Exhibit 10.17


 


VIRGINIA BANKERS ASSOCIATION


MODEL NON-QUALIFIED DEFERRED COMPENSATION
PLAN 

FOR EXECUTIVES


 


(As Restated Effective January 1, 2008)


 




    	 



    	 



    

  


TABLE OF CONTENTS


 


	 	 	 	 	Page
	 	 	 	 	 
	 	 	
        ARTICLE I

        Definition of Terms
	 	 
	1.1	 	Act	 	1
	1.2	 	Administrator	 	1
	1.3	 	Adoption Agreement	 	1
	1.4	 	Affiliate	 	1
	1.5	 	Beneficiary	 	2
	1.6	 	Benefit Commencement Date	 	2
	1.7	 	Board	 	2
	1.8	 	Change in Control	 	2
	1.9	 	Code	 	2
	1.10	 	Compensation	 	2
	1.11	 	Deferral Account or Deferral Accounts	 	2
	1.11(a)	 	Employee Deferral Account	 	2
	1.11(b)	 	Employer Deferral Account	 	2
	1.11(c)	 	Predecessor Plan Account	 	3
	1.12	 	Deferral Benefit	 	3
	1.13	 	Deferred Compensation Election	 	3
	1.14	 	Deferral Contributions	 	3
	1.15	 	Effective Date	 	3
	1.16	 	Eligible Employee	 	3
	1.17	 	Employee	 	4
	1.18	 	Employer	 	4
	1.19	 	Fund	 	4
	1.20	 	Participant	 	4
	1.21	 	Plan	 	4
	1.22	 	Plan Sponsor	 	4
	1.23	 	Plan Year	 	4
	1.24	 	Rabbi Trust	 	4
	1.25	 	Restated Plan	 	4
	1.26	 	Separation from Service	 	4
	1.27	 	Termination of Employment	 	5
	1.28	 	Trustee	 	5
	1.29	 	Valuation Date	 	5
	1.30	 	VBA Plan	 	5
	 	 	 	 	 
	 	 	ARTICLE II	 	 
	 	 	Eligibility and Participation	 	 
	2.1	 	Eligibility	 	5
	2.2	 	Notice and Election Regarding Active Participation	 	5
	2.3	 	Deferred Compensation Election	 	6
	2.4	 	Automatic Cancellation of Deferred Compensation Election	 	 
	 	 	upon Receipt of Hardship Withdrawal	 	8


 




    	 



    	 



    

 


	2.5	 	Cancellation of Election upon Occurrence of Disability	 	9
	2.6	 	Length of Participation	 	9
	2.7	 	Termination of Active Participation	 	9
	 	 	 	 	 
	 	 	ARTICLE III	 	 
	 	 	Determination of Deferral Benefits	 	 
	3.1	 	Deferral Benefit	 	9
	3.2	 	Deferral Account	 	10
	3.3	 	Contributions by Participants	 	10
	3.4	 	Employer Contribution Allocations	 	10
	3.5	 	Subtractions from Deferral Account	 	11
	3.6	 	Crediting of Deemed Earnings to Deferral Account	 	11
	3.7	 	Expenses Charged to Accounts	 	12
	3.8	 	Equitable Adjustment in Case of Error Omission	 	12
	3.9	 	Statement of Benefits	 	12
	 	 	 	 	 
	 	 	ARTICLE IV	 	 
	 	 	Vesting	 	 
	4.1	 	Vesting in Employee Deferral Account and Predecessor Plan Account	 	12
	4.2	 	Vesting in Employer Non-Elective Deferral Account	 	12
	4.3	 	Vesting in Employer Matching Deferral Account	 	12
	4.4	 	Forfeiture of Benefits	 	12
	4.5	 	No Restoration of Forfeited Benefits	 	14
	 	 	 	 	 
	 	 	ARTICLE V	 	 
	 	 	Beneficiary Designation and Death Benefit	 	 
	5.1	 	Death after Benefit Commencement	 	14
	5.2	 	Death before Benefit Commencement	 	14
	5.3	 	Beneficiary Designation	 	14
	 	 	 	 	 
	 	 	ARTICLE VI	 	 
	 	 	Retirement Dates	 	 
	6.1	 	Normal Retirement Date	 	15
	6.2	 	Delayed Retirement Date	 	15
	6.3	 	Early Retirement Date	 	15
	6.4	 	Disability Retirement Date	 	15
	6.5	 	Use of Retirement Date Definitions	 	15
	 	 	 	 	 
	 	 	ARTICLE VII	 	 
	 	 	Time and Form of Payment	 	 
	7.1	 	Time of Payment of Deferral Benefit	 	16
	7.2	 	Form of Payment of Deferral Benefit	 	16
	7.3	 	Permissible Changes to Benefit Commencement Date and/or	 	 
	 	 	Form of Payment	 	16


 




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	7.4	 	Transition Election Changes	 	17
	7.5	 	Lump Sum Payments and Periodic Installments	 	17
	7.6	 	Permissible Cash-Out by Lump Sum Payment	 	17
	7.7	 	Benefit Determination and Payment Procedure	 	18
	7.8	 	Payments to Minors and Incompetents	 	19
	7.9	 	Distribution of Benefit When Distributee Cannot Be Located	 	19
	7.10	 	Claims Procedure	 	19
	 	 	 	 	 
	 	 	ARTICLE VIII	 	 
	 	 	Withdrawals	 	 
	8.1	 	Hardship Withdrawals	 	24
	8.2	 	No Other Withdrawals Permitted	 	24
	 	 	 	 	 
	 	 	ARTICLE VII	 	 
	 	 	Funding	 	 
	9.1	 	Funding	 	25
	9.2	 	Use of Rabbi Trust Permitted	 	25
	9.3	 	Fund Divisions	 	25
	9.4	 	Participant Investment Directions	 	25
	 	 	 	 	 
	 	 	ARTICLE IX	 	 
	 	 	Plan Administrator	 	 
	10.1	 	Appointment of Plan Administrator	 	26
	10.2	 	Plan Sponsor as Plan Administrator	 	26
	10.3	 	Procedures if a Committee	 	26
	10.4	 	Action by Majority Vote if a Committee	 	26
	10.5	 	Appointment of Successors	 	26
	10.6	 	Duties and Responsibilities of Plan Administrator	 	26
	10.7	 	Power and Authority	 	27
	10.8	 	Availability of Records	 	27
	10.9	 	No Action with Respect to Own Benefit	 	27
	 	 	 	 	 
	 	 	ARTICLE Xi	 	 
	 	 	Amendment and Termination of Plan	 	 
	11.1	 	Amendment or Termination of the Plan	 	27
	11.2	 	Effect of Employer Merger, Consolidation or Liquidation	 	28
	 	 	 	 	 
	 	 	ARTICLE XII	 	 
	 	 	Participation by Additional Employers	 	 
	12.1	 	Adoption by Additional Employers	 	28
	12.2	 	Termination Events with Respect to Employers Other Than the Plan Sponsor	 	28


 




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	 	 	ARTICLE XII 	 	 
	 	 	Miscellaneous	 	 
	13.1	 	Nonassignability	 	29
	13.2	 	Right to Require Information and Reliance Thereon	 	29
	13.3	 	Notices and Elections	 	29
	13.4	 	Delegation of Authority	 	29
	13.5	 	Service of Process	 	29
	13.6	 	Governing Law	 	30
	13.7	 	Binding Effect	 	30
	13.8	 	Severability	 	30
	13.9	 	No Effect on Employment Agreement	 	30
	13.10	 	Gender and Number	 	30
	13.11	 	Titles and Captions	 	30
	13.12	 	Construction	 	30
	13.13	 	Nonqualified Deferred Compensation Plan Omnibus Provision	 	30
	13.14	 	Distributions in the Event of Income Inclusion	 	31



 



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VIRGINIA BANKERS ASSOCIATION 

MODEL NON-QUALIFIED DEFERRED COMPENSATION PLAN 

FOR EXECUTIVES 

(As Restated Effective January 1, 2008)


 


An Employer desiring
to adopt the Plan should complete the necessary information in the Adoption Agreement. The Virginia Bankers Association cannot
guarantee that any Plan adopted by an Employer will be deemed to satisfy, or will actually satisfy, the requirements of the Internal
Revenue Code or ERISA applicable to non-qualified "top-hat" deferred compensation plans. Employers considering the use
of the Plan must recognize that neither the Virginia Bankers Association nor its employees or representatives can give any legal
advice as to the acceptability or application of the Plan in any particular situation, and that Employers should consult their
own attorney for such advice. The establishment, operation, and the related tax consequences of the adoption and maintenance of
a non-qualified "top-hat" deferred compensation plan are the responsibilities of the Employer and its own legal counsel.


 


Any plan restatement
using the form of this Model Non-Qualified Deferred Compensation Plan affects amounts that were deferred or that became vested
on or after January 1, 2005. The terms of this document are effective January 1, 2008. The plan has operated in good faith compliance
with the requirements of Code Section 409A between January 1, 2005 and December 31, 2007. Unless otherwise elected by the Employer
in Option 3(b)(2)(C), all amounts deferred and vested prior to January 1, 2005 remain subject to the terms of the plan document
as effective December 31, 2004.


 


The form of this Model
Non-Qualified Deferred Compensation Plan has been designed to be an unfunded, deferred compensation plan for a select group of
management or highly compensated employees as described in Sections 201(2), 301(a)(3) and 401(a)(1) of the Act. The Plan is also
intended to satisfy the requirements of Section 409A of the Code and the guidance issued thereunder and all provisions of the Plan
shall be interpreted in a manner to satisfy such requirements.


 


ARTICLE I


Definition of Terms


 


The following words
and terms as used in this Plan shall have the meaning set forth below, unless a different meaning is clearly required by the context:


 


1.1           “Act”:
The Employee Retirement Income Security Act of 1974, as the same may be amended from time to time, or the corresponding sections
of any subsequent legislation which replaces it, and, to the extent not inconsistent therewith, the regulations issued thereunder.


 


1.2           "Administrator":
The Plan Administrator named and serving in accordance with ARTICLE X hereof, and any successor or additional Administrator appointed
and serving in accordance herewith, all as selected in Option 2(b) of the Adoption Agreement or as appointed, resigned or removed
by separate instrument attached thereto.


 


1.3           "Adoption
Agreement": The adoption agreement, and any amendment thereto, which sets forth certain elections and representations
of the Employer and by execution of which the Employer adopts the Plan.


 


1.4           “Affiliate”:
The Employer and each of the following business entities or other organizations (whether or not incorporated) which during the
relevant period is treated (but only for the portion of the period so treated and for the purpose and to the extent required to
be so treated) together with the Employer as a single employer pursuant to the following sections of the Code (as modified where
applicable by Section 415(h) of the Code):


 






    	 



    	 



    

 


(i)          Any
corporation which is a member of a controlled group of corporations (as defined in Section 414(b) of the Code) which includes the
Employer,


 


(ii)         Any
trade or business (whether or not incorporated) which is under common control (as defined in Section 414(c) of the Code) with the
Employer,


 


1.5           “Beneficiary”:
The person or persons designated by a Participant or otherwise entitled pursuant to ARTICLE VII to receive benefits under the Plan
attributable to such Participant after the death of such Participant.


 


1.6           "Benefit
Commencement Date": The date or dates designated or provided for in Option 8 of the Adoption Agreement. If earlier than
any Benefit Commencement Date designated or elected, a Participant’s Benefit Commencement Date shall be the date such Participant
is determined to be Disabled as that term is defined in subparagraph 6.4(b).


 


1.7           “Board”:
The present and any succeeding Board of Directors of the Plan Sponsor, unless such term is used with respect to a particular Employer
and its Employees or Participants, in which event it shall mean the present and any succeeding Board of Directors of that Employer.


 


1.8           “Change
in Control”: A change in the ownership of the Plan Sponsor as defined in Treasury Regulation Section 1.409A-3(i)(5) or
its successor or as otherwise defined as a special provision in the Option 3(b)(2)(C) of the Adoption Agreement.


 


1.9           “Code”:
The Internal Revenue Code of 1986, as the same may be amended from time to time, or the corresponding section of any subsequent
Internal Revenue Code, and, to the extent not inconsistent therewith, regulations issued thereunder.


 


1.10         "Compensation":
A Participant's (i) annual base salary as more specifically designated by the Employer in Option 4(a) of the Adoption Agreement
(referred to as "Salary") and (ii) bonuses and incentive pay as more specifically designated by the Employer in Option
4(a) of the Adoption Agreement (collectively referred to as "Bonus") including that portion of such compensation which
is electively deferred under this Plan or any other plan of the Corporation such as a 401(k) plan for such Plan Year or reduced
pursuant to a salary reduction election permitted under Section 125 of the Code, but excluding any such compensation deferred from
a prior period, expense reimbursement and allowances and benefits not normally paid in cash to the Participant.


 


1.11         “Deferral
Account” or “Deferral Accounts”: The unfunded, bookkeeping account(s) maintained on the books of the Employer
for a Participant which reflects his interest in amounts attributable to Deferral Contributions under the Plan made by or on behalf
of the Participant and the earnings attributable thereto consisting of the following:


 


1.11(a)    “Employee
Deferral Account”: The account or accounts of a Participant under the Plan attributable to his Employee Deferral Contributions
to the Plan and the earnings attributable thereto. A separate subdivision of each account shall be maintained for each Plan Year.


 


1.11(b)    “Employer
Deferral Account”: The account or accounts of a Participant under the Plan attributable to Employer Non-Elective Contributions
and Employer Matching Contributions made by the Employer on the Participant’s behalf consisting of his Employer Non-Elective
Deferral Account and his Employer Matching Deferral Account as follows:


 






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(i)          “Employer
Non-Elective Deferral Account”: The Participant’s account in the Fund attributable to the Employer Non-Elective
Deferral Contributions made pursuant to Option 5 of the Adoption Agreement and Paragraph 3.4 of the Plan on his behalf and the
earnings attributable thereto. If applicable, a subdivision of the Employer Non-Elective Deferral Account shall be maintained to
reflect the Employer Contributions and the earnings attributable thereto until such time as the account becomes fully vested.


 


(ii)         “Employer
Matching Deferral Account”: The Participant’s account in the Fund attributable to the Employer Matching Deferral
Contributions made pursuant to Option 5 of the Adoption Agreement and Paragraph 3.4 of the Plan on his behalf and the earnings
attributable thereto. If applicable, a subdivision of the Employer Matching Deferral Account shall be maintained to reflect the
Employer Contributions and the earnings attributable thereto until such time as the account becomes fully vested.


 


1.11(c)    "Predecessor
Plan Account": The account or accounts of a Participant attributable to any elective or non-elective deferral of remuneration
by or on behalf of the Participant under any "top-hat" deferred compensation plan previously maintained by the Employer
that is merged into or transferred to the Plan.


 


1.11(d)    Each
Deferral Account shall be divided into subdivisions reflecting deferral amounts and the earnings attributable thereto for each
separate Plan Year.


 


1.11(e)    For
purposes of this restatement of the Plan, unless elected by the Plan Sponsor in Option 3(b)(2)(C) of the Adoption Agreement, Deferral
Accounts do not include accounts under the Plan attributable to amounts deferred and vested before January 1, 2005. Such accounts
are considered grandfathered and are subject to the rules of Plan as in effective December 31, 2004.


 


1.12         “Deferral
Benefit”: The sum of the vested balances of Participant’s Deferral Accounts under the Plan as of the most recent
Valuation Date (or as otherwise provided herein).


 


1.13         “Deferred
Compensation Election”: The election made by the Participant pursuant to paragraph 2.3 of the Plan.


 


1.14         “Deferral
Contributions”: That portion of a Participant’s Compensation which is deferred under the Plan and/or the non-elective
deferrals of remuneration made by the Employer under the Plan on the Participant’s behalf.


 


1.15         "Effective
Date":


 


1.15(a)     The
"Effective Date of the Plan" with respect to each Employer shall be that date or dates specified in Option 3(a)
(or in Option 1(f), in the case of an adopting Employer) of the Adoption Agreement.


 


1.15(b)     The
"Effective Date of the Restatement of the Plan" with respect to each Employer shall be that date or dates specified
in Option 3(b) of the Adoption Agreement.


 


1.16         "Eligible
Employee": Any Employee included within the definition of Eligible Employee as specified in Option 4(b) of the Adoption
Agreement; provided, however, in order to be an Eligible Employee the Employee must be in the "highly compensated group".
The term "highly compensated group" means a select group of management or highly compensated employees as described and
used in Sections 201(2), 301(a)(3), 401(a)(1) of the Act.


 






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1.17         “Employee”:
Any individual employed in the service of the Employer as a common law employee of the Employer.


 


1.18         “Employer”:
The Plan Sponsor and those Employers all Affiliates, named in Option 1(f) of the Adoption Agreement adopting the Plan, collectively,
unless the context indicates otherwise.


 


1.19         “Fund”:


 


1.19(a)    If
a trust fund is established and maintained for the Plan, that trust fund, which shall consist of the Fund divisions described in
paragraph 9.3. Notwithstanding the foregoing, any reference to the Fund is intended only for purposes of providing a measurement
of benefits and account balances under the Plan and is not intended to segregate assets or identify assets that may or must be
used to satisfy benefit liabilities under the Plan.


 


1.19(b)    If
a trust fund is not established and maintained for the Plan pursuant to a Trust Agreement, that separate bookkeeping account maintained
by the Plan Sponsor to make deemed investments of contributions to the Plan, which shall consist of the Fund divisions described
in paragraph 9.3.


 


1.20         “Participant”:
An Eligible Employee or other person qualified to participate in the Plan for so long as he is considered a Participant as provided
in ARTICLE II hereof.


 


1.21         "Plan":
This Agreement, including the Appendices hereto, as contained herein or duly amended all as adopted by the Employer through the
Adoption Agreement.


 


1.22         "Plan
Sponsor": The Employer named in Option 1(a) of the Adoption Agreement.


 


1.23         "Plan
Year": The twelve consecutive month period commencing upon the first day of January of each year provided, however in
the event that this is a Restated Plan which was maintained previously on the basis of a different Plan Year, the prior Plan Year
and short Plan Year needed to effect the Plan Year change shall be as set forth in Option 4(c) of the Adoption Agreement.


 


1.24         “Rabbi
Trust”: A trust fund described in paragraph 9.2 and established or maintained for the Plan.


 


1.25         "Restated
Plan": The Plan, if it is indicated in Option 3(b) of the Adoption Agreement that the Plan is adopted as an amendment
or restatement of a "top-hat" deferred compensation plan previously maintained by the Employer.


 


1.26         “Separation
from Service”: The death, retirement or other Termination of Employment with the Employer and Affiliates (whether or
not the Affiliate is an adopting Employer) for reasons other than Disability as defined in subparagraph 6.4(b). For purposes hereof
the employment relationship is treated as continuing intact while the individual is on military leave, sick leave or other bona
fide leave of absence if the period of leave does not exceed six (6) months, so long as the individual’s right to reemployment
is provided either by statute or by contract. If the period exceeds six (6) months and the individual’s right to reemployment
is not provided by contract or statute, then the employment relationship is deemed to terminate on the first date immediately following
such six-month period.


 






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1.27      “Termination
of Employment”: Facts and circumstances indicating a date beyond which the Employer does not intend for the Employee
to provide more than insignificant services for the Employer (regardless of whether provided as an Employee or as an independent
contractor) and Affiliates (whether or not the Affiliate is a participating Employer). For purposes hereof, whether any services
are more than insignificant will be determined in accordance with the provisions of Section 409A of the Code. With respect to a
Participant who provides services for the Employer both as an Employee and a member of the Board, to the extent permitted in Section
409A of the Code, services as a member of the Board shall not be taken into account in determining whether a Participant has experienced
a Separation from Service under this Plan.


 


1.28      “Trustee”:
The person(s) serving from time to time as trustee of the Fund pursuant to any Rabbi Trust.


 


1.29      "Valuation
Date": Each business day (based on the days the underlying investment funds are valued and transactions are effectuated
in the applicable financial markets) of the Plan Year (which Valuation Date is sometimes referred to as a “daily” Valuation
Date), or such other dates as the Administrator may designate from time to time.


 


1.30      "VBA
Plan": The Virginia Bankers Association Master Defined Contribution Plan and Trust.


 


ARTICLE II


Eligibility and Participation


 


2.1        Eligibility.
Each Eligible Employee shall be eligible to participate in the Plan effective as provided for in Option 4(d) of the Adoption Agreement.


 


2.2        Notice
and Election Regarding Active Participation.


 


2.2(a)    The
Administrator shall give notice of eligibility to each Eligible Employee who is anticipated to be eligible to make Deferral Contributions
to the Plan within a reasonable period of time prior to the effective date of eligibility for coverage as described in paragraph
2.1.


 


2.2(b)    With
respect to the Plan Year in which the Effective Date or the effective date of coverage as described in Option 4(d) of the Adoption
Agreement occurs (“first year of eligibility”), in order to make Employee Deferral Contributions with respect to such
Plan Year, an Eligible Employee who is a newly Eligible Employee must file a Deferred Compensation Election with the Administrator
within 30 days of such Effective Date or effective date of coverage. The Deferred Compensation Election shall be effective to defer
Compensation for services performed in pay periods after the pay period in which it is filed. For this purpose:


 





(i)              Compensation based on a performance period (such as an annual bonus) is deemed earned ratably throughout the period for
which earned.


 





(ii)            An Eligible Employee’s first year of eligibility is the year in which he first becomes eligible to participate in
any account balance type deferred compensation plan within the meanings of Section 409A of the Code maintained by the Employer
or any Affiliate.


 





(iii)            If all amounts owed the Eligible Employee from all account balance plans maintained by the Plan Sponsor and its Affiliates
subject to Section 409A of the Code have been paid to the Eligible Employee and if the Eligible Employee has become ineligible
to accrue further benefits, then if he thereafter becomes an Eligible Employee, the year in which he again becomes an Eligible
Employee may be treated as his first year of eligibility.


 






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(iv)        
If a Participant is not an Eligible Employee for at least twenty-four (24) consecutive months, then if he thereafter becomes
an Eligible Employee, the year in which he again becomes an Eligible Employee may be treated as his first year of eligibility.


 


2.2(c)    With
respect to Plan Years beginning on or after the first year of eligibility as described in subparagraph 2.2(b), in order to make
Employee Deferral Contributions of Salary with respect to such a Plan Year, an Eligible Employee must file a Deferred Compensation
Election with the Administrator prior the annual filing deadline established by the Administrator, which deadline must be in the
calendar year immediately preceding the year in which the Salary relates. The Deferred Compensation Election for Salary shall be
effective as of the first day of the Plan Year in which the services that give rise to the Salary to be deferred are rendered.


 


2.2(d)    With
respect to Plan Years beginning on or after the first year of eligibility as described in subparagraph 2.2(b), in order to make
Employee Deferral Contributions of Bonus with respect to the Plan Year , an Eligible Employee must file a Deferred Compensation
Election with the Administrator prior to the annual filing deadline established by the Administrator, which deadline must be in
the calendar year or, if different and permitted by the Administrator (as evidenced by the applicable Deferred Contribution Election
form) where the Bonus is earned on the basis of the Plan Sponsor’s fiscal year, the Plan Sponsor’s fiscal year immediately
preceding the applicable year in which the period to which the Bonus relates commences.


 


2.2(e)    Notwithstanding
subparagraph 2.2(d), if elected in Option 4(e) of the Adoption Agreement, the Administrator may permit a Deferred Contribution
Election relating to a Bonus which is Performance-Based Compensation (within the meaning of Code Section 409A(a)(4)(B)(iii)) based
on services performed over a period of at least twelve (12) consecutive months to be made prior to the annual filing deadline established
by the Administrator, which deadline must be not later than six (6) months prior to the end of the period for which the Bonus is
earned so long as the Eligible Employee has been continuously employed by the Employer from the later of the date the performance
criteria are established or the performance period begins through the date of the election. For this purpose, performance-based
compensation must be based on pre-established organizational or individual performance criteria for which the outcome is substantially
uncertain at the time of establishment, that are established in writing no later than ninety (90) days after the beginning of the
period of service to which the Bonus and performance relate and that are not substantially certain to be met at the time the criteria
are established as more specifically defined in Treas. Reg. 1.409A-1(e).


 


2.3         Deferred
Compensation Election.


 


2.3(a)     Subject
to the restrictions and conditions hereinafter provided, an Eligible Employee shall be entitled to elect to defer, as an Employee
Deferral Contribution with respect to a Plan Year, an amount of his Compensation which is specified by and in accordance with his
direction in his Deferred Compensation Election for such Plan Year. Any such election must be filed with the Administrator at the
time required under paragraph 2.2.


 


2.3(b)     Deferred
Compensation Elections shall be subject to the following rules:


  


(i)              
A separate Deferred Compensation Election must be filed for each Plan Year;





 


(ii)            
Each Deferred Compensation Election must specify the following:


 






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(A)             The amount or percentage of the Employee Deferral Contribution for the applicable period;


 





(B)             The Compensation from which the Employee Deferral Contribution shall be withheld, if appropriate;


 





(C)             If Option 8(a)(2) of the Adoption Agreement is selected, the Benefit Commencement Date, which date (I) may be one of the
dates permitted in Option 8(a)(2) of the Adoption Agreement, and (II) shall be irrevocable;


 





(D)             If Option 8(b)(2) of the Adoption Agreement is selected, the form of payment and if periodic installments are elected, the
duration and frequency of the installments which (I) shall be the same for all Employee Deferral Contributions made and Deferral
Benefits payable with respect to a Plan Year, and (II) shall be irrevocable;


 





(E)             If permitted in Option 8(a)(2)(A)(vi), whether the Benefit Commencement Date to be applicable to the Deferral Account related
to the Plan Year shall be upon a Change in Control, if a Change in Control occurs prior to the Benefit Commencement Date otherwise
elected;


 





(F)             The Plan Year to which it relates; and


 





(G)             Such other information as the Administrator may require.


 





(iii)        A Participant shall have no unilateral right to change or terminate his Deferred Contribution Election for a year once the
election filing deadline has passed.


 





(iv)        The Benefit Commencement Date and form of payment election made in the Deferred Compensation Election for any Plan Year
shall apply to each subdivision of the Employer Deferral Account for the same Plan Year.


 


2.3(c)     Each
Employee Deferral Contribution is intended to be an elective salary reduction amount which shall be deducted from a Participant's
Compensation otherwise payable to him for a Plan Year by way of Salary or Bonus. Unless otherwise approved by the Administrator:


 


(i)        Employee Deferral Contribution of Salary shall be withheld from annual salary on a pro rata basis throughout the Plan Year
(or remainder of the Plan Year, in the case of an Employee who first becomes a Participant during the Plan Year as of a date other
than the first day of the Plan Year, in the case of the Plan Year which contains the Effective Date of the Plan which is a date
other than the first day of a Plan Year) to which the Employee Deferral Contributions of Salary relate; and


 





(ii)        Unless otherwise specifically stated in the Deferred Compensation Election filed by the Participant, Employee Deferral Contributions
of Bonus shall be withheld on a first dollar basis from the Bonus before any part is paid to the Participant. However, the Deferred
Compensation Election filed by the Participant may, if permitted by the Administrator, provide that the Employee Deferral Contribution
of Bonus be withheld after a threshold level of Bonus has been paid to the Participant in cash.


 






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2.3(d)     Notwithstanding
any provision of the Plan to the contrary, if the Employer has indicated in Option 3(c) of the Adoption Agreement that this Plan
is intended to be paired with a qualified deferred compensation plan indicated in Option 3(c) of the Adoption Agreement, then the
Employee Deferral Contribution and the associated Employer Matching Contribution for a Plan Year of a Participant who is also a
participant in such qualified plan shall be transferred to the qualified deferred compensation plan by the Employer no later than
March 15 following the Plan Year, subject to the following provisions:


 





(i)        The election to participate in a paired arrangement must be made in the Deferred Compensation Election for the Plan Year
and shall be irrevocable.


 





(ii)        The amount of the Employee Deferral Contribution transferred shall not exceed the lesser of the limit with respect to elective
deferrals under Section 402(g)(1)(A), (B) and (C) imposed on the qualified deferred compensation plan or amount of the elective
deferral permitted after applicable of the actual deferral percentage limitation or any other applicable limitation in such qualified
plan.


 





(iii)        The amount of the Employer Matching Deferral Contribution transferred shall not exceed the lesser of the limit with respect
to elective deferrals under Section 402(g)(1)(A), (B) and (C) imposed on the qualified deferred compensation plan or the amount
of the matching contributions permitted after applicable of the actual contribution percentage limitation or any other applicable
limitation in such qualified plan.


 


2.3(e) Employment taxes
required to be withheld on an Employee Deferral shall be withheld from Compensation that is not being deferred in a manner determined
by the Employer. However, if necessary the Administrator may reduce the Employee Deferral Contribution as needed to comply with
applicable employment tax withholding requirements.


 


2.4           Automatic
Cancellation of Deferred Compensation Election upon Receipt of Hardship Withdrawal.


 


2.4(a)     A
Participant’s Deferred Compensation Election in effect at the time of an unforeseen emergency withdrawal from the Plan shall
be cancelled (rather than postponed or delayed) prospectively so that no further deferrals from his Salary or Bonus shall be made
during the remainder of the Plan Year in which the withdrawal occurred.


 


2.4(b)     A
Participant’s Deferred Compensation Election in effect at the time of a 401(k) hardship withdrawal shall be cancelled (rather
than postponed or delayed) prospectively so that no further deferrals from his Salary or Bonus shall be made during the remainder
of the Plan Year in which the withdrawal occurred. Any Deferred Compensation Election for the succeeding Plan Year shall not be
effective until the 401(k) required cancellation period ends.


 


2.4(c)     The
Participant whose Deferred Compensation Election is cancelled pursuant to this paragraph must file a new Deferral Election in order
to commence or recommence making deferrals under the Plan from his Salary or Bonuses.


 


2.4(d)     For
purposes hereof, the following terms have the following meanings:





 


(i)              A “401(k) hardship withdrawal” is a hardship withdrawal from the any 401(k) Plan which requires a suspension
of employee contributions and elective deferrals as a result of receipt of the hardship withdrawal in order to satisfy the regulations
under Code Section 401(k).


 






    	8



    	 



    

 





(ii)            The “401(k) required cancellation period” means a six month period (or other stated period in the applicable
401(k) plan) during which employee contributions and elective deferrals must be suspended as a result of receipt of a 401(k) hardship
withdrawal in order to satisfy the regulations under Code Section 401(k).


 





(iii)            A “401(k) Plan” means the any other deferred compensation plan intended to meet the requirements of Code Section
401(k) and maintained by the Employer or any other business entity or other organization (whether or not incorporated) which during
the relevant period is treated (but only for the portion of the period so treated and for the purpose and to the extent required
to be so treated) as a single employer with the Employer or any affiliate under Code Section 414(b), (c), (m) or (o).


 


2.5          Cancellation
of Election upon Occurrence of Disability.


 


2.5(a)     If
elected in Option 4(f) of the Adoption Agreement, a Participant’s Deferred Compensation Election in effect at the time of
the commencement of a Disability as defined in this paragraph shall be cancelled (rather than postponed or delayed) prospectively
so that no further deferrals from his Salary or Bonus shall be made during the remainder of the Plan Year provided such cancellation
occurs by the later of the end of the Participant’s taxable year or the fifteenth (15th) day of the third (3rd)
month following the date the Participant incurs the Disability.


 


2.5(b)     For
purposes hereof, Disability shall mean any medically determinable physical or mental impairment which results in the Participant’s
inability to perform the duties of his position or any substantially similar position and can be expected to result in death or
to last for a continuous period of not less than six (6) months. The determination of disability shall be made by the Administrator,
on the advice of one or more physicians appointed and approved by the Employer, and the Administrator shall have the right to require
further medical examinations from time to time to determine whether there has been any change in the Participant's physical condition.


 


2.6           Length
of Participation. Each Eligible Employee shall automatically become a Participant in the Plan upon his timely filing
a Deferred Compensation Election or other election to participate and remain a Participant as long as he is entitled to future
benefits under the terms of the Plan.


 


2.7           Termination
of Active Participation. Subject to compliance with Section 409A of the Code and paragraphs 2.4 or 2.5, a Participant
who is an active Participant for an applicable contribution election period (that is, the calendar year generally or the period
for which Bonuses are determined, as applicable) shall cease to be an active Participant for the applicable year or period, as
the case may be, if and when he ceases to be an Eligible Employee during the applicable year or period, in which case he may not
again become an active Participant until a subsequent calendar year or period for which Bonuses are determined, as applicable.
A leave of absence (whether paid or unpaid) which does not result in a Separation from Service shall not be considered cessation
of status as an Eligible Employee for this purpose.


 


ARTICLE III


Determination of Deferral Benefits


 


3.1           Deferral
Benefit. For purposes hereof, a Participant’s Deferral Benefit shall be the sum of the vested balances in
his Employee Deferral Account and, if applicable, his Employer Deferral Account and his Predecessor Plan Account at the time in
question.


 






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3.2           Deferral
Account.


 


3.2(a)     The
Employer shall establish and maintain on its books Deferral Accounts (and appropriate subdivisions thereof) for each Participant
to reflect the Participant’s benefits under the Plan.


 


3.2(b)     The
balance in the Employee Deferral Account of a Participant shall consist of his Employee Deferral Contributions made to the Plan
pursuant to paragraph 3.3, subtractions pursuant to paragraph 3.5, and deemed earnings or losses thereon determined pursuant to
paragraph 3.6.


 


3.2(c)     The
balance in the Employer Non-Elective Deferral Account of a Participant shall consist of Employer Non-Elective Contributions, if
any, made to the Plan on the Participant’s behalf pursuant to paragraph 3.4, subtractions pursuant to paragraph 3.5, and
deemed earnings or losses thereon determined pursuant to paragraph 3.6.


 


3.2(d)     The
balance in the Employer Matching Deferral Account of a Participant shall consist of Employer Matching Contributions, if any, made
to the Plan on the Participant’s behalf pursuant to paragraph 3.4, subtractions pursuant to paragraph 3.5, and deemed earnings
or losses thereon determined pursuant to paragraph 3.6.


 


3.2(e)     The
balance in the Predecessor Plan Account of a Participant shall consist of balances transferred to the Plan on the Participant’s
behalf, subtractions pursuant to paragraph 3.5, and deemed earnings or losses thereon determined pursuant to paragraph 3.6.


 


3.2(f)     Unless
otherwise elected in Option 3(b)(2)(C) of the Adoption Agreement, the Employer shall segregate the Deferral Accounts of its Participants
attributable to contributions that are vested as of December 31, 2004 from the Deferral Accounts of its Participants attributable
contributions that are not vested as of December 31, 2004 and contributions made on and after January 1, 2005. The terms of the
Plan in effect on and after January 1, 2005 shall only apply to contributions not vested as of December 31, 2004 and to contributions
made on and after January 1, 2005.


 


3.3        Contributions
by Participants.


 


3.3(a)     An
active Participant shall elect to make Employee Deferral Contributions from his Compensation equal to that portion of his Compensation
as is permitted to be contributed and as is specified by him in his Deferred Compensation Election.


 


3.3(b)     Each
Employee Deferral Contribution is intended to be an elective salary reduction contribution which shall be withheld from a Participant’s
Compensation otherwise payable to him for the applicable contribution election period.


 


3.3(c)     Employee
Deferral Contributions made by a Participant shall be credited to his Employee Deferral Account as of the date an amount equal
to each Employee Deferral Contribution is credited on the accounting records of the Plan as directed by the Administrator, which
date shall be no later than the end of the calendar month following the month the Compensation from which such contribution is
deducted would otherwise have been paid to him and may be as soon as the date as of which the amount is otherwise payable to the
Participant.


 


3.4         Employer
Contribution Allocations.


 


3.4(a)     If
elected in Option 5(a)(2) of the Adoption Agreement, the Employer Non-Elective Deferral Contributions for each Plan Year shall
be allocated to the Employer Non-Elective Deferral Accounts of Participants described in Option 5(a)(2) of the Adoption Agreement
in the manner and as of the date set forth in Option 5(a)(2) of the Adoption Agreement.


 






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3.4(b)     If
elected in Option 5(a)(3) of the Adoption Agreement, the Employer Matching Deferral Contributions for each Plan Year shall be allocated
to the Employer Matching Deferral Accounts of Participants described in Option 5(a)(3) of the Adoption Agreement in the manner
and as of the date set forth in Option 5(a)(3) of the Adoption Agreement.


 


3.4(c)     Notwithstanding
anything to the contrary herein, each Deferral Contribution of the Employer is not intended to be an actual contribution by the
Employer, but rather is only a bookkeeping amount credited for benefit determination purposes under the Plan.


 


3.4(d)     The
Employer may from time to time make a discretionary contribution to the Plan on behalf of one or a group of Participants. At the
time the contribution is made the Employer will specify how such amounts are allocated among the Participants accounts and the
timing of such allocation.


 


3.4(e)     Employment
taxes required to be withheld on an Employer Deferral Contributions shall be withheld from Compensation that is not being deferred
in a manner determined by the Employer. However, if necessary the Administrator may reduce the Employer Deferral Contribution as
needed to comply with applicable employment tax withholding requirements.


 


3.5           Subtractions
from Deferral Account. All distributions (including any withheld income or other taxes) and withdrawals shall be
subtracted from a Participant’s Deferral Account and the applicable subdivision thereof when made. All Plan and Fund administrative
expenses charged to a Participant’s Deferral Account shall be subtracted as directed by the Administrator.


 


3.6           Crediting
of Deemed Earnings to Deferral Account.


 


3.6(a)     As
of each Valuation Date, there shall be credited to each Participant’s Deferral Account an amount representing deemed earnings
or loss on the “valuation balance” of each such account in accordance with procedures adopted for the Plan by the Administrator
from time to time.


 


3.6(b)     Such
deemed earnings or loss shall be determined as follows:


 





(i)              
For periods during which a Fund is maintained and Plan benefits may be paid therefrom because the Plan Sponsor or any other
Employer is not insolvent, such earnings or loss shall be based on the net investment rate of return or loss of the Fund division(s)
in which the Participant’s Deferral Benefit under the Plan is considered invested for the period, determined separately for
each Fund division and the portion of the Participant’s Deferred Benefit considered invested in each such Fund division,
based on the Participant’s applicable or deemed investment directions pursuant to paragraph 9.4. The net investment rate
of return or loss means earnings or loss (including valuation changes and charges for expenses) for the period of the Fund compared
to the aggregate valuation balances sharing in those earnings or loss.


 





(ii)            
For periods during which the Fund is not maintained or Plan benefits may not be paid therefrom because the Plan Sponsor
or any other Employer is insolvent, such earnings or loss shall be based on an annual rate determined for each Plan Year and equal
to the 1 year U.S. Treasury Rate as of the December 31 immediately preceding the Plan Year.


 






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3.6(c)     Notwithstanding
the other provisions of this ARTICLE III, whenever the Plan accounting is based on daily Valuation Dates, the valuation adjustments
to Participants’ accounts shall be effected on such basis and subject to such rules and procedures as the Administrator may
determine to reflect daily accounting.


 


3.7           Expenses
Charged to Accounts. Notwithstanding any other provision of the Plan to the contrary, expenses incurred in the administration
of the Plan and the Rabbi Trust may be charged to Deferral Accounts on either a pro rata basis or a per capita basis, and/or may
be charged to the Deferral Account of the affected Participant(s) and Beneficiary(ies) (which term is intended to include any alternate
payee(s)) on a usage basis (rather than to all Deferral Accounts), as directed by the Administrator. Without limiting the foregoing,
some or all of the reasonable expenses attendant to the determinations needed with respect to and making of withdrawals, the calculation
of benefits payable under different Plan distribution options and the distribution of Plan benefits may be charged directly to
the Deferral Account of the affected Participant and Beneficiary, and different rules (i.e., pro rata, per capita, or direct charge
to Deferral Accounts) may apply to different groupings of Participants and Beneficiaries.


 


3.8           Equitable
Adjustment in Case of Error or Omission. Where an error or omission is discovered in the Deferral Account of a Participant,
the Administrator shall be authorized to make such equitable adjustment as the Administrator deems appropriate.


 


3.9           Statement
of Benefits. Within a reasonable time after the end of each calendar quarter and at the date a Participant’s
Deferral Benefit or Death Benefit becomes payable under the Plan, the Administrator shall provide to each Participant (or, if deceased,
to his Beneficiary) a statement of the benefit under the Plan.


 


ARTICLE IV 


Vesting


 


4.1           Vesting
in Employee Deferral Account and Predecessor Plan Account. A Participant's rights to the balance in his Employee
Deferral Account and, unless provided otherwise in Option 3(b)(2)(C) of the Adoption Agreement, in his Predecessor Plan Account
shall be fully vested and nonforfeitable at all times, and his Separation from Service shall not diminish the amount payable to
the Participant or his Beneficiary.


 


4.2           Vesting
in Employer Non-Elective Deferral Account. A Participant shall have a vested interest in a percentage of his Employer
Non-Elective Deferral Account determined in accordance with the vesting provisions selected by the Employer in Option 6(a)(1) of
the Adoption Agreement.


 


4.3           Vesting
in Employer Matching Deferral Account. A Participant shall have a vested interest in a percentage of his Employer Matching
Deferral Account determined in accordance with the vesting provisions selected by the Employer in Option 6(a)(2) of the Adoption
Agreement.


 


4.4          Forfeiture
of Benefits.


 


4.4(a)      Notwithstanding
any contrary provision hereof, the Employer Deferral Account of a Participant shall be forfeited upon the occurrence of any the
following events (as defined in subparagraph 4.4(b)):


 





(i)              
The Participant's termination of employment with the Employer for "cause";


 




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(ii)            
The Participant's entering into "competition", or his making an "unauthorized disclosure of confidential
information", after his termination of or retirement from employment of the Employer, in which case all payments to or with
respect to the Participant shall cease and all payments made to the Participant or his Beneficiary under the Plan since the occurrence
of such event of forfeiture shall be returned to the Employer (provided however, forfeiture shall not occur upon a Participant's
entering into competition following a Change in Control); or


 





(iii)            
The discovery after the Participant's termination of or retirement from employment of the Employer or death, of "cause"
for his termination or of his "unauthorized disclosure of confidential information" prior to his termination, retirement
or death before termination or retirement, in which case all payments under the Plan to or with respect to the Participant shall
cease and all payments previously made to the Participant or his Beneficiary under the Plan shall be returned to the Employer.


 


All determinations hereunder shall be made
by the Administrator.


 


4.4(b) For purposes
of this paragraph:


 





(i)         
"Cause" means the willful gross misconduct of the Participant which is materially injurious to the Employer or
any Affiliate, including but not limited to the Participant's knowingly or intentionally providing the Employer with materially
false reports concerning the Participant's business interests or employment-related activities, making materially false representations
relied on by the Employer in furnishing information to shareholders and the Securities Exchange Commission, willfully concealing
unauthorized material conflicts of interest in the discharge of duties owed by the Participant to the Employer, willfully causing
a serious violation by the Employer of state or federal laws, theft or misappropriation the assets of the Employer, or conviction
of a felony (excluding traffic violations and similar misdemeanors).


 





(ii)       
"Competition" means engaging by the Participant, without the written consent of the Board or a person authorized
thereby, in a business as a more than one percent (1%) stockholder, an officer, a director, an employee, a partner, an agent, a
consultant, or any other individual or representative capacity (unless the Participant's duties, responsibilities, and activities,
including supervisory activities, for or on behalf of such business, are not related in any way to such "competitive activity")
if it involves:


 





(A)             
Engaging in, or entering into services or providing advice pertaining to, any line of business that the Employer or any
Affiliate actively conducts or develops in competition with the Employer or any Affiliate in the same geographic area (generally,
within a one hundred (100) mile radius of the Employer's principal place of business) as such line of business is then conducted,
or


 





(B)             
Employing or soliciting for employment any employees of the Employer or any Affiliate.


 





(iii)       
"Unauthorized disclosure of confidential information" means the disclosure by the Participant, without the written
consent of the Board or a person authorized thereby, to any person other than as required by law or court order, or other than
to an authorized employee of the Employer or an Affiliate, or to a person to whom disclosure is necessary or appropriate in connection
with the performance by the Participant of his duties as an employee or director of the Employer or an Affiliate (including, but
not limited to, disclosure to the Employer's or an Affiliate's outside counsel, accountants or bankers of financial data properly
requested by such persons and approved by an authorized officer of the Employer), any confidential information of the Employer
or any Affiliate with respect to any of the products, services, customers, suppliers, marketing techniques, methods or future plans
of the Employer or any Affiliate; provided, however, that:


 






    	13



    	 



    

 





(A)             
Confidential information shall not include any information known generally to the public (other than as a result of unauthorized
disclosure by the Participant) or any information of a type not otherwise considered confidential by persons engaged in the same
business or a business similar to that conducted by the Employer or any Affiliate; and


 





(B)             
The Participant shall be allowed to disclose confidential information to his attorney solely for the purpose of ascertaining
whether such information is confidential within the intent of the Plan, but only so long as the Participant both discloses to his
attorney the provisions of this paragraph and agrees not to waive the attorney client privilege with respect thereto.


 


4.5          No
Restoration of Forfeited Benefits. There shall be no restoration of forfeited benefits.


 


ARTICLE V


Beneficiary Designation and Death
Benefit


 


5.1          Death
after Benefit Commencement. Upon the death of a Participant after his benefit becomes payable in periodic installments,
the amounts of any periodic installments remaining unpaid shall be paid to his Beneficiary over the remaining term certain for
such installments.


 


5.2          Death
before Benefit Commencement. If a Participant dies before his vested Deferral Benefit has begun to be paid to him, his
vested Deferral Benefit under the Plan shall be paid to his Beneficiary at the time and in the manner described in ARTICLE VII.


 


5.3          Beneficiary
Designation.


 


5.3(a)      Each
Participant shall be entitled to designate a Beneficiary hereunder by filing a designation in writing with the Administrator on
the form provided for such purpose. Any Beneficiary designation made hereunder shall be effective only if signed and dated by the
Participant and delivered to the Administrator prior to the time of the Participant's death. Any Beneficiary designation hereunder
shall remain effective until changed or revoked hereunder.


 


5.3(b)      Any
Beneficiary designation may include multiple, contingent or successive Beneficiaries and may specify the proportionate distribution
to each Beneficiary.


 


5.3(c)      A
Beneficiary designation may be changed by the Participant at any time, or from time to time, by filing a new designation in writing
with the Administrator.


 


5.3(d)      If
a Participant dies without having designated a Beneficiary, or if the Beneficiary so designated has predeceased the Participant
or cannot be located by the Administrator, then the Participant's spouse or, if none, the executor or the administrator of his
estate shall be deemed to be his Beneficiary.


 






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5.3(e)      If
a Beneficiary of the Participant shall survive the Participant but shall die before the Participant's entire benefit under the
Plan has been distributed, then, absent any other provision by the Participant, the unpaid balance thereof shall be distributed
to the such other beneficiary named by the deceased Beneficiary to receive his interest or, if none, to the estate of the deceased
Beneficiary. If multiple beneficiaries are designated, absent any other provision by the Participant, those named or the survivor
of them shall share equally in any amounts payable hereunder.


 


ARTICLE VI 

Retirement Dates


 


6.1           Normal
Retirement Date. The Normal Retirement Date of a Participant as designated by the Employer in Option 7(a) of the Adoption
Agreement.


 


6.2           Delayed
Retirement Date. A Participant who continues in the active employment of the Employer beyond his Normal Retirement Date
shall continue to participate in the Plan, and his Delayed Retirement Date shall be the first day of the calendar month coinciding
with or next following the date of his Termination of Employment with the Employer.


 


6.3           Early
Retirement Date. If elected in Option 7(b) of the Adoption Agreement, a Participant who has satisfied the age and service
requirements selected by the Employer in Option 7(b) of the Adoption Agreement, may retire from the employment of the Employer
prior to his Normal Retirement Date and his Early Retirement Date shall be the first day of the calendar month coinciding with
or next following the date of such retirement.


 


6.4           Disability
Retirement Date.


 


6.4(a)      If
elected in Option 7(c) of the Adoption Agreement, a Participant who, while an Eligible Employee, is totally and permanently disabled,
as hereinafter determined, and who has satisfied the age and service requirements selected by the Employer in Option 7(c) of the
Adoption Agreement, may retire from the employment of the Employer prior to his Normal Retirement Date and his Disability Retirement
Date shall be the first day of the calendar month coinciding with or next following the date as of which he is determined to be
totally and permanently disabled.


 


6.4(b)      A
Participant shall be totally and permanently disabled upon the Participant’s inability to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can
be expected to last for a continuous period of not less than twelve (12) months. The determination of total and permanent disability
shall be made by the Administrator, on the advice of one or more physicians appointed and approved by the Employer, and the Administrator
shall have the right to require further medical examinations from time to time to determine whether there has been any change in
the Participant's physical condition. A Participant shall be deemed Disabled if determined to be totally disabled by the Social
Security Administration.


 


6.5           Use
of Retirement Date Definitions. Retirement Date definitions, other than Normal Retirement Date are set forth in the Plan
for the sole purpose of defining Participants entitled to share in Employer Contributions if elected in Option 5(a)(2)(B) or 5(a)(3)(B)
of the Adoption Agreement.




    	15



    	 



    

 


ARTICLE VII


Time and Form of Payment


 


7.1           Time
of Payment of Deferral Benefit.


 


7.1(a)      A
Participant's Deferral Benefit, if any, shall become payable to the Participant, if then alive, on his Benefit Commencement Date.


 


7.1(b)      In
the event of the Participant's death before his Benefit Commencement Date, the Participant's Deferral Benefit shall become payable
to the Beneficiary on the first day of the calendar quarter following the date of the Participant's death.


 


7.1(c)      If
Option 8(a)(1) of the Adoption Agreement is selected, the Benefit Commencement date shall be the first day of the calendar quarter
next following the date selected in Option 8(a)(1) of the Adoption Agreement.


 


7.1(d)      If
Option 8(a)(2) of the Adoption Agreement is selected, the Participant may select the Benefit Commencement Date within the guidelines
set forth in Option 8(a)(2) of the Adoption Agreement. The Benefit Commencement Date for any subdivision of the Employer Deferral
Account related to a Plan Year shall be the same as that provided for or elected under the Plan for the subdivision of a Participant’s
Employee Deferral Account related to the same Plan Year.


 


7.2           Form
of Payment of Deferral Benefit.


 


7.2(a)      If
Option 8(b)(1) of the Adoption Agreement is selected, a Participant shall be paid the Deferral Benefit, if any, to which he is
entitled, commencing at the applicable time provided in paragraph 7.1, in the form selected by the Employer in Option 8(b)(1) of
the Adoption Agreement and, if applicable, over a period selected by the Employer in Option 8(b)(1) of the Adoption Agreement.


 


7.2(b)      If
Option 8(b)(2) of the Adoption Agreement is selected, a Participant shall be paid the Deferral Benefit, if any, to which he is
entitled, commencing at the applicable time provided in paragraph 7.1, in the form selected by the Participant within the guidelines
set forth in Option 8(b)(2) of the Adoption Agreement.


 


7.2(c)      If
Option 8(c)(1) of the Adoption Agreement is selected, in the event of the Participant's death before his Benefit Commencement Date,
the Beneficiary shall be paid the Deferral Benefit, if any, to which he is entitled, commencing at the applicable time provided
in paragraph 7.1, in the form selected by the Employer in Option 8(c)(1) of the Adoption Agreement and, if applicable, over a period
selected by the Employer in Option 8(c)(1) of the Adoption Agreement.


 


7.2(d)      If
Option 8(c)(2) of the Adoption Agreement is selected, in the event of the Participant's death before his Benefit Commencement Date,
the Beneficiary shall be paid the Deferral Benefit, if any, to which he is entitled, commencing at the applicable time provided
in paragraph 7.1, in the form selected by the Participant within the guidelines set forth in Option 8(c)(2) of the Adoption Agreement.


 


7.3           Permissible
Changes to Benefit Commencement Date and/or Form of Payment. Any election of a Benefit Commencement Date applicable
to a subdivision of a Deferral Account or a form of payment applicable to a subdivision of a Deferral Account may be changed only
if the election to change: (a) is not effective until at least twelve (12) months after the date filed, (b) delays the Benefit
Commencement Date for at least 5 years, and (c) is filed at least twelve (12) months before benefits would otherwise commence.
For purposes of changes to the time or form of payment, in the event a Participant elects to receive payment of his benefit in
periodic installments, the installment payment as a whole will be treated as a single payment.


 






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7.4           Transition
Election Changes. If permitted by the Plan Sponsor in Option 11 of the Adoption Agreement, prior to December 31,
2007, a Participant who made a Deferral Election for the Plan Year 2005, 2006 and/or 2007 may elect a new Benefit Commencement
Date and/or a different form of payment applicable to a subdivision of his Deferral Account related to any or all of such Plan
Years in accordance with the following provisions:


 


7.4(a)     No
such change may accelerate payments into the 2007 Plan Year that were not otherwise scheduled to be made during such year.


 


7.4(b)     No
such change may delay payment into a later Plan Year that were otherwise scheduled to be paid during the 2007 Plan Year.


 


7.4(c)     A
separate change election may be made for the subdivision of his Deferral Account related to each of the Plan Years or one change
election shall be applicable to the subdivisions of his Deferral Account related to all three Plan Years, as selected by the Plan
Sponsor in Option 11(a)(2).


 


7.4(d)     The
Benefit Commencement Date and the form of payment that may be elected shall be one that is permitted under the provisions of this
restatement of the Plan.


 


7.4(e)     If
a Participant does not file an election to change the Benefit Commencement Date and/or the form of payment, then the provisions
of the original deferral election shall govern the time and form of payment, subject to clause (i) of subparagraph 7.6(c).


 


7.5           Lump
Sum Payments and Periodic Installments.


 


7.5(a)      If
a lump sum payment is permitted under the Plan, the amount of a lump sum payment to or with respect to a Participant shall be determined
by reference to the Deferral Benefit as of the last Valuation Date (or other time of valuation hereunder) immediately preceding
the date of payment.


 


7.5(b)     If
periodic installment payments are permitted under the Plan, the amount of each periodic installment payment shall be the lesser
of:


 





(i)              
The quotient obtained by dividing (A) the amount of such Participant’s vested Deferral Account held in the applicable
subdivision, determined as though a lump sum payment were being made as of the last Valuation Date of the calendar quarter preceding
the date of payment of such installment, by (B) the number of installment payments then remaining to be made; or


 





(ii)            
The amount of such vested Deferral Benefit at such time.


 


7.5(c)      In
the event that a Participant who has begun to receive periodic installment payments again becomes an Employee of the Employer,
his periodic installments shall continue regardless of his return to employment with the Employer.


 


7.6           Permissible
Cash-Out by Lump Sum Payment. Notwithstanding the time and form of benefit payment provisions of paragraphs 7.1 and 7.2,
a Participant’s vested Deferral Benefit may be cashed-out in a lump sum payment in an amount equal to the vested balance
in the Participant’s Deferral Accounts if (i) the payment will constitute a payout of the Participant’s entire interest
in this Plan and all similar arrangements that would constitute a nonqualified deferred compensation plan under Treasury Regulation
1.409A-1(c); (ii) the payment is made on or before the later of December 31 of the calendar year in which the Participant’s
Separation from Service occurs, or the fifteenth (15th) day of the third (3rd) month following the Participant’s Separation
from Service; and (iii) the payment of the entire vested Deferral Benefit is not over the limit set forth in Code Section 402(g)
applicable to the Plan Year in which the cash-out occurs.


 






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7.7           Benefit
Determination and Payment Procedure.


 


7.7(a)     The
Administrator shall make all determinations concerning eligibility for benefits under the Plan, the time or terms of payment, and
the form or manner of payment to the Participant or the Participant’s Beneficiary, in the event of the death of the Participant.
The Administrator shall promptly notify the Employer and, where payments are to be made from a Rabbi Trust, the trustee thereof
of each such determination that benefit payments are due and provide to the Employer and, where applicable, such trustee all other
information necessary to allow the Employer or such trustee, as the case may be, to carry out said determination, whereupon the
Employer or such trustee, as the case may be, shall pay such benefits in accordance with the Administrator’s determination.


 


7.7(b)     Benefit
payments shall normally be made from the Fund to such payee(s), in such amounts, at such times and in such manner as the Administrator
shall from time to time direct; provided, however, that the Employer may advance any payment due subject to a right of reimbursement
from the Fund. The payor may reserve such reasonable amount as it shall deem necessary, based upon information provided by the
Administrator upon which the payor may rely, to pay any income or other taxes attributable to the payment or required to be withheld
from the payment. If any payment is returned unclaimed, the payor shall notify the Administrator and shall dispose of the payment
as the Administrator shall direct.


 


7.7(c)     Notwithstanding
the foregoing provisions of this paragraph:


 





(i)          Payment to a Participant shall be delayed as required by Section 409A of the Code in the case of a Participant who, with
respect to the Employer, is a “specified employee” of a corporation any stock of which is publicly traded on an established
securities market or otherwise as provided in Section 409A(2)(B)(i) of the Code. For this purpose, specified employees shall be
identified on the date and the identification shall be effective as provided in Option 4(g)(1) of the Adoption Agreement. The delayed
payment requirement will be applied as provide in Option 4(g)(2).


 





(ii)          Payment may be delayed for a reasonable period in the event the payment is not administratively practical due to events
beyond the recipient’s control such as where the recipient is not competent to receive the benefit payment, there is a dispute
as to amount due or the proper recipient of such benefit payment, additional time is needed to calculate the payment, or the payment
would jeopardize the solvency of the Employer.


 





(iii)         Payment shall be delayed in the following circumstances:


 





(A)             
Where the Administrator reasonably anticipates that a delay in payment is necessary to comply with Federal securities laws
or other applicable laws; or


 


 






    	18



    	 



    

 





(B)             
Where the Administrator reasonably determines that a delay is permissible for other events or conditions under applicable
published guidance of the Internal Revenue Service for Section 409A of the Code;


 


provided that any payment delayed
by operation of this clause (iii) will be made at the earliest date at which the Administrator reasonably anticipates that the
payment will not be limited or will cease to be so delayed.


 


7.7(d)     Notwithstanding
any other provision of the Plan, the Administrator shall delay any benefit payment (including any withdrawal pursuant to ARTICLE
VIII) if in the Administrator’s judgment the payment would not be deductible under Section 162(m) of the Code and the delay
will permit the deductibility of the payment, in which case the delayed payment shall be made as soon as it is possible to do so
within the deduction limits of Section 162(m) of the Code but in no event later then the end of the Plan Sponsor’s fiscal
year in which the Employer or the Administrator reasonably anticipates, or should reasonable anticipate, that the payment would
be deductible or, any earlier time required under Section 409A of the Code.


 


7.7(e)     The
Employer or Trustee may deduct from payments under the Plan any federal, state or local withholding or other taxes or charges that
it is required to deduct under applicable law.


 


7.8           Payments
to Minors and Incompetents. If a Participant or Beneficiary entitled to receive any benefits hereunder is a minor or is
adjudged to be legally incapable of giving valid receipt and discharge for such benefits, or is deemed so by the Administrator,
benefits will be paid to such person as the Administrator may designate for the benefit of such Participant or Beneficiary. Such
payments shall be considered a payment to such Participant or Beneficiary and shall, to the extent made, be deemed a complete discharge
of any liability for such payments under the Plan.


 


7.9           Distribution
of Benefit When Distributee Cannot Be Located. The Administrator shall make all reasonable attempts to determine the whereabouts
of a Participant entitled to benefits under the Plan, including the mailing by certified mail of a notice to the last known address
shown on the Employer’s or the Administrator’s records. If the Administrator is unable to locate such a Participant
entitled to benefits hereunder, the Employer will issue a payment in the appropriate amount and in the name of the Participant,
and the Employer will retain such benefit payment on behalf of the Participant, subject to any applicable statute of escheats.


 


7.10         Claims
Procedure.


 


7.10(a)    A
Participant or Beneficiary (the “claimant”) shall have the right to request any benefit under the Plan by filing a
written claim for any such benefit with the Administrator on a form provided or approved by the Administrator for such purpose.
The Administrator (or a claims fiduciary appointed by the Administrator) shall give such claim due consideration and shall either
approve or deny it in whole or in part. The following procedure shall apply:


 





(i)              
The Administrator (or a claims fiduciary appointed by the Administrator) may schedule and hold a hearing.


 





(ii)            
If the claim is not a Disability Benefit Claim, within ninety (90) days following receipt of such claim by the Administrator,
notice of any approval or denial thereof, in whole or in part, shall be delivered to the claimant or his duly authorized representative
or such notice of denial shall be sent by mail (postage prepaid) to the claimant or his duly authorized representative at the address
shown on the claim form or such individual’s last known address. The aforesaid ninety (90) day response period may be extended
to one hundred eighty (180) days after receipt of the claimant’s claim if special circumstances exist and if written notice
of the extension to one hundred eighty (180) days indicating the special circumstances involved and the date by which a decision
is expected to be made is furnished to the claimant or his duly authorized representative within ninety (90) days after receipt
of the claimant’s claim.


 






    	19



    	 



    

 





(iii)        If
the claim is a Disability Benefit Claim, within forty-five (45) days following receipt of such claim by the Administrator, notice
of any approval or denial thereof, in whole or in part, shall be delivered to the claimant or his duly authorized representative
or such notice of denial shall be sent by mail to the claimant or his duly authorized representative at the address shown on the
claim form or such individual’s last known address. The aforesaid forty-five (45) day response period may be extended to
seventy-five (75) days after receipt of the claimant’s claim if it is determined that such an extension is necessary due
to matters beyond the control of the Plan and if written notice of the extension to seventy-five (75) days indicating the circumstances
involved and the date by which a decision is expected to be made is furnished to the claimant or his duly authorized representative
within forty-five (45) days after receipt of the claimant’s claim. Thereafter, the aforesaid seventy-five (75) day response
period may be extended to one hundred five (105) days after receipt of the claimant’s claim if it is determined that such
an extension is necessary due to matters beyond the control of the Plan and if written notice of the extension to one hundred five
(105) days indicating the circumstances involved and the date by which a decision is expected to be made is furnished to the claimant
or his duly authorized representative within seventy-five (75) days after receipt of the claimant’s claim. In the event of
any such extension, the notice of extension shall specifically explain, to the extent applicable, the standards on which entitlement
to a benefit is based, the unresolved issues that prevent a decision on the claim, and the additional information needed to resolve
those issues, and the claimant shall be afforded at least forty-five (45) days within which to provide any specified information
which is to be provided by the claimant.


 


(iv)        Any
notice of denial shall be written in a manner calculated to be understood by the claimant and shall:


 


(A)         Set
forth a specific reason or reasons for the denial,


 


(B)         Make
reference to the specific provisions of the Plan document or other relevant documents, records or information on which the denial
is based,


 


(C)         Describe
any additional material or information necessary for the claimant to perfect the claim and explain why such material or information
is necessary,


 


(D)         Explain
the Plan’s claim review procedures, including the time limits applicable to such procedures (which are generally contained
in subparagraph 7.10(b)), and provide a statement of the claimant’s right to bring a civil action in state or federal court
under Section 502(a) of the Act following an adverse determination on review of the claim denial,


 


(E)         In
the case of a Disability Benefit Claim, if an internal rule, guideline, protocol, or other similar criterion was relied upon in
making the adverse determination, either provide the specific rule, guideline, protocol or other similar criterion, or provide
a statement that such a rule, guideline, protocol or other similar criterion was relied upon in making the adverse determination
and that a copy of such rule, guideline, protocol or other criterion will be provided free of charge to the claimant or his duly
authorized representative upon request in writing, and


 






    	20



    	 



    

 


(F)         In
the case of a Disability Benefit Claim, if the adverse benefit determination is based on a medical necessity or experimental treatment
or similar exclusion or limit, either provide an explanation of the scientific or clinical judgment for the determination, applying
the terms of the Plan to the claimant’s medical circumstances, or provide a statement that such explanation will be provided
free of charge upon request in writing.


 


7.10(b)   A
Participant or Beneficiary whose claim filed pursuant to subparagraph 7.10(a) has been denied, in whole or in part, may, within
sixty (60) days (or one hundred eighty (180) days in the case of a Disability Benefit Claim) following receipt of notice of such
denial, make written application to the Administrator for a review of such claim, which application shall be filed with the Administrator.
For purposes of such review, the following procedure shall apply:


 


(i)          The
Administrator (or a claims fiduciary appointed by the Administrator) may schedule and hold a hearing.


 


(ii)         The
claimant or his duly authorized representative shall be provided the opportunity to submit written comments, documents, records,
and other information relating to the claim for benefits.


 


(iii)        The
claimant or his duly authorized representative shall be provided, upon request in writing and free of charge, reasonable access
to, and copies of, all documents, records, and other information relevant to such claim and may submit to the Administrator written
comments, documents, records, and other information relating to such claim.


 


(iv)        The
Administrator (or a claims fiduciary appointed by the Administrator) shall make a full and fair review of any denial of a claim
for benefits, which shall include:


 


(A)         Taking
into account all comments, documents, records, and other information submitted by the claimant or his duly authorized representative
relating to the claim, without regard to whether such information was submitted or considered in the initial benefit determination,
and


 


(B)         In
the case of a Disability Benefit Claim:


 


(I)         Providing
for a review that does not afford deference to the initial claim denial and that is conducted by an appropriate named fiduciary
of the Plan who is neither the individual who made the claim denial that is the subject of the review, nor the subordinate of such
individual,


 


(II)        In
making its decision on a review of any claim denial that is based in whole or in part on a medical judgment, including determinations
with regard to whether a particular treatment, drug, or other item is experimental, investigational, or not medically necessary
or appropriate, consulting with a health care professional who has appropriate training and experience in the field of medicine
involved in the medical judgment,


 






    	21



    	 



    

 


(III)       Providing
to the claimant or his authorized representative, either upon request in writing and free of charge or automatically, the identification
of medical or vocational experts whose advice was obtained on behalf of the Plan in connection with the claim denial that is the
subject of the review, without regard to whether the advice was relied upon in making the benefit determination, and


 


(IV)        Ensuring
that the health care professional engaged for purposes of a consultation under clause (iv)(B)(II) of this subparagraph shall be
an individual who is neither an individual who was consulted in connection with the claim denial that is the subject of the review,
nor the subordinate of any such individual.


 


(v)         If
the claim is not a Disability Benefit Claim, the decision on review shall be issued promptly, but no later than sixty (60) days
after receipt by the Administrator of the claimant’s request for review, or one hundred twenty (120) days after such receipt
if a hearing is to be held or if other special circumstances exist and if written notice of the extension to one hundred twenty
(120) days indicating the special circumstances involved and the date by which a decision is expected to be made on review is furnished
to the claimant or his duly authorized representative within sixty (60) days after the receipt of the claimant’s request
for a review.


 


(vi)        If
the claim is a Disability Benefit Claim, the decision on review shall be issued promptly, but no later than forty-five (45) days
after receipt by the Administrator of the claimant’s request for review, or ninety (90) days after such receipt if a hearing
is to be held or if other special circumstances exist and if written notice of the extension to ninety (90) days indicating the
special circumstances involved and the date by which a decision is expected to be made on review is furnished to the claimant or
his duly authorized representative within forty-five (45) days after the receipt of the claimant’s request for a review.


 


(vii)       The
decision on review shall be in writing, shall be delivered or mailed by the Administrator to the claimant or his duly authorized
representative in the manner prescribed in subparagraph 7.10(a) for notices of approval or denial of claims, shall be written in
a manner calculated to be understood by the claimant and shall in the case of an adverse determination:


 


(A)         Include
the specific reason or reasons for the adverse determination,


 


(B)         Make
reference to the specific provisions of the Plan on which the adverse determination is based,


 


(C)         Include
a statement that the claimant is entitled to receive, upon request in writing 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)         Include
a statement of the claimant’s right to bring a civil action in state or federal court under Section 502(a) of the Act following
the adverse determination on review,


 


(E)         In
the case of a Disability Benefit Claim, if an internal rule, guideline, protocol, or other similar criterion was relied upon in
making the adverse determination, either provide the specific rule, guideline, protocol or other similar criterion, or provide
a statement that such a rule, guideline, protocol or other similar criterion was relied upon in making the adverse determination
and that a copy of such rule, guideline, protocol or other criterion will be provided free of charge to the claimant or his duly
authorized representative upon request in writing,


 






    	22



    	 



    

 


(F)         In
the case of a Disability Benefit Claim, if the adverse benefit determination is based on a medical necessity or experimental treatment
or similar exclusion or limit, either provide an explanation of the scientific or clinical judgment for the determination, applying
the terms of the Plan to the claimant’s medical circumstances, or provide a statement that such explanation will be provided
free of charge upon request in writing, and


 


(G)         In
the case of a Disability Benefit Claim, provide the following statement (if applicable and appropriate): “You and your plan
may have other voluntary alternative dispute resolution options, such as mediation. One way to find out what may be available is
to contact your local U.S. Department of Labor Office and your State insurance regulatory agency.”


 


The Administrator’s decision made
in good faith shall be final.


 


7.10(c)    The
period of time within which a benefit determination initially or on review is required to be made shall begin at the time the claim
or request for review is filed in accordance with the procedures of the Plan, without regard to whether all the information necessary
to make a benefit determination accompanies the filing. In the event that a period of time is extended as permitted pursuant to
this paragraph due to the failure of a claimant or his duly authorized representative to submit information necessary to decide
a claim or review, the period for making the benefit determination shall be tolled from the date on which the notification of the
extension is sent to the claimant or his duly authorized representative until the date on which the claimant or his duly authorized
representative responds to the request for additional information.


 


7.10(d)    For
purposes of the Plan’s claims procedure:


 


(i)          A
“Disability Benefit Claim” is a claim for a Plan benefit whose availability is conditioned on a determination of disability
and where the Plan’s claim’s adjudicator must make a determination of disability in order to decide the claim. A claim
is not a Disability Benefit Claim where the determination of disability is made by a party (other than the Plan’s claim’s
adjudicator or other fiduciary) outside the Plan for purposes other than making a benefit determination under the Plan (such as
a determination of disability by the Social Security Administration or under the Employer’s long term disability plan).


 


(ii)         A
document, record, or other information shall be considered “relevant” to a claimant’s claim if such document,
record, or other information (A) was relied upon in making the benefit determination, (B) was submitted, considered, or generated
in the course of making the benefit determination, without regard to whether such document, record, or other information was relied
upon in making the benefit determination, (C) demonstrates compliance with the administrative processes and safeguards required
in making the benefit determination, or (D) in the case of a Disability Benefit Claim, constitutes a statement of policy or guidance
with respect to the Plan concerning the denied treatment option or benefit for the claimant’s diagnosis, without regard to
whether such advice or statement was relied upon in making the benefit determination.


 


7.10(e)    The
Administrator may establish reasonable procedures for determining whether a person has been authorized to act on behalf of a claimant.


 






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ARTICLE VIII


Withdrawals


 


8.1           Hardship
Withdrawals.


 


8.1(a)     If
permitted in Option 9 of the Adoption Agreement, in the event of any Unforeseeable Emergency and upon written request of the Participant
(or, if subsequent to his death, his Beneficiary), the Administrator in its sole discretion may direct the payment in one lump
sum to the Participant or his Beneficiary of all or any portion of the Participant’s vested Deferral Benefit which the Administrator
determines is necessary to alleviate the financial need related to the Unforeseeable Emergency. For purposes hereof:


 


(i)          An
“Unforeseeable Emergency” means an unforeseeable emergency as defined in Section 409A of the Code and generally means
a severe financial hardship to the Participant resulting from an illness or accident of the Participant, the Participant’s
spouse, the Participant’s Beneficiary, or the Participant’s dependent (as defined in Section 152 of the Code, without
regard to Section 152(b)(1), (b)(2), and (d)(1)(B)) thereof); loss of the Participant’s or the Participant’s Beneficiary’s
property due to casualty (including the need to rebuild a home following damage to a home not otherwise covered by insurance, for
example, not as a result of a natural disaster); or other similar extraordinary and unforeseeable circumstances arising as a result
of events beyond the control of the Participant or Beneficiary.


 


(ii)         The
existence of an Unforeseeable Emergency shall be determined by the Administrator on the basis of the facts and circumstances of
each case.


 


(iii)        Distributions
because of an Unforeseeable Emergency must be limited to the amount reasonably necessary to satisfy the need (which may include
amounts necessary to pay any Federal, state, local, or foreign income taxes or penalties reasonably anticipated to result from
the distribution), taking in to account the potential that the need is or may be relieved through reimbursement or compensation
by insurance or otherwise, by liquidation of the Participant’s, to the extent the liquidation of such assets would not cause
an Unforeseeable Emergency, or by cessation of deferrals under the Plan (if the Plan provides for cancellation of a deferral election
upon a payment due to an Unforeseeable Emergency). The determination of amounts reasonably necessary to satisfy the need is not
required to take into account any additional compensation that, due to the Unforeseeable Emergency, is available under another
nonqualified deferred compensation plan but has not actually been paid, or that is available, due to the Unforeseeable Emergency,
under another plan that would provide for deferred compensation except due to the application of the effective date provisions
of Section 409A of the Code.


 


(iv)        Examples
of what may be considered an Unforeseeable Emergency include the imminent foreclosure of or eviction from the Participant’s
or Participant’s Beneficiary’s primary residence, the need to pay for medical expenses, including non-refundable deductibles,
as well as for the costs of prescription drug medication, the need to pay for the funeral expenses of the Participant’s spouse,
Beneficiary, or the Participant’s dependent (as defined in Section 152 of the Code, without regard to Section 152(b)(1),
(b)(2), and (d)(1)(B)) thereof).


 


(v)         Except
as otherwise provided in clause (iii) of this subparagraph, the purchase of a home and the payment of college tuition are not Unforeseeable
Emergencies.


 


8.2          No
Other Withdrawals Permitted. No withdrawals or other distributions shall be permitted except as provided in ARTICLE VII
or paragraph 8.1.


 






    	24



    	 



    

 


ARTICLE IX


Funding


 


9.1           Funding.


 


9.1(a)     The
undertaking to pay benefits hereunder shall be an unfunded obligation payable solely from the general assets of the Employer and
subject to the claims of the Employer’s creditors. The Deferral Accounts shall be maintained as book reserve accounts solely
for accounting purposes.


 


9.1(b)     Except
as provided in the Rabbi Trust established as permitted in paragraph 9.2, nothing contained in the Plan and no action taken pursuant
to the provisions of the Plan shall create or be construed to create a trust of any kind or a fiduciary relationship between the
Employer and the Participant or his Beneficiary or any other person. To the extent that any person acquires a right to receive
payments from the Employer under the Plan, such rights shall be no greater than the right of any unsecured general creditor of
the Employer.


 


9.1(c)     Where
more than one Employer participates in the Plan, the funding and payment provisions hereof shall apply separately to each such
Employer.


 


9.1(d)     The
Plan Sponsor may in its discretion make the payment of any or all benefits under the Plan in lieu of payment by one or more Employer.
Where the Plan Sponsor makes payments on behalf of other Employers, the Plan Sponsor may require contributions by participating
Employers to the Plan Sponsor at such times (whether before, at or after the time of payment), in such amounts and or such basis
as it may from time to time determine in order to defray the cost of benefits and administration of the Plan.


 


9.2           Use
of Rabbi Trust Permitted. Notwithstanding any provision herein to the contrary, the Plan Sponsor may in its sole
discretion elect to establish and fund a Rabbi Trust for the purpose of providing benefits under the Plan.


 


9.3           Fund
Divisions.


 


9.3(a)     It
is contemplated that the Fund will be considered to be held in divisions (sometimes referred to as “divisions of the Fund”,
“Fund divisions” or “investments funds” herein) as hereinafter provided, and each Participant’s Deferral
Benefit shall be subdivided to reflect its deemed interest in each Fund division.


 


9.3(b)     The
Administrator shall establish from time to time the Fund divisions which shall be maintained in the Fund.


 


9.3(c)     If
the Plan Sponsor permits investment in a Company Stock Fund, the availability, restrictions, limitations and special rules relating
to such investment shall be established by the Plan Sponsor from time to time and communicated to Participants and to the Administrator.


 


9.4           Participant
Investment Directions. The Deferral Benefit of a Participant in the Plan shall be divided or allocated to reflect
the amount of each such Participant’s deemed interest in each Fund division as hereinafter provided for the purpose of determining
the earnings or loss to be credited to his account, but any such direction shall not give the Participant any right, title or interest
in any specific asset or assets of the Fund.


 






    	25



    	 



    

 


9.4(a)    If
and to the extent permitted in Option 10(a) of the Adoption Agreement, upon becoming a Participant without a contribution investment
direction in force, a Participant may direct that future contributions and Deferral Account balances shall be invested in the funds
available for directed investment as selected in Option 10(b) of the Adoption Agreement by filing an “investment direction”
with the Administrator in accordance with the procedures established by the Administrator. The Administrator (or its designee)
generally will process investment directions on a current basis after received, but shall not be obligated to process any investment
directions on a retroactive basis.


 


9.4(b)    If
or to the extent a Participant (or if deceased, his Beneficiary) has no investment direction in effect, his Deferral Accounts shall
be invested in the default fund designated by the Administrator from time to time.


 


9.4(c)    The
Administrator may, on a uniform and non-discriminatory basis from time to time, set or change the advance notice requirement for
effecting investment directions, may limit the number of investment direction changes made in a Plan Year, may limit investment
directions, if any, which can be made by telephone, electronically or through the internet, may impose blackout periods for changes,
may temporarily or permanently suspend the offering of an investment fund, and generally may change any of the investment direction
procedures or options from time to time and at any time.


 


ARTICLE X


Plan Administrator


 


10.1         Appointment
of Plan Administrator. The Plan Sponsor may appoint one or more persons to serve as the Plan Administrator (the
“Administrator”) for the purpose of carrying out the duties specifically imposed on the Administrator by the Plan and
the Code. In the event more than one person is appointed, the persons shall form a committee for the purpose of functioning as
the Administrator of the Plan. The person or committeemen serving as Administrator shall serve for indefinite terms at the pleasure
of the Plan Sponsor, and may, by thirty (30) days prior written notice to the Plan Sponsor, terminate such appointment. The Plan
Sponsor shall inform the Trustee of any such appointment or termination, and the Trustee may assume that any person appointed continues
in office until notified of any change.


 


10.2         Plan
Sponsor as Plan Administrator. In the event that no Administrator is appointed or in office pursuant to paragraph
10.1, the Plan Sponsor shall be the Administrator.


 


10.3         Procedure
if a Committee. If the Administrator is a committee, it shall appoint from its members a Chairman and a Secretary.
The Secretary shall keep records as may be necessary of the acts and resolutions of such committee and be prepared to furnish reports
thereof to the Plan Sponsor and the Trustee. Except as otherwise provided, all instruments executed on behalf of such committee
may be executed by its Chairman or Secretary, and the Trustee may assume that such committee, its Chairman or Secretary are the
persons who were last designated as such to them in writing by the Plan Sponsor or its Chairman or Secretary.


 


10.4         Action
by Majority Vote if a Committee. If the Administrator is a committee, its action in all matters, questions and decisions
shall be determined by a majority vote of its members qualified to act thereon. They may meet informally or take any action without
the necessity of meeting as a group.


 


10.5         Appointment
of Successors. Upon the death, resignation or removal of a person serving as, or on a committee which is, the Administrator,
the Employer may, but need not, appoint a successor.


 


10.6         Duties
and Responsibilities of Plan Administrator. The Administrator shall have the following duties and responsibilities
under the Plan:


 






    	26



    	 



    

 


10.6(a)    The
Administrator shall be responsible for the fulfillment of all relevant reporting and disclosure requirements set forth in the Plan,
the Code and the Act, the distribution thereof to Participants and their Beneficiaries and the filing thereof with the appropriate
governmental officials and agencies.


 


10.6(b)    The
Administrator shall maintain and retain necessary records respecting its administration of the Plan and matters upon which disclosure
is required under the Plan, the Code and the Act.


 


10.6(c)    The
Administrator shall make any elections for the Plan required to be made by it under the Plan, the Code and the Act.


 


10.6(d)    The
Administrator is empowered to settle claims against the Plan and to make such equitable adjustments in a Participant’s or
Beneficiary’s rights or entitlements under the Plan as it deems appropriate in the event an error or omission is discovered
or claimed in the operation or administration of the Plan.


 


10.6(e)    The
Administrator may construe the Plan, correct defects, supply omissions or reconcile inconsistencies to the extent necessary to
effectuate the Plan and such action shall be conclusive.


 


10.7         Power
and Authority.


 


10.7(a)    The
Administrator is hereby vested with all the power and authority necessary in order to carry out its duties and responsibilities
in connection with the administration of the Plan imposed hereunder. For such purpose, the Administrator shall have the power to
adopt rules and regulations consistent with the terms of the Plan.


 


10.7(b)    The
Administrator shall exercise its power and authority in its discretion. It is intended that a court review of the Administrator's
exercise of its power and authority with respect to matters relating to claims for benefits by, and to eligibility for participation
in and benefits of, Participants and Beneficiaries shall be made only on an arbitrary and capricious standard.


 


10.8         Availability
of Records. The Employer and the Trustee shall, at the request of the Administrator, make available necessary records
or other information they possess which may be required by the Administrator in order to carry out its duties hereunder.


 


10.9         No
Action with Respect to Own Benefit. No Administrator who is a Participant shall take any part as the Administrator
in any discretionary action in connection with his participation as an individual. Such action shall be taken by the remaining
Administrator, if any, or otherwise by the Plan Sponsor.


 






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ARTICLE XI


Amendment and Termination of Plan


 


11.1         Amendment
or Termination of the Plan.


 


11.1(a)    The
Plan may be terminated at any time by the Board, subject to the restrictions imposed by and consistent with applicable provisions
of Section 409A of the Code. The Plan may be amended in whole or in part from time to time by the Board effective as of any date
specified, subject to the restrictions imposed by and consistent with applicable provisions of Section 409A of the Code. No amendment
or termination shall operate to decrease a Participant’s vested Deferral Benefit as of the earlier of the date on which the
amendment or termination is approved by the Board or the date on which an instrument of amendment or termination is signed on behalf
of the Plan Sponsor. No amendment shall increase the Trustee’s duties or obligations or decrease its compensation unless
contained in an amendment of, or document expressly pertaining to, the Rabbi Trust which includes the Trustee’s written consent
or for which the Trustee’s written consent is separately obtained. Any such termination of or amendment to the Plan may provide
for the acceleration of payment of benefits under the Plan to one or more Participants or Beneficiaries. Any such termination of
or amendment to the Plan shall be in writing and shall be adopted pursuant to action by the Board (including pursuant to any standing
authorization for any officer, director or committee to adopt amendments) in accordance with its applicable procedures, including
where applicable by majority vote or consent in writing.


 


11.1(b)    In
addition, and as an alternative, to amendment of the Plan by action of the Board, but subject to the limitations on amendment contained
in subparagraph 11.1(a), the Administrator shall be and is hereby authorized to adopt on behalf of the Board and to execute any
technical amendment or amendments to the Plan which in the opinion of counsel for the Plan Sponsor are required by law and are
deemed advisable by the Administrator and to so adopt and execute any other discretionary amendment or amendments to the Plan which
are deemed advisable by the Administrator so long as any such amendments do not, in view of the Administrator, materially affect
the eligibility, vesting or benefit accrual or allocation provisions of the Plan.


 


11.1(c)    Termination
of the Plan shall mean termination of active participation by Participants, but shall not mean immediate payment of all vested
Deferral Benefits unless the Plan Sponsor so directs, subject to the restrictions imposed by and consistent with applicable provisions
of Section 409A of the Code. On termination of the Plan, the Board of the Plan Sponsor may provide for the acceleration of payment
of the vested Deferral Benefits of all affected Participants on such basis as it may direct.


 


11.2         Effect
of Employer Merger, Consolidation or Liquidation. Notwithstanding the foregoing provisions of this ARTICLE XI, the
merger or liquidation of any Employer into any other Employer or the consolidation of two (2) or more of the Employers shall not
cause the Plan to terminate with respect to the merging, liquidating or consolidating Employers, provided that the Plan has been
adopted or is continued by and has not terminated with respect to the surviving or continuing Employer.


 


ARTICLE XII


Participation by Additional Employers


 


12.1         Adoption
by Additional Employers. Any Affiliate of the Plan Sponsor may adopt the Plan with the consent of the Board of the
Plan Sponsor and approval by its Board.


 


12.2         Termination
Events with Respect to Employers Other Than the Plan Sponsor.


 


12.2(a)    The
Plan shall terminate with respect to any Employer other than the Plan Sponsor, and such Employer shall automatically cease to be
a participating Employer in the Plan, upon the happening of any of the following events, subject to the restrictions imposed by
and consistent with applicable provisions of Section 409A of the Code:


 


(i)          The
Employer’s ceasing to be an Affiliate.


 


(ii)         Action
by the Board or Chief Executive Officer of the Plan Sponsor terminating an Employer’s participation in the Plan and specifying
the date of such termination. Notice of such termination shall be delivered to the Administrator and the former participating Employer.


 






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12.2(b)    Termination
of the Plan with respect to any Employer shall mean termination of active participation of the Participants employed by such Employer,
but shall not mean immediate payment of all vested Deferral Benefits with respect to the Employees of such Employer unless the
Plan Sponsor so directs consistent with applicable provisions of Section 409A of the Code. On termination of the Plan with respect
to any Employer, the Administrator may provide for the acceleration of payment of the vested Deferral Benefits of all affected
Participants of that former participating Employer on such basis as it may direct.


 


ARTICLE XIII 

Miscellaneous


 


13.1         Nonassignability.
The interests of each Participant under the Plan are not subject to claims of the Participant's creditors; and neither the Participant,
nor his Beneficiary, shall have any right to sell, assign, transfer or otherwise convey the right to receive any payments hereunder
or any interest under the Plan, which payments and interest are expressly declared to be nonassignable and nontransferable.


 


13.2         Right
to Require Information and Reliance Thereon. The Employer and Administrator shall have the right to require any Participant,
Beneficiary or other person receiving benefit payments to provide it with such information, in writing, and in such form as it
may deem necessary to the administration of the Plan and may rely thereon in carrying out its duties hereunder. Any payment to
or on behalf of a Participant or Beneficiary in accordance with the provisions of the Plan in good faith reliance upon any such
written information provided by a Participant or any other person to whom such payment is made shall be in full satisfaction of
all claims by such Participant and his Beneficiary; and any payment to or on behalf of a Beneficiary in accordance with the provision
so the Plan in good faith reliance upon any such written information provided by such Beneficiary or any other person to whom such
payment is made shall be in full satisfaction of all claims by such Beneficiary.


 


13.3         Notices
and Elections.


 


13.3(a)    Except
as provided in subparagraph 13.3(b), all notices required to be given in writing and all elections, consents, applications and
the like required to be made in writing, under any provision of the Plan, shall be invalid unless made on such forms as may be
provided or approved by the Administrator and, in the case of a notice, election, consent or application by a Participant or Beneficiary,
unless executed by the Participant or Beneficiary giving such notice or making such election, consent or application.


 


13.3(b)    Subject
to limitations under applicable provisions of the Code or the Act, the Administrator is authorized in its discretion to accept
other means for receipt of effective notices, elections, consents, applications and/or other forms or communications by Participants
and/or Beneficiaries, including but not limited to electronic transmissions through interactive on-line transmissions, e-mail,
voice mail, recorded messages on electronic telephone systems, and other permissible methods, on such basis and for such purposes
as it determines from time to time.


 


13.4         Delegation
of Authority. Whenever the Plan Sponsor or any other Employer is permitted or required to perform any act, such act may
be performed by its President or Chief Executive Officer or other person duly authorized by its President or Chief Executive Officer
or the Board of the Employer.


 


13.5         Service
of Process. The Administrator shall be the agent for service of process on the Plan.


 






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13.6         Governing
Law. The Plan shall be construed, enforced and administered in accordance with the laws of the Commonwealth of Virginia,
and any federal law which preempts the same.


 


13.7         Binding
Effect. The Plan shall be binding upon and inure to the benefit of the Employer, its successors and assigns, and the Participant
and his heirs, executors, administrators and legal representatives.


 


13.8         Severability.
If any provision of the Plan should for any reason be declared invalid or unenforceable by a court of competent jurisdiction, the
remaining provisions shall nevertheless remain in full force and effect.


 


13.9         No
Effect on Employment Agreement. The Plan shall not be considered or construed to modify, amend or supersede any employment
or other agreement between the Employer and the Participant heretofore or hereafter entered into unless so specifically provided.


 


13.10         Gender
and Number. In the construction of the Plan, the masculine shall include the feminine or neuter and the singular shall
include the plural and vice-versa in all cases where such meanings would be appropriate.


 


13.11         Titles
and Captions. Titles and captions and headings herein have been inserted for convenience of reference only and are to be
ignored in any construction of the provisions hereof.


 


13.12         Construction.
The Plan and Fund are intended to be construed as a “plan which is unfunded and is maintained by the employer primarily for
the purpose of providing deferred compensation for a select group of management or highly compensated employees,” within
the meaning of Sections 201(2), 301(a)(3), and 401(a)(1) of the Act, as amended, and shall be interpreted and administered accordingly.
Likewise, the Plan is also intended to comply with Section 409A of the Code and shall be interpreted and administered accordingly.


 


13.13         Nonqualified
Deferred Compensation Plan Omnibus Provision.


 


13.13(a)    It
is intended that any compensation, benefits or other remuneration which is provided pursuant to or in connection with the Plan
which is considered to be nonqualified deferred compensation subject to Code Section 409A shall be provided and paid in a manner,
and at such time and in such form, as complies with the applicable requirements of Section 409A of the Code to avoid a plan failure
described in Section 409A(a)(1) of the Code, including without limitation, deferring payment until the occurrence of a specified
payment event described in Section 409A(a)(2) of the Code and to avoid the unfavorable tax consequences provided therein for non-compliance,
and that, notwithstanding any other provision thereof or document pertaining to any such compensation, benefit or other remuneration
subject to the provisions of Section 409A of the Code, each provision of any plan, program or arrangement (including without limitation
the Plan) relating to the provision of such compensation, benefit or other remuneration to or with respect to the Eligible Employee,
shall be so construed and interpreted.


 


13.13(b)    It
is specifically intended that all elections, consents and modifications thereto under the Plan will comply with the requirements
of Section 409A of the Code (including any transition or grandfather rules thereunder). The Administrator is authorized to adopt
rules or regulations deemed necessary or appropriate in connection therewith to anticipate and/or comply the requirements of Section
409A of the Code (including any transition or grandfather rules thereunder).


 


13.13(c)    It
is also intended that if any compensation, benefits or other remuneration which is provided pursuant to or in connection with the
Plan is considered to be nonqualified deferred compensation subject to Section 409A of the Code but for being earned and vested
as of December 31, 2004, then no material modification of the Plan after October 3, 2004 shall apply to such Plan benefits which
are earned and vested as of December 31, 2004 unless such modification expressly so provides.


 






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13.14         Distributions
in the Event of Income Inclusion. If any portion of a Participant’s Deferral Account under the Plan is required to
be included in income by the Participant prior to receipt due to a failure of the Plan to comply with the requirements of Section
409A of the Code, the Administrator may determine that such Participant shall receive a distribution from the Plan in an amount
equal to the lesser of (i) the portion of the Deferral Account required to be included in income as a result of such failure or
(ii) the unpaid vested Deferral Account.


 


August 28, 2007


 



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