Filed by Bowne Pure Compliance



 




Exhibit 10.5




DIVERSIFIED INVESTMENT ADVISORS, INC.

NONQUALIFIED DEFERRED COMPENSATION

PLAN DOCUMENT




This Plan is to be used in conjunction with the

Diversified Investment Advisors, Inc.

Nonqualified Deferred Compensation Adoption Agreement



This Plan is an important legal document. You should consult with your attorney on whether or not
it accommodates your particular situation, and on its tax and legal implications. Diversified
Investment Advisors, Inc. does not and cannot provide legal or tax advice. The Plan Document and
Adoption Agreement are intended purely as specimen documents for use by you and your attorney.
Diversified can give no assurance that any Employer’s Nonqualified Deferred Compensation
arrangements will meet all applicable Internal Revenue Service (“IRS”) and Department of Labor
(“DOL”) requirements.




 


 









 







TABLE OF CONTENTS




	 	 	 	 	 
	Article 1. Introduction

	 	 	2	 
	 
	 	 	 	 
	Article 2. Definitions

	 	 	3	 
	 
	 	 	 	 
	Article 3. Eligibility and Participation

	 	 	10	 
	 
	 	 	 	 
	Article 4. Elections and Contributions

	 	 	12	 
	 
	 	 	 	 
	Article 5. Distribution of Account Balances

	 	 	19	 
	 
	 	 	 	 
	Article 6. Plan Investments

	 	 	27	 
	 
	 	 	 	 
	Article 7. Beneficiary

	 	 	28	 
	 
	 	 	 	 
	Article 8. Vesting and Forfeitures

	 	 	29	 
	 
	 	 	 	 
	Article 9. Administration

	 	 	30	 
	 
	 	 	 	 
	Article 10. Miscellaneous

	 	 	34	 






 


 









 





ARTICLE
1. - INTRODUCTION




Whereas, the Employer wishes to establish a nonqualified employee retirement plan (the “Plan”)
solely to provide deferred compensation for a select group of management or highly compensated
employees within the meaning of sections 201(2), 301(a)(3) and 401(a)(1) of the Employee Retirement
Income Security Act of 1974, effective January 1, 2005, and



Whereas, the Plan is intended to comply with section 409A of the Internal Revenue Code, as amended
(the “Code”) and regulations thereunder, and



[If this is an amendment, restatement, and continuation of an existing plan, the following shall
apply:



Whereas, the following provisions constitute an amendment, restatement, and continuation of the
Prior Plan, and



Whereas, amounts that were Earned and Vested under the Prior Plan as of December 31, 2004,
including earnings thereon, shall be considered Grandfathered Amounts, and thereby, exempt from the
requirements under Code section 409A, and amounts that are earned or vested under this Plan after
December 31, 2004, including earnings thereon, shall be subject to the requirements under Code
section 409A.]



Whereas, the Employer has determined that pursuant to the laws of the Employer’s state, it may
establish such a Plan, and



Whereas, the Employer wishes to provide that the Plan to be established under this Agreement shall
have the name specified in Section 3 of the Adoption Agreement, and



Whereas, the Employer wishes to provide under the Plan that the Employer shall pay the entire cost
of vested accrued benefits from its general assets and/or assets set aside in a grantor trust by
the Employer to meet its obligations under the Plan, and



Whereas, the Employer intends that the assets of the Plan and, if applicable, the Trust shall at
all times be subject to the claims of the general creditors of the Employer,



Now therefore, the Employer does hereby establish the Plan as follows, and does hereby agree that
the Plan shall be structured, held and disposed of as follows:


 


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ARTICLE
2. - DEFINITIONS





	2.1	 	“401(k) Deferrals” means for purposes of the Adoption Agreement, an election to defer
Compensation under the 401(k) Plan.

	 
	2.2	 	“401(k) Plan” means the qualified cash or deferred arrangement of the Employer named in Section
3(b) of the Adoption Agreement, if any.

	 
	2.3	 	“Adoption Agreement” means the Adoption Agreement executed by the Employer and submitted to
Diversified Investment Advisors, Inc. The Adoption Agreement shall be considered to be a part of
this Plan.

	 
	2.4	 	“Age” means age at the most recent birthday.

	 
	2.5	 	“Annual Sub-Account” means a bookkeeping account under a Calendar Year Plan established and
maintained by the Employer to which (1) Salary Reduction Contributions, (2) Matching Contributions,
(3) Nonelective Employer Contributions, and (4) Performance-Based Compensation for a Plan Year
shall be credited to each respective
Annual Sub-Account.

	 
	2.6	 	“Beneficiary” shall have the meaning set forth in Section 7.1.

	 
	2.7	 	“Board” means the Employer’s Board of Directors.

	 
	2.8	 	“Calendar Year Plan” means a Plan under which the Employer establishes and maintains a
Participant’s Account on behalf of each Eligible Employee’s Annual Sub-Accounts which include, if
applicable, but are not limited to a (1) Salary Reduction Contribution Account, (2)
Performance-Based Compensation Contribution Account, (3) Matching Contribution Account, and (4)
Nonelective Employer Contribution Account to which (1) Salary Reduction Contributions, (2)
Performance-Based Compensation Contributions, (3) Matching Contributions, and (4) Nonelective
Employer Contributions shall be credited to each respective Annual Sub-Account.

	 
	2.9	 	“Claimant” means a Participant (or in the case of the Participant’s death, the Participant’s
Beneficiary or Beneficiaries) who makes a written application to the Plan Administrator for
benefits that he or she believes are due under the Plan.

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





 


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	2.11	 	“Compensation” means amounts so elected by the Employer (or if applicable, Company) in the
Adoption Agreement that are payable to an Eligible Employee (of if applicable, Eligible Director or
Independent Contractor) for services rendered to the Employer (or if applicable, Company),
including but not limited to wages, salary, bonuses, overtime,
commissions, and other remuneration that is reportable to the Federal government, or which
would be reportable if it were not deferred under this Plan. Compensation shall be based on
amounts paid during that portion of the Plan Year in which the Eligible Employee (or if
applicable, Eligible Director or Independent Contractor) is a Participant in the Plan.
Compensation must be earned in the Plan Year in which any amount of such Compensation is
credited to a Participant’s Account.

	 
	2.12	 	“Company” means the entity designated as the Employer in Section 1 of the Adoption Agreement.
For purposes of this Plan, references to Employer shall mean Company, unless the context clearly
indicates otherwise.

	 
	2.13	 	“Deferral Agreement” means an election by an Eligible Employee to (1) make a Salary Reduction
Contribution and/or (2) specify a time of distribution for Salary Reduction Contributions or
Employer Contributions made on his or her behalf, as so elected by the Employer in the Adoption
Agreement. A Deferral Agreement to make a Salary Reduction Contribution must be made prior to the
end of the Election Period preceding the close of the Taxable Year preceding the Taxable Year in
which Compensation subject to the Salary Reduction Contribution is earned. A Deferral Agreement
must specify the time and the form of distribution as permitted by the election of the Employer in
the Adoption Agreement. Changes to a Deferral Agreement may be made, but only before the Deferral
Agreement becomes irrevocable, which is generally the last day of a Participant’s Taxable Year.
The Participant must also list his or her designated Beneficiary or Beneficiaries as described in
Article 7.

	 
	2.14	 	“Deferred Compensation” means the amount of Compensation that the Participant elects to defer
under the Deferral Agreement and that the Participant and the Employer mutually agree shall be
deferred in accordance with the Plan, if any, and the amount of any Employer Contributions, if any,
made on behalf of the Participant.

	 
	2.15	 	“Disability” or “Disabled” means:







	 	(a)	 	A Participant (1) 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 twelve (12) months, or (2) 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 twelve (12) months,
receiving income replacement benefits for a period of not less than three (3) months under an
accident and health plan covering employees of the Participant’s Employer.

	 
	 	(b)	 	As specified in the Adoption Agreement, a Participant shall be deemed Disabled:







	 	(1)	 	If determined to be totally disabled by the Social Security Administration;





 


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	 	(2)	 	In accordance with a disability insurance program sponsored by the Employer, provided the
definition of Disability set forth in such insurance program satisfies the requirements of Section
2.15(a); or

	 
	 	(3)	 	In the Plan Administrator’s sole discretion, provided that the Participant is disabled
under Section 2.15(a).







	 	(c)	 	In the event the determination of Disability is made under Section 2.15(b)(2) or Section
2.15(b)(3), the Plan Administrator shall have the exclusive right of determining, with the
assistance of a competent physician, whether a Participant is Disabled. A certificate to that
effect executed by the Plan Administrator and supported by the affidavit of an examining physician,
shall be sufficient evidence of such fact and may be so accepted by the Plan Administrator without
further inquiry, provided that all Participants under similar circumstances shall be treated alike.







	2.16	 	“Earned and Vested” means amounts deferred under the Prior Plan, if any, to which a
Participant had a nonforfeitable right to receive as of December 31, 2004. Such amounts are
considered Grandfathered Amounts. The term Earned and Vested is only applicable to a plan that is
an amendment, restatement, and continuation of a Prior Plan, as indicated in Section 4 of the
Adoption Agreement.

	 
	2.17	 	“Effective Date” means the effective date specified in Section 5(a) of the Adoption Agreement
for new plans, or Section 5(b) of the Adoption Agreement for a plan that is an amendment,
restatement, and continuation of a Prior Plan.

	 
	2.18	 	“Election Period” means the enrollment window(s) designated by the Employer in which a
Participant may be permitted to enter into a Deferral Agreement, make a distribution election(s)
upon Separation from Service and/or a Specified Time, and make any changes to such election(s).

	 
	2.19	 	“Eligible Director” means the director of the Company who has been chosen by the Board each
year, in its sole discretion, to be eligible to participate in the Plan. For purposes of this
Plan, references to Eligible Employee shall mean Eligible Director, unless the context clearly
indicates otherwise.

	 
	2.20	 	“Eligible Employee” means an individual who is part of a select group of management or highly
compensated individuals who performs services for the Employer as an employee and who has been
chosen by the Employer each year, in its sole discretion, to be eligible to participate in the
Plan. If Eligible Directors and/or Eligible
Independent Contractors participate in this Plan in accordance with the Employer’s election in the
Adoption Agreement, the term “Eligible Employee” shall also mean such Eligible Directors and/or
Eligible Independent Contractors and the term “employment” shall include service as a
director or independent contractor unless the context clearly indicates otherwise.





 


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	2.21	 	“Eligible Independent Contractor” means the Independent Contractor of the Company who has been
chosen by the Company each year, in its sole discretion, to be eligible to participate in the Plan.
For purposes of this Plan, references to Eligible Employee shall mean Eligible Independent
Contractor, unless the context clearly indicates otherwise.

	 
	2.22	 	“Employer” means the employer named in Section 1 of the Adoption Agreement and any succeeding
or continuing corporation. For purposes of Article 10.2, Employer shall also include all persons
with whom the Employer would be considered a single employer under Code sections 414(b) or (c). If
Eligible Directors and/or Eligible Independent Contractors participate in this Plan in accordance
with the Employer’s election in the Adoption Agreement, the term “Employer” shall also mean Company
unless the context clearly indicates otherwise.

	 
	2.23	 	“Employer Contributions” means Matching Contributions and/or Nonelective Employer
Contributions made by the Employer on behalf of a Participant, as so elected by the Employer in the
Adoption Agreement.

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

	 
	2.25	 	“Evergreen Plan” means a Plan under which the Employer establishes and maintains a
Participant’s Account, which may have sub-accounts depending on the Employer’s election, on behalf
of each Eligible Employee including, if applicable, but are not limited to a (1) Salary Reduction
Contribution Account, (2) Performance-Based Compensation Contribution Account (3) Matching
Contribution Account, and (4) Nonelective Employer Contribution Account to which (1) Salary
Reduction Contributions, (2) Performance-Based Compensation Contributions, (3) Matching
Contributions, and (4) Nonelective Employer Contributions shall be credited.

	 
	2.26	 	“Grandfathered Amounts” means amounts, if any, that were deferred under the Prior Plan and
Earned and Vested as of December 31, 2004. Grandfathered Amounts are not subject to the
requirements under Code section 409A. The term Grandfathered Amounts is only applicable to a plan
that is an amendment, restatement, and continuation of a Prior Plan, as indicated in Section 4 of
the Adoption Agreement.

	 
	2.27	 	“Key Employee” means an Eligible Employee treated as a “specified employee” as of his
Separation from Service under Code section 409A(a)(2)(B)(i), i.e., a key employee
(as defined in Code section 416(i) without regard to paragraph (5) thereof) of the Company or its
affiliates if the Company is a Publicly Traded Company. Key Employees shall be determined in
accordance with Code section 409A using an identification date set forth in the Adoption Agreement.
A listing of Key Employees as of an identification date shall
be effective for the 12-month period beginning on the effective date set forth on the
Adoption Agreement.





 


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	2.28	 	“Legally Binding Right” means a nonforfeitable right that cannot be reduced or eliminated
within the meaning of Code section 409A and regulations thereunder.

	 
	2.29	 	“Matching Contribution” means an amount contributed by the Employer on behalf of a Participant
that elects to make a Salary Reduction Contribution under the Plan.

	 
	2.30	 	“Matching Contribution Account” means a bookkeeping account established by the Employer for
each Participant to which Matching Contributions shall be credited.

	 
	2.31	 	“Nonelective Employer Contribution” means an amount contributed by the Employer on behalf of a
Participant.

	 
	2.32	 	“Nonelective Employer Contribution Account” means a bookkeeping account established by the
Employer for each Participant to which Nonelective Employer Contributions shall be credited.

	 
	2.33	 	“Participant” means any Eligible Employee (or if applicable, Eligible Director or Independent
Contractor) selected by the Employer who has elected to participate in the Plan by entering into a
Deferral Agreement.

	 
	2.34	 	“Participant’s Account” means a bookkeeping account established and maintained by the Employer
to which (1) Salary Reduction Contributions, (2) Matching Contributions, (3) Nonelective Employer
Contributions, and (4) Performance-Based Compensation shall be credited. A Participant’s Account
includes the Participant’s Annual Sub-Account, if applicable.

	 
	2.35	 	“Performance-Based Compensation” means Compensation a participant will be entitled to upon
satisfying organizational or individual performance goals for a performance period that is at least
12 consecutive months. For performance-based compensation elections, a participant is permitted to
make deferral elections after the beginning of the taxable year the participant will perform the
services, provided that:







	 	•	 	The participant makes the deferral election on or before the date
that is six months prior to the end of the related performance period;

	 
	 	•	 	The participant performs services continuously from the later of:
(i) the beginning of the performance period or (ii) the date the Company
establishes the performance criteria, through the date the participant
makes the deferral election; and





 


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	 	•	 	The amount of performance-based compensation that will be earned is
not readily ascertainable (e.g., the performance goals are not certain
to be achieved at the time the participant makes the deferral election).







Whether or not Compensation is considered Performance-Based Compensation shall be
determined under procedures established by the Plan Administrator and in accordance
with Code section 409A and regulations thereunder).




	2.36	 	“Performance-Based Compensation Contribution Account” means a bookkeeping account established
by the Employer for each Participant electing to defer all or a portion of his or her
Performance-Based Compensation.

	 
	2.37	 	“Performance-Based Compensation Deferral Election” means an election to defer all or a portion
of Performance-Based Compensation earned during a service period.

	 
	2.38	 	“Plan” means this plan, as named in the Adoption Agreement.

	 
	2.39	 	“Plan Administrator” means the Employer or other person(s) or entity(ies) appointed by the
Employer in accordance with Article IX.

	 
	2.40	 	“Plan Year” means a twelve (12) consecutive month period beginning and ending on the dates
specified in the Adoption Agreement.

	 
	2.41	 	“Prior Plan” means a predecessor nonqualified deferred compensation plan, if any, that was in
existence as of October 3, 2004 and is named in the Adoption Agreement. The
Prior Plan is or is not intended to be subject to Code section 409A depending on the
election made by the Employer in the Adoption Agreement. The term Prior Plan is only
applicable to a plan that is an amendment, restatement, and continuation of a plan in
existence as of October 3, 2004, as indicated in the Adoption Agreement.

	 
	2.42	 	“Publicly Traded Company” means an entity any stock of which is publicly traded on an
established securities market or otherwise.

	 
	2.43	 	“Retirement Age” means the age specified in the Adoption Agreement.

	 
	2.44	 	“Salary Reduction Contribution” means an amount of Compensation a Participant elects to defer
under his or her Deferral Agreement which shall be deducted from the Participant’s Compensation
without reduction for any taxes or withholding (except to the
extent required by law or under Code section 409A and regulations thereunder.)

	 
	2.45	 	“Salary Reduction Contribution Account” means a bookkeeping account established by the
Employer for each Participant electing to make a Salary Reduction Contribution under the Plan.





 


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	2.46	 	“Separation from Service” means a “separation from” within the meaning of Code section 409A
and regulations thereunder.

	 
	2.47	 	“Specified Time” means the time a Participant’s account may be distributed prior to a
Separation from Service. A Participant’s distribution as of a Specified Time shall be null and void
upon a Participant’s Separation from Service.

	 
	2.48	 	“Taxable Year” means the Participant’s taxable year.

	 
	2.49	 	“Trust” means the Trust Agreement between the Employer and the Trustees that meets the
requirements of a “grantor” trust under Revenue Procedures 92-64 and 92-65 and otherwise meets the
requirements under Code section 409A and regulations thereunder.

	 
	2.50	 	“Trustees” means the Trustees named in the Trust and their duly appointed and acting successor
Trustee(s) which shall be appointed by the corporation and may consist of one or more persons.

	 
	2.51	 	“Unforeseeable Emergency” means a severe financial hardship to a Participant resulting from an
illness or accident of the Participant, the Participant’s spouse, or a dependent (as defined in
Code section 152(a)) of the Participant, loss of the Participant’s property due to casualty, or
other similar extraordinary and unforeseeable circumstances arising as a result of events beyond
the control of the Participant. Whether or not a Participant has an
Unforeseeable Emergency shall be determined by the Plan Administrator in accordance with
Code section 409A and applicable regulations thereunder.





 


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ARTICLE
3. - ELIGIBILITY AND PARTICIPATION





	3.1	 	Eligibility to Participate in the Plan.







	 	(a)	 	(1)   If this Plan is an amendment, restatement, and continuation of the Prior Plan, as
indicated in the Adoption Agreement, every Eligible Employee who was a Participant in the Prior
Plan immediately prior to the Effective Date shall continue to be an Eligible Employee eligible to
participate in this Plan. Each other Eligible Employee shall be eligible to participate in the Plan
on the Effective Date. Thereafter, each employee, independent contractor or director shall be
eligible to participate in the Plan on the date the Employer, in its sole discretion, determines
that such person is an Eligible Employee.







	 	(2)	 	If this Plan is a new plan, as indicated in the Adoption Agreement, each Eligible Employee
shall be eligible to participate in the Plan on the Effective Date. Thereafter, each employee,
independent contractor or director shall be eligible to participate in the Plan on the date the
Employer, in its sole discretion, determines that such person is an Eligible Employee.







	 	(b)	 	An Eligible Employee shall become a Participant in the Plan by executing a Deferral
Agreement in accordance with procedures established by the Plan Administrator.







	3.2.	 	Re-Employment. A Participant whose employment or service with the Employer is terminated and
is subsequently re-employed or re-enters service may become a Participant only if he or she (1) is
designated an Eligible Employee by the Employer and (2) elects to participate in the Plan by
executing a Deferral Agreement in accordance with procedures established by the Plan Administrator.

	 
	3.3	 	Re-Employment of Previously Eligible Employee. A previously Eligible Employee whose employment
or service with the Employer is terminated is subsequently re-employed or re-enters service, may
become a Participant only if he or she (1) is designated an Eligible Employee by the Employer, (2)
elects to participate in the Plan by executing a Deferral Agreement in accordance with procedures
established by the Plan Administrator, and (3) has already taken a complete distribution or has not
taken a full distribution but has not accrued any benefit under the plan, except earnings, for a
period of 24 months.





 


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	3.4	 	Change in Employment Status. During any period in which a Participant remains in the employ or
service of the Employer, but ceases to be an Eligible Employee, he or she shall cease to be a
Participant in the Plan.





 


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ARTICLE
4. - ELECTIONS AND CONTRIBUTIONS





	4.1	 	Election to Make Salary Reduction Contributions.







	 	(a)	 	Deferral Agreement.







	 	(1)	 	An Eligible Employee may make an irrevocable Deferral Agreement to make a Salary Reduction
Contribution in one (1) percent increments, not to exceed the percentage of Compensation specified
in the Adoption Agreement, by the end of the Election Period preceding the Taxable Year in which
such Compensation subject to the Salary Reduction Contribution is earned.

	 
	 	(2)	 	Unless otherwise specified in the Adoption Agreement, the Deferral Agreement must specify:


(i) The time of distribution; and


(ii) The form of distribution.

	 
	 	(3)	 	A Deferral Agreement shall be made in accordance with procedures established by the Plan
Administrator and in accordance with Code section 409A and regulations thereunder.







	 	(b)	 	Timing of Initial Deferral Agreement. If this Plan is a new Plan, and the Eligible
Employee is not a participant in another account balance plan of the Employer
within the meaning of Code section 409A and regulations thereunder, the Eligible
Employee who is eligible to participate in this Plan as of the Plan’s Effective
Date may make an initial Deferral Agreement to make a Salary Reduction Contribution
within thirty (30) days after the Plan’s Effective Date. Each other Eligible
Employee, Re-Employed Employee or Re-Employed Previously Eligible Employee who is
not a participant in another account balance elective plan of the Employer within
the meaning of Code section 409A and regulations thereunder may make an initial
Deferral Agreement to make a Salary Reduction Contribution within thirty (30) days
after the date the Eligible Employee first becomes eligible to participate in the
Plan. Any such Deferral Agreement must apply only to compensation paid for
services performed after the election. In all other cases, the initial Deferral
Agreement to make a Salary Reduction Contribution must be made no later than the
last day of the Election Period preceding the Taxable Year in which Compensation
subject to the Salary Reduction Contribution is earned.

	 
	 	(c)	 	Frequency of Making a Deferral Agreement after Initial Election.





 


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	 	(1)	 	If the Employer so elects in the Adoption Agreement, a Participant may elect to
make a Salary Reduction Contribution on his or her Deferral Agreement each Plan
Year (annual deferral election).

	 
	 	(2)	 	If the Employer so elects in the Adoption Agreement, a Participant’s Deferral
Agreement shall remain in effect such that the Participant will automatically be
deemed to have made a Deferral Agreement each Plan Year so long as the Deferral
Agreement becomes irrevocable no later than the last day of the Election Period
preceding the Taxable Year in which Compensation subject to the Salary Reduction
Contribution is earned (carry-forward deferral election).







	 	(i)	 	The Participant may modify or terminate his or her automatic Deferral
Agreement by notifying the Plan Administrator at any time, but any such
modification or termination must be made no later than
the last day of the Election Period preceding the Taxable Year in which
Compensation subject to the Deferral Agreement would have otherwise been earned.

	 
	 	(ii)	 	The modification or termination of a Participant’s automatic Deferral Agreement shall be
made in accordance with procedures established by the Plan Administrator and in accordance with
Code section 409A and regulations thereunder.







	 	(d)	 	Failure to Make Timely Election. If an Eligible Employee fails to enter into a timely
Deferral Agreement, the Eligible Employee shall be deemed to have elected to make no Salary
Reduction Contributions for the applicable Plan Year.

	 
	 	(e)	 	Crediting of Salary Reduction Contributions. Salary Reduction Contributions made by a
Participant under this Section 4.1 shall be credited to the Participant’s Account as soon as
practicable after the Compensation subject to the Salary Reduction Contribution would have
otherwise been paid to the Participant. All
Salary Reduction Contributions shall be held as an asset of the Employer.

	 
	 	(f)	 	Any Deferral Agreement to make Salary Reduction Contributions under this Section 4.1 shall
be at all times subject to the rules set forth under Section 4.4.







	4.2	 	Employer Contributions.







	 	(a)	 	Matching Contributions. If the Employer so elects in the Adoption Agreement, the Employer
may make a Matching Contribution as specified in the Adoption Agreement.





 


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	 	(b)	 	Nonelective Employer Contributions. If the Employer so elects in the Adoption
Agreement, the Employer may make Nonelective Employer Contributions under this Plan. The
amount of such Nonelective Employer Contributions shall be equal to the amount specified in
the Adoption Agreement.

	 
	 	(c)	 	Election of Time and Form of Distribution for Employer Contributions.







	 	(1)	 	If the Employer so elects in the Adoption Agreement, a Participant may elect on his or her
Deferral Agreement to defer Employer Contributions by specifying:







	 	(i)	 	The time of distribution; and

	 
	 	(ii)	 	The form of distribution.







	 	(2)	 	The time and form of distribution must be specified no later than the time the Participant
obtains a Legally Binding Right to such Employer Contributions. After
such time, modification to the time or form of distribution may only be made in accordance with
Section 4.4.

	 
	 	(3)	 	A Deferral Agreement shall be made in accordance with procedures established by the Plan
Administrator and in accordance with Code section 409A and regulations thereunder.

	 
	 	(4)	 	The Participant may modify or terminate the time and/or form of distribution specified
under this Section 4.2(c) by notifying the Plan Administrator prior to the Participant obtaining a
Legally Binding Right to the Employer Contributions subject to the modification and/or termination.
After such time, modification to the time or form of distribution may only be made in accordance
with Section 4.4.

	 
	 	(5)	 	The modification or termination of the time and/or form of distribution specified under
this Section 4.2(c) shall be made in accordance with procedures established by the Plan
Administrator and in accordance with Code section 409A and regulations thereunder.







	 	(d)	 	Failure to Make Timely Election. If an Eligible Employee fails to set the time and form of
distribution prior to the time the Participant obtains a Legally Binding Right to Employer
Contributions made on his or her behalf, any election to defer such Employer Contributions after
such time shall be subject to the rules set forth under Section 4.4. Such election to defer
Employer Contributions after the date the Participant obtains a Legally Binding Right to such
Employer Contributions shall be made in accordance with procedures established by the
Plan Administrator and in accordance with Code section 409A and regulations
thereunder.





 


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	 	(e)	 	Crediting of Employer Contributions. Employer Contributions made on behalf of a
Participant and deferred under this Section 4.2 shall be credited to the Participant’s
Account as soon as practicable. All Employer Contributions deferred under this Section 4.2
shall be held as an asset of the Employer.

	 
	 	(f)	 	A Deferral Agreement under this Section 4.2 shall be at all times subject to the rules set
forth under Section 4.4.







	4.3	 	Performance-Based Compensation.







	 	(a)	 	If the Employer so elects in the Adoption Agreement, a Participant may make a
Performance-Based Compensation Deferral Election, subject to the requirements of Section 4.3(b).

	 
	 	(b)	 	If the Plan Administrator, in its sole discretion, determines that Compensation
constitutes Performance-Based Compensation that is based on services performed over a period of at
least twelve (12) months, the Plan Administrator will
establish procedures under which an Eligible Employee may elect to defer such Performance-Based
Compensation, but such election must be made no later than six (6) months before the end of the
performance period. Such procedures established by the Plan Administrator shall be made in
accordance with Code section 409A and regulations thereunder.

	 
	 	(c)	 	A Performance-Based Compensation Deferral Election must specify:







	 	(1)	 	The time of
distribution; and

	 
	 	(2)	 	The form of distribution.







	 	(d)	 	Crediting of Performance-Based Compensation. Performance-Based Compensation deferred under
this Section 4.3 shall be credited to the Participant’s Account as soon as practicable after such
Performance-Based Compensation would have otherwise been paid to the Participant.

	 
	 	(e)	 	A Performance-Based Compensation Deferral Election made under this Section 4.3 shall apply
to Performance-Based Compensation only. The rules set forth under Section 4.1 or Section 4.2 shall
not apply and shall not supplant the rules set forth under this Section 4.3.

	 
	 	(f)	 	A Performance-Based Compensation Deferral Election to defer made under this Section 4.3
shall be at all times subject to the rules set forth under Section 4.4.





 


15









 











	4.4	 	Changes in Time or Form of Distribution.







	 	(a)	 	A Participant may make a subsequent election to change the time and/or form of a
distribution he or she specified in his or her Deferral Agreement under Section 4.1,
Section 4.2, and/or a Performance-Based Compensation Deferral Election under Section 4.3,
but only if the following conditions are satisfied:







	 	(1)	 	The election may not take effect until at least twelve (12) months after the
date on which the election is made;

	 
	 	(2)	 	In the case of an election to change the time and/or form of a distribution
under Sections 5.2 and 5.3, a distribution may not be made earlier than at least
five (5) years from the date the distribution would have otherwise been made;

	 
	 	(3)	 	In the case of an election to change the time and/or form of a distribution
under Sections 5.2 and 5.3, the election must be made at least twelve (12) months
before the date of the first scheduled distribution; and

	 
	 	(4)	 	The election may not result in an impermissible acceleration of payment prohibited under
Code section 409A and applicable guidance thereunder.
If the Plan Administrator, in its sole discretion, determines that a
change in the time and/or form of a distribution will result in an
impermissible acceleration, the Plan Administrator reserves the right to
refuse to honor the change.







	 	(b)	 	A Participant may change the form of distribution he or she specified in his or her
Deferral Agreement under Section 4.1, Section 4.2, and/or a Performance-Based Compensation Deferral
Election under Section 4.3 to any one of the distribution form(s) elected by the Employer in the
Adoption Agreement, so long as the change meets the requirements set forth under Section 4.4(a).

	 
	 	(c)	 	For purposes of making a subsequent election under Section 4.4(a)(2), any form of
distribution elected by the Participant and any amounts payable in the form(s) set forth
under Sections 5.1A(a)(3) and 5.1A(a)(4) or Sections 5.1B(a)(3) and 5.1B(a)(4) shall be
treated as a single payment.

	 
	 	(d)	 	The rules set forth in this Section 4.4 may apply separately to each time and/or form of
distribution specified in a Participant’s Deferral Agreement under Section 4.1, Employer
Contributions under Section 4.2, and/or a Performance-Based Compensation Deferral Election under
Section 4.3.





 


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	 	(e)	 	A change in the time and/or form of distribution shall be made in accordance with
procedures established by the Plan Administrator and in accordance with Code section 409A and
regulations thereunder.

	 
	 	(f)	 	Change in the time and/or form of distribution elections or conditions on or before
December 31, 2008. If the Employer so elects in the Adoption Agreement by December 31, 2008, a
Participant may make a subsequent election to change the time and/or form of a distribution he or
she specified in his or her Deferral Agreement under Section 4.1, Section 4.2, and/or a
Performance-Based Compensation Deferral Election under Section 4.3 and such subsequent distribution
election shall not be treated as a change in the time or form of distribution or an acceleration of
a payment under Section 4.4(a) provided that the following conditions are met:







	 	(1)	 	Such subsequent election by the Participant is made on or before December 31, 2008.

	 
	 	(2)	 	With respect to a subsequent election to change a time and/or form of distribution made on
or after January 1, 2006 and on or before December 31, 2006, the election may apply only to amounts
that would not otherwise be payable in 2006 and may not cause an amount to be paid in 2006 that
would not otherwise be payable in 2006.

	 
	 	(3)	 	With respect to a subsequent election to change a time and/or form of distribution made on
or after January 1, 2007 and on or before December 31, 2007, the election may apply only to amounts
that would not otherwise be payable in 2007 and may not cause an amount to be paid in 2007 that
would not otherwise be payable in 2007.

	 
	 	(4)	 	With respect to a subsequent election to change a time and/or form of distribution made on
or after January 1, 2008 and on or before December 31, 2008, the election may apply only to amounts
that would not otherwise be payable in 2008 and may not cause an amount to be paid in 2008 that
would not otherwise be payable in 2008.







	4.5	 	Right to Terminate Participation or Cancel a Deferral Election During Calendar Year 2005.







	 	(a)	 	So long as the Employer so adopted by December 31, 2005 as indicated in the Adoption
Agreement, a Participant and/or the Plan Administrator may elect to:







	 	(1)	 	Terminate a Participant’s participation in this Plan at any time during all or part of
calendar year 2005; or





 


17









 





	 	(2)	 	Cancel a Participant’s deferral election made under Section 4.1, Section 4.2, and/or
Section 4.3 during all or part of calendar year 2005.







	 	(b)	 	In order to effectuate any termination of participation under Section 4.5(a)(1) or
cancellation of a deferral election under Section 4.5(a)(2), amounts subject to such termination or
cancellation must be includible in income in the taxable year in which the Participant obtains a
nonforfeitable right to receive such amounts.
Any termination of participation or cancellation of a deferral election may result
in a lower amount of deferrals under this Plan, without a complete elimination of
the deferrals.

	 
	 	(c)	 	In the event of a termination of participation under Section 4.5(a)(1) or the cancellation
of a deferral election under Section 4.5(a)(2), and a distribution of deferred amounts subject to
the cancellation or payable upon termination is made, such distribution will not cause this Plan to
violate Code section 409A, provided that the full amount of the distribution is included in the
Participant’s income in calendar year 2005, or if later, the taxable year in which the Participant
obtains a nonforfeitable right to receive such amount.







	4.6	 	Elections to Defer Compensation Earned on or Before December 31, 2005. If this Plan is an
amendment, restatement, and continuation of the Prior Plan, as indicated in the Adoption Agreement,
a Participant electing to defer Compensation earned on or before December 31, 2005 will not be
subject to this Article 4 with respect to such election, provided that the:







	 	(a)	 	Election to defer is made on or before March 15, 2005;

	 
	 	(b)	 	Amounts to which the deferral election relate have not been paid or become payable at the
time of election; and

	 
	 	(c)	 	Election to defer such Compensation or Employer Contributions is made
in accordance with the terms of this Plan.







 


18












 




ARTICLE
5. - DISTRIBUTION OF ACCOUNT BALANCES





	5.1A	 	Distribution Forms for Evergreen Plans.







	 	(a)	 	If this Plan is an Evergreen Plan as specified in the Adoption Agreement, then a
Participant may, to the extent permitted by the elections of the Employer specified in the Adoption
Agreement, elect in his or her Deferral Agreement under Section 4.1, Section 4.2, and/or a
Performance-Based Compensation Deferral Election under Section 4.3 to have his or her Participant’s
Account balance distributed in:







	 	(1)	 	A lump sum payment;

	 
	 	(2)	 	Installment payments over the life expectancy of the Participant (as determined under IRS
tables for purposes of Section 72 of the Code). In accordance with the Employer’s election(s), a
Participant electing installment payments over his or her life expectancy must designate in his or
her Deferral Agreement under Section 4.1, Section 4.2, and/or a Performance-Based Compensation
Deferral Election under Section 4.3 that such payments will be made monthly, quarterly,
semi-annually or annually;

	 
	 	(3)	 	Installment payments over a period of time, not to exceed twenty (20) years. In
accordance with the Employer’s election(s), a Participant electing installment payments over a
period of years must designate in his or her Deferral Agreement under Section 4.1, Section 4.2,
and/or a Performance-Based Compensation Deferral Election under Section 4.3 that such payments will
be made monthly, quarterly, semi-annually or annually over three (3), five (5), ten (10), fifteen
(15), or twenty (20) years, or on some other payment schedule; or

	 
	 	(4)	 	A partial single, lump sum payment and installment payments. A Participant electing such
partial payment must specify in his or her Deferral Agreement under Section 4.1, Section 4.2,
and/or a Performance-Based Compensation Deferral Election under Section 4.3 the percentage of the
payment required to be paid as a single, lump sum and the percentage of the payment required to be
paid as installment payments. In accordance with the Employer’s election(s) under the Adoption
Agreement, a Participant must designate in his or her Deferral Agreement under Section 4.1, Section
4.2, and/or a Performance-Based Compensation Deferral Election under Section 4.3 whether such
payments will be made over the life expectancy of the Participant or over a period of years
(specifying the number of years) and whether such distributions shall be made monthly, quarterly,
semi-annually or annually.





 


19









 











	 	(b)	 	As specified in the Adoption Agreement, the distribution form(s) elected under this
Section 5.1A shall be made upon the occurrence of a distributable event, and in accordance with the
Employer’s distribution procedure as specified in the Adoption Agreement.

	 
	 	(c)	 	Notwithstanding the distribution form(s) elected, if a Participant’s Account balance
and/or Age is less than the minimum specified in the Adoption Agreement at the time a distributable
event occurs, the full Participant’s Account balance shall be distributed in a lump sum payment in
accordance with Section 5.1A(b).







	5.1B	 	 Distribution Forms for Calendar Year Plans.







	 	(a)	 	If this Plan is a Calendar Year Plan as specified in the Adoption Agreement, then a
Participant may, to the extend permitted by the elections of the Employer specified in the Adoption
Agreement, elect in his or her Deferral Agreement under Section 4.1, Section 4.2, and/or a
Performance-Based Compensation Deferral Election under Section 4.3 to have his or her Calendar Year
balance(s) distributed with respect to such Plan Year in:







	 	(1)	 	A lump sum payment;

	 
	 	(2)	 	Installment payments over the life expectancy of the Participant (as determined
under IRS tables for purposes of Section 72 of the Code). In accordance with the Employer’s
election(s), a Participant electing installment payments over his or her life expectancy must
designate in his or her Deferral Agreement under Section 4.1, Section 4.2, and/or a
Performance-Based Compensation Deferral Election under Section 4.3 that such payments will be made
monthly, quarterly, semi-annually or annually;

	 
	 	(3)	 	Installment payments over a period of time, not to exceed twenty (20) years. In
accordance with the Employer’s election(s), a Participant electing installment payments over a
period of years must designate in his or her Deferral Agreement under Section 4.1, Section 4.2,
and/or a Performance-Based Compensation Deferral Election under Section 4.3 that such payments will
be made monthly, quarterly, semi-annually or annually over three (3), five (5), ten (10), fifteen
(15), or twenty (20) years, or on some other payment schedule; or





 


20









 





	 	(4)	 	A partial single, lump sum payment and installment payments. A Participant electing such
partial payment must specify in his or her Deferral Agreement under Section 4.1, Section 4.2,
and/or a Performance-Based Compensation Deferral Election under Section 4.3 the percentage of
the payment required to be paid as a single, lump sum and the percentage
of the payment required to be paid as installment payments. In accordance
with the Employer’s election(s) under the Adoption Agreement, a
Participant must designate in his or her Deferral Agreement under Section
4.1, Section 4.2, and/or a Performance-Based Compensation Deferral
Election under Section 4.3 whether such payments will be made over the
life expectancy of the Participant or over a period of years (specifying
the number of years) and whether such distributions shall be made monthly,
quarterly, semi-annually or annually.







	 	(b)	 	As specified in the Adoption Agreement, the distribution forms elected under this Section
5.1B shall be made upon the occurrence of a distributable event and in accordance with the
Employer’s distribution procedure as specified in the Adoption Agreement.

	 
	 	(c)	 	Notwithstanding the distribution form(s) elected, if a Participant’s Account balance(s)
and/or Age is less than the minimum specified in the Adoption Agreement at the time a distributable
event occurs, the full Account balance(s) shall be distributed in a lump sum payment in accordance
with Section 5.1B(b).

	 
	 	(d)	 	Different forms of distribution may be elected for different years.







	5.2	 	Distribution as of a Specified Time.







	 	(a)	 	A Participant may designate at the time he or she completes his or her Deferral
Agreement to receive a Specified Time distribution in the form(s) so elected by the
Employer in the Adoption Agreement and as of a Specified Time designated by the Employer in
the Adoption Agreement.

	 
	 	(b)	 	Distributions made under this Section 5.2 shall be made in accordance with Section 5.1A(b)
or Section 5.1B(b) as applicable.

	 
	 	(c)	 	Notwithstanding Section 5.2(b), if the Employer so elects, distributions under this
Section 5.2 may not commence until the date or Age specified in the Adoption Agreement.

	 
	 	(d)	 	Different dates of distribution may be elected for different years.





 


21









 







	5.3	 	Distribution upon Separation from Service.







	 	(a)	 	Upon a Participant’s Separation from Service, the unpaid portion of his or her
Participant’s
Account balance, if any, shall be distributed in the form(s) so elected by the Employer in the
Adoption Agreement.

	 
	 	(b)	 	Distributions made under this Section 5.3 shall be made in accordance with Section 5.1A(b)
or Section 5.1B(b), as applicable.

	 
	 	(c)	 	In the case of a Separation from Service of a Key Employee, distributions under this
Section 5.3 may not be made before the date which is six (6) months after the date of the Key
Employee’s Separation from Service (or, if earlier, the date of death of the Key Employee).







	5.4	 	Distribution upon Disability. If a Participant becomes Disabled while employed with the
Employer, the unpaid portion of his or her Participant’s Account balance, if any, shall be
distributed in a single sum.

	 
	5.5	 	Distribution upon Death. If a Participant dies while employed with the Employer, the unpaid
portion of his or her Participant’s Account balance, if any, shall be distributed in a single sum.

	 
	5.6	 	Withdrawals for Unforeseeable Emergency.







	 	(a)	 	A Participant may withdraw all or any portion of his or her Participant’s Account
balance for an Unforeseeable Emergency. The amounts distributed with respect to an
Unforeseeable Emergency may not exceed the amounts necessary to satisfy such Unforeseeable
Emergency plus amounts necessary to pay taxes reasonably anticipated as a result of the
distribution, after taking into account the extent to which such hardship is or 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 cessation of deferrals under the Plan. The Plan
Administrator, in its sole discretion, shall determine whether an Unforeseeable
Emergency has occurred and shall distribute all or any portion of a Participant’s
Account balance as soon as practicable after such a determination.

	 
	 	(b)	 	If a Participant receives a distribution on account of an Unforeseeable Emergency under
this Plan, such Participant’s Deferral Agreement shall terminate:







	 	(1)	 	As soon as practicable following a withdrawal for an Unforeseeable Emergency;
or

	 
	 	(2)	 	If a Participant’s Deferral Agreement is required to be terminated in order for
the Participant to receive a hardship distribution under the 401(k) Plan,
or other plan of the Employer, as soon as practicable following a
withdrawal for an Unforeseeable Emergency.





 


22









 











	5.7	 	Distribution upon a Change in Control Event. Upon a Change in Control Event, the unpaid portion
of a Participant’s Account balance, if any, shall be distributed at the time so elected by the
Employer in the Adoption Agreement.







	 	(a)	 	A “Change in Control Event” means an event described under Code section 409A(a)(2)(A)(v)
and regulations thereunder.

	 
	 	(b)	 	Generally, to constitute a Change in Control Event as to a Participant, the Change in
Control Event must relate to (1) the corporation for whom the Participant is performing services at
the time of the Change in Control Event, (2) the corporation that is liable for the payment of Plan
benefits to the Participant (or all corporations liable for the payment if more than one
corporation is liable), or (3) a
corporation that is a majority shareholder of a corporation identified in (1) or (2), or any
corporation in a chain of corporations in which each corporation is a majority shareholder of
another corporation in the chain, ending in a corporation identified in (1) or (2). The ultimate
parent corporation in such a chain shall be referred to as the “Parent.”

	 
	 	(c)	 	Generally, the types of Change in Control Events are:







	 	(1)	 	Change in ownership, if a person, or a group of persons acting together,
acquires more than 50% of the stock of the corporation;

	 
	 	(2)	 	Change in effective control if, over a 12-month period, a person or group
acquires stock representing 30% of the voting power of the corporation or a
majority of the members of the board of directors of the parent corporation is
replaced by directors not endorsed by the persons who were members of the board
before the new directors’ appointment;

	 
	 	(3)	 	Change in ownership of a substantial portion of corporate assets if a person or
group acquires 40% or more of the gross fair market value of the assets of a
corporation over a 12-month period; or

	 
	 	(4)	 	A narrower definition in a separate written agreement increasing the
percentages listed in this section above. The entering into of any such separate
written agreement must satisfy the requirements of Code section 409A and the
regulations thereunder.





 


23









 











	5.8	 	Intervening Distributable Events. If a Participant has incurred a Separation from Service
(whether or not such Participant is currently receiving a distribution in the form(s) set
forth under Sections 5.1A(a)(2), 5.1A(a)(3), and 5.1A(a)(4) or Sections 5.1B(a)(2),
5.1B(a)(3), and 5.1B(a)(4) on account of a distributable event under Sections 5.2 or 5.3),
then in lieu of the foregoing distribution form(s), the remainder of the Participant’s
Account balance may be distributed in a lump sum in accordance with Section 5.1A(b) or
Section 5.1B(b) upon the occurrence of an intervening distributable event under Sections
5.4 through 5.7. The Employer shall specify in the Adoption Agreement whether such lump sum
payment is to be made under any or all of the distributable events set forth under Sections
5.4 through 5.7.

	 
	5.9	 	Impermissible Acceleration. If the Plan Administrator, in its sole discretion, determines that
a distribution under this Article will result in an impermissible acceleration prohibited under
Code section 409A and applicable guidance thereunder, the Plan Administrator reserves the right to
refuse to make any such distribution unless and until the Plan Administrator determines that the
distribution will be made in accordance with Code section 409A.

	 
	5.10	 	Delay in Payment. If the Plan Administrator cannot make a distribution by the dates specified
under Section 5.1A(b) or Section 5.1B(b) for reasons beyond the Employer’s control, or if a
distribution would jeopardize the Employer’s solvency or if the Plan Administrator, in its sole
discretion, determines that (1) the deduction associated with a distribution under this Plan would
be limited by Code section 162(m), or (2) a distribution would violate federal securities laws, the
Plan Administrator may delay such distributions.

	 
	5.11	 	Default time and form of distribution. If the Participant does not select a time and form of
distribution in accordance with this Article 5, the time and form of distribution shall be a lump
sum distribution paid as soon as administratively feasible following Separation from Service in
accordance with the Plan’s distribution procedures.

	 
	5.12	 	Accelerated Payment Exceptions. Unless otherwise elected in the Adoption Agreement, the plan
will provide for an accelerated payment under the following circumstances:







	 	(a)	 	Domestic Relations Order - Accelerated distributions for an alternate payee to comply
with a Qualified Domestic Relations Order. For this purpose, a Qualified
Domestic Relations Order means a judgment, decree, or order (including the approval
of a settlement agreement) which is:







	 	(1)	 	issued pursuant to a State’s domestic relations law;

	 
	 	(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;





 


24









 





	 	(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;

	 
	 	(4)	 	requires payment to such person of their interest in the Participant’s benefits
in an immediate lump payment; and

	 
	 	(5)	 	meets such other requirements established by the Company.







	 	 	 	The Company shall determine whether any document received by it is a Qualified Domestic
Relations Order. In making this determination, the Company may consider the rules
applicable to “domestic relations orders” under Code section 414(p) and ERISA section
206(d), and such other rules and procedures as it deems relevant.

	 
	 	(b)	 	Conflicts of interest– To the extent necessary for any Federal officer or employee in the
executive branch to comply with an ethics agreement with the Federal government, or, to the extent
reasonably necessary to avoid the violation of an applicable Federal, state, local or foreign
ethics law or conflicts of interest law.;

	 
	 	(c)	 	Limited cashouts (de minimis distributions) -
Discretion to cash out a Participant’s interest at any time, or automatic cashouts under specified
circumstances, such as Separation from Service, if the annual amount does not exceed the section
402(g) limit and all plans in the same category are cashed out at the same time. Installment
distributions will also be cashed out if the amount is less than a plan-established threshold as
set forth in the Adoption Agreement, which may be any pre-determined amount;

	 
	 	(d)	 	Taxes -
Accelerated distributions may be paid to cover any employment tax, where applicable, on amounts
deferred under the Plan, to pay federal income tax withholding amounts (or the corresponding
state, local or foreign tax withholding amounts as a result of the payment of any employment
taxes), and any additional income withholding attributable to the pyramiding of wages and taxes.
The total payment under this acceleration provision must not exceed the aggregate employment taxes
and withholding related to such employment taxes;

	 
	 	(e)	 	Plan termination and liquidation -
Distributions due to a termination and liquidation of the plan in accordance with Treasury Reg.
§1.409-3(j)(4)(ix);

	 
	 	(f)	 	Cancellation of a deferral election due to a Participant meeting the
requirements of Disability, Unforeseeable Emergency under the Plan;

	 
	 	(g)	 	Payment upon income
inclusion under Code section 409A - Accelerated payments income inclusion that is due to a
violation of Code section 409A; and





 


25









 





	 	(h)	 	Certain offsets - Accelerated payment to a participant to cover a debt owed to the
company if the participant incurred the debt in the ordinary course of business, the offset
does not exceed $5,000 per calendar year, and payment occurs on the due date of the debt.







	5.13	 	Distributions under this Plan shall only be made in cash unless otherwise provided in the
Adoption Agreement.





 


26









 










ARTICLE
6. - PLAN INVESTMENTS





	6.1	 	Unless otherwise stated in the Adoption Agreement, all contributions will be invested under the
Diversified Investors Funds Group, Diversified Investors Strategic Allocation Funds (the “Mutual
Funds”), or other investments that may be selected by the Plan Administrator from time to time
under which Participant’s Accounts will be established for each Participant. The Employer invests
Plan assets in its
discretion, taking into account (to the extent it deems advisable) instructions received from
Participants. A Participant’s investment choices are limited to the types of investments as so elected by
the Employer.

	 
	 	 	Unless otherwise so elected, the Employer hereby designates that Participants will be
permitted to request the investment of the deferred amounts from a menu of investment alternatives
made available by the Employer under the Plan and under a policy established by the Employer. The
Employer and the provider of investments under the Plan may impose such restrictions on the investment of deferred compensation, as they may
deem appropriate in their sole discretion. The Mutual Funds are not a party to this Plan.

	 
	6.2	 	All amounts under this Plan, including all investments purchased with such amounts and all
income attributable thereto, shall remain (until made available to the Participant or Beneficiary)
solely the property of the Employer (without being restricted to the provision of benefits under
the Plan) subject to the claims of the Employer’s general creditors. A Participant has no greater
right to Trust assets than the general creditors of the Employer in the event that the Employer
shall become insolvent. Any vested accrued benefits under the Plan represent an unfunded, unsecured
promise by the Employer to pay these benefits to the Participants when due. Trust assets can be
used to pay only vested accrued benefits under the Plan or the claims of the Employer’s general
creditors.





 


27









 










ARTICLE
7. - BENEFICIARY





	7.1	 	A Participant shall designate on his or her Deferral Agreement or other form provided by the
Employer, the Beneficiary or Beneficiaries who are to receive distributions in the event of the
Participant’s death. If the Participant has not properly designated a Beneficiary, or if for any
reason such designation shall not be legally effective, or if said designated Beneficiary or
Beneficiaries shall predecease the Participant, then the Participant’s estate shall be treated as
the Beneficiary. A Participant may change his or her Beneficiary designation at any time by
amending his or her Deferral Agreement or other form provided by the Employer.





 


28









 










ARTICLE
8. - VESTING AND FORFEITURES





	8.1	 	Vesting. The value of a Participant’s Account with respect to his or her Salary Reduction
Contributions, Matching Contributions, and Nonelective Employer Contributions shall vest in
accordance with the vesting schedules elected by the Employer under the Adoption Agreement.

	 
	8.2	 	When employment or service with the Employer is terminating and payment is not deferred, the
amount of the payment shall be based on the value of the Participant’s Account plus any
contributions subsequently credited to such Account and less any distributions subsequently made
from the Account.

	 
	8.3	 	Forfeitures. If applicable, any remainder of a terminating Participant’s Account, which is not
vested, shall be forfeited on the date of his or her Separation from Service. Any such forfeiture
shall be applied to offset future Employer Contributions under the Plan, or, if none, revert to the
Employer.





 


29









 










ARTICLE
9. - ADMINISTRATION





	9.1	 	Plan Administrator. The Plan Administrator shall be the Employer adopting this Plan, as listed
in Section 1 of the Adoption Agreement, or, if applicable, the person(s) or entity appointed by the
Employer to administer the Plan, as listed in Section 2 of the Adoption Agreement. The Plan
Administrator shall serve at the pleasure of the Employer and the
Employer shall have the right to appoint, in its sole and absolute discretion, any
successor Plan Administrator.

	 
	9.2	 	Claims for Benefits.







	 	(a)	 	Filing a Claim. A Participant or his or her authorized representative may file a claim for
benefits under the Plan. Any claim must be in writing and submitted to the Plan Administrator.
Claimants will be notified in writing of approved claims, which will be processed as claimed. A
claim is considered approved only if its approval is communicated in writing to a Claimant.

	 
	 	(b)	 	Denial of Claim. In the case of the denial of a claim respecting benefits paid or payable
with respect to a Participant, a written notice will be furnished to the Claimant within ninety
(90) days of the date on which the claim is received by the Plan Administrator. If special
circumstances (such as for a hearing) require a longer period, the Claimant will be notified in
writing, prior to the expiration of the ninety (90) day period, of the reasons for an extension of
time; provided, however, that no extensions will be permitted beyond ninety (90) days after the
expiration of the initial ninety (90) day period.

	 
	 	(c)	 	Reasons for Denial. A denial or partial denial of a claim will be dated and signed by the
Plan Administrator and will clearly set forth:







	 	(1)	 	The specific reason or reasons for the denial;

	 
	 	(2)	 	Specific reference to pertinent Plan provisions on which the denial is based;

	 
	 	(3)	 	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

	 
	 	(4)	 	An explanation of the procedure for review of the denied or partially denied claim set
forth below, including the Claimant’s right to bring a civil action under ERISA section 502(a)
following an adverse benefit determination on review.





 


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	 	(d)	 	Review of Denial. Upon denial of a claim, in whole or in part, a Claimant or his or her
duly authorized representative will have the right to submit a written request to the Plan
Administrator for a full and fair review of the denied claim by filing a written notice of appeal
with the Plan Administrator within sixty (60) days of the receipt by the Claimant of written notice
of the denial of the claim. A Claimant or the Claimant’s authorized representative will have, 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 may submit
issues and comments in writing. The review will take into account all comments,
documents, records, and other information submitted by the Claimant relating to the
claim, without regard to whether such information was submitted or considered in
the initial benefit determination.

	 
	 	 	 	If the Claimant fails to file a request for review within sixty (60) days of the
denial notification, the claim will be deemed abandoned and the Claimant precluded
from reasserting it. If the Claimant does file a request for review, his or her
request must include a description of the issues and evidence he or she deems
relevant. Failure to raise issues or present evidence on review will preclude those
issues or evidence from being presented in any subsequent proceeding or judicial
review of the claim.

	 
	 	(e)	 	Decision upon Review. The Plan Administrator will provide a prompt written decision on
review. If the claim is denied on review, the decision shall set forth:







	 	(1)	 	The specific reason or reasons for the adverse determination;

	 
	 	(2)	 	Specific reference to pertinent Plan provisions on which the adverse
determination is based;

	 
	 	(3)	 	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

	 
	 	(4)	 	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).







	 	 	 	A decision will be rendered no more than sixty (60) days after the Plan
Administrator’s receipt of the request for review, except that such period may be
extended for an additional sixty (60) days if the Plan Administrator determines
that special circumstances (such as for a hearing) require such extension. If an
extension of time is required, written notice of the extension will be furnished to
the Claimant before the end of the initial sixty (60) day period.





 


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	 	(f)	 	Finality of Determinations; Exhaustion of Remedies. To the extent permitted by law,
decisions reached under the claims procedures set forth in this Section shall be final and binding
on all parties. No legal action for benefits under the Plan shall be brought unless and until the Claimant has exhausted his or her
remedies under this Section. In any such legal action, the Claimant may only
present evidence and theories which the Claimant presented during the claims
procedure. Any claims which the Claimant does not in good faith pursue through the
review stage of the procedure shall be treated as having been irrevocably waived.
Judicial review of a Claimant’s denied claim shall be limited to a determination of
whether the denial was an abuse of discretion based on the evidence and theories
the Claimant presented during the claims procedure. Any suit or legal action
initiated by a Claimant under the Plan must be brought by the Claimant no later
than one year following a final decision on the claim for benefits by the Plan
Administrator. The one-year limitation on suits for benefits will apply in any
forum where a Claimant initiates such suit or legal action. Any claim under this
Plan relating to an alleged failure to make a contribution to this Plan, and any
suit or legal action for benefits under this Plan must be made within two years of
the date on which the claimed contribution is alleged should have been made or, if
later, the date on which the Claimant is or should have been aware that such
contributions have not been made.

	 
	 	(g)	 	Disability Claims. Claims for disability benefits shall be determined under the
DOL Regulation section 2560.503-1 which is hereby incorporated by reference.







	9.3	 	Indemnification. To the extent not covered by insurance, the Employer shall indemnify the Plan
Administrator, 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.

	 
	9.4	 	Power and Authority. The Plan Administrator shall have full power and authority to adopt rules
and regulations (including without limitation a reasonable claims procedure) for the administration
of the Plan, and to interpret, alter, amend, or revoke any rules and regulations so adopted. The
Plan Administrator shall have full power and authority to interpret the terms and provisions of
this Plan and any instrument filed hereunder.

	 
	9.5	 	Finality of Decisions. The Plan Administrator’s decisions or interpretations made under the
Plan shall be binding and final on all interested parties.





 


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	9.6	 	Presumption of Fairness. Every action taken by the Plan Administrator shall be presumed to be
a fair and reasonable exercise of the authority vested in, or the duties imposed upon, the Plan
Administrator. The Plan Administrator shall be deemed to have acted impartially as to all persons
interested, unless the contrary be proven by affirmative evidence. The Plan Administrator shall
not be liable for amounts of Deferred
Compensation by a Participant or for other amounts payable under this Plan.

	 
	9.7	 	Other Parties. Any person or entity which issues policies, contracts, or investment media to
the Employer or in respect of a Participant is not a party to this Plan and such person or entity
shall have no responsibility, accountability or liability to the Employer, the Plan Administrator,
any Participant, or any Beneficiary with regard to the operation or adequacy of this Plan,
including any future amendments made thereto.

	 
	9.8	 	Information Requests. Any party entitled to payment under this Plan shall comply with all
written requests of the Plan Administrator or its designee to furnish the Employer with any
information known or available to such party and necessary to the administration of the Plan.

	 
	9.9	 	Expenses. If not paid by the Employer, all reasonable expenses incurred in the administration
of the Plan, including without limitation those of any Trustee and the Plan Administrator, shall be
paid from Participants’ Accounts to which such expenses are allocable.

	 
	9.10	 	No Fiduciary Relationship. Neither the Plan, nor any action taken by the Plan Administrator
or the Employer, shall create or be deemed to create a trust or fiduciary relationship of any kind
between the Employer and the Participant, his or her Beneficiary, or any other person.





 


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ARTICLE
10. - MISCELLANEOUS





	10.1	 	Amendment of Plan. The Employer or its delegate reserves the right to amend any provisions of
the Plan at any time to the extent that it may deem advisable without the consent of Participants
or any Beneficiaries provided that no such amendment shall reduce the amount of Compensation
deferred before such amendment without the consent of affected Participants or Beneficiaries.

	 
	 	 	If this Plan is an amendment, restatement, and continuation of a Prior Plan, as indicated in
Section 4 of the Adoption Agreement, and if the Plan Administrator, in its sole discretion,
determines that an amendment to this Plan will result in a material modification of the Prior Plan,
as defined under Code section 409A and Internal Revenue Service guidance issued thereunder, the
amendment shall not become effective unless and until the Plan Administrator determines that the
amendment will not result in such a material modification.

	 
	10.2	 	Termination of Plan.







	 	(a)	 	The Employer may terminate the Plan at any time, provided the following requirements
are satisfied:







	 	(1)	 	If this is an account balance elective plan, there are no other account balance
elective plans maintained by the Employer with respect to any Participants in this
Plan or all account balance elective plans maintained by the Employer have been
terminated with respect to all Participants in this Plan;

	 
	 	(2)	 	If this is an account balance non-elective plan, there are no other account
balance non-elective plans maintained by the Employer with respect to any
Participants in this Plan or all account balance non-elective plans maintained by
the Employer have been terminated with respect to all Participants in this Plan;

	 
	 	(3)	 	No payments to Participants other than payments that would have been paid
absent the termination are made within twelve (12) months of the Plan termination;

	 
	 	(4)	 	All payments are made within twenty-four (24) months of the Plan termination;
and

	 
	 	(5)	 	The Employer does not adopt a plan of the same type as the Plan for a period of
three (3) years following the date of Plan termination.





 


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	 	(b)	 	Section 10.2(a) shall not apply if the Plan is terminated:







	 	(1)	 	Within twelve (12) months of a corporate dissolution taxed under Code section 331 or with
the approval of a bankruptcy court pursuant to 11 U.S.C. §503(b)(1)(A), provided that amounts
deferred under the Plan are included in the Participants’ income in the latest of:







	 	(i)	 	The calendar year in which the Plan termination occurs;

	 
	 	(ii)	 	The calendar year in which the amount is no longer subject to a
substantial risk of forfeiture; or

	 
	 	(iii)	 	The first calendar year in which the payment is administratively
practicable.







	 	(2)	 	Within thirty (30) days preceding or twelve (12) months following a Change in Control
Event as defined under Section 5.7, provided that all substantially similar arrangements sponsored
by the Employer are terminated, so that the Participant in the arrangement and all Participants
under substantially similar arrangements are required to receive all amounts of Compensation
deferred under the terminated arrangements within twelve (12) months of the date of termination of
the arrangements.







	 	(c)	 	Upon Plan termination in accordance with Section 10.2(a) and Section 10.2(b), a
Participant’s Account balance shall be payable in a lump sum cash payment to Participants. Any
Participant who is already in pay status and has been receiving payments in a form or forms under
Section 5.1A(a)(2), 5.1A(a)(3), and 5.1A(a)(4) or Section 5.1B(a)(2), Section 5.1B(a)(3), and
5.1B(a)(4) shall receive the balance(s) of his or her Participant’s Account balance(s) in a lump
sum cash payment.

	 
	 	(d)	 	Notwithstanding the foregoing, if the Plan Administrator, in its sole discretion,
determines that any accelerated payments made on account of Plan termination are prohibited under
Code section 409A and applicable guidance thereunder, the Plan Administrator reserves the right to
refuse to make any such payments unless and until the Plan Administrator determines that the
payments may be made in accordance with Code section 409A.







	10.3	 	The Employer may, from time to time, hire outside consultants, accountants, actuaries, legal
counsel, or recordkeepers to perform such tasks as the Employer may from time to time determine.





 


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	10.4	 	No benefits under the Plan shall be subject in any manner to anticipation, alienation, sale,
transfer, assignment, pledge or encumbrance. The provisions of this Plan shall be binding upon and
inure to the benefit of the Employer and Participants and their respective successors, heirs,
personal representatives, executors, administrators, and legatees.

	 
	10.5	 	Employment. Participation in this Plan shall not be deemed to be a contract of employment
between the Employer and any Eligible Employee. Nor shall anything contained herein be deemed to
give any Eligible Employee the right to be retained in the employ of the Employer or to interfere
with the right of the Employer to discharge any Eligible Employee at any time, nor shall it be
deemed to give the Employer the right to require any employee to remain in its employ, nor shall it
interfere with such Eligible Employee’s right to terminate his or her employment at any time (as
may be provided in any contract or agreement affecting such employment).

	 
	10.6	 	This Plan and the Deferral Agreement, and any subsequently adopted amendment thereof, shall
constitute the total agreement or contract between the Employer and the Participant regarding the
Plan. No oral statement or other written document regarding the Plan may be relied upon by the
Participant.

	 
	10.7	 	This Plan shall be construed under the laws of the State specified in the Adoption Agreement.







 


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