exv10w1w1



 





Exhibit 10.1.1




THE EXECUTIVE NONQUALIFIED EXCESS PLANSM

PLAN DOCUMENT




 









 





TABLE OF CONTENTS




THE EXECUTIVE NONQUALIFIED EXCESS PLANSM




	 	 	 	 	 	 	 
	 	 	 	 	Page
	Section 1.

	 	Purpose:
	 	 	1	 
	 
	 	 	 	 	 	 
	Section 2.

	 	Definitions:
	 	 	1	 
	2.1

	 	“Active Participant”
	 	 	1	 
	2.2

	 	“Adoption Agreement”
	 	 	2	 
	2.3

	 	“Beneficiary”
	 	 	2	 
	2.4

	 	“Board”
	 	 	2	 
	2.5

	 	“Change in Control”
	 	 	2	 
	2.6

	 	“Committee”
	 	 	3	 
	2.7

	 	“Compensation”
	 	 	3	 
	2.8

	 	“Crediting Date”
	 	 	4	 
	2.9

	 	“Deferred Compensation Account”
	 	 	4	 
	2.10

	 	“Disabled”
	 	 	4	 
	2.11

	 	“Education Account”
	 	 	4	 
	2.12

	 	“Effective Date”
	 	 	4	 
	2.13

	 	“Employee”
	 	 	5	 
	2.14

	 	“Employer”
	 	 	5	 
	2.15

	 	“Employer Credits”
	 	 	5	 
	2.16

	 	“Independent Contractor”
	 	 	5	 
	2.17

	 	“In-Service Account”
	 	 	5	 
	2.18

	 	“Normal Retirement Age”
	 	 	6	 
	2.19

	 	“Participant”
	 	 	6	 
	2.20

	 	“Participant Deferral Agreement”
	 	 	6	 
	2.21

	 	“Participant Deferral Credits”
	 	 	6	 
	2.22

	 	“Participating Employer”
	 	 	6	 
	2.23

	 	“Performance-Based Compensation”
	 	 	6	 
	2.24

	 	“Plan”
	 	 	7	 
	2.25

	 	“Plan Administrator”
	 	 	7	 
	2.26

	 	“Plan-Approved Domestic Relations Order”
	 	 	7	 
	2.27

	 	“Plan Year”
	 	 	9	 
	2.28

	 	“Qualifying Distribution Event”
	 	 	9	 
	2.29

	 	“Retirement Account”
	 	 	9	 
	2.30

	 	“Service”
	 	 	9	 
	2.31

	 	“Service Bonus”
	 	 	9	 
	2.32

	 	“Specified Employee”
	 	 	10	 
	2.33

	 	“Spouse” or “Surviving Spouse”
	 	 	10	 
	2.34

	 	“Student”
	 	 	10	 
	2.35

	 	“Trust”
	 	 	10	 
	2.36

	 	“Trustee”
	 	 	10	 
	2.37

	 	“Unforeseeable Emergency”
	 	 	10	 
	2.38

	 	“Years of Service”
	 	 	11	 






 









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	Section 3.

	 	Participation:
	 	 	11	 
	 
	 	 	 	 	 	 
	Section 4.

	 	Credits to Deferred Compensation Account:
	 	 	11	 
	4.1

	 	Participant Deferral Credits
	 	 	11	 
	4.2

	 	Employer Credits
	 	 	13	 
	4.3

	 	Deferred Compensation Account
	 	 	13	 
	 
	 	 	 	 	 	 
	Section 5.

	 	Qualifying Distribution Events:
	 	 	14	 
	5.1

	 	Separation from Service
	 	 	14	 
	5.2

	 	Disability
	 	 	14	 
	5.3

	 	Death
	 	 	14	 
	5.4

	 	In-Service Distributions
	 	 	14	 
	5.5

	 	Education Distributions
	 	 	15	 
	5.6

	 	Change in Control
	 	 	16	 
	5.7

	 	Unforeseeable Emergency
	 	 	16	 
	 
	 	 	 	 	 	 
	Section 6.

	 	Qualifying Distribution Events Payment Options:
	 	 	17	 
	6.1

	 	Payment Options
	 	 	17	 
	6.2

	 	De Minimis Amounts
	 	 	18	 
	6.3

	 	Subsequent Elections
	 	 	19	 
	6.4

	 	Acceleration Prohibited
	 	 	19	 
	 
	 	 	 	 	 	 
	Section 7.

	 	Vesting:
	 	 	20	 
	 
	 	 	 	 	 	 
	Section 8.

	 	Accounts; Deemed Investment; Adjustments to Account:
	 	 	20	 
	8.1

	 	Accounts
	 	 	20	 
	8.2

	 	Deemed Investments
	 	 	20	 
	8.3

	 	Adjustments to Deferred Compensation Account
	 	 	21	 
	 
	 	 	 	 	 	 
	Section 9.

	 	Administration by Committee:
	 	 	21	 
	9.1

	 	Membership of Committee
	 	 	21	 
	9.2

	 	Committee Officers; Subcommittee
	 	 	21	 
	9.3

	 	Committee Meetings
	 	 	22	 
	9.4

	 	Transaction of Business
	 	 	22	 
	9.5

	 	Committee Records
	 	 	22	 
	9.6

	 	Establishment of Rules
	 	 	22	 
	9.7

	 	Conflicts of Interest
	 	 	22	 
	9.8

	 	Correction of Errors
	 	 	23	 
	9.9

	 	Authority to Interpret Plan
	 	 	23	 
	9.10

	 	Third Party Advisors
	 	 	23	 
	9.11

	 	Compensation of Members
	 	 	23	 
	9.12

	 	Expense Reimbursement
	 	 	24	 
	9.13

	 	Indemnification
	 	 	24	 






ii









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	Section 10.

	 	Contractual Liability; Trust:
	 	 	24	 
	10.1

	 	Contractual Liability
	 	 	24	 
	10.2

	 	Trust
	 	 	25	 
	 
	 	 	 	 	 	 
	Section 11.

	 	Allocation of Responsibilities:
	 	 	25	 
	11.1

	 	Board
	 	 	25	 
	11.2

	 	Committee
	 	 	25	 
	11.3

	 	Plan Administrator
	 	 	25	 
	 
	 	 	 	 	 	 
	Section 12.

	 	Benefits Not Assignable; Facility of Payments:
	 	 	26	 
	12.1

	 	Benefits Not Assignable
	 	 	26	 
	12.2

	 	Plan-Approved Domestic Relations Orders
	 	 	26	 
	12.3

	 	Payments to Minors and Others
	 	 	27	 
	 
	 	 	 	 	 	 
	Section 13.

	 	Beneficiary:
	 	 	27	 
	 
	 	 	 	 	 	 
	Section 14.

	 	Amendment and Termination of Plan:
	 	 	28	 
	14.1

	 	Termination in the Discretion of the Employer
	 	 	28	 
	14.2

	 	Termination Upon Change in Control
	 	 	29	 
	14.3

	 	Termination On or Before December 31, 2005
	 	 	29	 
	14.4

	 	No Financial Triggers
	 	 	29	 
	 
	 	 	 	 	 	 
	Section 15.

	 	Communication to Participants:
	 	 	29	 
	 
	 	 	 	 	 	 
	Section 16.

	 	Claims Procedure:
	 	 	29	 
	16.1

	 	Filing of a Claim for Benefits
	 	 	29	 
	16.2

	 	Notification to Claimant of Decision
	 	 	30	 
	16.3

	 	Procedure for Review
	 	 	30	 
	16.4

	 	Decision on Review
	 	 	31	 
	16.5

	 	Action by Authorized Representative of Claimant
	 	 	31	 
	 
	 	 	 	 	 	 
	Section 17.

	 	Miscellaneous Provisions:
	 	 	31	 
	17.1

	 	Set off
	 	 	31	 
	17.2

	 	Notices
	 	 	31	 
	17.3

	 	Lost Distributees
	 	 	32	 
	17.4

	 	Reliance on Data
	 	 	32	 
	17.5

	 	Receipt and Release for Payments
	 	 	32	 
	17.6

	 	Headings
	 	 	33	 
	17.7

	 	Continuation of Employment
	 	 	33	 
	17.8

	 	Merger or Consolidation; Assumption of Plan
	 	 	33	 
	17.9

	 	Construction
	 	 	33	 







iii









 








THE EXECUTIVE NONQUALIFIED EXCESS PLANSM




          Section 1.
Purpose:




          By execution of the Adoption Agreement, the Employer has adopted the Plan set forth herein to
provide a means by which certain management Employees 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 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 and independent contractors.




          Section 2. Definitions:




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




          2.1 “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
immediately upon a determination by the Committee that the Participant has ceased to be an
Employee or Independent Contractor, or that 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 Employer, if the Employer
is a corporation. If the Employer is not a corporation, “Board” shall mean the Employer.




          2.5 “Change in Control” of a corporation (or, to the extent permitted in this
Section 2.5, a partnership or other entity) shall occur on the earliest of the following
events:





     2.5.1 Change in Ownership: A change in ownership of a corporation
occurs on the date that any one person, or more than one person acting as a group,
acquires ownership of stock of the corporation that, together with stock held by
such person or group, constitutes more than 50% of the total fair market value or
total voting power of the stock of the corporation, excluding the acquisition of
additional stock by a person or more than one person acting as a group who is
considered to own more than 50% of the total fair market value or total voting
power of the stock of the corporation.




     2.5.2 Change in Effective Control: A change in effective control of a
corporation occurs on the date that either:




     (i) Any one person, or more than one person acting as a group,
acquires (or has acquired during the 12-month period ending on the date of
the most recent acquisition by such person or persons) ownership of stock
of the corporation possessing 35% or more of the total voting power of the
stock of the corporation; or




     (ii) A majority of the members of the board of directors of the
corporation is replaced during any 12-month period by directors whose
appointment or election is not endorsed by a majority of the members of the
board of directors prior to the date of the appointment or election;
provided, that this paragraph (ii) shall apply only to a corporation for
which no other corporation is a majority shareholder.




     2.5.3 Change in Ownership of Substantial Assets: A change in the
ownership of a substantial portion of a corporation’s assets occurs on the date
that any one person, or more than one person acting as a group, acquires (or has
acquired during the 12-month period ending on the date of the most recent



2









 






acquisition by such person or persons) assets from the corporation that have a total
gross fair market value equal to or more than 40% of the total gross fair market
value of the assets of the corporation immediately prior to such acquisition or
acquisitions. For this purpose, gross fair market value means the value of the
assets of the corporation, or the value of the assets being disposed of, determined
without regard to any liabilities associated with such assets.


For this purpose, the Change in Control must relate to (i) a corporation that is the Employer of
the Participant; (ii) a corporation that is liable for the payment of benefits under this Plan;
(iii) a corporation that is a majority shareholder of the corporation described in (i) or (ii); or
(iv) any corporation in a chain of corporations in which each corporation is a majority shareholder
of another corporation in the chain, ending with the corporation described in (i) or (ii). To the
extent provided in regulations and administrative guidance promulgated under Section 409A of the
Code, the provisions of this Section 2.5 may be applied to changes in the ownership of a
partnership and changes in the ownership of a substantial portion of the assets of a partnership. A
Change in Control shall not be deemed to have occurred until a majority of the members of the Board
receive written certification from the Committee that one of the events set forth in this Section
2.5 has occurred. The occurrence of an event described in this Section 2.5 must be objectively
determinable by the Committee and, if made in good faith on the basis of information available at
the time, such determination shall be conclusive and binding on the Committee, the Employer, the
Participants and their Beneficiaries for all purposes of the Plan.




          2.6 “Committee” means the person designated in the Adoption Agreement.
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 “Compensation” shall have the meaning designated in the Adoption
Agreement.




          
3











 








          2.8 “Crediting Date” means the date designated in the Adoption Agreement
for crediting the amount of any Participant Deferral Credits to the Deferred Compensation
Account of a Participant. Employer Credits may be credited to the Deferred Compensation
Account of a Participant on any day that securities are traded on a national securities
exchange.




          2.9 “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 Account or Education Account of the Participant, if applicable.




          2.10 “Disabled” means a Participant who 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.




          2.11 “Education Account” means a separate account to be kept for each
Participant that has elected to take education distributions as described in Section 5.5.
The Education 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.




          2.12 “Effective Date” shall be the date designated in the Adoption Agreement
as of which the Plan first becomes effective. Notwithstanding the foregoing, any
amounts




4










 







credited to the account of a Participant pursuant to the terms of a predecessor plan of the
Employer which are not earned and vested before January 1, 2005, shall be subject to the terms of
this Plan.




          2.13 “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 and if the individual is a highly compensated or management employee of the
Employer. An individual shall cease to be an Employee upon the Employee’s termination of
Service.




          2.14 “Employer” means the Employer identified in the Adoption Agreement,
and any Participating Employer which adopts this Plan. The Employer may be a corporation, a
limited liability company, a partnership or sole proprietorship. All references herein to
the Employer shall include each trade or business (whether or not incorporated) that is required
to be aggregated with the Employer under rules similar to subsections (b) and (c) of Section 414 of
the Code.




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




          2.16 “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.




          2.17 “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




5









 













Compensation Account under Section 8 and in accordance with the rules and elections in effect
under Section 8.




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




          2.19 “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.




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




          2.21 “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.




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




          2.23 “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 in which the service provider performs services. Organizational or individual
performance criteria are considered preestablished if established in writing at least 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 in accordance




6









 







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




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




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


          2.26 “Plan-Approved Domestic Relations Order” shall mean a court order
that is lawfully directed to this Plan and that is served upon the Plan Administrator before
the Participant receives a distribution of his benefit that pursuant to a state domestic relations
law creates or recognizes the existence of the right of an alternate payee to receive all or a
portion of a Participant’s benefit and that meets all of the following requirements. An order shall not
be a Plan-Approved Domestic Relations Order unless the Plan Administrator determines that the
court order on its face and without reference to any other document states all of the
following:




          (a) The court order expressly states that it relates to the provision of child
support, alimony, or marital property rights to a spouse, former spouse, or child of a
Participant and is made pursuant to State domestic relations law.




          (b) The court order clearly and unambiguously specifies that it refers to this Plan.




          (c) The court order clearly and unambiguously specifies the name of the
Participant’s Employer.




          (d) The court order clearly specifies: the name, mailing address, and social
security number of the Participant; and the name, mailing address, and social security number
of each alternate payee.




          (e) The court order clearly specifies the amount or percentage, or the manner
in which the amount or percentage is to be determined, of the Participant’s benefit to be paid
to or segregated for the separate account of the alternate payee.





7











 





          (f) The court order expressly states that the alternate payee’s segregated
account shall bear all fees and expenses as though the alternate payee were a Participant.




          (g) The court order clearly specifies that any distribution to the alternate
payee becomes payable only after a Qualifying Distribution Event of the Participant and only
upon the alternate payee’s written claim made to the Administrator.




          (h) The court order clearly specifies that any distribution to any alternate payee shall be
payable only as a lump sum.




          (i) The court order expressly states that it does not require this Plan to provide any type
or form of benefit or any option not otherwise provided under this Plan.




          (j) The court order expressly states that the order does not require this Plan to provide
increased benefits.




          (k) The court order expressly states that any provision of it that would have the effect of
requiring any distribution to an alternate payee of deferred compensation that is required to be
paid to another person under any court order is void.




          (1) The court order expressly states that nothing in the order shall have any effect
concerning any party’s tax treatment, and that nothing in the order shall direct any person’s tax
reporting or withholding.



An order shall not be a Plan-approved Domestic Relations Order if it includes any provision that
does not relate to this Plan. Without limiting the comprehensive effect of the preceding sentence,
an order shall not be a Plan-Approved Domestic Relations Order if the order includes any provision
relating to any pension plan, retirement plan, deferred compensation plan, health plan, welfare
benefit plan, or employee benefit plan other than this Plan. An order shall not be a Plan-Approved
Domestic Relations Order unless the order provides for only one alternate payee. An order shall
not be a Plan-Approved Domestic Relations Order if the order includes any provision that would
permit the alternate payee to designate any beneficiary for any purpose. However, an order does
not fail to qualify as a Plan-approved Domestic Relations Order because it provides that any
rights not paid before the alternate payee’s death shall be payable to the duly appointed and
then-currently serving personal representative of the alternate payee’s estate. The Plan
Administrator may assume that the alternate payee named by the court order is a proper





8









 







payee and need not inquire into whether the person named is a spouse or former spouse or child of
the Participant.




          2.27 “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.




          2.28 “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, or (vi) an Unforeseeable Emergency, each to the extent provided in Section 5.




          2.29 “Retirement Account” means the portion of the Deferred Compensation
Account of a Participant, excluding any In-Service Account or any Education Account. The
Retirement 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 regulations in
effect under Section 8.




          2.30 “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 statue 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.




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




9









 





          2.32 “Specified Employee” means an employee who meets the requirements
of Section 416(i)(1)(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”). 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.




          2.33 “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.




          2.34 “Student” means the individual designated by the Participant in the
Participant Deferral Agreement with respect to whom the Participant will create an Education
Account.




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




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




          2.37 “Unforeseeable Emergency” means a severe financial hardship to the
Participant resulting from a sudden or unexpected illness or accident of the Participant, the Participant’s Spouse or dependent (as defined in Section 152(a) of the Code), loss of the
Participant’s property due to casualty, or other similar extraordinary and
unforeseeable
circumstances arising as a result of events beyond the control of the Participant.




10









 





          2.38 “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.




          Section 3. Participation:




          The Committee in its discretion shall designate each Employee or Independent Contractor who is
eligible to participate in the Plan. An Employee or Independent Contractor designated by the
Committee as a Participant who has not otherwise entered the Plan shall enter the Plan and become a
Participant as of the date determined by the Committee. A Participant who separates from Service
with the Employer and who later returns to Service will not be 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 Participant Deferral Agreement with the Employer,
to defer the receipt of Compensation from the Employer by a dollar amount or percentage specified
in the Participant Deferral Agreement. The amount of 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.



11









 






     4.1.2 An election pursuant to this Section 4.1 shall be made by the
Participant by executing and delivering a Participant Deferral Agreement to the
Committee. Except as otherwise provided in this Section 4.1, the Participant
Deferral Agreement shall become effective with respect to such Participant as of
the first day of January following the date such Participant Deferral 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, or until the earlier of the date the Participant
separates from Service or ceases to be an Active Participant under the Plan.




     4.1.3 In the case of the first year in which the Participant becomes
eligible to participate in the Plan, the Participant may execute and deliver a
Participant Deferral Agreement to the Committee within 30 days after the date the
Participant enters the Plan to be effective as of the first payroll period next
following the date the Participant Deferral Agreement is received by the
Committee. For Compensation that is earned based upon a specified performance
period (for example, an annual bonus), where a deferral election is made in the
first year of eligibility but after the beginning of the service period, the election
will be deemed to apply to Compensation paid for services subsequent to the
election if the election applies 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 Participant Deferral
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 Participant Deferral Agreement to the Employer. The modification shall
become effective as of the first day of January following the date such written
modification is received by the Committee. Notwithstanding the foregoing, at
any time during the calendar year 2005, a Participant may terminate a Participant
Deferral Agreement, or modify a Participant Deferral Agreement to reduce the
amount of Compensation subject to the deferral election, so long as the
Compensation subject to the terminated or modified Participant Deferral
Agreement is includible in the income of the Participant in calendar year 2005 or,
if later, in the taxable year in which the amounts are earned and vested.




     4.1.5 If the Participant performed services continuously from a date no
later than the date upon which the performance criteria are established through a
date no earlier than the date upon which the Participant makes an initial deferral
election, a Participant Deferral 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



12









 








Compensation be made after such Compensation has become both substantially certain
to be paid and 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 only
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 The requirements of Section 4.1.2 relating to the timing of the
Participant Deferral 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), (d) the Plan is otherwise operated in accordance with the
requirements of Section 409A of the Code, and (e) the Plan is amended to comply
with Section 409A in accordance with Q&A 19 of Notice 2005-1.



          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.



          4.3 Deferred Compensation Account. All Participant Deferral Credits and
Employer Credits shall be credited to the Deferred Compensation Account of the Participant.




13












 





          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 6. 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 is a Specified Employee of a
corporation the stock in which is traded on an established securities market or otherwise.
Any payments to which a 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 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 6.




          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 Agreement.
Payment of such benefit shall be made by the Employer as provided in Section 6. If a
Participant
dies following his separation from Service for any reason, and before all payments under the
Plan have been made, the vested balance in the Deferred Compensation Account shall be paid by
the Employer to the Participant’s Beneficiary in a single lump sum.




          5.4 In-Service Distributions. If the Employer designates in the Adoption
Agreement that in-service distributions are permitted under the Plan, a Participant may
designate
in the Participant Deferral Agreement to have a specified amount credited to the Participant’s
In-Service Account for in-service distributions at the later of the date specified by the
Participant or
as specified in the Adoption Agreement. In no event may an in-service distribution be made





14









 







prior to two years following the establishment of the In-Service Account of the Participant. If the
Participant elects to receive in-service distributions in annual installment payments, 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 In-Service 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 In-Service Account on the date of
payment. Notwithstanding the foregoing, if a Participant incurs a Qualifying Distribution Event
prior to the date on which the entire balance in the In-Service Account has been distributed, then
the balance in the In-Service Account on the date of the Qualifying Distribution Event shall be
distributed to the Participant in the same manner and at the same time as the balance in the
Deferred Compensation Account is distributed under Section 6 and in accordance with the rules and
elections in effect under Section 6.




          5.5 Education Distributions. If the Employer designates in the Adoption Agreement that
education distributions are permitted under the Plan, a Participant may designate in the
Participant Deferral Agreement to have a specified amount credited to the Participant’s Education
Account for education distributions at the later of the date specified by the Participant or the
date specified in the Adoption Agreement. If the Participant designates more than one Student, the
Education Account will be divided into a separate Education Account for each Student, and the
Participant may designate in the Participant Deferral Agreement the percentage or dollar amount to
be credited to each Education Account. In the absence of a clear designation, all credits made to
the Education Account shall be equally allocated to each Education Account. The Employer shall pay
to the Participant the balance in the Education Account with respect to






15









 







the Student at the time and in the manner designated by the Participant in the Participant Deferral
Agreement. If the Participant elects to receive education distributions in annual installment
payments, 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 Education Account pursuant to Section 8 of
the Plan. Such adjustment shall be made by dividing the balance in the Education 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
Education Account on the date of payment. Notwithstanding the foregoing, if the Participant incurs
a Qualifying Distribution Event prior to the date on which the entire balance of the Education
Account has been distributed, then the balance in the Education Account on the date of the
Qualifying Distribution Event shall be distributed to the Participant in the same manner and at the
same time as the Deferred Compensation Account is distributed under Section 6 and in accordance
with the rules and elections in effect under Section 6.




          5.6 Change in Control. If the Employer designates in the Adoption
Agreement that distributions are permitted under the Plan in the event of a Change in Control,
the Participant may designate in the Participant Deferral Agreement to have the vested balance
in the Deferred Compensation Account paid to the Participant upon a Change in Control by the
Employer as provided in Section 6.




          5.7 Unforeseeable Emergency. A distribution from the Deferred
Compensation Account may be made to a Participant in the event of an Unforeseeable
Emergency, subject to the following provisions:





     5.7.1 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



16









 






Account (determined as of the date the distribution, if any, is made under this
Section 5.7) 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).




     5.7.2 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.




     5.7.3 If a distribution under this Section 5.7 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. Any deferral election of the Participant in effect at the time of a
distribution on account of an Unforeseeable Emergency may be cancelled upon
the Participant’s request, and if so cancelled, any subsequent deferral by the
Participant shall be made pursuant to a new Participant Deferral Agreement which
shall become effective as of the first day of January following the date such
Participant Deferral Agreement is received by the Committee. If a Participant’s
separation from Service occurs after a request is approved in accordance with this
Section 5.7.3, 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.




     5.7.4 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. Qualifying Distribution Events Payment Options:




          6.1 Payment Options. The Employer shall designate in the Adoption Agreement the
payment options which may be elected by the Participant. The Participant shall elect in the
Participant Deferral Agreement the method under which the vested balance in the






17









 







Deferred Compensation Account will be distributed from among the designated payment options.
Payment shall be made in the manner elected by the Participant and shall commence upon the date of
the Qualifying Distribution Event. A payment shall be treated as made upon the date of the
Qualifying Distribution Event if it is made on such date or a later date within the same calendar
year or, if later, by the 15th day of the third calendar month following 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. The Participant may elect a different
method of payment for each Qualifying Distribution Event as specified in the Adoption Agreement. If
the Participant elects the installment payment option, 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. 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 upon the Qualifying Distribution Event. Notwithstanding the provisions of Sections
6.3 or 6.4 of the Plan, a Participant may elect on or before December 31, 2006, the method 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 2006 and does not cause an amount to paid in 2006
that would not otherwise be payable in such year.




          6.2 De Minimis Amounts. Notwithstanding any payment election made by the Participant,
the vested balance in the Deferred Compensation Account of the Participant will






18









 







be distributed in a single lump sum payment if the payment accompanies the termination of the
Participant’s entire interest in the Plan and the amount of such payment does not exceed the
amount designated by the Employer in the Adoption Agreement. Such payment shall be made on or
before the later of (i) December 31 of the calendar year in which the Participant separates from
Service from the Employer, or (ii) the date that is 2-1/2 months after the Participant separates
from Service from the Employer.




          6.3 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:





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




     6.3.2 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 first payment for a period of at least five years
from the date such payment would otherwise have been made.




     6.3.3 If the new election relates to a payment from the In-Service
Account 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.


For purposes of this Section 6.3 and Section 6.4, 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.




          6.4 Acceleration Prohibited. The acceleration of the time or schedule of any
payment due under the Plan is prohibited except as provided in regulations and administrative
guidance promulgated under Section 409A of the Code. 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.





19












 





          Section 7.  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 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 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 Account and 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 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.




20









 





          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.




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




          9.2 Committee Officers; Subcommittee. The members of the Committee may elect Chairman and may
elect an acting Chairman. They may also elect a Secretary and may elect an acting Secretary,
either of whom may be but need not be a member of the Committee. The Committee may appoint from
its membership such subcommittees with such





21









 







powers as the Committee shall determine, and may authorize one or more of its members or any agent
to execute or deliver any instruments or to make any payment on behalf of the Committee.




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




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




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




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




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




22









 





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




          9.9 Authority to Interpret Plan. Subject to the claims procedure set forth in
Section 16 the Plan Administrator and the Committee shall have the duty and discretionary
authority to interpret and construe the provisions of the Plan and to decide any dispute which
may arise regarding the rights of Participants hereunder, including the discretionary
authority to
construe the Plan and to make determinations as to eligibility and benefits under the Plan.
Determinations by the Plan Administrator and the Committee shall apply uniformly to all
persons similarly situated and shall be binding and conclusive upon all interested persons.




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




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




23









 





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




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




          Section 10.  Contractual Liability; Trust:




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




24









 





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




          Section 11.  Allocation of Responsibilities:




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




          11.1 Board.





     (i) To amend the Plan;




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




     (iii) To terminate the Plan 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;




     (iv) To account for the amount credited to the Deferred Compensation Account
of a Participant; and




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



          11.3 Plan Administrator.





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



25









 






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



          Section 12. Benefits Not Assignable; Facility of Payments:




          12.1 Benefits Not Assignable. No portion of any benefit credited or paid
under the Plan with respect to any Participant shall be subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance or charge, and any attempt so to
anticipate, alienate, sell, transfer, assign, pledge, encumber or charge the same shall be
void, nor
shall any portion of such benefit be in any manner payable to any assignee, receiver or any
one
trustee, or be liable for his debts, contracts, liabilities, engagements or torts.
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 Plan Administrator
shall establish written procedures for determining whether an order directed to the Plan is a
Plan-
Approved Domestic Relations Order.





     12.2.1 Review by Plan Administrator: The Plan Administrator shall make
a determination on each final court order directed to the Plan as to whether the
order is a Plan-Approved Domestic Relations Order. The Plan Administrator may
delay the commencement of its consideration of any order until the later of the
date that is 30 days after the date of the order or the date that the Plan
Administrator is satisfied that all rehearing and appeal rights with respect to
the
order have expired.




     12.2.2 Payment to Alternate Payee: If the Plan Administrator determines
that an order is a Plan-approved Domestic Relations Order, the
Plan
Administrator shall cause the payment of 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.



26









 






     12.2.3 Expenses: The Employer and the Plan Administrator shall not be obligated
to incur any cost to defend against or set aside any judgment, decree, or order
relating to the division, attachment, garnishment, or execution of or levy upon the
Participant’s account or any distribution, including (but not limited to) any
domestic relations proceeding. Notwithstanding the foregoing, if any such person is
joined in any proceeding, the party may take such action as it considers necessary
or appropriate to protect any and all of its legal rights, and the Participant (or
Beneficiary) shall reimburse all actual fees of lawyers and legal assistants and
expenses reasonably incurred by such party.



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




27









 




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 Employer 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 or 14.3, the Employer in its discretion may terminate the Plan and distribute benefits to
Participants subject to the following requirements:





     14.1.1 All arrangements sponsored by the Employer that would be
aggregated with the Plan under Section 1.409A-1(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 deferral of compensation at any time within five years following
the date of termination of the Plan.



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          14.2 Termination Upon Change in Control. If the Employer terminates the
Plan within thirty days preceding or twelve months following a Change in Control, 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.




          14.3 Termination On or Before December 31, 2005. The Employer may
terminate the Plan on or before December 31, 2005, and distribute the vested balance in the
Deferred Compensation Account to each Participant so long as all amounts deferred under the
Plan are included in the income of the Participant in the taxable year in which the
termination
occurs.




          14.4 No Financial Triggers. The Employer may not terminate the Plan and
make distributions to a Participant due solely to a change in the financial health of the
Employer.
This provision shall apply to amounts earned and vested before, on or after December 31, 2004.




          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 Plan
Administrator. In the event the Plan Administrator shall be the claimant, all actions which are
required to be taken by the Plan Administrator pursuant to this Section 16 shall be taken instead
by another member of the Committee designated by the Committee.





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          16.2 Notification to Claimant of Decision. Within 90 days after receipt of a claim by the Plan
Administrator (or within 180 days if special circumstances require an extension of time), the Plan
Administrator shall notify the claimant of 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 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 forgoing, if the claim
relates to a Participant who is Disabled, the Plan Administrator 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 shall appeal denial of
the claim by filing a written application for review with the Committee. Following such request for
review, the Committee shall fully and fairly review the decision denying the claim. Prior to the
decision of the Committee, the claimant shall be given an opportunity to review pertinent documents
and to submit issues and comments in writing.



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




     16.4.1 Within 60 days following receipt by the Committee of the request for review (or within 120
days if special circumstances require an extension of time), the Committee shall notify the
claimant in writing of its decision with regard to the claim. In the event of such special
circumstances requiring an extension of time, written notice of the extension shall be furnished to
the claimant prior to the commencement of the extension. Notwithstanding the forgoing, if the
claim relates to a Participant who is Disabled, 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 cite specific references to the pertinent Plan provisions on
which the decision is based.




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



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



          
Section 17. Miscellaneous Provisions:



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

          17.2 Notices. Each Participant who is not in Service and each Beneficiary shall be responsible
for furnishing the Committee or its designee with his current address for the



					
	 	 	 	 	 
	
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mailing of notices and benefit payments. Any notice required or permitted to be given to such
Participant or Beneficiary shall be deemed given if directed to such address and mailed by regular
United States mail, first class, postage prepaid. If any check mailed to such address is returned
as undeliverable to the addressee, mailing of checks will be suspended until the Participant or
beneficiary furnishes the proper address. This provision shall not be construed as requiring the
mailing of any notice or notification otherwise permitted to be given by posting or by other
publication.




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



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



					
	 	 	 	 	 
	
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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 “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.



					
	 	 	 	 	 
	 
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