exv10w1






Exhibit 10.1




THE
EXECUTIVE NONQUALIFIED EXCESS PLAN 

PLAN DOCUMENT



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THE EXECUTIVE NONQUALIFIED EXCESS PLAN




     Section 1. Purpose:



     By execution of the Adoption Agreement, the Employer has adopted the Plan set forth herein,
and in the Adoption Agreement, to provide a means by which certain management Employees or
Independent Contractors of the Employer may elect to defer receipt of current Compensation from
the Employer in order to provide retirement and other benefits on behalf of such Employees or
Independent Contractors of the Employer, as selected in the Adoption Agreement. The Plan is
intended to be a nonqualified deferred compensation plan that complies with the provisions of
Section 409A of the Internal Revenue Code (the “Code”). The Plan is also intended to be an
unfunded plan maintained primarily for the purpose of providing deferred compensation benefits
for a select group of management or highly compensated employees under Sections 201(2),
301(a)(3) and 401(a)(l) of the Employee Retirement Income Security Act of 1974 (“ERISA”)
and independent contractors. Notwithstanding any other provision of this
Plan, this Plan shall be interpreted, operated and administered in a manner consistent with these
intentions.



     Section 2. Definitions:



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



     2.1 “Active Participant” means, with respect to any day or date, a Participant who is in
Service on such day or date; provided, that a Participant shall cease to be an Active
Participant (i) immediately upon a determination by the Committee that
the Participant has ceased to be an Employee or Independent Contractor, or (ii) at the end




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of the Plan Year that the Committee determines the Participant no longer meets the
eligibility requirements of the Plan.




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



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



     2.4 “Board” means the Board of Directors of the Company, if the Company is a corporation.
If the Company is not a corporation, “Board” shall mean the Company.



     2.5 “Change in Control Event” means an event described in Section
409A(a)(2)(A)(v) of the Code (or any successor provision thereto) and the regulations
thereunder.



     2.6 “Committee” means the persons or entity designated in the Adoption Agreement to
administer the Plan. If the Committee designated in the Adoption Agreement is unable to
serve, the Employer shall satisfy the duties of the Committee provided for in Section 9.



     2.7 “Company” means the company designated in the Adoption Agreement as such.



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



     2.9 “Crediting Date” means the date designated in the Adoption Agreement for crediting the
amount of any Participant Deferral Credits or Employer Credits to the Deferred Compensation
Account of a Participant.



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     2.10 “Deferred Compensation Account” means the account maintained with respect to each
Participant under the Plan. The Deferred Compensation Account shall be credited with Participant
Deferral Credits and Employer Credits, credited or debited for deemed investment gains or
losses, and adjusted for payments in accordance with the rules and elections in effect under
Section 8. The Deferred Compensation Account of a Participant shall include any In-Service or
Education Account of the Participant, if applicable.



     2.11 “Disabled” means Disabled within the meaning of Section 409A of the Code and the
regulations thereunder. Generally, this means that the Participant is unable to engage in any
substantial gainful activity 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, or is, 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, receiving income
replacement benefits for a period of not less than three months under an accident and health plan
covering Employees of the Employer.



     2.12 “Education Account” is an In-Service Account which will be used by the
Participant for educational purposes.



     2.13 “Effective Date” shall be the date designated in the Adoption Agreement.



     2.14 “Employee” means an individual in the Service of the Employer if the relationship
between the individual and the Employer is the legal relationship of employer and employee.
An individual shall cease to be an Employee upon the Employee’s separation from Service.




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     2.15 “Employer” means the Company, as identified in the Adoption Agreement, and any
Participating Employer which adopts this Plan. An Employer may be a corporation, a limited
liability company, a partnership or sole proprietorship.



     2.16 “Employer Credits” means the amounts credited to the Participant’s
Deferred Compensation Account by the Employer pursuant to the provisions of Section
4.2.



     2.17 “Grandfathered Amounts” means, if applicable, the amounts that were deferred under
the Plan and were earned and vested within the meaning of Section 409A of the Code and
regulations thereunder as of December 31, 2004. Grandfathered Amounts shall be subject to the
terms designated in the Adoption Agreement.



     2.18 “Independent Contractor” means an individual in the Service of the Employer if the
relationship between the individual and the Employer is not the legal relationship of employer
and employee. An individual shall cease to be an Independent Contractor upon the termination of
the Independent Contractor’s Service. An Independent Contractor shall include a director of the
Employer who is not an Employee.



     2.19 “In-Service Account” means a separate account to be kept for each Participant that has
elected to take in-service distributions as described in Section 5.4. The In-Service Account
shall be adjusted in the same manner and at the same time as the Deferred Compensation Account
under Section 8 and in accordance with the rules and elections in effect under Section 8.



     2.20 “Normal Retirement Age” of a Participant means the age designated in
the Adoption Agreement.



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     2.21 “Participant” means with respect to any Plan Year an Employee or Independent
Contractor who has been designated by the Committee as a Participant and who has entered the
Plan or who has a Deferred Compensation Account under the Plan; provided that if the
Participant is an Employee, the individual must be a highly compensated or management employee
of the Employer within the meaning of Sections
201(2), 301(a)(3) and 401(a)(1) of ERISA.



     2.22 “Participant Deferral Credits” means the amounts credited to the Participant’s Deferred
Compensation Account by the Employer pursuant to the provisions of Section 4.1.



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



     2.24 “Participation Agreement” means a written agreement entered into between a
Participant and the Employer pursuant to the provisions of Section 4.1



     2.25 “Performance-Based Compensation” means compensation where the amount of, or entitlement
to, the compensation is contingent on the satisfaction of preestablished organizational or
individual performance criteria relating to a performance period of at least twelve months.
Organizational or individual performance criteria are considered preestablished if established in
writing within 90 days after the commencement of the period of service to which the criteria
relates, provided that the outcome is substantially uncertain at the time the criteria are
established. Performance-
based compensation may include payments based upon subjective performance criteria as



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provided in regulations and administrative guidance promulgated under Section 409A of the Code.




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



     2.27 “Plan-Approved Domestic Relations Order” shall mean a judgment, decree, or order
(including the approval of a settlement agreement) which is:



     2.27.1 Issued pursuant to a State’s domestic relations law;



     2.27.2 Relates to the provision of child support, alimony payments or marital property
rights to a Spouse, former Spouse, child or other dependent of the Participant;



     2.27.3 Creates or recognizes the right of a Spouse, former Spouse, child or other
dependent of the Participant to receive all or a portion of the Participant’s benefits under
the Plan;



     2.27.4 Requires payment to such person of their interest in the Participant’s
benefits in a lump sum payment at a specific time; and



     2.27.5 Meets such other requirements established by the Committee.



     2.28 “Plan Year” means the twelve-month period ending on the last day of the month
designated in the Adoption Agreement; provided that the initial Plan Year may have fewer than
twelve months.



     2.29 “Qualifying Distribution Event” means (i) the Separation from Service of the
Participant, (ii) the date the Participant becomes Disabled, (iii) the death of the Participant,
(iv) the time specified by the Participant for an In-Service or Education Distribution, (v) a
Change in Control Event, or (vi) an Unforeseeable Emergency, each to
the extent provided in Section 5.



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     2.30 “Seniority Date” shall have the meaning designated in the Adoption Agreement.




     2.31 “Separation from Service” or “Separates from Service” means a
“separation from service” within the meaning of Section 409A of the Code.



     2.32 “Service” means employment by the Employer as an Employee. For purposes of the Plan,
the employment relationship is treated as continuing intact while the Employee is on military
leave, sick leave, or other bona fide leave of absence if the
period of such leave does not exceed six months, or if longer, so long as the Employee’s right to
reemployment is provided either by statute or contract. If the Participant is an Independent
Contractor, “Service” shall mean the period during which the contractual relationship exists
between the Employer and the Participant. The contractual relationship is not terminated if the
Participant anticipates a renewal of the contract or becomes an Employee.



     2.33 “Service Bonus” means any bonus paid to a Participant by the Employer which is not
Performance-Based Compensation.



     2.34 “Specified Employee” means an employee who meets the requirements for key employee
treatment under Section 416(i)(l)(A)(i), (ii) or (iii) of the Code (applied in accordance with
the regulations thereunder and without regard to Section 416(i)(5) of the Code) at any time
during the twelve month period ending on December 31 of each year (the “identification date”).
Unless binding corporate action is taken to establish different rules for determining Specified
Employees for all plans of the Company and its controlled group members that are subject to
Section 409A of the Code, the foregoing
rules and the other default rules under the regulations of Section 409A of the Code shall



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apply. If the person is a key employee as of any identification date, the person is treated as
a Specified Employee for the twelve-month period beginning on the first day of the fourth
month following the identification date.




     2.35 “Spouse” or ‘‘Surviving Spouse” means, except as otherwise provided in the Plan, a
person who is the legally married spouse or surviving spouse of a Participant.



     2.36 “Unforeseeable Emergency” means an “unforeseeable emergency” within the meaning
of Section 409A of the Code.



     2.37 “Years of Service” means each Plan Year of Service completed by the Participant.
For vesting purposes, Years of Service shall be calculated from the date designated in the
Adoption Agreement and Service shall be based on service with the Company and all
Participating Employers.



     Section 3. Participation:



     The Committee in its discretion shall designate each Employee or Independent Contractor
who is eligible to participate in the Plan. A Participant who separates from Service with the
Employer and who later returns to Service will not be an Active Participant under the Plan
except upon satisfaction of such terms and conditions as the Committee shall establish upon the
Participant’s return to Service, whether or not the Participant shall have a balance remaining
in the Deferred Compensation Account under the Plan on the date of the return to Service.



     Section 4. Credits to Deferred Compensation Account:



     4.1 Participant Deferral Credits. To the extent provided in the Adoption
Agreement, each Active Participant may elect, by entering into a Participation Agreement with the
Employer, to defer the receipt of Compensation from the Employer by a dollar




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amount or percentage specified in the Participation Agreement. The amount of Compensation
the Participant elects to defer, the Participant Deferral Credit, shall be credited by the
Employer to the Deferred Compensation Account maintained for the Participant pursuant to
Section 8. The following special provisions shall apply with respect to the Participant
Deferral Credits of a Participant:




     4.1.1 The Employer shall credit to the Participant’s Deferred Compensation Account on each
Crediting Date an amount equal to the total Participant Deferral Credit for the period ending
on such Crediting Date.



     4.1.2 An election pursuant to this Section 4.1 shall be made by the Participant by
executing and delivering a Participation Agreement to the Committee. Except as otherwise
provided in this Section 4.1, the Participation Agreement shall become effective with respect to
such Participant as of the first day of January following the date such Participation Agreement
is received by the Committee. A Participant’s election may be changed at any time prior to the
last permissible date for making the election as permitted in this Section 4.1, and shall
thereafter be irrevocable. The election of a Participant shall continue in effect for subsequent
years until modified by the Participant as permitted in this Section 4.1.



     4.1.3 A Participant may execute and deliver a Participation Agreement to the Committee
within 30 days after the date the Participant first becomes eligible to participate in the Plan
to be effective as of the first payroll period next following the date the Participation
Agreement is fully executed by the Participant. Whether a Participant is treated as newly
eligible for participation under this Section shall be determined in accordance with Section
409A of the Code and the regulations thereunder, including (i) rules that treat all elective
deferral account balance plans as one plan, and (ii) rules that treat a previously eligible
employee as newly eligible if his benefits had been previously distributed or if he has been
ineligible for 24 months. For Compensation that is earned based upon a specified performance
period (for example, an annual bonus), where a deferral election is made under this Section but
after the beginning of the performance period, the election will only apply to the portion of
the Compensation equal to the total amount of the Compensation for the service 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.



     4.1.4 A Participant may unilaterally modify a Participation Agreement (either to terminate,
increase or decrease the portion of his future Compensation which is subject to deferral within
the percentage limits set forth in Section 4.1 of the Adoption Agreement) by providing a written
modification of the Participation Agreement to the Committee.
The modification shall become effective as of the first day of January following the date such
written modification is received by the Committee.





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     4.1.5 If the Participant performed services continuously from the later of the beginning of
the performance period or the date upon which the performance criteria are established through
the date upon which the Participant makes an initial deferral election, a Participation Agreement
relating to the deferral of Performance-Based Compensation may be executed and delivered to the
Committee no later than the date which is 6 months prior to the end of the performance period,
provided that in no event may an election to defer Performance-Based Compensation be made after
such Compensation has become readily ascertainable.



     4.1.6 If the Employer has a fiscal year other than the calendar year, Compensation
relating to Service in the fiscal year of the Employer (such as a bonus based on the fiscal
year of the Employer), of which no amount is paid or payable during the fiscal year, may be
deferred at the Participant’s election if the election to defer is made not 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 Compensation is payable.



     4.1.7 Compensation payable after the last day of the Participant’s taxable year solely for
services provided during the final payroll period containing the last day of the Participant’s
taxable year (i.e., December 31) is treated for purposes of this Section 4.1 as Compensation for
services performed in the subsequent taxable year.



     4.1.8 The Committee may from time to time establish policies or rules consistent with
the requirements of Section 409A of the Code to govern the manner in which Participant
Deferral Credits may be made.



     4.1.9 If a Participant becomes Disabled, or applies for and is eligible for a distribution
on account of an Unforeseeable Emergency during a Plan Year or as required due to a hardship
distribution under Section 1.401(k)-1(d)(3) of the Code, his deferral election for such Plan Year
shall be cancelled.



     4.2 Employer Credits. If designated by the Employer in the Adoption Agreement, the
Employer shall cause the Committee to credit to the Deferred Compensation Account of each
Active Participant an Employer Credit as determined in accordance with the Adoption Agreement.
A Participant must make distribution elections with respect to any Employer Credits credited to
his Deferred Compensation Account by the deadline that would apply under Section 4.1 for
distribution elections with respect to Participant Deferral Credits credited at the same time,
on a Participation




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Agreement that is timely executed and delivered to the Committee pursuant to Section
4.1.




     4.3 Deferred Compensation Account. All Participant Deferral Credits and Employer Credits
shall be credited to the Deferred Compensation Account of the Participant as provided in
Section 8.



     Section 5. Qualifying Distribution Events:



     5.1 Separation from Service. If the Participant Separates from Service with the Employer,
the vested balance in the Deferred Compensation Account shall be paid to the Participant by the
Employer as provided in Section 7. Notwithstanding the foregoing, no distribution shall be made
earlier than six months after the date of Separation from Service (or, if earlier, the date of
death) with respect to a Participant who as of the date of Separation from Service is a Specified
Employee of a corporation the stock in which is traded on an established securities market or
otherwise. Any payments to which such Specified Employee would be entitled during the first six
months following the date of Separation from Service shall be accumulated and paid on the first
day of the seventh month following the date of Separation from Service.



     5.2 Disability. If the Employer designates in the Adoption Agreement that distributions
are permitted under the Plan when a Participant becomes Disabled, and the Participant becomes
Disabled while in Service, the vested balance in the Deferred Compensation Account shall be
paid to the Participant by the Employer as provided in Section 7.



     5.3 Death. If the Participant dies while in Service, the Employer shall pay a
benefit to the Participant’s Beneficiary in the amount designated in the Adoption



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Agreement. Payment of such benefit shall be made by the Employer as provided in
Section 7.




     5.4 In-Service or Education Distributions. If the Employer designates in the Adoption
Agreement that in-service or education distributions are permitted under the Plan, a Participant
may designate in the Participation Agreement to have a specified amount credited to the
Participant’s In-Service or Education Account for in-service or education distributions at the
date specified by the Participant. In no event may an in- service or education distribution of
an amount be made before the date that is two years after the first day of the year in which
such amount was credited to the In-Service or Education Account. Notwithstanding the foregoing,
if a Participant incurs a Qualifying Distribution Event prior to the date on which the entire
balance in the In-Service or Education Account has been distributed, then the balance in the
In-Service or Education Account on the date of the Qualifying Distribution Event shall be paid
as provided under Section 7.1 for payments on such Qualifying Distribution Event.



     5.5 Change in Control Event. If the Employer designates in the Adoption Agreement that
distributions are permitted under the Plan upon the occurrence of a Change in Control Event, the
Participant may designate in the Participation Agreement to have the vested balance in the
Deferred Compensation Account paid to the Participant upon a Change in Control Event by the
Employer as provided in Section 7.



     5.6 Unforeseeable Emergency. If the Employer designates in the Adoption
Agreement that distributions are permitted under the Plan upon the occurrence of an
Unforeseeable Emergency event, a distribution from the Deferred Compensation Account



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may be made to a Participant in the event of an Unforeseeable Emergency, subject to the
following provisions:




     5.6.1 A Participant may, at any time prior to his Separation from Service for any reason,
make application to the Committee to receive a distribution in a lump sum of all
or a portion of the vested balance in the Deferred Compensation Account (determined as of the
date the distribution, if any, is made under this Section 5.6) because of an Unforeseeable
Emergency. A distribution because of an Unforeseeable Emergency shall not exceed the amount
required to satisfy the Unforeseeable Emergency plus amounts necessary to pay taxes reasonably
anticipated as a result of such distribution, after taking into account the extent to which the
Unforeseeable Emergency may be relieved through reimbursement or compensation by insurance or
otherwise or by liquidation of the Participant’s assets (to the extent the liquidation of such
assets would not itself cause severe financial hardship) or by stopping current deferrals under
the Plan pursuant to Section 4.1.9.



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



     5.6.3 If a distribution under this Section 5.6 is approved by the Committee, such
distribution will be made as soon as practicable following the date it is approved. The
processing of the request shall be completed as soon as practicable from the date on
which the Committee receives the properly completed written request for a distribution on
account of an Unforeseeable Emergency. If a Participant’s Separation from Service occurs after
a request is approved in accordance with this Section 5.6.3, but prior to distribution of the
full amount approved, the approval of the request shall be automatically null and void and the
benefits which the Participant is entitled to receive under the Plan shall be distributed in
accordance with the applicable distribution provisions of the Plan.



     5.6.4 The Committee may from time to time adopt additional policies or rules consistent with
the requirements of Section 409A of the Code to govern the manner in which such distributions may
be made so that the Plan may be conveniently administered.



     Section 6. Vesting:



     A Participant shall be fully vested in the portion of his Deferred Compensation
Account attributable to Participant Deferral Credits, and all income, gains and losses
attributable thereto. A Participant shall become fully vested in the portion of his Deferred




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Compensation Account attributable to Employer Credits, and income, gains and losses attributable
thereto, in accordance with the vesting schedule and provisions designated by the Employer in the
Adoption Agreement. If a Participant’s Deferred Compensation Account is not fully vested upon
Separation from Service, the portion of the Deferred Compensation Account that is not fully
vested shall thereupon be forfeited.




     Section 7. Distribution Rules:



     7.1 Payment Options. The Employer shall designate in the Adoption Agreement the payment
options which may be elected by the Participant (lump sum, annual installments, or a combination
of both). Different payment options may be made available for each Qualifying Distribution
Event, and different payment options may be available for different types of Separations from
Service, all as designated in the Adoption Agreement. The Participant shall elect in the
Participation Agreement the method under which the vested balance in the Deferred Compensation
Account will be distributed from among the designated payment options. The Participant may at
such time elect a different method of payment for each Qualifying Distribution Event as
specified in the Adoption Agreement. If the Participant is permitted by the Employer in the
Adoption Agreement to elect different payment options and does not make a valid election, the
vested balance in the Deferred Compensation Account will be distributed as a lump sum.



     Notwithstanding the foregoing, if certain Qualifying Distribution Events occur prior to
the date on which the vested balance of a Participant’s Deferred Compensation Account is
completely paid pursuant to this Section 7.1 following the occurrence of
certain initial Qualifying Distribution Events, the following rules apply:



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     7.1.1 If the initial Qualifying Distribution Event is a Separation from Service or
Disability, and the Participant subsequently dies, the remaining unpaid vested balance of a
Participant’s Deferred Compensation Account shall be paid as a lump sum.



     7.1.2 If the initial Qualifying Distribution Event is a Change in Control Event, and any
subsequent Qualifying Distribution Event occurs (except an In-Service or Education
Distribution described in Section 2.29(iv)), the remaining unpaid vested balance of a
Participant’s Deferred Compensation Account shall be paid as provided under Section 7.1 for
payments on such subsequent Qualifying Distribution Event.



     7.2 Timing of Payments. Payment shall be made in the manner elected by the Participant and
shall commence as soon as practicable after (but no later than 60 days after) the distribution
date elected for the Qualifying Distribution Event. In the event the Participant fails to make a
valid election of the payment method, the distribution will be made in a single lump sum payment
as soon as practicable after (but no later than 60 days after) the Qualifying Distribution Event.
A payment may be further delayed to the extent permitted in accordance with regulations and
guidance under Section 409A of the Code.



     7.3 Installment Payments. If the Participant elects to receive installment payments upon a
Qualifying Distribution Event, the payment of each annual installment shall be made on the
anniversary of the date of the first installment payment, and the amount of the annual
installment shall be adjusted on such anniversary for credits or
debits to the Participant’s account pursuant to Section 8 of the Plan. Such adjustment shall be
made by dividing the balance in the Deferred Compensation Account on such date by the number of
annual installments remaining to be paid hereunder; provided that the last annual installment due
under the Plan shall be the entire amount credited to the Participant’s account on the date of
payment.



     7.4 De Minimis Amounts. Notwithstanding any payment election made by
the Participant, if the Employer designates a pre-determined de minimis amount in the



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Adoption Agreement, the vested balance in the Deferred Compensation Account of the Participant
will be distributed in a single lump sum payment if at the time of a permitted Qualifying
Distribution Event the vested balance does not exceed such pre-determined de minimis amount;
provided, however, that such distribution will be made only where the Qualifying Distribution
Event is a Separation from Service, death, Disability (if applicable) or Change in Control Event
(if applicable). Such payment shall be made on
or before the later of (i) December 31 of the calendar year in which the Qualifying Distribution
Event occurs, or (ii) the date that is 2-1/2 months after the Qualifying Distribution Event
occurs. In addition, the Employer may distribute a Participant’s vested balance at any time if
the balance does not exceed the limit in Section 402(g)(1)(B) of the Code and results in the
termination of the Participant’s entire interest in the Plan as provided under Section 409A of
the Code.




     7.5 Subsequent Elections. With the consent of the Committee, a Participant may delay or
change the method of payment of the Deferred Compensation Account subject to the following
requirements:



     7.5.1 The new election may not take effect until at least 12 months after the date on which
the new election is made.



     7.5.2 If the new election relates to a payment for a Qualifying Distribution Event other
than the death of the Participant, the Participant becoming Disabled, or an Unforeseeable
Emergency, the new election must provide for the deferral of the payment for a period of at
least five years from the date such payment would otherwise have been made.



     7.5.3 If the new election relates to a payment from the In-Service or Education Account,
the new election must be made at least 12 months prior to the date of the first scheduled
payment from such account.



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For purposes of this Section 7.5 and Section 7.6, a payment is each separately identified amount
to which the Participant is entitled under the Plan; provided, that entitlement to a series of
installment payments is treated as the entitlement to a single payment.




     7.6 Acceleration Prohibited. The acceleration of the time or schedule of any payment due
under the Plan is prohibited except as expressly provided in regulations and administrative
guidance promulgated under Section 409A of the Code (such as accelerations for domestic
relations orders and employment taxes). It is not an acceleration of the time or schedule of
payment if the Employer waives or accelerates the vesting requirements applicable to a benefit
under the Plan.



     Section 8. Accounts; Deemed Investment; Adjustments to Account:



     8.1 Accounts. The Committee shall establish a book reserve account, entitled the “Deferred
Compensation Account,” on behalf of each Participant. The Committee shall also establish an
In-Service or Education Account as a part of the Deferred Compensation Account of each
Participant, if applicable. The amount credited to the Deferred Compensation Account shall be
adjusted pursuant to the provisions of Section
8.3.



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



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by the Participant. In the event the Participant fails for any reason to make an effective
election of the investment return to be credited to his account, the investment return shall be
determined by the Committee.




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



     8.3.1 The Deferred Compensation Account shall be debited each business day with the total
amount of any payments made from such account since the last preceding business day to him or
for his benefit. Unless otherwise specified by the Employer, each deemed investment fund will
be debited pro-rata based on the value of the investment funds as of the end of the preceding
business day.



     8.3.2 The Deferred Compensation Account shall be credited on each Crediting Date with the
total amount of any Participant Deferral Credits and Employer Credits to such account since
the last preceding Crediting Date.



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



     Section 9. Administration by Committee:



     9.1 Membership of Committee. If the Committee consists of individuals appointed by the
Board, they will serve at the pleasure of the Board. Any member of the Committee may resign,
and his successor, if any, shall be appointed by the Board.



     9.2 General Administration. The Committee shall be responsible for the operation and
administration of the Plan and for carrying out its provisions. The Committee shall have
the full authority and discretion to make, amend, interpret, and
enforce all appropriate rules and regulations for the administration of this Plan and decide



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or resolve any and all questions, including interpretations of this Plan, as may arise in
connection with this Plan. Any such action taken by the Committee shall be final and
conclusive on any party. To the extent the Committee has been granted discretionary authority
under the Plan, the Committee’s prior exercise of such authority shall not obligate it to
exercise its authority in a like fashion thereafter. The Committee shall be entitled to rely
conclusively upon all tables, valuations, certificates, opinions and reports furnished by any
actuary, accountant, controller, counsel or other person employed or engaged by the Employer
with respect to the Plan. The Committee may, from time to time, employ agents and delegate to
such agents, including employees of the Employer, such administrative or other duties as it
sees fit.




     9.3 Indemnification. To the extent not covered by insurance, the Employer shall indemnify
the Committee, each employee, officer, director, and agent of the Employer, and all persons
formerly serving in such capacities, against any and all liabilities or expenses, including all
legal fees relating thereto, arising in connection with the exercise of their duties and
responsibilities with respect to the Plan, provided however that the Employer shall not indemnify
any person for liabilities or expenses due to that person’s own gross negligence or willful
misconduct



     Section 10. Contractual Liability, Trust:



     10.1 Contractual Liability. Unless otherwise elected in the Adoption Agreement, the
Company shall be obligated to make all payments hereunder. This obligation shall constitute a
contractual liability of the Company to the Participants, and such payments shall be made from
the general funds of the Company. The Company
shall not be required to establish or maintain any special or separate fund, or otherwise to



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segregate assets to assure that such payments shall be made, and the Participants shall not have
any interest in any particular assets of the Company by reason of its obligations hereunder. To
the extent that any person acquires a right to receive payment from the Company, such right shall
be no greater than the right of an unsecured creditor of the Company.



     10.2 Trust. The Employer may establish a trust to assist it in meeting its obligations
under the Plan. Any such trust shall conform to the requirements of a grantor trust under
Revenue Procedures 92-64 and 92-65 and at all times during the continuance of the trust the
principal and income of the trust shall be subject to claims of general creditors of the
Employer under federal and state law. The establishment of such a trust would not be intended
to cause Participants to realize current income on amounts contributed thereto, and the trust
would be so interpreted and administered.



     Section 11. Allocation of Responsibilities:



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



     11.1 Board.




	 	(i)	 	To amend the Plan;
	 
	 	(ii)	 	To appoint and remove members of the Committee; and
	 
	 	(iii)	 	To terminate the Plan as permitted in Section 14.
	 
	 	11.2	 	Committee.
	 
	 	(i)	 	To designate Participants;
	 
	 	(ii)	 	To interpret the provisions of the Plan and to determine the rights
of the Participants under the Plan, except to the extent otherwise provided in
Section 16 relating to claims procedure;
	 
	 	(iii)	 	To administer the Plan in accordance with its terms, except to the
extent powers to administer the Plan are specifically delegated to another
person or persons as provided in the Plan;







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	 	(iv)	 	To account for the amount credited to the Deferred Compensation
Account of a Participant;
	 
	 	(v)	 	To direct the Employer in the payment of benefits;
	 
	 	(vi)	 	To file such reports as may be required with the United States Department
of Labor, the Internal Revenue Service and any other government agency to which
reports may be required to be submitted from time to time; and
	 
	 	(vii)	 	To administer the claims procedure to the extent provided in Section 16.





     Section 12. Benefits Not Assignable; Facility of Payments:



     12.1 Benefits Not Assignable. No portion of any benefit credited or paid under the Plan with
respect to any Participant shall be subject in any manner to anticipation, alienation, sale,
transfer, assignment, pledge, encumbrance or charge, and any attempt so to anticipate, alienate,
sell, transfer, assign, pledge, encumber or charge the same shall be void, nor shall any portion
of such benefit be in any manner payable to any assignee, receiver or any one trustee, or be
liable for his debts, contracts, liabilities, engagements or torts. Notwithstanding the
foregoing, in the event that all or any portion of the benefit of a Participant is transferred to
the former Spouse of the Participant incident to a divorce, the Committee shall maintain such
amount for the benefit of the former Spouse until distributed in the manner required by an order
of any court having jurisdiction over the divorce, and the former Spouse shall be entitled to the
same rights as the Participant with respect to such benefit.



     12.2 Plan-Approved Domestic Relations Orders. The Committee shall establish
procedures for determining whether an order directed to the Plan is a Plan- Approved
Domestic Relations Order. If the Committee determines that an order is a
Plan-Approved Domestic Relations Order, the Committee shall cause the payment of




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amounts pursuant to or segregate a separate account as provided by (and to prevent any payment
or act which might be inconsistent with) the Plan-Approved Domestic Relations Order.




     12.3 Payments to Minors and Others. If any individual entitled to receive a payment under
the Plan shall be physically, mentally or legally incapable of receiving or acknowledging
receipt of such payment, the Committee, upon the receipt of satisfactory evidence of his
incapacity and satisfactory evidence that another person or institution is maintaining him and
that no guardian or committee has been appointed for him, may cause any payment otherwise
payable to him to be made to such person or institution so maintaining him. Payment to such
person or institution shall be in full satisfaction of all claims by or through the Participant
to the extent of the amount thereof.



     Section 13. Beneficiary:



     The Participant’s beneficiary shall be the person, persons, entity or entities designated by
the Participant on the beneficiary designation form provided by and filed with the Committee or
its designee. If the Participant does not designate a beneficiary, the beneficiary shall be his
Surviving Spouse. If the Participant does not designate a beneficiary and has no Surviving
Spouse, the beneficiary shall be the Participant’s estate. The designation of a beneficiary may
be changed or revoked only by filing a new beneficiary designation form with the Committee or its
designee. If a beneficiary (the “primary beneficiary”) is receiving or is entitled to receive
payments under the Plan and dies before receiving all of the payments due him, the balance to
which he is entitled
shall be paid to the contingent beneficiary, if any, named in the Participant’s current
beneficiary designation form. If there is no contingent beneficiary, the balance shall be



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paid to the estate of the primary beneficiary. Any beneficiary may disclaim all or any part of
any benefit to which such beneficiary shall be entitled hereunder by filing a written disclaimer
with the Committee before payment of such benefit is to be made. Such a disclaimer shall be made
in a form satisfactory to the Committee and shall be irrevocable when filed. Any benefit
disclaimed shall be payable from the Plan in the same manner as if the beneficiary who filed the
disclaimer had predeceased the Participant.




     Section 14. Amendment and Termination of Plan:



     The Company may amend any provision of the Plan or terminate the Plan at any time; provided,
that in no event shall such amendment or termination reduce the balance in any Participant’s
Deferred Compensation Account as of the date of such amendment or termination, nor shall any such
amendment affect the terms of the Plan relating to the payment of such Deferred Compensation
Account. Notwithstanding the foregoing, the following special provisions shall apply:



     14.1 Termination in the Discretion of the Employer. Except as otherwise provided in
Sections 14.2, the Company in its discretion may terminate the Plan and distribute benefits
to Participants subject to the following requirements and any others specified under Section
409A of the Code:



     14.1.1 All arrangements sponsored by the Employer that would be aggregated with the Plan
under Section 1.409A-l(c) of the Treasury Regulations are terminated.



     14.1.2 No payments other than payments that would be payable under the terms of the Plan
if the termination had not occurred are made within 12 months of the termination date.



     14.1.3 All benefits under the Plan are paid within 24 months of the termination date.



     14.1.4 The Employer does not adopt a new arrangement that would be aggregated with the Plan
under Section 1.409A-1(c) of the Treasury Regulations providing for the




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deferral of compensation at any time within 3 years following the date of termination of the
Plan.




     14.1.5 The termination does not occur proximate to a downturn in the financial health of
the Employer.



     14.2 Termination Upon Change in Control Event. If the Company terminates the Plan within
thirty days preceding or twelve months following a Change in Control Event, the Deferred
Compensation Account of each Participant shall become
fully vested and payable to the Participant in a lump sum within twelve months following the date
of termination, subject to the requirements of Section 409A of the Code.



     Section 15. Communication to Participants:



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



     Section 16. Claims Procedure:



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



     16.1 Filing of a Claim for Benefits. If a Participant or Beneficiary (the “claimant”)
believes that he is entitled to benefits under the Plan which are not being paid to him or which
are not being accrued for his benefit, he shall file a written claim therefore with the
Committee.



     16.2 Notification to Claimant of Decision. Within 90 days after receipt of a claim by the
Committee (or within 180 days if special circumstances require an extension of time), the
Committee shall notify the claimant of the decision with regard to the claim. In the event of
such special circumstances requiring an extension of time, there shall be
furnished to the claimant prior to expiration of the initial 90-day period written notice of



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the extension, which notice shall set forth the special circumstances and the date by which the
decision shall be furnished. If such claim shall be wholly or partially denied, notice thereof
shall be in writing and worded in a manner calculated to be understood by the claimant, and
shall set forth: (i) the specific reason or reasons for the denial; (ii) specific reference to
pertinent provisions of the Plan on which the denial is based; (iii) a description of any
additional material or information necessary for the claimant to perfect the claim and an
explanation of why such material or information is necessary; and (iv)
an explanation of the procedure for review of the denial and the time limits applicable to such
procedures, including a statement of the claimant’s right to bring a civil action under ERISA
following an adverse benefit determination on review. Notwithstanding the foregoing, if the claim
relates to a disability determination, the Committee shall notify the claimant of the decision
within 45 days (which may be extended for an additional 30 days if required by special
circumstances).




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



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



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     16.4.1 Within 60 days following receipt by the Committee of the request for review (or
within 120 days if special circumstances require an extension of time), the Committee shall
notify the claimant in writing of its decision with regard to the claim. In the event of such
special circumstances requiring an extension of time, written notice of the extension shall be
furnished to the claimant prior to the commencement of the extension. Notwithstanding the
foregoing, if the claim relates to a disability determination, the Committee shall notify the
claimant of the decision within 45 days (which may be extended for an additional 45 days if
required by special circumstances).



     16.4.2 With respect to a claim that is denied in whole or in part, the decision on review
shall set forth specific reasons for the decision, shall be written in a manner calculated to
be understood by the claimant, and shall set forth:




	 	(i)	 	the specific reason or
reasons for the adverse determination;
	 
	 	(ii)	 	specific reference to pertinent Plan
provisions on which the adverse determination is based;
	 
	 	(iii)	 	a statement that the claimant is
entitled to receive, upon request and free of charge, reasonable
access to, and copies of, all documents, records, and other
information relevant
to the claimant’s claim for benefits; and
	 
	 	(iv)	 	a statement describing any voluntary
appeal procedures offered by the Plan and the claimant’s right to
obtain the information about such procedures, as well as a
statement of the claimant’s right to bring an action under ERISA
section 502(a).





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



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



     Section 17. Miscellaneous Provisions:



     17.1 Set off. Notwithstanding any other provision of this Plan, the Employer
may reduce the amount of any payment otherwise payable to or on behalf of a Participant



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hereunder (net of any required withholdings) at the time payment is due by the amount of any
loan, cash advance, extension of credit or other obligation of the Participant to the Employer
that is then due and payable, and the Participant shall be deemed to have consented to such
reduction. In addition, the Employer may at any time offset a Participant’s Deferral
Compensation Account by an amount up to $5,000 to collect any such amount in accordance with the
requirements of Section 409A of the Code.




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



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



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     17.4 Reliance on Data. The Employer and the Committee shall have the right to rely on any
data provided by the Participant or by any Beneficiary. Representations of such data shall be
binding upon any party seeking to claim a benefit through a Participant, and the Employer and
the Committee shall have no obligation to inquire into the accuracy of any representation made
at any time by a Participant or Beneficiary.



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



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



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



     17.8 Merger or Consolidation; Assumption of Plan. No Employer shall consolidate or
merge into or with another corporation or entity, or transfer all or
substantially all of its assets to another corporation, partnership, trust or other entity (a



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“Successor Entity”) unless such Successor Entity shall assume the rights, obligations and
liabilities of the Employer under the Plan and upon such assumption, the Successor Entity shall
become obligated to perform the terms and conditions of the Plan. Nothing herein shall prohibit
the assumption of the obligations and liabilities of the Employer under the Plan by any Successor
Entity.




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



     17.10 Taxes. The Employer or other payor may withhold a benefit payment under the Plan or a
Participant’s wages, or the Employer may reduce a Participant’s Account balance, in order to meet
any federal, state, or local or employment tax withholding obligations with respect to Plan
benefits, as permitted under Section 409A of the Code. The Employer or other payor shall report
Plan payments and other Plan-related information to the appropriate governmental agencies as
required under applicable laws.



     Section 18. Transition Rules:


This Section 18 does not apply to plans newly established on or after January 1, 2009.




     18.1 2005 Election Termination. Notwithstanding Section 4.1.4, at any time during 2005, a
Participant may terminate a Participation Agreement, or modify a Participation Agreement to
reduce the amount of Compensation subject to the deferral election, so long as the Compensation
subject to the terminated or modified Participation Agreement is includible in the income of the
Participant in 2005 or, if later, in the taxable year in which the amounts are earned and
vested.



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     18.2 2005 Deferral Election. The requirements of Section 4.1.2 relating to the timing of the
Participation Agreement shall not apply to any deferral elections made on or before March 15,
2005, provided that (a) the amounts to which the deferral election relate have not been paid or
become payable at the time of the election, (b) the Plan was in existence on or before December
31, 2004, (c) the election to defer compensation is made in accordance with the terms of the Plan
as in effect on December 31, 2005 (other than a requirement to make a deferral election after
March 15, 2005), and (d) the Plan is otherwise operated in accordance with the requirements of
Section 409A of the Code.



     18.3 2005 Termination of Participation; Distribution. Notwithstanding anything in this Plan
to the contrary, at any time during 2005, a Participant may terminate his or her participation in
the Plan and receive a distribution of his Deferred Compensation Account balance on account of that termination, so long as the full amount of such
distribution is includible in the Participant’s income in 2005 or, if later, in the taxable year
of the Participant in which the amount is earned and vested.



     18.4 Payment Elections. Notwithstanding the provisions of Sections 7.1 or 7.5 of the Plan,
a Participant may elect on or before December 31, 2008, the time or form of payment of amounts
subject to Section 409A of the Code provided that such election applies only to amounts that
would not otherwise be payable in the year of the election and does not cause an amount to paid
in the year of the election that would not otherwise
be payable in such year.



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