Exhibit
10.13


 


 


COMMUNITY
FIRST BANKSHARES, INC.

SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN

(2004 Restatement)


 

















 


COMMUNITY
FIRST BANKSHARES, INC.

SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN

(2004 Restatement)


 


 


TABLE
OF CONTENTS


 


 


	
  SECTION 1.

  	
  INTRODUCTION AND
  DEFINITIONS

  	
   

  
	
   

  	
  1.1.

  	
  Restatement of
  Plan

  	
   

  
	
   

  	
  1.2.

  	
  Definitions

  	
   

  
	
   

  	
   

  	
  1.2.1.

  	
  Account

  	
   

  
	
   

  	
   

  	
  1.2.2.

  	
  Affiliate

  	
   

  
	
   

  	
   

  	
  1.2.3.

  	
  Annual Valuation Date

  	
   

  
	
   

  	
   

  	
  1.2.4.

  	
  Base Compensation

  	
   

  
	
   

  	
   

  	
  1.2.5.

  	
  Beneficiary

  	
   

  
	
   

  	
   

  	
  1.2.6.

  	
  Board of Directors or Board

  	
   

  
	
   

  	
   

  	
  1.2.7.

  	
  CEO

  	
   

  
	
   

  	
   

  	
  1.2.8.

  	
  Change of Control

  	
   

  
	
   

  	
   

  	
  1.2.9.

  	
  Code

  	
   

  
	
   

  	
   

  	
  1.2.10.

  	
  Committee

  	
   

  
	
   

  	
   

  	
  1.2.11.

  	
  Disability

  	
   

  
	
   

  	
   

  	
  1.2.12.

  	
  Effective Date

  	
   

  
	
   

  	
   

  	
  1.2.13.

  	
  Employer

  	
   

  
	
   

  	
   

  	
  1.2.14.

  	
  ERISA

  	
   

  
	
   

  	
   

  	
  1.2.15.

  	
  Incentive Compensation

  	
   

  
	
   

  	
   

  	
  1.2.16.

  	
  Measuring Investments

  	
   

  
	
   

  	
   

  	
  1.2.17.

  	
  Participant

  	
   

  
	
   

  	
   

  	
  1.2.18.

  	
  Plan

  	
   

  
	
   

  	
   

  	
  1.2.19.

  	
  Plan
  Restatement

  	
   

  
	
   

  	
   

  	
  1.2.20.

  	
  Plan Year

  	
   

  
	
   

  	
   

  	
  1.1.21.

  	
  Plan Sponsor

  	
   

  
	
   

  	
   

  	
  1.2.22.

  	
  Qualified Plan

  	
   

  
	
   

  	
   

  	
  1.2.23.

  	
  Retirement

  	
   

  
	
   

  	
   

  	
  1.2.24.

  	
  Termination of
  Employment

  	
   

  
	
   

  	
   

  	
  1.2.25.

  	
  Valuation Date

  	
   

  
	
   

  	
   

  	
  1.2.26.

  	
  Year of Service

  	
   

  
	
  SECTION 2.

  	
  PARTICIPATION

  	
   

  



 


i

















 


	
   

  	
  2.1.

  	
  Participation
  by Selection

  	
   

  
	
   

  	
  2.2.

  	
  Elections

  	
   

  
	
   

  	
   

  	
  2.2.1.

  	
  Required Initial Elections

  	
   

  
	
   

  	
   

  	
  2.2.2.

  	
  Election Changes

  	
   

  
	
   

  	
   

  	
  2.2.3.

  	
  No Spousal Rights

  	
   

  
	
   

  	
  2.3.

  	
  Commencement
  of Participation

  	
   

  
	
   

  	
  2.4.

  	
  Loss of Eligibility

  	
   

  
	
   

  	
  2.5.

  	
  Termination
  of Participation

  	
   

  
	
   

  	
  2.6.

  	
  Leaves of Absence

  	
   

  
	
   

  	
  2.7.

  	
  Specific Exclusion

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 3.

  	
  CREDITS TO ACCOUNTS

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.1.

  	
  Base
  Compensation Deferral Credits

  	
   

  
	
   

  	
   

  	
  3.1.1.

  	
  Amount of Credits

  	
   

  
	
   

  	
   

  	
  3.1.2.

  	
  Crediting to Accounts

  	
   

  
	
   

  	
  3.2.

  	
  Incentive Compensation Deferral
  Credits

  	
   

  
	
   

  	
   

  	
  3.2.1.

  	
  Amount of Credits

  	
   

  
	
   

  	
   

  	
  3.2.2.

  	
  Crediting to Accounts

  	
   

  
	
   

  	
  3.3.

  	
  Qualified Plan Restoration
  Credits

  	
   

  
	
   

  	
   

  	
  3.3.1.

  	
  Amount of
  Credits

  	
   

  
	
   

  	
   

  	
  3.3.2.

  	
  Crediting
  to Accounts

  	
   

  
	
   

  	
  3.4.

  	
  Employer
  Matching Credits

  	
   

  
	
   

  	
   

  	
  3.4.1.

  	
  Amount of
  Credits

  	
   

  
	
   

  	
   

  	
  3.4.2.

  	
  Crediting to
  Accounts

  	
   

  
	
   

  	
  3.5.

  	
  Employer Discretionary Credits

  	
   

  
	
   

  	
   

  	
  3.5.1.

  	
  Amount of Credits

  	
   

  
	
   

  	
   

  	
  3.5.2.

  	
  Crediting to
  Accounts

  	
   

  
	
   

  	
  3.6.

  	
  Required
  Employer Credits

  	
   

  
	
   

  	
   

  	
  3.6.1.

  	
  Amount of Credits

  	
   

  
	
   

  	
   

  	
  3.6.2.

  	
  Crediting to Accounts

  	
   

  
	
   

  	
  3.7.

  	
  Rules Regarding Employee
  Elections

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 4.

  	
  ACCOUNTS

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.1.

  	
  Establishment
  of Accounts

  	
   

  
	
   

  	
  4.2.

  	
  Vesting

  	
   

  	
   

  
	
   

  	
  4.3.

  	
  Designation
  of Measuring Investments

  	
   

  
	
   

  	
  4.4.

  	
  Adjustments
  of Accounts

  	
   

  
	
   

  	
  4.5.

  	
  Operational
  Rules for Measuring Investments

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 5.

  	
  DISTRIBUTIONS

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.1.

  	
  Form of Distribution

  	
   

  
	
   

  	
   

  	
  5.1.1.

  	
  Available Forms

  	
   

  



 


ii

















 


	
   

  	
   

  	
  5.1.2.

  	
  Default

  	
   

  
	
   

  	
   

  	
  5.1.3.

  	
  Installment Amounts

  	
   

  
	
   

  	
   

  	
  5.1.4.

  	
  Minimum Amount

  	
   

  
	
   

  	
   

  	
  5.1.5.

  	
  Death

  	
   

  
	
   

  	
  5.2.

  	
  Retirement
  Distributions

  	
   

  
	
   

  	
   

  	
  5.2.1.

  	
  Form and Timing

  	
   

  
	
   

  	
   

  	
  5.2.2.

  	
  Election to Delay
  Distribution for Five (5) Years

  	
   

  
	
   

  	
  5.3.

  	
  Termination
  Distribution

  	
   

  
	
   

  	
  5.4.

  	
  Disability
  Distribution

  	
   

  
	
   

  	
  5.5.

  	
  Hardship
  Distribution

  	
   

  
	
   

  	
   

  	
  5.5.1.

  	
  When Available

  	
   

  
	
   

  	
   

  	
  5.5.2.

  	
  Purposes

  	
   

  
	
   

  	
   

  	
  5.5.3.

  	
  Limitations

  	
   

  
	
   

  	
   

  	
  5.5.4.

  	
  Effect on
  Participation

  	
   

  
	
   

  	
  5.6.

  	
  Change
  of Control Distribution

  	
   

  
	
   

  	
   

  	
  5.6.1.

  	
  When Available

  	
   

  
	
   

  	
   

  	
  5.6.2.

  	
  Payment

  	
   

  
	
   

  	
   

  	
  5.6.3.

  	
  Forfeiture

  	
   

  
	
   

  	
  5.7.

  	
  Distribution
  Based on Constructive Receipt

  	
   

  
	
   

  	
  5.8.

  	
  Designation
  of Beneficiaries

  	
   

  
	
   

  	
   

  	
  5.8.1.

  	
  Right to Designate

  	
   

  
	
   

  	
   

  	
  5.8.2.

  	
  Failure of
  Designation

  	
   

  
	
   

  	
   

  	
  5.8.3.

  	
  Disclaimers by
  Beneficiaries

  	
   

  
	
   

  	
   

  	
  5.8.4.

  	
  Definitions

  	
   

  
	
   

  	
   

  	
  5.8.5.

  	
  Special Rules

  	
   

  
	
   

  	
   

  	
  5.8.6.

  	
  No Spousal Rights

  	
   

  
	
   

  	
  5.9.

  	
  Death Prior to
  Full Distribution

  	
   

  
	
   

  	
  5.10.

  	
  Facility
  of Payment

  	
   

  
	
   

  	
  5.11.

  	
  Cash Distributions

  	
   

  
	
   

  	
  5.12.

  	
  Code §162(m) Delay

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 6.

  	
  FUNDING OF PLAN

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.1.

  	
  Unfunded Obligation

  	
   

  
	
   

  	
   

  	
  6.1.1.

  	
  Hedging Investments

  	
   

  
	
   

  	
   

  	
  6.1.2.

  	
  Corporate Obligation

  	
   

  
	
   

  	
  6.2.

  	
  Spendthrift Provision

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 7.

  	
  AMENDMENT AND TERMINATION

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.1.

  	
  Amendment

  	
   

  
	
   

  	
  7.2.

  	
  Discontinuance of Contributions
  and Termination of Plan

  	
   

  
	
   

  	
  7.3.

  	
  Change
  of Control

  	
   

  
	
   

  	
  7.4.

  	
  No Oral
  Amendments

  	
   

  
	
   

  	
  7.5.

  	
  Plan
  Binding on Successors

  	
   

  



 


iii

















 


	
  SECTION 8.

  	
  DETERMINATIONS — RULES AND
  REGULATIONS

  	
   

  
	
   

  	
  8.1.

  	
  Determinations

  	
   

  
	
   

  	
  8.2.

  	
  Rules and Regulations

  	
   

  
	
   

  	
  8.3.

  	
  Method
  of Executing Instruments

  	
   

  
	
   

  	
  8.4.

  	
  Claims and
  Review Procedure

  	
   

  
	
   

  	
   

  	
  8.4.1.

  	
  Initial Claim

  	
   

  
	
   

  	
   

  	
  8.4.2.

  	
  Notice of
  Initial Adverse Determination

  	
   

  
	
   

  	
   

  	
  8.4.3.

  	
  Request for Review

  	
   

  
	
   

  	
   

  	
  8.4.4.

  	
  Claim on Review

  	
   

  
	
   

  	
   

  	
  8.4.5.

  	
  Notice of
  Adverse Determination for Claim on Review

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 9.

  	
  PLAN ADMINISTRATION

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.1.

  	
  Plan Sponsor

  	
   

  
	
   

  	
   

  	
  9.1.1.

  	
  Officers

  	
   

  
	
   

  	
   

  	
  9.1.2.

  	
  Chief Executive
  Officer

  	
   

  
	
   

  	
  9.2.

  	
  Conflict
  of Interest

  	
   

  
	
   

  	
  9.3.

  	
  Administrator

  	
   

  
	
   

  	
  9.4.

  	
  Service of
  Process

  	
   

  
	
   

  	
  9.5.

  	
  Indemnity

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 10.

  	
  DISCLAIMERS

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.1.

  	
  Term of
  Employment

  	
   

  
	
   

  	
  10.2.

  	
  Source
  of Payment

  	
   

  
	
   

  	
  10.3.

  	
  Delegation

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 11.

  	
  MISCELLANEOUS

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  11.1.

  	
  ERISA Status

  	
   

  
	
   

  	
  11.2.

  	
  IRC Status

  	
   

  
	
   

  	
  11.3.

  	
  Effect
  on Other Plans

  	
   

  
	
   

  	
  11.4.

  	
  Disqualification

  	
   

  
	
   

  	
  11.5.

  	
  Rules of
  Document Construction

  	
   

  
	
   

  	
  11.6.

  	
  References
  to Laws

  	
   

  
	
   

  	
  11.7.

  	
  Choice of Law

  	
   

  
	
   

  	
  11.8.

  	
  ERISA
  Administrator

  	
   

  
	
   

  	
  11.9.

  	
  Not
  an Employment Contract

  	
   

  
	
   

  	
  11.10.

  	
  Tax
  Withholding

  	
   

  
	
   

  	
  11.11.

  	
  Expenses

  	
   

  
	
   

  	
  11.12.

  	
  Service
  of Process

  	
   

  
	
   

  	
  11.13.

  	
  Spendthrift Provision

  	
   

  
	
   

  	
  11.14.

  	
  Certifications

  	
   

  
	
   

  	
  11.15.

  	
  Errors
  in Computations

  	
   

  



 


iv

















 


	
  SCHEDULE I
  –

  	
   

  	
  EMPLOYERS
  PARTICIPATING IN THE COMMUNITY FIRST BANKSHARES, INC. SUPPLEMENTAL EXECUTIVE
  RETIREMENT PLAN

  



 


v

















 


COMMUNITY
FIRST BANKSHARES, INC.

SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN

(2004 Restatement)


 


SECTION 1


 


INTRODUCTION AND DEFINITIONS


 


1.1.                                          Restatement of Plan. 
Community First Bankshares, Inc., a Delaware corporation, has previously
established and maintained a nonqualified deferred compensation plan (“Plan”)
for the benefit of a select group of management and highly compensated
employees and, effective January 1, 2004, restates the Plan in this
document entitled “Community First Bankshares, Inc. Supplemental Executive
Retirement Plan (2004 Restatement).” 
Effective January 1, 2004, this document supercedes and replaces
said original Plan document and amendments and constitutes the entire statement
of the Plan, subject to such amendments as may hereafter be adopted.


 


1.2.                                          Definitions.  When
the following terms are used herein with initial capital letters, they shall
have the following meanings:


 


1.2.1.                                                         Account  — the separate bookkeeping account established for
each Participant which represents the separate unfunded and unsecured general
obligation of the Employers established with respect to each person who is a
Participant in this Plan in accordance with Section 2 and to which are
credited the dollar amounts specified in Section 3 and from which are
subtracted payments made pursuant to Section 5.


 


1.2.2.                                                         Affiliate — a business entity which is not an Employer but
which is part of a “controlled group” with the Employer or under “common
control” with an Employer or which is a member of an “affiliated service group”
that includes an Employer, as those terms are defined in section 414(b),
(c) and (m) of the Code.  A business
entity which is a predecessor to an Employer shall be treated as an Affiliate
if the Employer maintains a plan of such predecessor business entity or if, and
to the extent that, such treatment is otherwise required by regulations under
section 414(a) of the Code.  A
business entity shall also be treated as an Affiliate if, and to the extent
that, such treatment is required by regulations under section 414(o) of
the Code.  In addition to said required
treatment, the Plan Sponsor may, in its discretion, designate as an Affiliate
any business entity which is not such a “controlled group,” “common control,”
“affiliated service group” or “predecessor” business entity but which is
otherwise affiliated with an Employer, subject to such limitations as the Plan
Sponsor may impose.


 


1.2.3.                                                         Annual Valuation
Date — each December 31.


 


1.2.4.                                                         Base
Compensation — regular base pay paid to Participant for
services rendered to an Employer.  Base
Compensation does not include non-base pay such as benefits, perquisites,
allowances, per diem payments, bonuses, incentive compensation, equity


 

















 


compensation, fringe
benefits, special pay, awards or commissions. 
Base Compensation shall be calculated before reductions in compensation
due to elective contributions made by the Employer on behalf of the Participant
that are not includible in gross income under sections 125, 132(f),
402(e)(3), 402(h), 403(b), 414(h)(2) and 457 of the Code including elective
contributions authorized by the Participant under the Qualified Plan, a
cafeteria plan or any qualified cash or deferred arrangement but shall not
include earnings on those amounts.


 


1.2.5.                                                         Beneficiary  — a person designated by a Participant (or
automatically by operation of the Plan Restatement) to receive all or a part of
the Participant’s Account in the event of the Participant’s death prior to full
distribution thereof.  A person so
designated shall not be considered a Beneficiary until the death of the
Participant.


 


1.2.6.                                                         Board of Directors or Board — the Board of
Directors of the Plan Sponsor or its successor.  Board of Directors shall also mean and refer to any properly
authorized committee of the Board of Directors.


 


1.2.7.                                                         CEO
— the Chief Executive Officer of the Plan Sponsor or his or her delegee for
Plan purposes.


 


1.2.8.                                                         Change of Control — the occurrence of one of the
following events:


 


(a)                                                                      any
“person” (as such term is used in Section 13(d) and 4(d) of the Securities
Exchange Act of 1934, as amended (“Exchange Act”)), other than a trustee or
other fiduciary holding securities under an employee benefit plan of Plan
Sponsor is or becomes the “beneficial owner” (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly of securities representing 25%
or more of the combined voting power of Plan Sponsor’s then outstanding
securities;


 


(b)                                                                     during
any period of two consecutive years (not including any period ending prior to
the effective date of this Plan), individuals who at the beginning of such
period constitute the Board of Directors, and any new director (other than a
director designated by a person who has entered into agreement with Plan
Sponsor to effect a transaction permitted by Section (a), (c) or (d))
whose election by the Board of Directors or nomination for election by Plan
Sponsor’s stockholders was approved by vote of at least two-thirds of the
directors then still in office who either were directors at the beginning of
the period or whose election or nomination for election was previously so
approved (“Continuing Director”), cease for any reason to constitute at least a
majority of the Board of Directors;


 


(c)                                                                      the
stockholders of Plan Sponsor approve a merger or consolidation of Plan Sponsor
with any other corporation, other than (i) a merger or


 


2

















 


consolidation which would
result in the voting securities of Plan Sponsor outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or by being
converted into voting securities of the merged or consolidated entity) 50% or
more of the combined voting power of the voting securities of Plan Sponsor or
such merged or consolidated entity outstanding immediately after such merger or
consolidation, or (ii) a merger or consolidation effected to implement a
recapitalization of Plan Sponsor or similar transaction in which no “person”
acquires more than 25% of the combined voting power of Plan Sponsor’s then
outstanding securities;


 


(d)                                                                     the
stockholders of Plan Sponsor approve a plan of complete liquidation or a sale
or disposition by Plan Sponsor of all or substantially all of Plan Sponsor’s
assets.  “The sale or disposition by
Plan Sponsor of all or substantially all of Plan Sponsor’s assets” shall mean a
sale or other disposition transaction or series of related transactions
involving assets of Plan Sponsor or of any direct or indirect subsidiary of
Plan Sponsor (including the stock of any direct or indirect subsidiary of Plan
Sponsor) in which the value of the assets or stock being sold or otherwise
disposed of (as measured by the purchase price being paid therefor or by such
other method as the Board of Directors determines is appropriate in a case
where there is no readily ascertainable purchase price) constitutes more than
50% of the fair market value of Plan Sponsor. 
For purposes of the preceding sentence, the “fair market value of Plan
Sponsor” shall be the aggregate market value of Plan Sponsor’s outstanding
common stock (on a fully diluted basis) plus the aggregate market value of Plan
Sponsor’s other outstanding equity securities. 
The aggregate market value of Plan Sponsor’s common stock shall be
determined by multiplying the number of shares of Plan Sponsor common stock (on
a fully diluted basis) outstanding on the date of the execution and delivery of
a definitive agreement (“Transaction Date”) with respect to the sale or
disposition by Plan Sponsor of all or substantially all of Plan Sponsor’s
assets by the average closing price for Plan Sponsor’s common stock for the ten
trading days immediately preceding the Transaction Date.  The aggregate market value of any other
equity securities of Plan Sponsor shall be determined in a manner similar to
that prescribed in the immediately preceding sentence for determining the
aggregate market value of Plan Sponsor’s common stock or by such other method
as the Board of Directors shall determine is appropriate; or


 


(e)                                                                      the
Board of Directors determines, by a vote of a majority of its entire
membership, that a tender offer statement by any person (as defined


 


3

















 


above) indicates an
intention on the part of such person to acquire control of Plan Sponsor.


 


1.2.9.                                                         Code
— the Internal Revenue Code of 1986, as amended.


 


1.2.10.                                                   Committee  — the Administrative Committee consisting of one
or more members appointed by and serving at the pleasure of the CEO.


 


1.2.11.                                                   Disability  — a medically determinable physical or mental
impairment that renders the individual disabled and eligible for long term
disability benefits as determined under the terms of the long-term disability
plan sponsored by the Plan Sponsor.  The
Committee shall determine the date on which the Disability shall have occurred
if such determination is necessary.


 


1.2.12.                                                   Effective Date — January 1, 2004.


 


1.2.13.                                                   Employer  — the Plan Sponsor, each business entity listed as
an Employer in the Schedule I to this Plan Restatement, any other business
entity that employs persons who are selected for participation under
Section 2 of this Plan and any successor thereof.


 


1.2.14.                                                   ERISA  — the Employee Retirement Income Security Act of
1974, as amended.


 


1.2.15.                                                   Incentive Compensation — a cash award or cash bonus
payable to the Participant under an incentive plan, program or arrangement
sponsored by the Plan Sponsor, excluding the value of any equity or stock
compensation awarded or paid to Participant or any compensation resulting from
the sale of stock of the Plan Sponsor or exercise of stock options of the Plan
Sponsor.


 


1.2.16.                                                   Measuring Investments — a hypothetical investment
used for the purpose of measuring income, gains and losses to the Accounts of
Participants (as if the Accounts had in fact been so invested).  The Plan Sponsor shall determine the number
and type of Measuring Investments available to the Participants.


 


1.2.17.                                                   Participant  — an employee of an Employer who is selected
for participation in this Plan in accordance with the provisions of
Section 2.


 


1.2.18.                                                   Plan
— the nonqualified, unfunded, deferred compensation program maintained by
the Plan Sponsor for the benefit of Participants eligible to participate
therein as set forth in this Plan Restatement. 
(As used herein, “Plan” does not refer to the document pursuant to which
the Plan is maintained.  That document
is referred to herein as the “Plan Restatement.”)


 


1.2.19.                                                   Plan Restatement — this document
entitled “Community First Bankshares, Inc. Supplemental Executive Retirement
Plans (2004 Restatement)” as adopted by


 


4

















 


the Committee and
generally effective as of January 1, 2004 as the same may be amended from
time to time thereafter.


 


1.2.20.                                                   Plan Year — the twelve (12) consecutive month period
ending on any Annual Valuation Date.


 


1.2.21.                                                   Plan Sponsor — Community First Bankshares, Inc., a
Delaware corporation, or any successor thereto.


 


1.2.22.                                                   Qualified Plan  — the tax-qualified profit
sharing plan of the Plan Sponsor entitled “Community First Bankshares, Inc.
401(k) Retirement Plan.”


 


1.2.23.                                                   Retirement — a Participant’s Termination of Employment
which occurs on or after the date (i) the Participant has attained age 65; or
(ii) the Participant has both attained age 55 and completed at least 10 Years
of Service.


 


1.2.24.                                                   Termination of Employment — a complete
severance of an employee’s employment relationship with the Employer and all
Affiliates for any reason other than the employee’s death or Disability.  A transfer from employment with an Employer
to employment with another Employer or an Affiliate of an Employer shall not
constitute a Termination of Employment. If an Employer who is an Affiliate
ceases to be an Affiliate because of a sale of substantially all the stock or
assets of the Employer, then Participants who are employed by that Employer and
who cease to be employed by an Employer on account of such sale shall be deemed
to have thereby had a Termination of Employment for the purpose of commencing
distributions from this Plan.


 


1.2.25.                                                   Valuation Date — any day that the U.S. securities
markets are open and conducting business.


 


1.2.26.                                                   Year
of Service — a consecutive twelve-month period during which
the Participant was employed by an Employer. 
A year in which the Participant did not work the entire twelve-month
period shall be counted as a Year of Service.


 


5

















 


SECTION 2


 


PARTICIPATION


 


2.1.                                          Participation by Selection.  An employee becomes a Participant in the
Plan only upon being selected for participation by the Committee.  An employee selected for participation will
be notified in writing.  Employment in
an executive capacity does not entitle an employee to selection for
participation in the Plan.  The
Committee shall not select an employee for participation unless it determines
that such individual is a member of a select group of management or highly
compensated employees (as that expression is used in ERISA).  The Committee’s selection of an individual
for participation shall be made solely in its discretion and shall be
conclusive and binding.  The Committee
shall select such employees for participation in this Plan on a Plan
Year-by-Plan Year basis.  Selection for
one Plan Year does not entitle the employee to be selected the next Plan Year.


 


2.2.                                          Elections.


 


2.2.1.                                                         Required Initial Elections.  Prior to the date that an employee selected
for participation first becomes a Participant, such employee shall as a condition
of participation in this Plan complete such forms and make such elections as
the Plan Sponsor may require for the effective administration of this
Plan.  At a minimum, the initial
enrollment shall designate:


 


(a)                                                                      The
form of the distribution of the Participant’s Account upon Retirement.


 


(b)                                                                     The
Measuring Investments to be used to measure income, gains and losses on the
Account.


 


The initial
enrollment shall be made in writing upon forms furnished by the Plan Sponsor,
shall be made at such time as the Plan Sponsor shall determine and shall
conform to such other procedural and substantive rules as the Plan Sponsor
shall establish. With respect to any employee who is a Participant on the
effective date of the Plan Restatement, the election of the form of
distribution in effect immediately prior to that date shall continue in effect
and shall thereafter be governed by the terms of the Plan Restatement.


 


2.2.2.                                                         Election Changes. 
After the initial election, a Participant may, from time to time, as
determined by the Committee, elect to change prospectively the Measuring
Investments used to measure income, gains and losses on the Participant’s
Account.  Any such election change shall
be filed in accordance with such rules as the Plan Sponsor shall establish.


 


2.2.3.                                                         No
Spousal Rights.  No
spouse, former spouse, Beneficiary or other person shall have any right to
participate in the Participant’s designation of a form of payment.


 


2.3.                                          Commencement of Participation.  An employee selected to participate in the
Plan who has satisfied all enrollment requirements, including returning all
required documents to the


 


6

















 


Plan Sponsor
within the specified time period, shall become a Participant in the Plan on the
first day of the Plan Year for which the Participant has been selected to
participate.  If an employee is selected
to participate in the Plan on or after the first day of a Plan Year, the
employee shall become a Participant in the Plan on the first day of the month
following satisfaction of all enrollment requirements provided that such
requirements are completed within 30 days after the employee is selected for
participation.


 


2.4.                                          Loss
of Eligibility.  If a
Participant’s employment status is changed such that Participant no longer is a
member of a select group of management or highly compensated employees or the
Committee, in its sole discretion, determines that a Participant is no longer
eligible to participate in the Plan, the Participant shall cease to be eligible
to make deferrals to, or receive employer contributions under, the Plan but
shall continue to be eligible to elect a change in Measuring Investments in
accordance with Section 4.3.  The
individual’s Account balance shall remain in the Plan until distributed in
accordance with Section 5.


 


2.5.                                          Termination of Participation. 
An employee shall cease to be a Participant in the Plan as of
the first to occur of the following events:


 


(a)                                                                      the
date the Participant no longer has any Account under the Plan (that is, the
Participant has received a distribution of all of the Participant’s Account, if
any); or


 


(b)                                                                     the
date of the Participant’s death.


 


2.6.                                          Leaves of Absence.  Upon the commencement of a leave of absence, a Participant shall
cease to be eligible to make deferrals to, or receive employer contributions
under the Plan but shall continue to be eligible to elect a change in Measuring
Investments in accordance with Section 4.3.  During the Participant’s leave of absence, the Participant’s
Account balance shall remain in the Plan unless otherwise distributable in
accordance with Section 5.  Upon
return from the leave of absence, the Participant’s elections under
Sections 3.1, 3.2 and 3.3 in effect at the time the Participant went on
leave shall be reactivated and the Participant shall not be allowed to change
those elections for the Plan Year in which the Participant returned from the
leave.


 


2.7.                                          Specific Exclusion. 
Notwithstanding anything apparently to the contrary in the Plan
Restatement or in any written communication, summary, resolution or document or
oral communication, no individual shall be a Participant in this Plan, develop
benefits under this Plan or be entitled to receive benefits under this Plan
(either for himself or herself or his or her survivors) unless such individual
is a member of a select group of management or highly compensated employees (as
that expression is used in ERISA).  If a
court of competent jurisdiction, any representative of the U.S. Department of
Labor or any other governmental, regulatory or similar body makes any direct or
indirect, formal or informal, determination that an individual who is an active
Participant is not a member of a select group of management or highly
compensated employees (as that expression is used in ERISA), such individual
shall not


 


7

















 


be (and shall not
have ever been) a Participant in this Plan at any time. If any person not so
defined has been erroneously treated as a Participant in this Plan, upon discovery
of such error such person’s erroneous participation shall immediately terminate
effective as of the date the individual initially became a Participant, with
the intended result being that the individual be treated as if the individual
never became a Participant.


 


8

















 


SECTION 3


 


CREDITS TO ACCOUNTS


 


3.1.                                          Base Compensation Deferral Credits.


 


3.1.1.                                                         Amount of Credits.  Prior to the first day of any Plan Year, the Participant may
elect to defer a percentage of the Participant’s annual Base Compensation for
that Plan Year.  An election made by a
Participant for a Plan Year shall remain in effect for subsequent Plan Years
unless, prior to a subsequent Plan Year, the election is changed or terminated
by the Participant or the Participant is not selected for participation for
that subsequent Plan Year.  The election
shall designate a percentage of the Participant’s annual Base Compensation
which is earned during that Plan Year (without regard to whether it would be
paid during that or a subsequent Plan Year) which shall not be paid to the
Participant but instead shall be credited under this Plan under Section 3
and distributed from this Plan under Section 5.  The percentage that can be designated shall not exceed fifty
percent (50%) of the Participant’s annual Base Compensation.


 


3.1.2.                                                         Crediting to Accounts.  The Plan Sponsor shall credit to the Account of each Participant
the amount, if any, of Base Compensation that the Participant elected to
defer.  Such amount shall be credited in
cash.  Such amount shall be credited as
nearly as practicable as of the time or times when the compensation would have
been paid to the Participant but for the election to defer.


 


3.2.                                          Incentive Compensation Deferral
Credits.


 


3.2.1.                                                         Amount of Credits. 
Prior to the first day of any Plan Year, the Participant may elect to
defer a percentage or dollar amount of the Participant’s annual Incentive
Compensation for that Plan Year.  An
election made by a Participant for a Plan Year shall remain in effect for
subsequent Plan Years unless, prior to a subsequent Plan Year, the election is
changed or terminated by the Participant or the Participant is not selected for
participation for that subsequent Plan Year. 
The election shall designate the dollar amount or percentage of the
Participant’s annual Incentive Compensation which is earned during that Plan
Year (without regard to whether it would be paid during that or a subsequent
Plan Year) which shall not be paid to the Participant but instead shall be
credited under this Plan under Section 3 and distributed from this Plan
under Section 5.  The dollar amount
or percentage that can be designated shall not exceed one hundred percent
(100%) of the Participant’s Incentive Compensation.


 


3.2.2.                                                         Crediting to Accounts. 
The Plan Sponsor shall credit to the Account of each Participant the
amount, if any, of Incentive Compensation that the Participant elected to
defer.  Such amount shall be credited in
cash.  Such amount shall be credited as
nearly as practicable as of the time or times when the compensation would have
been paid to the Participant but for the election to defer.


 


9

















 


3.3.                                          Qualified Plan Restoration Credits.


 


3.3.1.                                                         Amount of Credits.  Prior to the first day of any Plan Year, the Participant will be
deemed to have elected to contribute all of the following amounts to the
Participant’s Account:


 


(a)                                                                      the
amount by which the Participant’s elective contributions to the Qualified Plan
are reduced to cause the Qualified Plan to comply with the limitations set
forth in Code sections 401(k)(3);


 


(b)                                                                     the
amount by which the Participant’s elective contributions to the qualified plan
are limited by the restriction under Code section 401(a)(17);


 


(c)                                                                      the
amount by which the Participant’s elective contributions to the Qualified Plan
are limited by the restrictions imposed by the anti-discrimination standards
under Code sections 401(a)(5)(B) and 414(s);


 


(d)                                                                     the
amount by which such Participant’s elective contributions to the Qualified Plan
exceed the limitation imposed by Code section 402(g); and


 


(e)                                                                      the
amount by which the Participant’s elective contributions to the Qualified Plan
are reduced to cause the Qualified Plan to comply with the limitation imposed by
Code section 415.


 


A Participant may
affirmatively elect not to contribute the amounts specified above, but such
election must be made prior to the Plan Year for which the election will be
effective, and such election must be not to contribute all (as opposed to some)
of the amounts specified above.  An
election made by a Participant for a Plan Year shall remain in effect for
subsequent Plan Years unless, prior to a subsequent Plan Year, the election is
changed or terminated by the Participant or the Participant is not selected for
participation for that subsequent Plan Year.


 


3.3.2.                                                         Crediting to Accounts.  The Plan Sponsor shall credit to the Account
of each Participant the amount, if any, determined under
Section 3.3.1.  Such amount shall
be credited in cash.  Insofar as is
practicable, the amount described in this Section 3.3 shall be credited to
the Account as of the time or times when such amount (or comparable amount)
would actually have been contributed (not accrued) to the Qualified Plan but
for limitations or restrictions imposed by the Code.


 


3.4.                                          Employer Matching Credits.


 


3.4.1.                                                         Amount of Credits.  Each Plan Year the Plan Sponsor may, but is
not required to, contribute to a Participant’s Account the amount by which the
Participant’s matching contributions to the Qualified Plan are reduced to cause
the Qualified Plan to comply with the limitations set forth in
Section 3.3.1. of this Plan Restatement and the limitation set forth in
Code


 


10

















 


section 401(m)(2).  Each Plan Year the Plan Sponsor may, but is
not required to, contribute to a Participant’s Account a match contribution
based on the amounts contributed by the Participant under Sections 3.1 and
3.2.


 


3.4.2.                                                         Crediting to Accounts.  The Plan Sponsor shall credit to the Account
of each Participant the amount, if any, determined under
Section 3.4.1.  Such amount shall
be credited in cash.  Insofar as is
practicable, the amount described in this Section 3.4 shall be credited to
the Account as of the time or times when such amount (or comparable amount)
would actually have been contributed (not accrued) to the Qualified Plan but
for limitations or restrictions imposed by the Code.


 


3.5.                                          Employer Discretionary Credits.


 


3.5.1.                                                         Amount of Credits. 
Each Plan Year the Plan Sponsor may, but is not required to, determine,
in its sole discretion, that additional amounts, if any, shall be credited to
the Accounts of the Participants based on the performance of the Employer in
the previous Plan Year. Such amount shall be credited in cash.  The Plan Sponsor shall have the right to
credit one Participant’s Account and not another and to credit different
amounts to different Participants.


 


3.5.2.                                                         Crediting to Accounts.  The Plan Sponsor shall credit to the Account
of each Participant the amount, if any, determined under
Section 3.5.1.  Such amount shall
be credited in cash.  Such amount shall
be credited as of the last day of the Plan Year for which the contribution is
being made.  If a Participant is not
employed by the Employer as of the last day of a Plan Year for which the
contribution is being made other than by reason of Retirement, death or
Disability, that Participant shall not be entitled to a contribution.


 


3.6.                                          Required Employer Credits.


 


3.6.1.                                                         Amount of Credits. 
Each Plan Year the Plan Sponsor shall contribute an amount equal to a
percentage of the Participant’s Base Compensation to the Account of the
Participant.  The percentage shall be
determined by the Plan Sponsor’s return on equity (as determined by generally
accepted accounting principals and the Committee) in accordance with the
following schedule:


 




	
  Return on
  Equity

  	
   

  	
  Percent of Participant’s Base

  Compensation

  
	
  22%

  	
  and Greater

  	
   

  	
  7%

  
	
  21%

  	
   

  	
   

  	
  6%

  
	
  20%

  	
   

  	
   

  	
  5%

  
	
  19%

  	
   

  	
   

  	
  4%

  
	
  18%

  	
   

  	
   

  	
  3%

  
	
  Less than 18%

  	
   

  	
   

  	
  0%

  






 


11

















 


3.6.2.                                                         Crediting to Accounts.  The Plan Sponsor shall credit to the Account of each Participant
the amount, if any, determined under Section 3.6.1.  Such amount shall be credited in cash.  Such amount shall be credited as of the last
day of the Plan Year for which the contribution is being made.  If a Participant is not employed by the
Employer as of the last day of a Plan Year for which the contribution is being
made other than by reason of Retirement, death or Disability, that Participant
shall not be entitled to a contribution.


 


3.7.                                          Rules
Regarding Employee Elections. 
Each election (or deemed election) by a Participant to defer or
contribute an amount to the Participant’s Account under Sections 3.1, 3.2 and
3.3 shall:


 


(a)                                                                      be
irrevocable for the Plan Year with respect to which it is made once it has been
accepted by the Plan Sponsor;


 


(b)                                                                     be
made in writing upon forms furnished by the Plan Sponsor, shall be made at such
time as the Plan Sponsor shall determine and shall conform to such other
procedural and substantive rules as the Plan Sponsor shall establish; and


 


(c)                                                                      be
received by the Plan Sponsor prior to the first day of the Plan Year for which
the deferral election is made.


 


For a newly
eligible Participant, however, the deferral election must be received by the
Plan Sponsor within 30 days after the first day of such eligibility, and, if so
received, deferral shall be effective as of the first day of the month
following such receipt and shall only apply to compensation and amounts earned
following the effective date of the election.


 


12

















 


SECTION 4


 


ACCOUNTS


 


4.1.                                          Establishment of Accounts.  There shall be established for each
Participant unfunded, bookkeeping Accounts which shall be adjusted each
Valuation Date. The Accounts and Measuring Investments are specified solely as
a device for computing the amounts of benefits to be paid to Participants under
the Plan, and the Plan Sponsor is not required to purchase such investments.


 


4.2.                                          Vesting.  The
Account of each Participant shall be fully (100%) vested and nonforfeitable at
all times.


 


4.3.                                          Designation of Measuring Investments. In
accordance with procedures to be established by the Plan Sponsor, each Participant
shall elect, as part of the initial enrollment process, and from time to time
thereafter, one or more Measuring Investments which shall be used to determine
the value of such Participant’s Account. 
A Participant’s change in Measuring Investments shall designate:


 


(a)                                                                      one
or more Measuring Investments for the current Account balance, and


 


(b)                                                                     one
or more Measuring Investments for amounts that are credited to the Account in
the future.


 


An effective change in
Measuring Investments shall be effective as of the day after the Valuation Date
coincident with or immediately following the date the election change is filed.
A Participant’s change in Measuring Investments shall not be effective unless
such election change complies with the procedures established by the Plan
Sponsor.  The Plan Sponsor may, in its
sole discretion, add, discontinue or substitute a Measuring Investments.


 


4.4.                              Adjustments of Accounts.  As of each Valuation Date, the value of each
Account shall be adjusted for credits, distributions and withholding
subtractions under Section 10.6 during the valuation period and the value
of each Account shall be adjusted for income, gains and losses during the
valuation period as if the Account had in fact been invested in the Measuring
Investments selected by the Participant during such period.  The Committee shall establish additional
rules for the adjustment of Accounts as the Committee may deem necessary and
appropriate. The Committee shall provide to the Participant at least annually a
written statement setting for current value of each Account and any changes to
the Account.


 


4.5.                                          Operational Rules for Measuring Investments.  The Committee shall adopt rules specifying
the Measuring Investments, the circumstances under which a particular Measuring
Investment may be elected or shall be automatically utilized, the minimum or
maximum amount or percentage of an Account which may be allocated to a
Measuring Investment, the procedures for making or changing Measuring
Investment elections, the extent (if any) to which


 


13

















 


Beneficiaries of
deceased Participants may make Measuring Investment elections and the effect of
a Participant’s or Beneficiary’s failure to make an effective Measuring
Investment election with respect to all or any portion of an Account.


 


14

















 


SECTION 5


 


DISTRIBUTIONS


 


5.1.                                          Form of Distribution.


 


5.1.1.                                                         Available Forms.  At the time of initial enrollment, a Participant shall elect one
of the following forms of distribution:


 


(a)                                                                      a
single lump sum; or


 


(b)                                                                     a
series of annual installments payable over five (5), ten (10), fifteen (15), or
twenty (20) years.


 


5.1.2.                                                         Default.  If for any reason a Participant shall have
failed to make a timely written designation of form for distribution (including
reasons entirely beyond the control of the Participant), the distribution shall
be made in a single lump sum as of the Valuation Date coincident with or
immediately following the Participant’s Termination of Employment and shall be
made as soon as practicable after such Valuation Date.


 


5.1.3.                                                         Installment Amounts.  The amount of the annual installments shall be determined by
dividing the amount of the Account as of the Annual Valuation Date as of which
the installment is being paid by the number of remaining installment payments
to be made (including the payment being determined).


 


5.1.4.                                                         Minimum Amount.  Regardless of the election filed by the
Participant with respect to the time and form of distribution of the
Participant’s Account:


 


(a)                                                                      if
the Participant’s Account is less than twenty-five thousand dollars ($25,000)
(as determined at the time of Participant’s Retirement), then distribution of
the Participant’s Account shall be made in a single lump sum payment as of the
Valuation Date coincident with or immediately following the Participant’s
Termination of Employment and shall be made as soon as practicable after such
Valuation Date; or


 


(b)                                                                     if
the projected annual installments of the Participant’s Account under the form
of distribution elected is less than five thousand dollars ($5,000) per annum
(as determined at the time of Participant’s Retirement), then the installments
shall be accelerated to the next lower installment period until the amount of
each installment is greater than five thousand dollars ($5,000).


 


5.1.5.                                                         Death.  If the
Participant dies prior to the date of Participant’s Retirement, payment of the
Participant’s Account shall be made to the Participant’s Beneficiary in a
single


 


15

















 


lump sum payment as of
the Valuation Date coincident with or immediately following the Participant’s
Termination of Employment and shall be made as soon as practicable after such
Valuation Date.  If the Participant elected
payment in the form of a series of annual installments and dies after
distribution has commenced, payment shall continue to Participant’s Beneficiary
in the series of annual installments elected by the deceased Participant
payable over the remainder of the applicable period.  In any event, distribution of Participant’s Account shall payable
to Participant’s Beneficiary in accordance with Section 6.7.


 


5.2.                                          Retirement Distributions.


 


5.2.1.                                                         Form and Timing.  Upon
a Participant’s Retirement, unless distributed earlier in accordance with the
Plan, distribution of the Participant’s Account shall be made in the form
designated in writing at the time of the Participant’s initial enrollment (to
the extent that such designation is consistent with the rules of the Plan
Restatement).  If the Participant
elected payment in the form of installments, the amount of the first
installment will be determined as soon as administratively feasible following
the Plan Year in which the Participant retires and shall be actually paid as
soon as practicable after such determination.


 


5.2.2.                                                         Election to Delay Distribution for Five
(5) Years.  A Participant may
elect to delay distribution of all or a portion of the Participant’s Account
for five (5) years.  Notwithstanding the
foregoing, any election to delay distribution of all or a portion of the
Participant’s Account for five (5) years shall be disregarded as if it had
never been filed unless the election to delay distribution:


 


(a)                                                                      is
filed by the Participant while employed by the Employer,


 


(b)                                                                     is
filed with the Committee at least twelve (12) months before the Participant’s
scheduled distribution date following the Participant’s Retirement, and


 


(c)                                                                      such
Participant has not previously elected to delay distribution of such portion of
the Participant’s Account.


 


No spouse, former spouse,
Beneficiary or other person shall have any right to participate in the
Participant’s decision to delay distribution of all or a portion of the
Participant’s Account.


 


5.3.                                          Termination Distribution.  Upon a Participant’s Termination of
Employment, unless distributed earlier in accordance with the Plan,
distribution of the Participant’s Account shall be made in a single lump sum
payment as of the Valuation Date coincident with or immediately following the
Participant’s Termination of Employment and shall be made as soon as
practicable after such Valuation Date.


 


5.4.                                          Disability Distribution.  If the Committee determines that a
Participant has a Disability, the Participant shall cease to be eligible to
make deferrals to, or receive employer


 


16

















 


contributions
under, the Plan and distribution of the Participant’s Account as of the Valuation Date coincident with
or immediately following the date of Participant’s Disability shall be made in
form of distribution elected by the Participant in the event of Retirement and
shall be made or begin as soon as practicable after such Valuation Date.


 


5.5.                                          Hardship Distribution.


 


5.5.1.                                                         When
Available.  A
Participant may receive a hardship distribution from the Participant’s Account
if the Plan Sponsor determines that such hardship distribution is for a purpose
described in Section 5.5.2 and the conditions in Section 5.5.3 have
been fulfilled.  To receive such a
distribution, the Participant must file a written hardship distribution
application with the Plan Sponsor and furnish such supporting documentation as
the Plan Sponsor may require.  In the
application, the Participant shall specify the basis for the distribution and
the dollar amount to be distributed.  If
such hardship distribution is approved by the Plan Sponsor, distribution shall
be made as of the Valuation Date coincident with or next following the approval
of a completed application by the Plan Sponsor and such hardship distribution
shall be made in a lump sum payment as soon as administratively feasible after
such Valuation Date.


 


5.5.2.                                                         Purposes. 
Hardship distributions shall be allowed only if the Participant
establishes that the hardship distribution is to be made on account of an
immediate and heavy financial need of the Participant for which the Participant
does not have other available resources.


 


5.5.3.                                                         Limitations.  The amount of the hardship distribution shall not exceed the
amount of the Participant’s proven immediate and heavy financial need.  A hardship distribution shall not be made
after the death of the Participant or after the occurrence of any distribution
event.  The amount of approved hardship
distribution shall not exceed the value of the Account.


 


5.5.4.                                                         Effect on Participation.  Upon the approval of a hardship
distribution, all elective contributions to the Participant’s Account shall
cease for six (6) months after receipt of the hardship distribution and shall
be automatically reinstated after the expiration of the six (6) month period.


 


5.6.                                          Change of Control Distribution.


 


5.6.1.                                                         When Available. 
A Participant or Beneficiary may receive a distribution of his or her
entire Account (after reduction for the forfeiture described in Section 5.6.3)
if a Change of Control has occurred.  To
receive such a Change of Control distribution, the Participant or Beneficiary
must file a written distribution application with the Plan Sponsor.  The Plan Sponsor shall approve the Change of
Control distribution if such application has been filed and a Change of Control
has occurred.


 


5.6.2.                                                         Payment. 
Distribution of the entire Account (after reduction for the forfeiture
described in Section 5.6.3) shall be made as of the Valuation Date
coincident with or


 


17

















 


next following the
approval of a completed application by the Plan Sponsor.  Such Change of Control distribution shall be
made in a lump sum payment as soon as administratively feasible after such
Valuation Date. The amount of the Change of Control distribution shall be equal
to the value of the Account as of such Valuation Date (after reduction for the
forfeiture described below).


 


5.6.3.                                                         Forfeiture. 
Upon the approval of a Change of Control distribution, there shall be
irrevocably forfeited from the Account of the Participant or Beneficiary an
amount equal to ten percent (10%) of the Account.


 


5.7.                                          Distribution Based on Constructive Receipt.  Any amounts in a Participant’s Account which
have been determined by the Committee or a governmental agency to be taxable
income to the Participant based on the constructive receipt doctrine shall be
distributed to the Participant in a lump sum payment as soon as
administratively feasible.


 


5.8.                                          Designation of Beneficiaries.


 


5.8.1.                                                         Right to Designate.  Each Participant may designate, upon forms
to be furnished by and filed with the Plan Sponsor, one or more primary
Beneficiaries or alternate Beneficiaries to receive all or a specified part of
such Participant’s Account in the event of such Participant’s death.  The Participant may change or revoke any
such designation from time to time without notice to or consent from any
Beneficiary.  No such designation,
change or revocation shall be effective unless executed by the Participant and
received by the Plan Sponsor during the Participant’s lifetime.


 


5.8.2.                                                         Failure of Designation.  If a Participant:


 


(a)                                                                      fails
to designate a Beneficiary,


 


(b)                                                                     designates
a Beneficiary and thereafter revokes such designation without naming another
Beneficiary, or


 


(c)                                                                      designates
one or more Beneficiaries and all such Beneficiaries so designated fail to
survive the Participant,


 


such Participant’s
Account, or the part thereof as to which such Participant’s designation fails,
as the case may be, shall be payable to the first class of the following
classes of automatic Beneficiaries with a member surviving the Participant and
(except in the case of surviving issue) in equal shares if there is more than
one member in such class surviving the Participant:


 


18

















 


Participant’s surviving
spouse

Participant’s surviving issue per stirpes and not per capita

Participant’s surviving parents

Participant’s surviving brothers and sisters

Representative of Participant’s estate.


 


5.8.3.                                                         Disclaimers by Beneficiaries.  A Beneficiary entitled to a distribution of
all or a portion of a deceased Participant’s Account may disclaim an interest
therein subject to the following requirements. 
To be eligible to disclaim, a Beneficiary must be a natural person, must
not have received a distribution of all or any portion of the Account at the
time such disclaimer is executed and delivered, and must have attained at least
age twenty-one (21) years as of the date of the Participant’s death.  Any disclaimer must be in writing and must
be executed personally by the Beneficiary before a notary public.  A disclaimer shall state that the
Beneficiary’s entire interest in the undistributed Account is disclaimed or
shall specify what portion thereof is disclaimed.  To be effective, duplicate original executed copies of the
disclaimer must be both executed and actually delivered to the Plan Sponsor
after the date of the Participant’s death but not later than one hundred eighty
(180) days after the date of the Participant’s death.  A disclaimer shall be irrevocable when delivered to the Plan
Sponsor.  A disclaimer shall be
considered to be delivered to the Plan Sponsor only when actually received by
the Plan Sponsor.  The Plan Sponsor
shall be the sole judge of the content, interpretation and validity of a
purported disclaimer.  Upon the filing
of a valid disclaimer, the Beneficiary shall be considered not to have survived
the Participant as to the interest disclaimed. 
A disclaimer by a Beneficiary shall not be considered to be a transfer
of an interest in violation of the provisions of Section 6 and shall not
be considered to be an assignment or alienation of benefits in violation of
federal law prohibiting the assignment or alienation of benefits under this
Plan.  No other form of attempted
disclaimer shall be recognized by the Plan Sponsor.


 


5.8.4.                                                         Definitions. 
When used herein and, unless the Participant has otherwise specified in
the Participant’s Beneficiary designation, when used in a Beneficiary
designation, “issue” means all persons who are lineal descendants of the person
whose issue are referred to, including legally adopted descendants and their
descendants but not including illegitimate descendants and their descendants;
“child” means an issue of the first generation; “per stirpes” means in equal
shares among living children of the person whose issue are referred to and the
issue (taken collectively) of each deceased child of such person, with such
issue taking by right of representation of such deceased child; and “survive”
and “surviving” mean living after the death of the Participant.


 


5.8.5.                                                         Special Rules. 
Unless the Participant has otherwise specified in the Participant’s
Beneficiary designation, the following rules shall apply:


 


(a)                                                                      If
there is not sufficient evidence that a Beneficiary was living at the time of
the death of the Participant, it shall be deemed that the Beneficiary was not
living at the time of the death of the Participant.


 


19

















 


(b)                                                                     The
automatic Beneficiaries specified in Section 5.7.2 and the Beneficiaries
designated by the Participant shall become fixed at the time of the
Participant’s death so that, if a Beneficiary survives the Participant but dies
before the receipt of all payments due such Beneficiary hereunder, such
remaining payments shall be payable to the representative of such Beneficiary’s
estate.


 


(c)                                                                      If
the Participant designates as a Beneficiary the person who is the Participant’s
spouse on the date of the designation, either by name or by relationship, or
both, the dissolution, annulment or other legal termination of the marriage
between the Participant and such person shall automatically revoke such
designation.  (The foregoing shall not
prevent the Participant from designating a former spouse as a Beneficiary on a
form executed by the Participant and received by the Plan Sponsor after the
date of the legal termination of the marriage between the Participant and such
former spouse, and during the Participant’s lifetime.)


 


(d)                                                                     Any
designation of a nonspouse Beneficiary by name that is accompanied by a
description of relationship to the Participant shall be given effect without
regard to whether the relationship to the Participant exists either then or at
the Participant’s death.


 


(e)                                                                      Any
designation of a Beneficiary only by statement of relationship to the
Participant shall be effective only to designate the person or persons standing
in such relationship to the Participant at the Participant’s death.


 


A Beneficiary
designation is permanently void if it either is executed or is filed by a
Participant who, at the time of such execution or filing, is then a minor under
the law of the state of the Participant’s legal residence.  The Plan Sponsor shall be the sole judge of
the content, interpretation and validity of a purported Beneficiary
designation.


 


5.8.6.                                                         No Spousal Rights. 
Prior to the death of the Participant, no spouse or surviving spouse of
a Participant and no person designated to be a Beneficiary shall have any
rights or interest in the benefits credited under this Plan including, but not
limited to, the right to be the sole Beneficiary or to consent to the
designation of Beneficiaries (or the changing of designated Beneficiaries) by
the Participant.


 


5.9.                                          Death Prior to Full Distribution.  If, at the death of the Participant, any
payment to the Participant was due or otherwise pending but not actually paid,
the amount of such payment shall be included in the Account which are payable
to the Beneficiary (and shall not be paid to the Participant’s estate).


 


20

















 


5.10.                                    Facility of Payment.  In case of the legal Disability, including
minority, of a Participant or Beneficiary entitled to receive any distribution
under this Plan, payment shall be made, if the Plan Sponsor shall be advised of
the existence of such condition:


 


(a)                                                                      to
the duly appointed guardian, conservator or other legal representative of such
Participant or Beneficiary, or


 


(b)                                                                     to
a person or institution entrusted with the care or maintenance of the
incompetent or disabled Participant or Beneficiary, provided such person or
institution has satisfied the Plan Sponsor that the payment will be used for
the best interest and assist in the care of such Participant or Beneficiary,
and provided further, that no prior claim for said payment has been made by a
duly appointed guardian, conservator or other legal representative of such
Participant or Beneficiary.


 


Any payment made
in accordance with the foregoing provisions of this section shall
constitute a complete discharge of any liability or obligation of the Plan
Sponsor therefor.


 


5.11.                                    Cash Distributions. 
Distributions from this Plan shall be made in cash.


 


5.12.                                    Code §162(m) Delay.  If the Plan Sponsor determines that delaying the time of any
payment made or commenced would increase the probability that such payment
would be fully deductible for federal or state income tax purposes, the Plan
Sponsor may unilaterally delay the time of the making or commencement of such
payment for up to twelve (12) months after the date such payment would
otherwise be payable.


 


21

















 


SECTION 6


 


FUNDING OF PLAN


 


6.1.                                          Unfunded Obligation.  The obligation of the Employers to make payments under this Plan
constitutes only the unsecured (but legally enforceable) promise of the
Employers to make such payments.  No
Participant shall have any lien, prior claim or other security interest in any
property of the Employers.  The Employers
shall have no obligation to establish or maintain any fund, trust or account
(other than a bookkeeping account or reserve) for the purpose of funding or
paying the benefits promised under this Plan. 
If such a fund, trust or account is established, the property therein
shall remain the sole and exclusive property of the Employers.  The Employers shall be obligated to pay the
cost of this Plan out of its general assets.


 


6.1.1.                                                         Hedging Investments. 
If the Plan Sponsor elects to finance all or a portion of the Employers’
costs in connection with this Plan through the purchase of life insurance or
other investments, the Participant agrees, as a condition of participation in
this Plan, to cooperate with the Plan Sponsor in the purchase of such
investment to any extent reasonably required by the Plan Sponsor and
relinquishes any claim the Participant or a Beneficiary might have to the
proceeds of any such investment or any other rights or interests in such
investment.  If a Participant fails or
refuses to cooperate, then notwithstanding any other provision of this Plan the
Plan Sponsor shall immediately and irrevocably terminate and forfeit the
Participant’s entitlement to benefits under this Plan.


 


6.1.2.                                                         Corporate Obligation.  Neither the Plan Sponsor’s officers nor any
member of its Committee in any way secures or guarantees the payment of any
benefit or amount which may become due and payable hereunder to or with respect
to any Participant.  Each Participant
and other person entitled at any time to payments hereunder shall look solely
to the assets of the Employers for such payments as an unsecured, general
creditor.  After benefits shall have
been paid to or with respect to a Participant and such payment purports to
cover in full the benefit hereunder, such former Participant or other person or
persons, as the case may be, shall have no further right or interest in the
other assets of the Employers in connection with this Plan.  No person shall be under any liability or
responsibility for failure to effect any of the objectives or purposes of this
Plan by reason of the insolvency of the Employers.


 


6.2.                                          Spendthrift Provision.  No Participant or Beneficiary shall have any interest in any
Account which can be transferred nor shall any Participant or Beneficiary have
any power to anticipate, alienate, dispose of, pledge or encumber the same
while in the possession or control of the Employers, nor shall the Employers
recognize any assignment thereof, either in whole or in part, nor shall any
Account be subject to attachment, garnishment, execution following judgment or
other legal process while in the possession or control of the Employers.


 


The power to
designate Beneficiaries to receive the Account of a Participant in the event of
such Participant’s death shall not permit or be construed to permit such power
or right to be exercised


 


22

















 


by the Participant
so as thereby to anticipate, pledge, mortgage or encumber such Participant’s
Account or any part thereof, and any attempt of a Participant so to exercise
said power in violation of this provision shall be of no force and effect and
shall be disregarded by the Employers.


 


This
section shall not prevent the Plan Sponsor from exercising, in its
discretion, any of the applicable powers and options granted to it upon the
occurrence of an distribution event, as such powers may be conferred upon it by
any applicable provision hereof.


 


23

















 


SECTION 7


 


AMENDMENT AND TERMINATION


 


7.1.                                          Amendment.  The
Plan Sponsor reserves the power to amend this Plan Restatement either
prospectively or retroactively or both:


 


(a)                                                                      in
any respect by resolution of the Compensation Committee of its Board of
Directors; and


 


(b)                                                                     in
any respect that does not materially increase the cost of the Plan by action of
the Committee;


 


provided that no
amendment shall be effective to reduce or divest the Account of any Participant
or Beneficiary without the consent of such Participant or Beneficiary.


 


7.2.                              Discontinuance of Contributions and
Termination of Plan.  The
Plan Sponsor reserves the right to reduce, suspend or discontinue its
contributions to the Plan and to terminate the Plan herein embodied in its
entirety by resolution of the Compensation Committee of its Board of
Directors.  If the Plan is terminated,
each Participant and Beneficiary with an Account in the Plan shall receive a
lump sum payment of the Account or remaining Account, as applicable, as soon as
administratively feasible after such Plan termination.


 


7.3.                              Change of Control.  Notwithstanding Section 7.1 and 7.2, for a period that
begins on the date of a Change of Control and ends on the last day of the
twelfth (12th) month that begins after the month in which the Change
of Control occurs, the Plan may not be terminated or amended in any manner
whatsoever that would adversely affect the amount and form of benefits payable
under this Plan unless eighty percent (80%) of all the Participants determined
as of the date of the Change of Control give knowing and voluntary written
consent to such amendment or termination.


 


7.4.                                          No Oral Amendments.  No modification of the terms of the Plan
Restatement or termination of this Plan shall be effective unless it is in
writing and signed on behalf of the Plan Sponsor by a person authorized to
execute such writing.  No oral
representation concerning the interpretation or effect of the Plan Restatement
shall be effective to amend the Plan Restatement.


 


7.5.                                          Plan Binding on Successors.  The Plan Sponsor will require any successor
(whether direct or indirect, by purchase, merger, consolidation or otherwise to
all or substantially all of the business and/or assets of the Plan Sponsor), by
agreement, to expressly assume and agree to perform this Plan in the same manner
and to the same extent that the Plan Sponsor would be required to perform it if
no such succession had taken place.


 


24

















 


SECTION 8


 


DETERMINATIONS – RULES AND REGULATIONS


 


8.1.                                          Determinations. 
The Plan Sponsor shall make such determinations as may be required from
time to time in the administration of this Plan.  The Plan Sponsor shall have the discretionary authority and
responsibility to interpret and construe the Plan Restatement and to determine
all factual and legal questions under this Plan, including, but not limited to,
the entitlement of Participants and Beneficiaries, and the amounts of their
respective interests.  Each interested
party may act and rely upon all information reported to them hereunder and need
not inquire into the accuracy thereof, nor be charged with any notice to the
contrary.


 


8.2.                                          Rules and Regulations.  Any rule not in conflict or at variance with the provisions
hereof may be adopted by the Plan Sponsor.


 


8.3.                                          Method of Executing Instruments.  Information to be supplied or written
notices to be made or consents to be given by the Plan Sponsor pursuant to any
provision of the Plan Restatement may be signed in the name of the Plan Sponsor
by any officer who has been authorized to make such certification or to give
such notices or consents.


 


8.4.                                          Claims and Review Procedure.  Until modified by the Committee, the claims and review procedure
set forth in this Section shall be the mandatory claims and review
procedure for the resolution of disputes and disposition of claims filed under
the Plan.  An application for a
distribution shall be considered as a claim for the purposes of this Section.


 


8.4.1.                                                         Initial Claim. 
An individual may, subject to any applicable deadline, file with the Committee
a written claim for benefits under the Plan in a form and manner prescribed by
the Committee.


 


(a)                                                                      If
the claim is denied in whole or in part, the Committee shall notify the
claimant of the adverse benefit determination within ninety (90) days after
receipt of the claim.


 


(b)                                                                     The
ninety (90) day period for making the claim determination may be extended for
ninety (90) days if the Committee determines that special circumstances require
an extension of time for determination of the claim, provided that the
Committee notifies the claimant, prior to the expiration of the initial ninety
(90) day period, of the special circumstances requiring an extension and the
date by which a claim determination is expected to be made.


 


8.4.2.                                                         Notice of Initial Adverse Determination.  A notice of an adverse
determination shall set forth in a manner calculated to be understood by the
claimant:


 


25

















 


(a)                                                                      the
specific reasons for the adverse determination;


 


(b)                                                                     references
to the specific provisions of the Plan Restatement (or other applicable Plan
document) on which the adverse determination is based;


 


(c)                                                                      a
description of any additional material or information necessary to perfect the
claim and an explanation of why such material or information is necessary; and


 


(d)                                                                     a
description of the claims review procedure, including the time limits
applicable to such procedure, and a statement of the claimant’s right to bring
a civil action under ERISA section 502(a) following an adverse
determination on review.


 


8.4.3.                                                         Request for Review. 
Within sixty (60) days after receipt of an initial adverse benefit
determination notice, the claimant may file with the Committee a written
request for a review of the adverse determination and may, in connection
therewith submit written comments, documents, records and other information
relating to the claim benefits.  Any
request for review of the initial adverse determination not filed within sixty
(60) days after receipt of the initial adverse determination notice shall be
untimely.


 


8.4.4.                                                         Claim on Review.  If
the claim, upon review, is denied in whole or in part, the Committee shall
notify the claimant of the adverse benefit determination within sixty (60) days
after receipt of such a request for review.


 


(a)                                                                      The
sixty (60) day period for deciding the claim on review may be extended for
sixty (60) days if the Committee determines that special circumstances require
an extension of time for determination of the claim, provided that the
Committee notifies the claimant, prior to the expiration of the initial sixty
(60) day period, of the special circumstances requiring an extension and the
date by which a claim determination is expected to be made.


 


(b)                                                                     In
the event that the time period is extended due to a claimant’s failure to
submit information necessary to decide a claim on review, the claimant shall
have sixty (60) days within which to provide the necessary information and the
period for making the claim determination on review shall be tolled from the
date on which the notification of the extension is sent to the claimant until
the date on which the claimant responds to the request for additional
information or, if earlier, the expiration of sixty (60) days.


 


(c)                                                                      The
Committee’s review of a denied claim shall take into account all comments,
documents, records, and other information submitted by the


 


26

















 


claimant relating to the
claim, without regard to whether such information was submitted or considered
in the initial benefit determination.


 


8.4.5.                                                         Notice of Adverse Determination for Claim on Review.  A notice of an adverse
determination for a claim on review shall set forth in a manner calculated to
be understood by the claimant:


 


(a)                                                                      the
specific reasons for the denial;


 


(b)                                                                     references
to the specific provisions of the Plan Restatement (or other applicable Plan
document) on which the adverse determination is based;


 


(c)                                                                      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;


 


(d)                                                                     a
statement describing any voluntary appeal procedures offered by the Plan and
the claimant’s right to obtain information about such procedures; and


 


(e)                                                                      a
statement of the claimant’s right to bring an action under ERISA
section 502(a).


 


27

















 


SECTION 9


 


PLAN ADMINISTRATION


 


9.1.                                          Plan Sponsor.


 


9.1.1.                                                         Officers. 
Except as hereinafter provided, functions generally assigned to the Plan
Sponsor shall be discharged by its officers or delegated and allocated as
provided herein.


 


9.1.2.                                                         Chief Executive Officer.  Except as hereinafter provided, the Chief
Executive Officer of the Plan Sponsor may delegate or redelegate and allocate
and reallocate to one or more persons or to a committee of persons jointly or
severally, and whether or not such persons are directors, officers or
employees, such functions assigned to the Plan Sponsor generally hereunder as
the Chief Executive Officer may from time to time deem advisable.


 


9.2.                                          Conflict of Interest.  If any individual to whom authority has been
delegated or redelegated hereunder shall also be a Participant in this Plan,
such Participant shall have no authority with respect to any matter specially
affecting such Participant’s individual interest hereunder or the interest of a
person superior to him or her in the organization (as distinguished from the
interests of all Participants and Beneficiaries or a broad class of
Participants and Beneficiaries), all such authority being reserved exclusively
to other individuals as the case may be, to the exclusion of such Participant,
and such Participant shall act only in such Participant’s individual capacity
in connection with any such matter.


 


9.3.                                          Administrator. 
The Plan Sponsor shall be the administrator for purposes of
section 3(16)(A) of the Employee Retirement Income Security Act of 1974.


 


9.4.                                          Service of Process. 
In the absence of any designation to the contrary by the Plan Sponsor,
the Secretary of the Plan Sponsor is designated as the appropriate and
exclusive agent for the receipt of service of process directed to this Plan in
any legal proceeding, including arbitration, involving this Plan.


 


9.5.                              Indemnity. 
Each member of the Committee or officer, director or employee of the
Employer shall, except as prohibited by law, be indemnified and held harmless
by the Employer from any and all liabilities, costs and expenses (including
legal fees), to the extent not covered by liability insurance, arising out of
any action taken by such individual with respect to the Plan, whether imposed
under ERISA or otherwise.  No such
indemnification, however, shall be required or provided if such liability arises
(i) from the individual’s claim for his own benefit, or (ii) from the proven
gross negligence or the bad faith of the individual, or (iii) from the criminal
misconduct of such individual if the individual had reason to believe the
conduct was unlawful.  This
indemnification shall continue as to an individual who has ceased to be a
trustee of the Plan or officer, director or employee of the Employer and shall
inure to the benefit of the heirs, executors and administrators of such an
individual.


 


28

















 


SECTION 10


 


DISCLAIMERS


 


10.1.                                    Term of Employment. 
Neither the terms of the Plan Restatement nor the benefits hereunder nor
the continuance thereof shall be a term of the employment of any employee.  The Plan Sponsor shall not be obliged to
continue this Plan.  The terms of the
Plan Restatement shall not give any employee the right to be retained in the
employment of the Plan Sponsor.


 


10.2.                                    Source of Payment.  Neither the Plan Sponsor nor any of its officers nor any member
of its Committee in any way secure or guarantee the payment of any benefit or
amount which may become due and payable hereunder to any Participant or to any
Beneficiary or to any creditor of a Participant or a Beneficiary.  Each Participant, Beneficiary or other
person entitled at any time to payments hereunder shall look solely to the
assets of the Plan Sponsor for such payments or to the Accounts distributed to
any Participant or Beneficiary, as the case may be, for such payments.  In each case where Accounts shall have been
distributed to a former Participant or a Beneficiary or to the person or any
one of a group of persons entitled jointly to the receipt thereof and which
purports to cover in full the benefit hereunder, such former Participant or
Beneficiary, or such person or persons, as the case may be, shall have no
further right or interest in the other assets of the Plan Sponsor.  Neither the Plan Sponsor nor any of its
officers nor any member of its Committee shall be under any liability or
responsibility for failure to effect any of the objectives or purposes of this
Plan by reason of the insolvency of the Plan Sponsor.


 


10.3.                                    Delegation. 
The Plan Sponsor and its officers and the members of its Committee shall
not be liable for an act or omission of another person with regard to a
responsibility that has been allocated to or delegated to such other person
pursuant to the terms of the Plan Restatement or pursuant to procedures set
forth in the Plan Restatement.


 


29

















 


SECTION 11


 


MISCELLANEOUS


 


11.1.                                    ERISA Status. 
This Plan is adopted with the understanding that it is an unfunded plan
maintained primarily for the purpose of providing deferred compensation for a
select group of management or highly compensated employees as provided in
section 201(2), section 301(3) and section 401(a)(1) of
ERISA.  Each provision shall be
interpreted and administered accordingly.


 


11.2.                                    IRC Status. 
This Plan is intended to be a nonqualified deferred compensation
arrangement.  The rules of
section 401(a) et. seq. of the Code shall not apply to
this Plan.  The rules of
section 3121(v) and section 3306(r)(2) of the Code shall apply to
this Plan.


 


11.3.                                    Effect on Other Plans.  This Plan shall not alter, enlarge or diminish
any person’s rights, benefits or obligations under any plan or program
sponsored by the Plan Sponsor including without limitation the Qualified
Plan.  It is specifically contemplated
that such plans or programs will, from time to time, be amended and possibly
terminated.  All such amendments and
termination shall be given effect under this Plan (it being expressly intended
that this Plan shall not lock in the benefit structures of any other plan or
program as it exists at the adoption of this Plan or upon the commencement of
participation, or commencement of benefits by any Participant).  The Plan shall supplement and not supercede,
modify or amend any other plan or program sponsored by the Plan Sponsor, and the
Participant’s right to benefits, if any, under such plan or program shall be
determined in accordance the terms of such plan or program.


 


11.4.                                    Disqualification. 
Notwithstanding any other provision of the Plan Restatement or any
election or designation made under this Plan, any individual who feloniously
and intentionally kills a Participant shall be deemed for all purposes of this
Plan and all elections and designations made under this Plan to have died
before such Participant.  A final
judgment of conviction of felonious and intentional killing is conclusive for
this purpose.  In the absence of a
conviction of felonious and intentional killing, the Plan Sponsor shall
determine whether the killing was felonious and intentional for this purpose.


 


11.5.                                    Rules of Document Construction.


 


(a)                                                                      An
individual shall be considered to have attained a given age on such
individual’s birthday for that age (and not on the day before).  Individuals born on February 29 in a
leap year shall be considered to have their birthdays on February 28 in
each year that is not a leap year.


 


(b)                                                                     Whenever
appropriate, words used herein in the singular may be read in the plural, or
words used herein in the plural may be read in the singular; the masculine may
include the feminine; and the words “hereof,” “herein” or “hereunder” or other
similar compounds of the word “here” shall mean and refer to the entire Plan
Restatement and not to any particular


 


30

















 


paragraph or
Section of the Plan Restatement unless the context clearly indicates to
the contrary.


 


(c)                                                                      The
titles given to the various Sections of the Plan Restatement are inserted for
convenience of reference only and are not part of the Plan Restatement, and
they shall not be considered in determining the purpose, meaning or intent of
any provision hereof.


 


(d)                                                                     Notwithstanding
any thing apparently to the contrary contained in the Plan Restatement, the
Plan Restatement shall be construed and administered to prevent the duplication
of benefits provided under this Plan and any other qualified or nonqualified
plan maintained in whole or in part by the Employers.


 


11.6.                                    References to Laws.  Any reference in the Plan Restatement to a statute or regulation
shall be considered also to mean and refer to any subsequent amendment or
replacement of that statute or regulation.


 


11.7.                                    Choice of Law. 
This instrument has been executed and delivered in the State of North
Dakota and shall, except to the extent that federal law is controlling, be
construed and enforced in accordance with the laws of the State of North
Dakota.


 


11.8.                                    ERISA Administrator. 
The Plan Sponsor shall be the plan administrator of this Plan.


 


11.9.                                    Not an Employment Contract.  This Plan is not and shall not be deemed to
constitute a contract of employment between the Employer and any employee or
other person, nor shall anything herein contained be deemed to give any
employee or other person any right to be retained in the Employer’s employ or
in any way limit or restrict the Employer’s right or power to discharge any
employee or other person at any time and to treat him without regard to the
effect which such treatment might have upon him as a Participant in this Plan.


 


11.10.                              Tax Withholding.  The Plan Sponsor shall withhold the amount of any federal, state
or local income tax or other tax required to be withheld by the Plan Sponsor
under applicable law with respect to any amount payable under this Plan.  The amount of the withholding shall reduce
the credit otherwise made to the Participant’s Account and the reduction shall be
made at the time such withholding is required to be made by the Plan Sponsor or
such other time as the Plan Sponsor, in its sole discretion, deems appropriate.


 


11.11.                              Expenses. 
All expenses of administering this Plan shall be borne by the Plan
Sponsor.


 


11.12.                              Service of Process.  In the absence of any designation to the contrary by the Plan
Sponsor, the Secretary of the Plan Sponsor is designated as the appropriate and
exclusive agent for the receipt of service of process directed to this Plan in
any legal proceeding, including arbitration, involving this Plan.


 


31

















 


11.13.                              Spendthrift Provision.  No Participant, surviving spouse, joint or contingent annuitant
or Beneficiary shall have the power to transmit, assign, alienate, dispose of,
pledge or encumber any benefit payable under this Plan before its actual
payment to such person.  The Plan
Sponsor shall not recognize any such effort to convey any interest under this
Plan.  No benefit payable under this Plan
shall be subject to attachment, garnishment, execution following judgment or
other legal process before actual payment to such person.  This Section shall not prevent the
Employer or Committee from observing the terms of an approved qualified
domestic relations order.


 


11.14.                              Certifications.  Information to be supplied or written notices to be made or
consents to be given by the Plan Sponsor pursuant to any provision of this Plan
may be signed in the name of the Plan Sponsor by any officer who has been
authorized to make such certification or to give such notices or consents.


 


11.15.                              Errors in Computations.  The Plan Sponsor shall not be liable or
responsible for any error in the computation of any benefit payable to or with
respect to any Participant resulting from any misstatement of fact made by the
Participant or by or on behalf of any Beneficiary to whom such benefit shall be
payable, directly or indirectly, to the Plan Sponsor, and used by the Plan
Sponsor in determining the benefit.  The
Plan Sponsor shall not be obligated or required to increase the benefit payable
to or with respect to such Participant which, on discovery of the misstatement,
is found to be understated as a result of such misstatement of the Participant.  However, the benefit of any Participant
which is overstated by reason of any such misstatement or any other reason
shall be reduced to the amount appropriate in view of the truth (and to recover
any prior overpayment).


 


 


	
  March 5, 2004

  	
  COMMUNITY FIRST BANKSHARES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Douglas G.Vang

  
	
   

  	
   

  
	
   

  	
   

  	
  Its

  	
  Executive Vice
  President–Human Resources

  



 


32

















 


SCHEDULE I


 


EMPLOYERS PARTICIPATING IN THE COMMUNITY FIRST BANKSHARES, INC.

SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN


 


 


None


 


33