Exhibit 10.1


 


INTRADO
INC.


 


NONQUALIFIED
DEFERRED COMPENSATION PLAN


 


 


Amended and Restated Effective January 1,
2005


 





















 


TABLE OF
CONTENTS


 


	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE 1 INTRODUCTION

  	
  1

  
	
   

  	
   

  	
   

  
	
  1.1

  	
  Purpose of Plan

  	
  1

  
	
  1.2

  	
  Status of Plan

  	
  1

  
	
  1.3

  	
  Code Section 409A Transition
  Rules

  	
  1

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2
  DEFINITIONS

  	
  2

  
	
   

  	
   

  	
   

  
	
  2.1

  	
  Account

  	
  2

  
	
  2.2

  	
  Administrator

  	
  2

  
	
  2.3

  	
  Change in Control

  	
  2

  
	
  2.4

  	
  Code

  	
  2

  
	
  2.5

  	
  Committee

  	
  2

  
	
  2.6

  	
  Compensation

  	
  2

  
	
  2.7

  	
  Director

  	
  2

  
	
  2.8

  	
  Disability

  	
  2

  
	
  2.9

  	
  Discretionary Incentive
  Contribution

  	
  2

  
	
  2.10

  	
  Effective Date

  	
  2

  
	
  2.11

  	
  Election Form

  	
  3

  
	
  2.12

  	
  Elective Deferral

  	
  3

  
	
  2.13

  	
  Eligible Employee

  	
  3

  
	
  2.14

  	
  Employer

  	
  3

  
	
  2.15

  	
  ERISA

  	
  3

  
	
  2.16

  	
  Key Employee

  	
  3

  
	
  2.17

  	
  Normal Retirement Age

  	
  3

  
	
  2.18

  	
  Participant

  	
  3

  
	
  2.19

  	
  Plan

  	
  3

  
	
  2.20

  	
  Plan Year

  	
  3

  
	
  2.21

  	
  Separation from Service

  	
  3

  
	
  2.22

  	
  Trust

  	
  3

  
	
  2.23

  	
  Trustee

  	
  4

  
	
  2.24

  	
  Unforeseeable Emergency

  	
  4

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3
  PARTICIPATION

  	
  5

  
	
   

  	
   

  	
   

  
	
  3.1

  	
  Commencement of Participation

  	
  5

  
	
  3.2

  	
  Continued Participation

  	
  5

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4
  ELECTIVE DEFERRALS AND DISCRETIONARY CONTRIBUTIONS

  	
  6

  
	
   

  	
   

  	
   

  
	
  4.1

  	
  Elective Deferrals

  	
  6

  
	
  4.3

  	
  Discretionary Incentive
  Contributions

  	
  6

  
	
  4.4

  	
  Deferral Elections

  	
  7

  



 


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  ARTICLE 5
  ACCOUNTS

  	
  9

  
	
   

  	
   

  	
   

  
	
  5.1

  	
  Accounts

  	
  9

  
	
  5.2

  	
  Status of Accounts

  	
  9

  
	
  5.3

  	
  Deemed Investment of Amounts
  Deferred

  	
  9

  
	
  5.4

  	
  Earnings and Losses

  	
  10

  
	
  5.5

  	
  Vesting

  	
  10

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6
  RABBI TRUST

  	
  11

  
	
   

  	
   

  	
   

  
	
  6.1

  	
  Establishment of Rabbi Trust

  	
  11

  
	
  6.2

  	
  Funding the Trust

  	
  11

  
	
  6.3

  	
  Claims of Creditors

  	
  11

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7
  DISTRIBUTIONS

  	
  12

  
	
   

  	
   

  	
   

  
	
  7.1

  	
  Permissible Payments

  	
  12

  
	
  7.2

  	
  Election as to Time and Form of
  Payment

  	
  12

  
	
  7.3

  	
  Distributions to Key Employees

  	
  12

  
	
  7.4

  	
  Default Elections

  	
  12

  
	
  7.5

  	
  Beneficiary

  	
  13

  
	
  7.6

  	
  Unforeseeable Emergency

  	
  13

  
	
  7.7

  	
  Taxes

  	
  13

  
	
  7.8

  	
  Failure of Qualification

  	
  13

  
	
  7.9

  	
  Section 162(m) Deferrals

  	
  13

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8 PLAN
  ADMINISTRATOR

  	
  14

  
	
   

  	
   

  	
   

  
	
  8.1

  	
  Plan Administration

  	
  14

  
	
  8.2

  	
  Books and Records

  	
  14

  
	
  8.3

  	
  Reliance on Tables, Etc.

  	
  14

  
	
  8.4

  	
  Expenses

  	
  14

  
	
  8.5

  	
  Appeals Committee

  	
  15

  
	
  8.6

  	
  Indemnification

  	
  15

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9
  CLAIM REVIEW PROCEDURES

  	
  16

  
	
   

  	
   

  	
   

  
	
  9.1

  	
  Initial Claims

  	
  16

  
	
  9.2

  	
  Claim Denials

  	
  16

  
	
  9.3

  	
  Appeals

  	
  16

  
	
  9.4

  	
  Determination of Time Periods

  	
  16

  
	
  9.5

  	
  Voluntary Arbitration

  	
  17

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10
  GENERAL PROVISIONS

  	
  18

  
	
   

  	
   

  	
   

  
	
  10.1

  	
  Prohibition Against Funding

  	
  18

  
	
  10.2

  	
  Limitation of Rights

  	
  18

  
	
  10.3

  	
  Inalienability of Benefits

  	
  18

  



 


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  10.4

  	
  Distributions Due Minor or
  Incompetent Persons

  	
  18

  
	
  10.5

  	
  Headings

  	
  18

  
	
  10.6

  	
  Governing Law

  	
  18

  
	
   

  	
   

  	
   

  
	
  ARTICLE 11
  AMENDMENT AND TERMINATION

  	
  19

  
	
   

  	
   

  	
   

  
	
  11.1

  	
  Amendment of Plan

  	
  19

  
	
  11.2

  	
  Termination of Plan

  	
  19

  



 


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ARTICLE 1


INTRODUCTION


 


1.1                                 Purpose of Plan.  Intrado Inc., a Delaware Corporation, hereby
amends, restates in its entirety, and re-names the Intrado Inc. Nonqualified Deferred
Compensation Plan (formerly the SCC Communications Corp. Deferred Compensation
Plan) (the “Plan”), effective as of January 1, 2005, unless otherwise
provided herein, to permit Eligible Employees and Directors to defer receipt of
certain compensation pursuant to the terms and provisions set forth below.


 


1.2                                 Status of Plan.  This Plan is intended to be an unfunded,
nonqualified deferred compensation arrangement for the purpose of providing
deferred compensation to “a select group of management or highly-compensated
employees” within the meaning of Sections 201(2), 301(a)(3), and 401(a)(1) of
the Employee Retirement Income Security Act of 1974, as amended. This
restatement is intended to comply with Code section 409A and the
regulations and guidance promulgated thereunder, and is not intended to
constitute a material modification to the substantive terms of the Plan as in
effect heretofore. Notwithstanding any other provision herein, this Plan shall
be interpreted, operated and administered in a manner consistent with these
intentions.


 


1.3                                 Code Section 409A
Transition Rules.
 The Committee, in its sole and absolute
discretion, may offer to any Participant the option to (i) terminate
participation in the Plan and to receive in 2005 a complete payout of his or
her vested Account, if any, (ii) permit in 2005 new elections as to time
and form of payment for deferrals of compensation that would not otherwise be payable
under the Plan in 2005, provided the elections are consistent with the requirements
of Code section 409A, or (iii) permit in 2006 new elections as to
time and form of payment for deferrals of compensation that would not otherwise
be payable under the Plan in 2006, provided the elections are consistent with
the requirements of Code section 409A. 
Any elections made under this Section shall be administered by the
Committee in accordance with Internal Revenue Service Notice 2005-1, proposed
Treasury Regulations §1.409A-1 et seq.
and any successor legislation or guidance that amends, supplements or replaces
such guidance.


 


*  * 
*  *  END OF ARTICLE 1  * 
*  *  *


 


1





















 


ARTICLE 2


DEFINITIONS


 


Wherever used
herein, the following terms have the meanings set forth below, unless a
different meaning is clearly required by the context:


 


2.1                                 Account means, for each Participant, the
account established for his or her benefit under Section 5.1.


 


2.2                                 Administrator means the Employer or such
other person or committee as may be appointed from time to time by the Employer
to supervise the administration of the Plan.


 


2.3                                 Change in Control means a change in the ownership
or effective control of the Employer, or in the ownership of a substantial
portion of the assets of the Employer, as defined in section 409A of the
Code and the regulations thereunder, and any successor legislation or guidance
that amends, supplements, or replaces such section or subsection.


 


2.4                                 Code means the Internal Revenue Code of
1986, as amended from time to time. 
Reference to any section or subsection of the Code includes
reference to any comparable or succeeding provisions of any legislation that
amends, supplements or replaces such section or subsection.


 


2.5                                 Committee means the Compensation Committee
of the Board of Directors of Intrado, Inc.


 


2.6                                 Compensation means the Participant’s wages,
salaries, fees for professional services rendered and other amounts received (whether
such amounts are paid in cash, equity or property) for personal services
actually rendered in the course of employment with the Employer or affiliate to
the extent that the amounts are includable in gross income, including but not
limited to commissions paid to salespersons, compensation for services on the
basis of a percentage of profits, commissions on insurance premiums, tips,
bonuses, fringe benefits, reimbursements, and expense allowances, but not
including those items excludable from the definition of compensation under
Treasury Regulations Section 1.415-2(d)(3).


 


2.7                                 Director means an individual who serves as
a member of the Board of Directors of Intrado, Inc.


 


2.8                                 Disability means any medically determinable
physical or mental impairment that renders a Participant unable to engage in
any substantial gainful activity and which can be expected to last for a
continuous period of not less than 12 months and/or to result in death, as
defined in Code section 409A and determined under any long term disability
plan sponsored by the Employer.


 


2.9                                 Discretionary Incentive Contribution means
a discretionary additional contribution made by the Employer as described in Section 4.3.


 


2.10                           Effective Date means June 1, 2001, the
date on which the Plan first became effective.


 


2





















 


2.11                           Election Form means the participation
election form as approved and prescribed by the Administrator.


 


2.12                           Elective Deferral means the portion of
Compensation that is deferred by a Participant under Section 4.1, if any.


 


2.13                           Eligible Employee means, on the effective
date or on any entry date thereafter, each employee selected by the Committee
to participate in the Plan.


 


2.14                           Employer means Intrado Inc., any successor
to all or a major portion of the Employer’s assets or business that assumes the
obligations of the Employer, and any other corporation or unincorporated trade
or business that has adopted the Plan with the approval of the Employer, and is
a member of the same controlled group of corporations or the same group of
trades or businesses under common control (within the meaning of Code sections
414(b) and 414(c)) as the Employer, or an affiliated service group (as
defined in Code section 414(m)) which includes the Employer, or any other
entity required to be aggregated with the Employer pursuant to regulations
under Code sections 414(o) and 409A or any other affiliated entity that is
designated by the Employer as eligible to adopt the Plan.


 


2.15                           ERISA means the Employee Retirement Income
Security Act of 1974, as amended from time to time.  Reference to any section or subsection of
ERISA includes reference to any comparable or succeeding provisions of any
legislation that amends, supplements or replaces such section or
subsection.


 


2.16                           Key Employee means an employee of the
Employer treated as a “specified employee” under Code section 409A(a)(2)(B)(i),
i.e., a key employee (as defined
in Code section 416(i) without regard to paragraph 5 thereof) of a corporation
for so long as any of its stock is publicly traded on an established securities
market or otherwise.


 


2.17                           Normal Retirement Age means age 55.


 


2.18                           Participant means any individual who
participates in the Plan in accordance with Article 3.


 


2.19                           Plan means the Intrado Inc. Nonqualified
Deferred Compensation Plan as set forth herein and its predecessor plan known as
the SCC Communications Corporate Deferred Compensation Plan, together with any
and all amendments and supplements thereto.


 


2.20                           Plan Year means the period beginning on the
Effective Date and ending on December 31, 2001, and each calendar year
thereafter.


 


2.21                           Separation from Service means a termination
of employment for any reason other than military leave, sick leave or other
bona fide leave of absence, as provided in Code section 409A and the
regulations promulgated thereunder and any legislation or guidance that amends,
supplements, or replaces such section or subsection.


 


2.22                           Trust shall have the meaning set forth in Section 6.1.


 


3





















 


2.23                           Trustee shall have the meaning set forth in
Section 6.1.


 


2.24                           Unforeseeable Emergency means a severe
financial hardship to the Participant resulting from an illness or accident of
the Participant, the Participant’s spouse or dependent, loss of the Participant’s
property due to casualty, or other similar extraordinary and unforeseeable
circumstances that is caused by an event beyond the control of the Participant,
and that would result in severe financial hardship to the Participant if early
distribution were not permitted.


 


*  * 
*  *  END OF ARTICLE 2  * 
*  *  *


 


4





















 


ARTICLE 3


PARTICIPATION


 


3.1                                 Commencement of
Participation.  Any Eligible Employee and Director who elects
to defer part of his or her Compensation in accordance with Section 4.1
shall become a Participant in the Plan as of the date such deferrals
commence.  Any individual who is not
already a Participant and whose Account is credited with a Discretionary Incentive
Contribution shall become a Participant as of the date such amount is credited.


 


3.2                                 Continued
Participation.  A Participant in the Plan shall continue to
be a Participant so long as any amount remains credited to his or her Account.


 


*  * 
*  *  END OF ARTICLE 3  * 
*  *  *


 


5





















 


ARTICLE 4


ELECTIVE DEFERRALS AND DISCRETIONARY CONTRIBUTIONS


 


4.1                                 Elective
Deferrals.  An individual who was a Participant on or
before December 31, 2004 may have elected, on or before March 15,
2005, to defer an amount of Compensation he or she would otherwise be entitled
to receive for services performed on or before December 31, 2005 under the
relevant provisions of the Plan as were then in effect.  Any elections made under this Section 4.1
are irrevocable except as otherwise provided under Section 1.3.


 


Any individual
who participates in the Plan on or after January 1, 2005 may elect to
defer an amount of Compensation he or she would otherwise be entitled to
receive for a Plan Year in accordance with the rules set forth in Section 4.4
below. Elections made under Section 4.4 may be changed at any time prior
to the last permissible date for making such election, as permitted by Code section 409A
and described in Section 4.4 below, at which time the election shall
become irrevocable.  All deferral
elections must be made in writing on a form prescribed by the Administrator and
will be effective only when filed with the Administrator.


 


4.2                                 Deferral of Noncompete Payments.  If required by the terms of any noncompete agreement
between the Company and an employee of the Company, any amounts due by the
Company to employee under such agreement are required to be deferred under this
Plan, then such employee shall be deemed an Eligible Employee, and amounts due
to the employee under such noncompete agreement shall be credited to an Account
established for the benefit of such employee (or to a separate sub-account of
the employee’s Account if the employee is otherwise a Participant) as required
under the noncompete agreement. 
Distributions from such Account shall be made in accordance with such
noncompete agreement, provided that, if the employee is a Key Employee, no
portion of the Account shall be distributed to the employee prior to the first
day of the seventh (7th) month following the employee’s Separation
from Service or, if earlier, the first day consistent with the requirements of
Code section 409A(a)(2)(B)(i).


 


4.3                                 Discretionary
Incentive Contributions.  In addition to other contributions provided
for under the Plan, the Employer may, in its sole and absolute discretion,
elect to make a Discretionary Incentive Contribution to the Account of any,
some or all of the Participants.  Nothing
in this Plan, however, shall obligate the Employer to make Discretionary
Incentive Contributions for the benefit of Plan Participants in any Plan Year.  The Employer expressly retains the right to
make Discretionary Incentive Contributions to such Participants in such amounts
or such proportions as it deems warranted or appropriate.  Nothing in this Plan or any other agreement
or document shall represent or be construed to represent an obligation or
promise of the Employer to make Discretionary Incentive Contributions on behalf
of a Participant at any time.  In the
event a Discretionary Incentive Contribution is made on behalf of a
Participant, the Discretionary Incentive Contribution shall be distributed in
accordance with the Participant’s distribution elections in effect for Elective
Deferrals of Compensation for services performed in the year in which the
Employer makes the Discretionary Incentive Contribution, or, if no Elective
Deferrals are in effect, upon the Participant’s Separation from Service,
subject to Section 7.3 if applicable, in the form of a single lump sum.


 


6





















 


4.4                                 Deferral
Elections.


 


(a)                                  Initial Election:  Except provided in paragraphs (b) and (c) of
this Section 4.4, a Participant may elect to defer an amount of Compensation
for services performed during a Plan Year no later than the last day of the
Plan Year preceding the Plan Year in which the amount being deferred would
otherwise be made available to the Participant.


 


(b)                                 Initial Year of Eligibility:  Notwithstanding the provisions of Section 4.4(a),
in the case of a Participant’s initial year of eligibility under this Plan, the
Participant may make a deferral election with respect to Compensation for
services to be performed subsequent to such deferral election, provided such
election is made no later than 30 days after the date the Participant first
becomes eligible to participate in this Plan.


 


(c)                                  Performance-Based Compensation:  Notwithstanding the provisions of Section 4.4(a),
in the case of “performance-based compensation”, as defined under Code section 409A
and determined by the Administrator, which is based on services performed over
a period of at least 12 months, a Participant may make an initial election to
defer an amount of such compensation
no later than 6 months before the end of the period to which such
performance-based compensation applies. 
Any redeferral of such amounts shall be made as provided in Section 4.4(f).


 


(d)                                 Term of Initial Election.  A deferral election shall be effective for
the entire Plan Year to which it relates and may not be modified or terminated
for that Plan Year, except that a Participant may cancel, and not postpone or
otherwise delay, his or her deferral election during a Plan Year in the event
of an Unforeseeable Emergency.


 


(e)                                  Subsequent Elections. With respect to Plan Years
following a Participant’s initial year of participation in the Plan, failure to
complete a subsequent election by the deadline provided in paragraphs (a) or
(c) of this Section 4.4, as applicable, shall constitute a waiver of
the Participant’s right to elect a different amount of Compensation to be
deferred for each such Plan Year and shall be considered an affirmation and
ratification to continue the Participant’s existing deferral election. However,
a Participant may, prior to the beginning of any Plan Year, elect to increase
or decrease the amount of Compensation to be deferred for the next following
Plan Year by filing another deferral election form with the Administrator in
accordance with paragraphs (a) or (c) of this Section 4.4, as
applicable.


 


(f)                                    Redeferral Elections.  A Participant may elect to redefer a
previously deferred amount and postpone distribution of such amount if (i) the
redeferral election is made no less than 12 months before the distribution is
scheduled to be made; (ii) the redeferral election takes effect no earlier
than 12 months after the date on which such election is made; and (iii) the
amount is redeferred for a period of no less than 5 additional years from the
date the amount would be made available to


 


7





















 


the Participant if not for the subsequent
redeferral.  During the redeferral
period, redeferred amounts may be distributed on account of death, Disability
or Unforeseeable Emergency, but not on account of Change in Control or
Separation from Service.


 


*  * 
*  *  END OF ARTICLE 4  * 
*  *  *


 


8





















 


ARTICLE 5


ACCOUNTS


 


5.1                                 Accounts.  The Administrator shall establish an Account
and sub-accounts for each Participant as are necessary for the proper
administration of the Plan.  Such
Accounts shall reflect Elective Deferrals and Discretionary Incentive
Contributions made for the Participant’s benefit together with any adjustments
for income, gain or loss and any payments from the Account as provided herein.  Amounts deferred by a Participant under Article 4
shall be credited to the Participant’s Account as soon as administratively
practicable after the amounts would have otherwise been paid to the
Participant.  As of the last business day
of each calendar quarter, the Administrator shall provide the Participant with
a statement of his or her Account reflecting the income, gains and losses
(realized and unrealized), amounts of deferrals, and distributions from such
Account since the prior statement.


 


5.2                                 Status of
Accounts.  Accounts and sub-accounts established
hereunder shall be record-keeping devices utilized for the sole purpose of
determining benefits payable under the Plan, and will not constitute a separate
fund of assets but shall continue for all purposes to be part of the general,
unrestricted assets of the Employer, subject to the claims of its general
creditors.


 


5.3                                 Deemed Investment
of Amounts Deferred.


 


(a)                                  For purposes of determining the
amounts to be credited or debited to a Participant’s Account, a Participant may,
at the time of his or her Deferral Election, select from among the investment
options approved by the Employer those investments in which all or part of his
or her Account (and sub-accounts, if any) shall be deemed invested.  Such investment designation shall be made in
the manner specified by the Administrator.


 


(b)                                 The Participant’s investment
designation shall remain effective until he or she amends such investment designation
at such times (not less frequently than monthly) and in such manner as
prescribed by the Administrator.  Changes
to a Participant’s investment designation shall become effective as soon as administratively
practicable.  In no event shall any Participant
be entitled to provide investment directions for any investments other than
deemed investments.


 


(c)                                  A Participant may designate that
any stock of the Employer credited to the Participant’s Account be treated as
sold and the proceeds of such sale deemed invested in any other specified
deemed investment options that are available, in which event the Administrator
shall comply with such request as soon as administratively practicable.


 


(d)                                 A Participant may appoint an
investment advisor to act on his or her behalf, or remove an investment
advisor, provided the Participant notifies the Employer of such appointment or
removal in writing.


 


(e)                                  As soon as administratively
practicable after the adoption of this Plan, as amended and restated herein,
deemed investment options shall be available in a


 


9





















 


reasonably wide range of mutual funds and
publicly traded stocks and bonds for the purpose of crediting earnings and
losses under Sections 5.1, 5.3 and 5.4. 
In no event shall any portion of a Participant’s account be deemed to be
invested in any stock of the Employer or a successor company unless so elected
by the Participant in accordance with this Section 5.3.  Following a Change in Control, neither the
Committee nor the Administrator may eliminate one or more deemed investment
options existing immediately prior to such Change in Control without
substituting therefor reasonably similar new deemed investment options.


 


5.4                                 Earnings and
Losses.  The investment designation of deferred amounts
under Section 5.3 is solely for the purpose of computing gains and losses
pertaining to Compensation amounts deferred hereunder. Each Participant’s
Account shall be periodically adjusted with gains and losses based on the
results that would have been achieved had deferred amounts actually been
invested as directed by the Participant. Nothing in this Section or
otherwise, however, will require the Employer to actually maintain investments
corresponding to the Participants’ investment elections.  In the event the Employer makes actual
investments corresponding to Participants’ elections, no Participant or
beneficiary will have any rights or beneficial interest in such actual
investments other than their rights as unsecured creditors of the Employer.


 


5.5                                 Vesting.  A Participant shall at all times be 100%
vested in any amounts credited to his or her Account.


 


* 
*  *  *  End
of ARTICLE 5  *  * 
*  *


 


10





















 


ARTICLE 6


RABBI TRUST


 


6.1                                 Establishment
of Rabbi Trust.  The Company established an irrevocable rabbi
trust for the benefit of Participants and their beneficiaries, as appropriate
(the “Trust).  The Trust is governed by a
trust agreement and has an independent trustee (such trustee has a fiduciary
duty to carry out the terms and conditions of the rabbi trust) selected by the
Employer (the “Trustee”), and has restrictions as to the Employer’s ability to
amend the Trust or to cancel benefits provided thereunder.


 


6.2                                 Funding the
Trust.  The Employer shall pay to the Trust amounts
deferred under Article 4 as soon as administratively practicable after the
amounts would have otherwise been paid to the Participant, less applicable
taxes required to be withheld, if any.


 


6.3                                 Claims of
Creditors.  The assets of the Trust shall remain subject
to the claims of the general creditors of the Employer in the event of an
insolvency of the Employer.


 


*  * 
*  *  END OF ARTICLE 6*  * 
*  *


 


11





















 


ARTICLE 7


DISTRIBUTIONS


 


7.1                                 Permissible
Payments.  Participants may elect to receive amounts
deferred under this Plan upon any of the following events, each a “Distribution
Event,” except as otherwise provided in Section 4.4(f).  All payments shall be made or begin to be made
within 10 calendar days following the occurrence of the applicable Distribution
Event, except as otherwise provided in Sections 7.3 and 7.8.


 


(1)                                  the Participant’s Disability;


 


(2)                                  a time or schedule specified
at the time each amount is deferred;


 


(3)                                  a Change in Control;


 


(4)                                  the Participant’s Separation
from Service;


 


(5)                                  the Participant’s
Unforeseeable Emergency; or


 


(6)                                  Participant’s death.


 


7.2                                 Election as to
Time and Form of Payment.  At the time of each deferral election, the Participant
shall specify the date or Distribution Event upon which payment of the deferred
amount (and earnings thereon) is to commence, and the form of payment of the
deferred amount (and earnings thereon). 
For each deferred amount, a Participant may elect to receive payment in
the form of


 


(a)                                  a single lump-sum distribution; or


 


(b)                                 in annual installments over a
period elected by the Participant not to exceed 10 years.  Each
installment payment shall equal the balance of the Participant’s Account
immediately prior to the installment, divided by the number of installments
remaining to be paid; provided however,
that if a Participant dies after installment payments commence but before all
payment have been made, all remaining amounts will be paid to his or her
beneficiary in a single lump sum no later than 60 days after the death of the
Participant.  For purposes of a
redeferral election made under Section 4.4(f), an election to receive
payment of compensation in annual installment payments shall be treated as a
single payment made on the first of such installments.


 


7.3                                 Distributions
to Key Employees.  In the case of a distribution to a Key
Employee on account of his or her Separation from Service, the distribution may
not commence before the date that is six (6) months after the date of the
Key Employee’s Separation from Service.


 


7.4                                 Default
Elections.  If a Participant fails to specify the date on
which payment of the deferred amount (and earnings thereon) is to begin, the
Participant will be deemed to have elected distribution upon Separation from
Service, subject to Section 7.3 if applicable, in the form of a single
lump sum.


 


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7.5                                 Beneficiary.  If a Participant dies prior to the complete
distribution of his or her Account, the balance of the Account shall be paid to
the Participant’s designated beneficiary in a single lump-sum payment within 60
days of the Participant’s death.  Each
Participant may from time to time designate one or more persons as his or her
beneficiary, and may change such designation from time to time, without the
consent of any prior beneficiary, by written notice to the Administrator which
shall be signed and dated.  In the
absence of an effective beneficiary designation as to part of all of a Participant’s
interest in the Plan, distribution shall be made to the Participant’s surviving
spouse, or, if none, to his or her issue per stirpes, in a single payment.  If no spouse or issue survives the
Participant, payment shall be made in a single lump sum to the Participant’s
estate.


 


7.6                                 Unforeseeable
Emergency.  If a Participant suffers an Unforeseeable Emergency,
the Administrator, in its sole discretion, may pay to the Participant only that
portion, if any, of his or her Account that is necessary to satisfy the
emergency need as determined by the Administrator, including any amounts
necessary to pay any federal, state or local income taxes reasonably
anticipated to result from the distribution. 
A Participant requesting a distribution under this Section 7.6 shall
apply for the payment in a manner approved by the Administrator and shall
provide such additional information as the Administrator may require.


 


7.7                                 Taxes.  All payments and other taxable events shall
be subject to applicable withholding of federal, state and local income,
employment and other taxes as determined by the Administrator.


 


7.8                                 Failure of
Qualification.  If for any reason the Plan fails to meet the
requirements of Code section 409A and the regulations and guidance
promulgated thereunder, the Administrator shall distribute to the Participant
the portion of the Participant’s Account that is required to be included in
income as a result of such failure.


 


7.9                                 Section 162(m)
Deferrals.  To the extent the Committee anticipates that
a payment (whether in cash or in kind) to a Participant’s Deferral Account does
not qualify as performance-based compensation pursuant to Section 162(m)
of the Code with respect to a Participant who is a “covered employee” for
purposes of such Section 162(m), that portion of the payment that would
otherwise cause the Participant’s compensation to exceed the limitation on the
amount of compensation deductible by the Company in any taxable year pursuant
to such Section 162(m), shall be deferred. 
Any payment that is deferred pursuant to this Section 7.9 shall be
paid to the Participant at the earliest date at which the Committee reasonably
anticipates that the deduction of the payment will not be limited or eliminated
by application of Section 162(m) of the Code.


 


*  *  *  *  END
OF ARTICLE 7  *  * 
*  *


 


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ARTICLE 8


PLAN ADMINISTRATOR


 


8.1                                 Plan
Administration.  The administration of the Plan shall be under
the supervision of the Administrator. 
The Administrator shall have full power and discretion to administer the
Plan in all of its details, subject to the requirements of applicable law.  For this purpose, the Administrator’s
discretionary powers will include, but will not be limited to, the following
authority, in addition to all other powers provided by this Plan:


 


(a)                                  to make and enforce such rules as
it deems necessary or proper for the efficient administration of the Plan;


 


(b)                                 to interpret the Plan;


 


(c)                                  to decide all questions
concerning the Plan;


 


(d)                                 to compute the amounts of
benefits which will be payable to any Participant or Beneficiary in accordance
with the provisions of the Plan, and to determine the person or persons to whom
such benefits will be paid;


 


(e)                                  to authorize the payment of
benefits;


 


(f)                                    to appoint such agents, counsel,
accountants, consultants and other persons as may be required to assist in
administering the Plan; and


 


(g)                                 to delegate its responsibilities
under the Plan and to designate other persons to carry out any of its
responsibilities under the Plan, any such delegations or designation to be by
written instrument and in accordance with the requirements of applicable law.


 


Any determination by the
Administrator, or its authorized delegate, shall be final and conclusive on all
persons in the absence of clear and convincing evidence that the Administrator
or delegate acted arbitrarily and capriciously.


 


8.2                                 Books and
Records.  The Administrator shall maintain the books
and records for the purpose of the Plan and shall make available to each Participant
such of its records as pertain to the Participant for examination during normal
business hours.  The Administrator shall
have no obligation to disclose any records or information which the
Administrator, in its sole discretion, determines to be of a privileged or
confidential nature.


 


8.3                                 Reliance on
Tables, Etc.  In administering the Plan, the Administrator
will be entitled to rely conclusively on all tables, valuations, certificates,
opinions and reports which are furnished by any accountant, counsel or other
expert who is employed or engaged by the Administrator.


 


8.4                                 Expenses.  All expenses of administering the Plan,
whether incurred by the Employer of the Plan, shall be paid by the Employer.


 


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8.5                                 Appeals
Committee.  The
Employer shall appoint an Appeals Committee to review any written appeal of a
denial of a claim for a benefit under the Plan and to provide a final
determination with regard to such claim. 
Any Appeals Committee member appointed by the Employer shall serve at
the pleasure of the Employer, but may resign by written notice to the Employer
at any time.  Members of the Appeals
Committee shall serve without compensation from the Plan for such services.


 


8.6                                 Indemnification.  The Employer
agrees to indemnify and defend to the fullest extent permitted by law any Employee
or officer serving as the Administrator or as a member of the Appeals Committee
against all liabilities, damages, costs and expenses (including attorney’s fees
and amounts paid in settlement of any claims approved by the Administrator or
Appeals Committee) occasioned by any action taken or omitted in connection with
the administration of this Plan, if such act or omission is in good faith.


 


*  * 
*  END OF ARTICLE 8  *  *  *  *


 


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ARTICLE 9


CLAIM
REVIEW PROCEDURES


 


9.1                                 Initial Claims.  All claims and inquiries concerning benefits
under the Plan must be submitted to the Administrator in writing within one
year of the occurrence of the event that gives rise to the claim.  Any claim filed after one year of such event
shall be barred.


 


9.2                                 Claim Denials.  If any claim for benefits is denied in whole
or in part, the Administrator shall notify the claimant in writing within
ninety (90) days of receipt of the claim (45 days for a Disability claim). If
special circumstances require a longer period, the Administrator shall notify
the claimant prior to the expiration of the 90 day (or 45 day) period of the
reasons for an extension of time. Such extension shall not exceed an additional
90 days (30 days for a Disability claim). 
A notice of denial shall state in a manner reasonably calculated to be
understood by the claimant specific reasons for the denial, specific references
to the Plan provisions on which the denial is based, a description of any
additional information or material necessary for the claimant to perfect his or
her claim, an explanation of why such information or material is necessary, and
an explanation of the Plan’s review procedure, including the claimant’s right
to a review of the claim denial and his or her right to bring a civil action
under ERISA section 502(a) following an adverse decision on appeal.


 


9.3                                 Appeals.  A claimant or his or her authorized
representative may appeal a claim denial within sixty (60) days of receipt
thereof (180 days for a Disability claim) by submitting to the Appeals
Committee a written request for review.  The
request for review shall set forth all of the grounds upon which it is based,
all facts in support thereof, and any other comments or materials which the
claimant deems relevant to the appeal. The Appeals Committee shall give the
claimant an opportunity to review pertinent documents in preparing his or her
request for review.


 


The Appeals
Committee will review all comments, documents, records and other information
submitted by the claimant related to the claim, without regard to whether such
information was submitted or considered in the initial claim determination. The
Appeals Committee may also request additional facts, documents or other
materials as it deems necessary or appropriate in making its determination, and
may hold a hearing of the parties involved. 
The claimant shall be advised of the Appeals Committee decision within
sixty (60) days (45 days for a Disability claim) after the appeal is received,
except that if a hearing is held, the decision may be issued within one hundred
twenty (120) days after the appeal is received (90 days for a Disability claim).
The decision of the Appeals Committee shall be final and binding on all
parties.  If the claim is denied on
appeal, the decision shall clearly set forth specific reasons for the denial and
specific references to the Plan provisions upon which the decision is
based.  The claimant shall also be
informed of his or her right to receive, upon request and free of charge,
reasonable access to or copies of all documents, records and other information
relevant to the claim, and of his or her right to bring a civil action under
ERISA Section 502(a).


 


9.4                                 Determination
of Time Periods.  If the day on which any of the foregoing time
periods is to end is a Saturday, Sunday or holiday recognized by the Employer,
the period shall extend until the next business day.


 


16





















 


9.5                                 Voluntary Arbitration.  A claimant whose appeal has been denied under
Section 9.3 shall have the right, but shall not be required, to submit
said benefit dispute to binding arbitration, conducted in the State of Colorado
before a panel of three (3) arbitrators, to be selected from the American
Arbitration Association (“AAA”) roster, in accordance with the rules of
the AAA applicable to commercial arbitrations. A claimant’s voluntary
participation in this process shall have no effect on the claimant’s rights to
any other benefit under the Plan.  In the
event of such arbitration, the following provisions will apply, in accordance
with 29 C.F.R. 2560.503-1(c):


 


(a)                                  The Plan shall not assert a
failure to exhaust administrative remedies where a claimant elects to bring a
civil action in court rather than through the voluntary arbitration process.


 


(b)                                 Any statute of limitations
applicable to the claimant’s civil action will be tolled during the period of
the voluntary arbitration.


 


(c)                                  All costs and expenses in connection
with such arbitration, including the arbitrators’ fees, shall be borne by the
Employer.


 


The
arbitrators’ decision in any dispute shall be final and binding on all parties.


 


*  * 
*  END OF ARTICLE 9*  * 
*  *


 


17





















 


ARTICLE 10


GENERAL
PROVISIONS


 


10.1                           Prohibition
Against Funding.  It is the express intention of the parties
hereto that this arrangement be and remain unfunded for purposes of the Code
and ERISA.  Nothing contained herein
shall be deemed to create a trust of any kind or create any fiduciary
relationship.  Funds invested hereunder
shall continue for all purposes to be part of the general, unrestricted assets
of the Employer, subject to the claims of its general creditors, and no person
shall, by virtue of the provisions of this Plan, have any interest in such
funds.  To the extent any person acquires
a right to receive payment under this Plan, such right shall be no greater than
the right of any unsecured general creditor of the Employer.


 


10.2                           Limitation of
Rights.  Neither the establishment of this Plan nor
participation therein will be construed as conferring on any person any right
to continued employment with or service as a Director to the Employer, nor any
legal or equitable right against the Administrator or Employer except as
expressly provided herein.  In no event
will the terms of employment or service of any Participant be modified or in
any way affected hereby.  The Employer
may terminate the employment of any Participant as freely and with the same
effect as if the Plan were not in existence.


 


10.3                           Inalienability
of Benefits.  No Participant shall have the right to
assign, transfer, hypothecate, encumber or anticipate his or her interest in
any benefits under the Plan, nor shall the benefits under the Plan be subject
to be taken by his or her creditors by any process whatsoever, and any attempt
to cause such right to be so subjected will not be recognized, except to such
extent as may be required by law.


 


10.4                           Distributions
Due Minor or Incompetent Persons.  If any Participant
or beneficiary entitled to a distribution is a minor, or is determined by the
Administrator to be incompetent by reason of physical or mental disability
(whether or not legally adjudicated incompetent), the Administrator shall have
the power to cause the distributions due to such person to be made to another
for the benefit of the Participant or beneficiary.  Distributions made pursuant to such power
shall operate as a complete discharge of the Employer, the Administrator, and
their authorized delegates.


 


10.5                           Headings.  Headings of Articles and Sections are
inserted solely for convenience and reference and constitute no part of the
Plan.


 


10.6                           Governing Law.  To the extent not preempted by federal law,
this Plan shall be governed by, construed and administered in accordance with
the applicable laws of the State of Colorado.


 


*  * 
*  *  END OF ARTICLE 10  * 
*  *  *


 


18





















 


ARTICLE 11


AMENDMENT
AND TERMINATION


 


11.1                           Amendment of
Plan.  The Employer reserves the right to amend the
provisions of this Plan at any time or times, to the extent that it may deem
advisable.  Any amendment to the Plan
shall be effected by a written instrument signed by the CEO of the Employer or
his or her authorized delegate. Unless
otherwise provided, any such amendment will be effective for all Participants
and their beneficiaries, whether or not employed by the Employer.  Notwithstanding the foregoing, following a
Change in Control, the Employer shall not amend the Plan without the unanimous
prior written consent of all Participants that would be adversely affected
thereby, except in order to implement the requirements of a change in law.


 


11.2                           Termination of
Plan.  The Employer may discontinue or terminate the
Plan under any circumstances permitted by Code Section 409A, provided that
the terms of the Plan shall remain in effect for Accounts existing on the date
of the termination.


 


*  * 
*  *  END OF ARTICLE 11  * 
*  *  *


 


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