01(b)(2).


 


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(29)
 “Trust” means the trust created by the Employer, pursuant to the Trust
agreement between the Employer and the Trustee, under which assets are held,
administered, and managed, subject to the claims of the Employer’s creditors in
the event of the Employer’s insolvency, until paid to Participants and their
Beneficiaries as specified in the Plan.


 


(30)
 “Trust Fund” means the property held in the Trust by the Trustee.


 


(31)  “Trustee” means the individual(s) or
entity appointed by the Employer under the Trust agreement.


 


(32)
 “Unforeseeable Emergency” is as defined in 26 CFR section
1.409A-3(i)(3)(i).


 


(33)  “Year of Service” is as defined in Section 7.03(b) for
purposes of the elapsed time method and in Section 7.03(c) for
purposes of the class year method.


 


(b) Pronouns used in the Plan are in the masculine gender
but include the feminine gender unless the context clearly indicates otherwise.


 


Article 3.  Participation.


 


3.01. Date of Participation. An Employee or Director becomes a
Participant on the date such Employee’s or Director’s participation becomes
effective (as described in Section 1.03).


 


3.02. Participation
following a Change in Status.


 


(a)
 If a Participant ceases to be an
Employee or Director and thereafter resumes the same status he had as a Participant during his immediately
previous participation in the Plan (as an Employee if previously a
Participant as an Employee and as a Director if previously a Participant as a
Director), he will again become a Participant immediately upon resumption of
such status, provided, however, that if such
Participant is a Director, he is an eligible Director upon resumption of such
status (as defined in Section 1.03(b)),
and provided, further, that if such Participant is an Employee, he is an eligible
Employee upon resumption of such status (as defined in Section 1.03 (a)).  Deferral Contributions to such Participant’s
Account thereafter, if any, shall be subject to (1) or (2) below.


 


(1) If the Participant resumes such status during a
period for which such Participant had previously made a valid deferral election
pursuant to Section 4.01, he shall immediately resume such Deferral Contributions.  Deferral Contributions applicable to periods thereafter shall be made pursuant to the
election and other rules described in Section 4.01.


 


(2) If
the Participant resumes such status after the period described in the first
sentence of paragraph (1) of this Section 3.02, any Deferral Contributions
with respect to such Participant shall be made pursuant to the election and
other rules described in Section 4.01.


 


(b) When
an individual who is a Participant due to his status as an eligible Employee
(as defined in Section 1.03(a)) continues in the employ of the Employer or
Related Employer but ceases to be an eligible Employee, the individual shall not
receive an allocation of Matching or Employer Contributions
for the period during which he is not an eligible Employee.  Such Participant shall continue to make Deferral Contributions throughout
the remainder of the applicable period (as described in Section 4.01)
in which such change in status occurs, if, and as, applicable.


 


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(c) When
an individual who is a Participant due to his status as an eligible Director
(as defined in Section 1.03(b)) continues his directorship with the
Employer or a Related Employer but ceases to be an eligible Director, the
individual shall not receive an allocation of Matching or Employer
Contributions for the period during which he is not an eligible Director. Such
Participant shall continue to make Deferral Contributions throughout the
remainder of the applicable period (as described in Section 4.01) in which
such change in status occurs, if, and as, applicable.


 


Article 4.  Contributions.


 


4. 01  Deferral
Contributions.  If elected by the Employer pursuant to Section 1.05(a) and/or
1.06(a), a Participant described in such applicable Section may elect to
reduce his Compensation by a specified percentage or dollar amount. The
Employer shall credit an amount to the Participant’s Account equal to the amount of such reduction.  Except as otherwise provided in this Section 4.01,
such election shall be effective to
defer Compensation relating to all services performed in the calendar year beginning
after the calendar year in which the Participant executes the election.  Under no circumstances
may a salary reduction agreement be adopted retroactively.  If the Employer has elected to apply Section 1.05(a)(2),
no amount will be deducted from Bonuses unless the Participant has made a
separate deferral election applicable to such Bonuses.  A Participant’s election to defer Compensation
may be changed at any time before the last permissible date for making such
election, at which time such election becomes irrevocable.  Notwithstanding anything herein to the
contrary, the conditions under which a Participant may make a deferral election
as provided in the applicable salary reduction agreement are hereby
incorporated herein and supersede any otherwise inconsistent Plan provision.


 


(a)          Performance Based Bonus.  With respect to a
Performance-based Bonus, a separate election made pursuant to Section 1.05(a)(2) will
be effective to defer such Bonus if made no later than 6 months before the end of the period during which
the services on which such Performance-based Bonus is based are
performed.


 


(b)         Fiscal Year Bonus.
With respect to a Bonus relating to a period of service coextensive with one   or more consecutive fiscal years of the
Employer, of which no amount is paid or payable during  the service period, a separate
election pursuant to Section 1.05(a)(2) will be effective to defer   such Bonus if made no later than the
close of the Employer’s fiscal year next preceding the first fiscal year in
which the Participant performs any services for which such Bonus is payable.


 


(c)          Cancellation of Salary Reduction Agreement.


 


(1)
The Administrator may cancel a Participant’s salary reduction agreement
pursuant to the provisions of 26 CFR section 1.409A-3(j)(4)(viii) in
connection with the Participant’s Unforeseeable Emergency. To the extent
required pursuant to the application of 26 CFR section 1.401 (k)-1(d)(3) (or
any successor thereto), a Participant’s salary reduction agreement shall be
automatically cancelled.


 


(2)
The Administrator may cancel a Participant’s salary reduction agreement
pursuant to the provisions of 26 CFR section 1.409A-3(j)(4)(xii) in connection
with the Participant’s disability.  Such cancellation must occur by the later of
the end of the Participant’s taxable year or the 15th day of the third month following the date the Participant incurs a disability.
 For purposes of this paragraph (2), a
disability is any medically determinable physical or mental impairment
resulting in the Participant’s inability to perform the duties of his or her
position or any substantially similar position, where such impairment can be expected
to result in death or can be expected to last for a continuous period of not
less than six months.


 


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In no event may the Participant, directly or indirectly,
elect such a cancellation.  A
cancellation pursuant to
this subsection (c) shall apply only to Compensation not yet earned.


 


(d)  Initial Deferral Election.  Notwithstanding the above, if the Participant
is not an Active Participant,
the Participant may make an election to defer Compensation within 30 days after
the Participant becomes a Participant, which election
shall be effective with respect to Compensation payable for services
performed during the calendar year (or other deferral period described in (a) or (b)
above, as applicable) and after the date of such election.  For Compensation that is earned based
upon a specified performance period (e.g., an annual bonus) an election
pursuant to this subsection (d) will be effective to defer an amount equal
to the total amount of the Compensation for the performance period multiplied by
the ratio of the number of days remaining in the performance period after the
election over the total number of days in the performance period.


 


4.02. Matching Contributions.  If so
provided by the Employer in Section 1.05(b) and/or 1.06(b)(1), the
Employer shall credit a Matching Contribution to the Account of each
Participant entitled to such Matching Contribution. The amount of the Matching
Contribution shall be determined in accordance with Section 1.05 (b) and/or 1.06(b)(1), as
applicable, provided, however, that the Matching Contributions credited to the
Account of a Participant pursuant to Section 1.05(b)(2) shall be
limited pursuant to (a) and (b) below:


 


(a) The
sum of Matching Contributions made on behalf of a Participant pursuant to Section 1.05(b)(2) for
any calendar year and any other benefits the Participant accrues pursuant to
another plan subject to Code section 409A as a result of such Participant’s
action or inaction under a qualified plan with respect to elective deferrals
and other employee pre-tax contributions subject to the contribution restrictions
under Code section 401(a)(30) or 402(g) shall not result in an increase in
the amounts deferred under all plans subject to Code section 409A in which the
Participant participates in excess of the limit with respect to elective
deferrals under Code section 402(g)(1)(A), (B) and (C) in effect for
the calendar year in which such action or inaction occurs; and


 


(b) The
Matching Contributions made on behalf of a Participant pursuant to Section 1.05(b)(2) shall
never exceed 100% of the
matching amounts that would be provided under the qualified employer plan
identified in Section 1.05(b)(2) absent any plan-based restrictions
that reflect limits on qualified plan contributions under the Code.


 


4.03. Employer Contributions.  If so
provided by the Employer in Section 1.05(c)(1) and/or 1.06(b)(2), the Employer shall make an Employer Contribution to
be credited to the Account of each Participant entitled thereto in the amount provided in such Section(s).  If so provided by the Employer in Section 1.05 (c)(2) and/or
1.06(b)(3), the Employer may make an Employer Contribution to be credited to
the Account maintained on behalf of any Participant in such an amount as
the Employer, in its sole discretion, shall determine, subject to the provisions
of the applicable Section.


 


4.04. Election Forms.  Notwithstanding
anything herein to the contrary, the terms of an election form with respect to
the conditions under which a Participant may make any election hereunder, as
provided in such form (whether electronic or
otherwise) are hereby incorporated herein and supersede any otherwise inconsistent
Plan provision.


 


Article 5.  Participants’ Accounts. The Administrator will maintain an Account
for each Participant, reflecting
hypothetical contributions credited to the Participant, along with hypothetical
earnings, expenses, gains and losses, pursuant to the terms hereof. A
hypothetical contribution shall be credited to the Account of a Participant on
the date determined by the Employer and accepted by the Plan recordkeeper. The Administrator
will maintain such other accounts and records as it deems appropriate to the
discharge of its duties under the Plan.


 


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Article 6.  Investment of Accounts.


 


6.01.   Manner of Investment.   All
amounts credited to the Accounts of Participants shall be treated as though
invested and reinvested only in Permissible Investments.


 


6.02.    Investment Decisions, Earnings and Expenses. 
Investments in which the Accounts of Participants shall be treated as
invested and reinvested shall be directed by the Employer or by each
Participant, or both, in accordance with Section 1.09.   All dividends, interest, gains, and
distributions of any nature that would be earned on a Permissible Investment
will be credited to the Account as though reinvested in additional shares of
that Permissible Investment.   Expenses
that would be attributable to such investments shall be charged to the Account of
the Participant.


 


Article 7.  Right to Benefits.


 


7.01.   Retirement.   If
provided by the Employer in Section 1.08(e)(1), the Account of a
Participant or an Inactive Participant who
attains retirement eligibility prior to a Separation from Service will be 100% vested.


 


7.02.   Death.   If
provided by the Employer in Section 1.08(e)(2), the Account of a
Participant or former Participant who dies before the distribution of his
entire Account will be 100% vested, provided that at the time of his death he is
earning Years of Service.


 


A Participant may designate
a Beneficiary or Beneficiaries, or change any prior designation of Beneficiary
or Beneficiaries, by giving notice to the Administrator on a form designated by
the Administrator.   If more than one person is designated as the Beneficiary,
their respective interests shall be as indicated on the designation
form.


 


A copy
of the death certificate or other sufficient documentation must be filed with
and approved by the Administrator.   If
upon the death of the Participant there is, in the opinion of the
Administrator, no designated
Beneficiary for part or all of the Participant’s Account, such amount will be
paid to his surviving spouse or, if none, to his estate (such spouse or estate
shall be deemed to be the Beneficiary for purposes of the Plan).   If a Beneficiary dies after benefits to such
Beneficiary have commenced, but before they have been completed, and, in the opinion of the Administrator, no person has
been designated to receive such remaining benefits, then such benefits
shall be paid to the deceased Beneficiary’s estate.


 


A distribution to a
Beneficiary of a Specified Employee is not considered to be a payment to a
Specified Employee for purposes of Sections 1.07 and 8.01(e).


 


7.03.  Separation from Service.


 


(a) 
General.   If provided by the Employer in Section 1.08,
and subject to Section 1.08(e)(2), if a Participant has a Separation from Service, he
will be entitled to a benefit equal to (i) the vested percentage(s) of
the value of the Matching and Employer Contributions credited to his Account,
as adjusted for income, expense, gain, or loss, such percentage(s) determined
in accordance with the vesting schedule(s) and methodology selected by the
Employer in Section 1.08, and (ii) the value of the Deferral Contributions to his Account as adjusted for
income, expense, gain, or loss.  
The amount payable under this Section 7.03 will be distributed in
accordance with Article 8.


 


8

















 


(b)  Elapsed Time Vesting.    Unless otherwise provided by the Employer
in Section 1.08, vesting shall be
determined based on the elapsed time method.  
For purposes of the elapsed time method, “Years of Service” means, with respect to any Participant or
Inactive Participant, the number of whole years of his periods of
service with the Employer and any Related Employers (as defined in Section 2.01(a)(26)(A)), subject to any exclusion
elected by the Employer in Section 1.08(c).   A Participant or Inactive Participant will receive
credit for the aggregate of all time period(s) commencing with his
Employment Commencement Date and ending on the date a break in service begins,
unless any such years are excluded by Section 1.08(c).   A Participant or Inactive Participant will also receive credit for any period of
severance of less than 12 consecutive months.  Fractional periods of a year will be
expressed in terms of days.


 


A break in service is a period of severance of at least 12
consecutive months.   A “period of severance” is a
continuous period of time beginning on the date the Participant or Inactive Participant incurs a Separation from Service,
or if earlier, the 12-month anniversary of the date on which the Participant or
Inactive Participant was otherwise first absent from service.


 


Notwithstanding
the above, the Employer shall comply with any service crediting rules to
the extent required by applicable law.


 


(c)  Class Year Vesting.  If provided by the Employer in Section 1.08,
a Participant’s or Inactive Participant’s vested percentage in the Matching
Contributions and/or Employer Contributions portion(s) of his Account
shall be determined pursuant to the class year method.  Pursuant to such method, amounts attributable
to the applicable contribution types are assigned to “class years” established
in the records of the Plan.  Such class
years are years (calendar or non-calendar) to which the contribution is
assigned by the Administrator, as described in the Service Agreement between
the Trustee and the Employer.  The Participant’s
or Inactive Participant’s vested percentage in amounts attributable to a
particular contribution is determined from the beginning of the applicable
class year to the date the Participant or Inactive Participant incurs a Separation
from Service.  For purposes of the class
year method, a Participant or Inactive Participant is credited with a Year of
Service on the first day of each such class year.


 


7.04.   Vesting after Partial Distribution.   If a
distribution from a Participant’s Account has been made to him at a time when his Account is less than 100%
vested, the vesting schedule in Section 1.08 will thereafter apply only to amounts in his Account
attributable to Matching Contributions and Employer Contributions credited after such
distribution.    The balance of his Account attributable to
Matching Contributions and Employer
Contributions immediately after such distribution will be subject to the following
for the purpose of determining his interest therein.


 


At any relevant time prior
to a forfeiture of any portion thereof under Section 7.05, a Participant’s
nonforfeitable interest in the portion of his Account described in the sentence
immediately above will be equal to P(AB + (RxD))-(RxD), where P is the
nonforfeitable percentage at the relevant time determined under Section 1.08;
AB is the account balance of such portion at the relevant time; D is the amount
of the distribution; and R is the ratio of the account balance of such portion
at the relevant time to the account balance of such portion after
distribution.  Following a forfeiture of
any portion of such portion under Section 7.05 below, any balance with
respect to such portion will remain fully vested and nonforfeitable.


 


7.05.   Forfeitures.   Once
payments are to commence to a Participant or Inactive Participant hereunder,
the portion of such Account subject to the
same payment commencement date but not yet vested, if any, (determined
by his vested percentage at such payment commencement date) will be forfeited
by him


 


7.06.   Change in Control.   If the Employer has elected to apply Section 1.07(a)(3)(D),
then, upon a Change in Control,
notwithstanding any other provision of the Plan to the contrary, all
Participant Accounts shall be 100% vested.


 


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7.07.   Disability.   If
the Employer has elected to apply Section 1.08(e)(3), then, upon the date
a Participant incurs a Disability, as defined in Section 1.07(a)(2),
notwithstanding any other provision of the Plan to the contrary, all Accounts of
such Participant shall be 100% vested.


 


7.08.   Directors.   Notwithstanding any other provision of the
Plan to the contrary, all Accounts of a Participant who is a Director shall be
100% vested at all times, including Accounts attributable to the Participant’s service as an Employee, if any.


 


Article 8.  Distribution of Benefits.


 


8.01 Events Triggering, and Form of,
Distributions.


 


(a)          Events triggering the distribution of benefits and the form of such
distributions are described in Section  1.07(a),  pursuant to the Employer’s election and/or
the Participant’s election,  as applicable.


 


(1) 
With respect to the form and time of distribution of amounts attributable to a Deferral Contribution, a Participant election
must be made no later than the time by which the Participant must elect to make
a Deferral Contribution, as described in Section 4.01.


 


(2) 
With respect to the form and time of distribution of amounts attributable to Matching or Employer Contributions, a
Participant election must be made no later than
the time by which a Participant would be required to make a Deferral Contribution as described in Section 4.01 with
respect to the calendar year for which the Matching and/or Employer
Contributions are credited.   For
purposes of applying Section 4.01(d) “Active Participant” shall have
the meaning assigned in Section 2.01(a)(2)(B).


 


(3) 
Notwithstanding anything herein to the contrary, an election choosing a distribution trigger and payment method
pursuant to Section 1.07(a)(1) will only be effective with respect to amounts attributable to contributions
credited to the Participant’s Account for the calendar year (or other
deferral period described in 4.01
(a)  or (b))  to which such election relates.
Amounts attributable to contributions credited to a Participant’s account
prior to the effective date of any new election will not be affected and
will be paid in accordance with the otherwise applicable election.


 


(b)         If the Employer elects to permit a distribution election change
pursuant to Section 1.07(b), then any such distribution election change
must satisfy (1) through (3) below:


 


(1)  Such election may
not take effect until at least 12 months after the date on which such election
is made.


 


(2)  In the case of an election related to a payment not on
account of Disability, death or the  occurrence of an Unforeseeable Emergency, the payment with respect to
which such election is made must
be deferred for a period of not less than five years from the date such payment
would otherwise have been paid (or in the case of installment payments, five
years from the date the first amount was scheduled to be paid).


 


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(3)  Any election related to a payment at a specified time or
pursuant to a fixed schedule may  not be made less than 12 months prior to the date the payment is
scheduled to be paid (or in the case of installment payments, 12 months prior
to the date the first amount was scheduled to be paid).


 


With
respect to any initial distribution election, a Participant shall in no event
be permitted to make more than one distribution election change.


 


(c)   A Participant’s entitlement to installments
will not be treated as an entitlement to a series of separate payments.


 


(d)   If the Plan does not provide for Plan-level
payment triggers pursuant to Section 1.07(a)(3), and the Participant does
not designate in the manner prescribed by the Administrator the method of distribution,
and/or the distribution trigger (if and as required), such method of
distribution shall be a lump sum at Separation from Service.


 


(e)   Notwithstanding anything herein to the
contrary, with respect to any Specified Employee, if the applicable payment
trigger is Separation from Service, then payment shall not commence before the
date that is six months after the date of Separation from Service (or, if
earlier, the date of death of the Specified Employee, pursuant to Section 7.02).  Payments to which a Specified Employee would
otherwise be entitled during the first six months following the date of Separation
from Service are delayed by six months.


 


(f)   Notwithstanding
anything herein to the contrary, the Administrator may, in its discretion,
automatically pay out a
Participant’s vested Account in a lump sum, provided that such payment satisfies
the requirements in (1) through (3) below:


 


(1)  Such payment
results in the termination and liquidation of the entirety of the Participant’s
interest under the plan (as defined in 26 CFR section 1.409A-1(c)(2)),
including all agreements, methods, programs, or other arrangements with respect
to which deferrals of compensation are treated as having been deferred under a
single nonqualified deferred compensation plan under 26 CFR section
1.409A-1(c)(2);


 


(2)  Such payment is not greater than the applicable dollar amount
under Code section  402(g)(1)(B);
and


 


(3)  Such exercise of
Administrator discretion is evidenced in writing no later than the date of such
payment.


 


(g)   Notwithstanding anything herein to the
contrary, the Administrator may, in its discretion, delay a payment otherwise
required hereunder to a date after the designated payment date due to any of
the circumstances described in (1) through (4) below, provided that
the Administrator treats all payments to similarly situated Participants on a reasonably
consistent basis.


 


(1)  In the event the Administrator reasonably anticipates that,
if the payment were made as  scheduled,
the Employer’s deduction with respect to such payment would not be permitted
due to the application of Code section 162(m), provided the delay complies with
the conditions in 26 CFR section 1.409A-2(b)(7)(i).


 


(2)  In the event the
Administrator reasonably anticipates that the making of such payment will violate
Federal securities laws or other applicable law, provided the delay complies
with the conditions in 26 CFR section 1.409A-2(b)(7)(ii).


 


(3)  Upon such other events and conditions as the Commissioner of
the Internal Revenue  Service
may prescribe in generally applicable guidance published in the Internal
Revenue Bulletin.


 


11

















 


(4)  Upon a change in
control event, provided the delay complies with conditions in 26 CFR section
1.409A-3(i)(5)(iv).


 


(h)   Notwithstanding anything herein to the
contrary, the Administrator may provide an election to change the time or form
of a payment hereunder to satisfy the requirements of the Uniformed Services
Employment and Reemployment Rights Act of 1994, as amended, 38 USC sections 4301
through 4344.


 


8.02.   Notice to Trustee.   The
Administrator will provide direction to the Trustee, as provided in the Trust agreement, whenever any Participant or Beneficiary
is entitled to receive benefits under the Plan.   The Administrator’s
notice shall indicate the form, amount and frequency of benefits that such
Participant or Beneficiary shall receive.


 


8.03.    Unforeseeable Emergency Withdrawals.   Notwithstanding anything herein to the
contrary, a Participant
may apply to the Administrator to withdraw some or all of his Account if such
withdrawal is made on account of
an Unforeseeable Emergency as determined by the Administrator in accordance
with the requirements of and subject to the limitations provided in 26 CFR
section 1.409A-3(i)(3).


 


Article 9.  Amendment and Termination.


 


9.01  Amendment by Employer.  The
Employer reserves the authority to amend the Plan in its discretion. Any such amendment notwithstanding, no Participant’s
Account shall be reduced by such amendment below the amount to which the
Participant would have been entitled if he had voluntarily left the employ of
the Employer immediately prior to the date of the change.


 


9.02.   Termination.   The
Employer has no obligation or liability whatsoever to maintain the Plan for any
length of time and may terminate the Plan at
any time by written notice delivered to the Trustee without any
liability hereunder for any such discontinuance or termination.   Such termination shall comply with 26 CFR
section 1.409A-3(j)(4)(ix) and other applicable guidance.


 


Article 10.  Miscellaneous.


 


10.01.   Communication to Participants.   The Plan will be communicated to all
Participants by the Employer
promptly after the Plan is adopted.


 


10.02.   Limitation of Rights.  
Neither the establishment of the Plan and the Trust, nor any amendment thereof, nor the creation of any fund or account,
nor the payment of any benefits, will be construed as giving to any
Participant or other person any legal or equitable right against the Employer,
Administrator or Trustee, except as provided herein; in no event will the terms
of employment or service of any individual be modified or in any way affected
hereby.


 


10.03.   Nonalienability of Benefits.   The
benefits provided hereunder will not be subject to alienation, assignment,
garnishment, attachment, execution or levy of any kind, either voluntarily or
involuntarily, and any attempt to cause such benefits to be so subjected will
not be recognized, except to such extent as may be required by law and as provided pursuant to a domestic relations order
(defined in Code section 414 (p)(1)(B)), as determined by the
Administrator.   Pursuant to a domestic
relations order, payments may be accelerated
to a time sooner, and pursuant to a schedule more rapid, than the time and
schedule applicable in the absence of
the domestic relations order, provided that such payment pursuant to such order is not made to the Participant and provided
further that this provision shall not be construed to provide the
Participant discretion regarding whether such payment time or schedule will be
accelerated.


 


12

















 


10.04.   Facility of Payment.   In the event the Administrator determines,
on the basis of medical reports or other evidence satisfactory to the
Administrator, that the recipient of any benefit payments under the Plan is
incapable of handling his affairs by reason of minority, illness, infirmity or
other incapacity,  the Administrator may
disburse such payments, or direct the Trustee to disburse such payments, as
applicable, to a person or institution
designated by a court which has jurisdiction over such recipient or a person or
institution otherwise having the legal authority under State law for the
care and control of such recipient. The receipt by such person or institution
of any such payments shall be complete acquittance therefore, and any such
payment to the extent thereof, shall discharge the liability of the Trust for
the payment of benefits hereunder to such recipient.


 


10.05.     Plan Records.  The
Administrator shall maintain the records of the Plan on a calendar-year basis.


 


10.06.   USERRA.  Notwithstanding anything herein to the
contrary, the Administrator shall permit any Participant election and make any
payments hereunder required by the Uniformed Services Employment and
Reemployment Rights Act of 1994, as amended, 38 USC 4301-4334.


 


10.07.   Governing Law.  The
Plan and the accompanying Adoption Agreement will be construed, administered
and enforced according to ERISA, and to the extent not preempted thereby, the
laws of the State in which the Employer has its principal place of business,
without regard to the conflict of laws principles of such State.


 


Article 11.  Plan Administration.


 


11.01.   Powers and
Responsibilities of the Administrator.  The Administrator has the full power and the full responsibility to administer the Plan in all
of its details, subject, however, to the applicable requirements of
ERISA.  The Administrator’s powers and
responsibilities include, but are not limited to, the following:


 


(a)  To make and enforce such rules and regulations as it
deems necessary or proper for the efficient administration of the Plan;


 


(b)  To interpret the Plan, its interpretation
thereof in good faith to be final and conclusive on all persons claiming benefits under the Plan;


 


(c) 
To decide all questions concerning the Plan and the eligibility of any person
to participate in the Plan;


 


(d) 
To administer the claims and review procedures specified in Section 11.02;


 


(e) 
To compute the amount of benefits which will be payable to any Participant,
former Participant or Beneficiary in accordance with the provisions of the
Plan;


 


(f)   To determine the person or persons to whom
such benefits will be paid; 


 


(g) 
To authorize the payment of benefits;


 


(h)  To appoint such agents, counsel, accountants,
and consultants as may be required to assist in administering the Plan; and


 


(i)   By written instrument,
to allocate and delegate its responsibilities, including the formation of an
administrative committee to administer the Plan.


 


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11.02.  Claims and Review
Procedures.


 


(a)  Claims
Procedure.   If any person
believes he is being denied any rights or benefits under the Plan,
such person may file a claim in writing with the Administrator.   If any such claim is wholly or partially
denied, the Administrator will notify such person of its decision in writing.    Such notification
will contain (i) specific reasons for the denial, (ii) specific
reference to pertinent Plan provisions, (iii) a description of any
additional material or information necessary for such person to perfect such claim and an explanation of why such
material or information is necessary, and (iv) information as to
the steps to be taken if the person wishes to submit a request for review,
including a statement of the such person’s right to bring a civil action under
ERISA section 502(a) following as adverse determination upon review.  Such notification will be given within 90
days after the claim is received by the Administrator (or within 180 days, if
special circumstances require an extension of time for processing the claim,
and if written notice of such extension and circumstances is given to such
person within the initial 90-day period).


 


If the claim concerns disability benefits
under the Plan, the Plan Administrator must notify the claimant in writing within 45 days after the claim
has been filed in order to deny it.   If
special circumstances require an extension of time to process the claim,
the Plan Administrator must notify the
claimant before the end of the 45-day period that the claim may take up to 30
days longer to process.   If special circumstances still prevent the
resolution of the claim, the Plan Administrator may then only take up to another 30 days after giving the claimant notice
before the end of the original 30-day
extension.   If the Plan Administrator
gives the claimant notice that the claimant needs to provide additional
information regarding the claim, the claimant must do so within 45 days of that
notice.


 


(b)  Review Procedure.  Within 60 days after the date on which a
person receives a written notice of a denied claim (or, if applicable, within
60 days after the date on which such denial is considered to have occurred),
such person (or his duly authorized representative) may (i) file a written
request with the Administrator for a review of his denied claim and of
pertinent documents and (ii) submit written issues and comments to the
Administrator.  This written request may
include comments, documents, records, and
other information relating to the claim for benefits.   The claimant shall be provided, upon
the claimant’s request and free of charge, reasonable access to, and copies of,
all documents, records, and other information relevant to the claim for benefits.   The review will take into account all
comments, documents, records, and other information submitted by the claimant
relating to the claim, without regard to whether such information was submitted
or considered in the initial benefit determination. The Administrator will
notify such person of its decision in writing.    Such notification will be written in a
manner calculated to be understood by such person and will contain specific reasons for the decision as well as
specific references to pertinent Plan provisions.   The decision
on review will be made within 60 days after the request for review is received
by the Administrator (or within 120
days, if special circumstances require an extension of time for processing the request, such as an election by the
Administrator to hold a hearing, and if written notice of such extension
and circumstances is given to such person within the initial 60-day period).
The extension notice shall indicate the special circumstances requiring an
extension of time and the date by which the Plan expects to render the
determination on review.


 


If the initial claim was for disability
benefits under the Plan and has been denied by the Plan Administrator, the claimant will have 180 days from
the date the claimant received notice of the claim’s denial in which to appeal
that decision.    The review will be
handled completely independently of the findings and decision made
regarding the initial claim and will be processed by an individual who is not a
subordinate of the individual who denied the initial claim.   If the claim requires medical judgment, the individual handling the appeal will
consult with a medical professional
whom was not consulted regarding the initial claim and who is not a subordinate
of anyone consulted regarding the initial claim and identify that
medical professional to the claimant.


 


14

















 


The Plan Administrator shall provide the claimant with
written notification of a plan’s benefit determination on review.   In the case of an adverse benefit
determination, the notification shall set forth, in a manner calculated to be
understood by the claimant - the specific reason or reasons for the adverse
determinations, reference to the specific plan provisions on which the benefit
determination is based, a statement that the claimant is entitled to receive,
upon the claimant’s request and free of charge, reasonable access to, and
copies of, all documents, records, and other information relevant to the claim
for benefits.


 


15