**Exhibit 10.65****INTER-TEL, INCORPORATED****NON-EMPLOYEE DIRECTOR NON-QUALIFED DEFERRED COMPENSATION PLAN**
 

 
**PREAMBLE**     This Inter-Tel, Incorporated Non-Employee Director Non-Qualified Deferred Compensation Plan isadopted by Inter-Tel, Incorporated for the benefit of non-employee members of its Board ofDirectors, effective as of October 14, 2005 (the “Effective Date”). The purpose of the Plan is toprovide supplemental retirement income and to permit eligible Participants the option to deferreceipt of Compensation, pursuant to the terms of the Plan. The Plan is intended to be an unfundeddeferred compensation plan maintained for the benefit of a select group of management undersections 201(2), 301(a)(3) and 401(a)(1) of ERISA and is intended to comply with Section 409A ofthe Internal Revenue Code. Participants shall have the status of unsecured creditors of Inter-Tel,Incorporated with respect to the payment of Plan benefits.
 

 
**TABLE OF CONTENTS**       **Page** ARTICLE I Definitions  1 1.1 Definitions  1      ARTICLE II Participation  3      2.1 Date of Participation  3 2.2 Resumption of Participation Following Return to Service.  3 2.3 Change in Non-Employee Director Status  3      ARTICLE III Contributions  3      3.1 Deferral Contributions  3 3.2 Accounts  4 3.3 Cancellation of Elections Due to Unforeseeable Emergency Distribution  4      ARTICLE IV Participants’ Accounts  4      4.1 Individual Accounts  4 4.2 Accounting for Distributions  4 4.3 Separate Accounts  4      ARTICLE V Non-Investment of Contributions  4      ARTICLE VI Distributions  5      6.1 Distributions to Participants and Beneficiaries  5 6.2 Unforeseeable Emergency Distributions  6 6.3 Scheduled In-Service Distribution  6 6.4 Death  6 6.5 Time of Distribution  6 6.6 Limitation on Distributions to Covered Employees Prior to a Change of Control  6 6.7 Domestic Relations Order Distributions  7 6.8 Tax Withholding  7      ARTICLE VII Special Change of Control Provisions  7      7.1 No New Participants Following Change of Control  7 7.2 No Deferrals Following a Change of Control  7      ARTICLE VIII Amendment and Termination  7      8.1 Amendment by Company  7 8.2 Retroactive Amendments  7 8.3 Plan Deferral Termination  8 8.4 Distribution upon Termination of the Plan  8 
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**TABLE OFCONTENTS**       **Page** ARTICLE IX Miscellaneous  8      9.1 Limitation of Rights  8 9.2 Nontransferability; Domestic Relations Orders  8 9.3 Facility of Payment  8 9.4 Governing Law  8      ARTICLE X Plan Administration  9      10.1 Powers and responsibilities of the Administrator  9 10.2 Nondiscriminatory Exercise of Authority  9 10.3 Claims and Review Procedures  9 10.4 Exhaustion of Claims Procedure and Right to Bring Legal Claim  13 10.5 Plan’s Administrative Costs  13 
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**ARTICLE I****Definitions**     1.1 Definitions. Wherever used herein, the following terms have the meanings setforth below, unless a different meaning is clearly required by the context:          (a) “Account” means an account established on the books of the Company for the purposeof recording amounts credited or debited on behalf of a Participant.          (b) “Administrator” means the Company, or the Committee, if one has been designated bysuch Company.          (c) “Beneficiary” means the person or persons entitled under Section 6.4 to receivebenefits under the Plan upon the death of a Participant.          (d) “Change of Control” means a change in ownership or effective control of theCompany or in the ownership of a substantial portion of the Company’s assets, as defined in themost recent version of proposed or final Treasury regulations promulgated under Code Section 409A.          (e) “Code” means the Internal Revenue Code of 1986, as amended from time to time.          (f) “Committee” means the Compensation Committee of the Board of Directors. TheCompensation Committee shall interpret and administer this Plan and take such other actions as maybe specified herein.          (g) “Company” means Inter-Tel, Incorporated and any successors and assigns unlessotherwise provided herein.          (h) “Compensation” means all cash retainers and stipends and cash Board or committeemeeting fees, excluding expense reimbursements.          (i) “Deferral Contributions” means, for each Participant, the amount deferred pursuantto Section 3.1 hereof.          (j) “Disability” means the Participant is unable to engage in any substantial gainfulactivity by reason of any medically determinable physical or mental impairment which can beexpected to result in death or can be expected to last for a continuous period of not less thantwelve (12) months.          (k) “Domestic Relations Order” means a court order that qualifies as a domesticrelations order under Code Section 414(p)(1)(B).
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          (l) “Eligible Participant” means any Non-Employee Director.          (m) “Entry Date” means January 1 or, for new Non-Employee Directors who are EligibleParticipants for the first time, the first day of the next Company fiscal quarter following theirbecoming a Non-Employee Director; provided, however, that such new Non-Employee Director’s deferralelection must be submitted no later than 30 days following their becoming a newly eligibleNon-Employee Director.          (n) “ERISA” means the Employee Retirement Income Security Act of 1974, as from time totime amended.          (o) “Non-Employee Director” means a member of the Board whom is not an Employee.          (p) “Participant” means any Director or beneficiary thereof who participates in thePlan in accordance with Article 2 hereof.          (q) “Plan” means this Inter-Tel, Incorporated Non-Employee Director Non-QualifiedDeferred Compensation Plan.          (r) “Plan Year” means the 12-consecutive month period beginning January 1 and endingDecember 31.          (s) “Separation from Service” means a separation from service as defined in the mostrecent version of proposed or final Treasury regulations promulgated under Code Section 409A.          (t) “Specified Employee” means a “key employee” as such term is defined in CodeSection 416(i) without regard to paragraph five (5) thereof. As of the Plan effective date, thisgenerally includes (i) the top fifty (50) Company officers making more than $130,000 per year, (ii)a 5% owner of the Company, or (iii) a 1% owner of the Company making more than $150,000 per year.The determination of whom is a Specified Employee shall be made on December 31 of each year andshall be effective on the following April 1.          (u) “Trading Day” means a day upon which the major U.S. national stock exchanges areopen for trading.          (v) “Unforeseeable Emergency” means a severe financial hardship to Participantresulting from an illness or accident of Participant, the Participant’s spouse or a dependent ofParticipant (as defined in Section 152(a) of the Code), loss of Participant’s property due tocasualty, or other similar extraordinary and unforeseeable circumstances arising as a result ofevents beyond the control of Participant.
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**ARTICLE II****Participation**     2.1 Date of Participation. Each Eligible Participant shall be become a Participant asof the Entry Date next following their timely filing of an election to defer Compensation inaccordance with Sectio0n 3.1.     2.2 Resumption of Participation Following Return to Service. If an EligibleParticipant ceases to be such by virtue of ceasing to be a Non-Employee Director and thereafterreturns as a Non-Employee Director he or she will again become an Eligible Participant as of theEntry Date following the date on which he or she re-commences service with the Company, provided heor she is an Eligible Participant and has timely filed an election to defer Compensation pursuantto Section 3.1.     2.3 Change in Non-Employee Director Status. If any Participant becomes employed bythe Company, then he or she shall continue to be a Participant until the entire amount of his orher benefit is distributed; provided, however, that the individual shall not be entitled to makeDeferral Contributions during the period that he or she is not an Eligible Participant. In theevent that the individual subsequently again becomes an Eligible Participant, the individual shallresume full participation in accordance with Section 3.1.**ARTICLE III****Contributions**3.1 Deferral Contributions.          (a) Annual Open Enrollment. Prior to the beginning of each Plan Year, each EligibleParticipant may elect to execute a compensation reduction agreement with the Company to reduce hisCompensation by a specified percentage not exceeding 100% of their Compensation. Such agreementshall become irrevocable as of the last day of the calendar year in which it is made and shall beeffective on the first day of service in the following Plan Year. Except with respect to BoardCompensation payout periods that cross over from one calendar year to the next, the election shallnot be effective with respect to Compensation relating to services already performed. An electiononce made will remain in effect for Board paydays falling in the duration of the Plan Year.Amounts credited to a Participant’s Account prior to the effective date of any new election willnot be affected and will be paid in accordance with that prior election.          (b) Newly Eligible Participants. The same rules as in Section 3.1(a) above shall alsoapply to individuals who become Eligible Participants for the first time, except (i) such newEligible Participants shall have no more than thirty (30) days following their becoming eligible inwhich to elect to have their Compensation reduced, and (ii) the agreement shall become effective
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with the first day of service following the receipt of their election by the Company. Non-EmployeeDirectors may not, however, defer quarterly fees payable on account of the Company’s fiscal quarterin which the election is made.          (c) Year-End Cross-Over Payroll Periods. Board Compensation paydays relating toperiods of service that cross-over the calendar year end shall be covered by the Participant’sdeferral election in effect for the later year, consistently with the default rules under ProposedTreasury Regulation §1.409A-2(a)(11) or subsequent IRS guidance.     3.2 Accounts. The Company shall credit an amount to the Account maintained on behalfof the Participant corresponding to the amount of said reduction. Under no circumstances may anelection to defer Compensation be adopted retroactively. A Participant may not revoke an electionto defer Compensation for a Plan Year during that year.     3.3 Cancellation of Elections Due to Unforeseeable Emergency Distribution. AParticipant’s deferral election shall be automatically cancelled in the event the Participantobtains an unforeseeable emergency distribution from the Plan pursuant to Section 6.2 hereof. TheParticipant, if still an Eligible Participant, may re-enroll in the Plan in the next openenrollment period.**ARTICLE IV****Participants’ Accounts**     4.1 Individual Accounts. The Administrator will establish and maintain an Account foreach Participant which will reflect Deferral Contributions credited to the Account on behalf of theParticipant.     4.2 Accounting for Distributions. As of any date of a distribution to a Participantor a Beneficiary hereunder, the distribution to the Participant or to the Participant’sBeneficiary(ies) shall be charged to the Participant’s Account.     4.3 Separate Accounts. A separate account under the Plan shall established and maintained to reflect the Accountfor each Participant.**ARTICLE V****Non-Investment of Contributions**     All amounts credited to the Accounts of Participants shall reflect the amount of deferredCompensation only. Participants shall not be permitted to invest their accounts in any real orphantom investments. Accordingly, Participant’s accounts will only be adjusted to reflectCompensation deferrals and distributions.
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**ARTICLE VI****Distributions**     6.1 Distributions to Participants and Beneficiaries.          (a) Earliest Distributions               (i) Regular Participants. In no event may a Participant’s account be distributedearlier than (i) the Participant’s Separation From Service, (ii) the Participant’s Disability,(iii) the Participant’s death, (iv) a specified time under Section 6.3 hereunder, (v) a Change inControl, (vi) the occurrence of an Unforeseeable Emergency, or (vii) to a former spouse of aParticipant pursuant to a Domestic Relations Order.               (ii) Specified Employee Participants. In no event may a Specified Employee’s accountbe distributed earlier than (i) six (6) months following the Specified Employee’s Separation FromService (or if earlier, the Specified Employee’s death), (ii) the Specified Employee’s Disability,(iii) the Specified Employee’s death, (iv) a specified time under Section 6.3 hereunder, (v) aChange in Control, or (vi) the occurrence of an Unforeseeable Emergency. In the event a SpecifiedEmployee’s Plan distributions are delayed due to the six-month delay requirement, the amountsotherwise payable to the Specified Employee during such period of delay shall be paid on the datethat is six months and one day following Separation From Service (or, if earlier, upon the death ofthe Specified Employee). The Participant’s other scheduled distributions, if any, shall not beaffected by the period of delay.          (b) Lump-Sum Payments. All distributions from the Plan shall be in the form of a lumpsum cash payment.          (c) Subsequent Election to Delay or Change Form of Payment. A Participant’s initialelection to receive a distribution may be delayed by filing an election, in the form required bythe Administrator, at least one year in advance of the date upon which any distribution wouldotherwise have been made pursuant to the prior election. Such election shall not be effective fora period of one (1) year, and must delay the initial payment by a period of at least five (5)years, but may not result in the initial payment occurring more than then ten (10) years followingSeparation From Service. In the absence of such timely filed election, the value of suchParticipant’s Account shall be distributed in accordance with their previously timely filed Accountelection.          (d) Lump-Sum Distribution Timing. For Participants receiving a lump-sum distribution,the value of their Account (or portion thereof specified in the Participant’s election) shall bepaid in a lump-sum cash payment in the same calendar year as their triggering distribution event,or, for Specified Employees (or their estates or beneficiaries), if later, six months and one dayafter the date upon which they incur a Separation From Service or, if earlier, upon their death.
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     6.2 Unforeseeable Emergency Distributions. With the consent of the Administrator, aParticipant may withdraw up to one hundred percent (100%) of his or her Account as may be requiredto meet a sudden Unforeseeable Emergency of the Participant. Such distribution may only be made ifthe amounts distributed with respect to an Unforeseeable Emergency may not exceed the amountsnecessary to satisfy such emergency plus amounts necessary to pay taxes reasonably anticipated as aresult of the distribution, after taking into account the extent to which such hardship is or maybe relieved through reimbursement or compensation by insurance or otherwise or by liquidation ofthe Participant’s assets (to the extent the liquidation of such assets would not itself causesevere financial hardship).     6.3 Scheduled In-Service Distribution. A Participant may elect, as provided in his orher Participant deferral election, to receive one or more scheduled in-service (i.e., commencingwhile serving as a Board member) distributions from their Account balance. Such in-servicedistributions may only be for years following the end of the calendar year to which the deferralsrelate. Each scheduled in-service distribution may only be changed or postponed in accordance withSection 6.1(c) hereof. In the event a Participant incurs a Separation From Service prior toreceiving a scheduled in-service payment, then the scheduled in-service distribution election shallremain in full force and effect.     6.4 Death. Except with respect to certain in-service distributions as provided below,if a Participant dies, his or her designated Beneficiary or Beneficiaries will receive the balanceof his or her Account in a lump-sum. Distribution to the Beneficiary or Beneficiaries will be madeas soon as administratively practical in the month following the Administrator’s receipt ofsatisfactory proof of the Participant’s death.     A Participant may designate a Beneficiary or Beneficiaries, or change any prior designation ofBeneficiary or Beneficiaries by giving notice to the Administrator on a form designated by theAdministrator (spousal consent to such change may be required on the form designated by theAdministrator). If more than one person is designated as the Beneficiary, their respectiveinterests shall be as indicated on the designation form.     If upon the death of the Participant there is, in the opinion of the Administrator, nodesignated Beneficiary for part or all of the Participant’s Account, the amount as to which thereis no designated Beneficiary will be paid to his or her surviving spouse or, if none, to his or herestate (such spouse or estate shall be deemed to be the Beneficiary for purposes of the Plan) assoon as is practicable.     6.5 Time of Distribution. In no event will distribution to a Participant be madelater than the date specified by the Participant in his or her election to defer Compensation;provided, however, that if a Participant becomes a Specified Employee, his or her election shall besubject to the six (6) month distribution delay requirements of the Plan and Code Section 409A.     6.6 Limitation on Distributions to Covered Employees Prior to a Change of Control.Notwithstanding any other provision of this Article VI, in the event that, prior to a Change ofControl, the Participant is a “covered employee” as that term is defined in Section 162(m)(3) ofthe
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Code, or would be a covered employee if his or her Account were distributed in accordance withhis or her election, and the Administrator reasonably anticipates that Participant’s scheduled Plandistributions would cause the Company to forego an income tax deduction with respect to suchdistribution by virtue of Code Section 162(m), then such Participant’s distributions shall bedelayed until the earlier of (i) the earliest date at which the Administrator reasonablyanticipates that the Company’s deduction related to the distribution will not be limited by virtueof Code Section 162(m), or (ii) the calendar year in which the Participant undergoes a SeparationFrom Service, subject to complying with any six (6) month distribution delay requirements of thisPlan and Code Section 409A.     6.7 Domestic Relations Order Distributions. A payment to the former spouse of aParticipant may be accelerated as necessary to comply with the terms of a Domestic Relations Order.     6.8 Tax Withholding. Payments under this Article VI shall be subject to allapplicable withholding requirements for state and federal income taxes and to any other federal,state or local taxes that may be applicable to such payments.**ARTICLE VII****Special Change of Control Provisions**     7.1 No New Participants Following Change of Control. No individual may commenceparticipation in the Plan following a Change of Control.     7.2 No Deferrals Following a Change of Control. Deferrals shall cease as of the dateof a Change of Control.**ARTICLE VIII****Amendment and Termination**     8.1 Amendment by Company. The Company reserves the authority to amend the Plan. Anysuch change notwithstanding, no Participant’s Account shall be reduced by such change below theamount to which the Participant would have been entitled if he had voluntarily left the employ ofthe Company immediately prior to the date of the change. The Company may from time to time makeany amendment to the Plan that may be necessary to satisfy Code Section 409A or ERISA.     8.2 Retroactive Amendments. An amendment made by the Company in accordance withSection 8.1 may be made effective on a date prior to the first day of the Plan Year in which it isadopted if such amendment is necessary or approprite to enable thePlan to satisfy theapplicable requirements of Code Section 409A or ERISA or to conform the Plan to any change infederal law or to any regulations or rulings thereunder.
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     8.3 Plan Deferral Termination. The Company has adopted the Plan with the intentionand expectation that deferrals will be permitted indefinitely. However, the Company has noobligation to maintain the Plan for any length of time and may discontinue future Compensationdeferrals under the Plan in advance of any Plan Year by written notice delivered to EligibleParticipants without any liability for any such discontinuance.     8.4 Distribution upon Termination of the Plan. Upon termination of the Plan, nofurther Deferral Contributions or Company Contributions shall be made under the Plan, but Accountsof Participants maintained under the Plan at the time oftermination shall continue to be governed by the terms of the Plan until paid out inaccordance with the terms of the Plan, Participants’ deferral elections and the requirements ofCode Section 409A.**ARTICLE IX****Miscellaneous**     9.1 Limitation of Rights. Neither the establishment of the Plan, nor any amendmentthereof, nor the creation of any fund or account, nor the payment of any benefits, will beconstrued as giving to any Participant or other person any legal or equitable right against theCompany, Administrator, except as provided herein; and in no event will the terms of employment orservice of any Participant be modified or in any way affected hereby     9.2 Nontransferability; Domestic Relations Orders. The right of any Participant, anyBeneficiary, or any other person to the payment of any benefits under this Plan shall not beassigned, transferred, pledged or encumbered; provided, however, that a Deferral Account hereundermay be transferred to a Participant’s former spouse pursuant to a Domestic Relations Order.     9.3 Facility of Payment. In the event the Administrator determines, on the basisof medical reports or other evidence satisfactory to the Administrator, that the recipient of anybenefit payments under the Plan is incapable of handling his affairs by reason of minority,illness, infirmity or other incapacity, the Administrator may disburse such payments to a person orinstitution designated by a court which has jurisdiction over such recipient or a person orinstitution otherwise having the legal authority under State law for the care and control of suchrecipient. The receipt by such person or institution of any such payments therefore, and any suchpayment to the extent thereof, shall discharge the liability of the Company for the payment ofbenefits hereunder to such recipient.     9.4 Governing Law. The Plan will be construed, administered and enforced according toERISA, and to the extent not preempted thereby, the laws of the state of California.
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**ARTICLE X****Plan Administration**     10.1 Powers and responsibilities of the Administrator. The Administrator has the full power and the full responsibility to administer the Plan inall of its details, subject, however, to the applicable requirements of ERISA. The Administrator’spowers and responsibilities include, but are not limited to, the following:          (a) To make and enforce such rules and regulations as it deems necessary or proper for theefficient administration of the Plan;          (b) The discretionary authority to construe and interpret the Plan, its interpretation thereofin good faith to be final and conclusive on all persons claiming benefits under the Plan;          (c) To decide all questions concerning the Plan and the eligibility of any person toparticipate in the Plan;          (d) To administer the claims and review procedures specified in Section 10.3;          (e) To compute the amount of benefits which will be payable to any Participant, formerParticipant or Beneficiary in accordance with the provisions of the Plan;          (f) To determine the person or persons to whom such benefits will be paid;          (g) To authorize the payment of benefits;          (h) To appoint such agents, counsel, accountants, and consultants as may be required to assistin administering the Plan;          (i) By written instrument, to allocate and delegate its responsibilities.     10.2 Nondiscriminatory Exercise of Authority. Whenever, in the administration of thePlan, any discretionary action by the Administrator is required, the Administrator shall exerciseits authority in a nondiscriminatory manner so that all persons similarly situated will receivesubstantially the same treatment.     10.3 Claims and Review Procedures.          (a) Purpose. Every Participant or Beneficiary (or his or her representative who isauthorized in writing by the Claimant to act on his or her behalf) (hereinafter collectively,“Claimant”) shall be entitled to file with the Administrator (and subsequently with theindividual(s) designated to review claims appealed after being initially denied by theAdministrator (the “Review Panel”)) a written claim for benefits under the Plan. The Administratorand Review Panel shall each be able to establish such rules, policies and procedures, consistentwith ERISA and the Plan, as it
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may deem necessary or appropriate in carrying out its duties andresponsibilities under this Section 10.3. In the case of a denial of the claim, the Administratoror Review Panel, as applicable, shallprovide the Claimant with a written or electronic notification that complies with Departmentof Labor Regulation Section 2520.104b-1(c)(1).          (b) Denial of Claim. If a claim is denied by the Administrator (or its authorizedrepresentative), in whole or in part, then the Claimant shall be furnished with a denial noticethat shall contain the following:               (i) specific reason(s) for the denial;               (ii) reference to the specific Plan provision(s) on which the denial is based;               (iii) a description of any additional material or information necessary for the Claimant toperfect the claim, and an explanation of why the material or information is necessary; and               (iv) an explanation of the Plan’s claims review procedure and the time limits applicable tosuch procedures, including a statement of the Claimant’s right to bring a civil action under ERISASection 502(a) following a denial on review (as set forth in Section 10.4 below).The denial notice shall be furnished to the Claimant no later than ninety (90)-days after receiptof the claim by the Administrator, unless the Administrator determines that special circumstancesrequire an extension of time for processing the claim. If the Administrator determines that anextension of time for processing is required, then notice of the extension shall be furnished tothe Claimant prior to the termination of the initial ninety (90)-day period. In no event shallsuch extension exceed a period of ninety (90)-days from the end of such initial period. Theextension notice shall indicate the special circumstances requiring an extension of time and thedate by which the Plan expects to render the benefits determination.          (c) Claim Review Procedure. The Claimant may request review of the denial at any timewithin sixty (60) days following the date the Claimant received notice of the denial of his or herclaim. The Administrator shall afford the Claimant a full and fair review of the decision denyingthe claim and, if so requested, shall:               (i) provide the Claimant with the opportunity to submit written comments, documents, recordsand other information relating to the claim for benefits;               (ii) provide that the Claimant shall be provided, upon request and free of charge, reasonableaccess to, and copies of, all documents, records and other information (other than documents,records and other information that is legally-privileged) relevant to the Claimant’s claim forbenefits; and
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               (iii) provide for a review that takes into account all comments, documents, records and otherinformation submitted by the Claimant relating to the claim, without regard to whether suchinformation was submitted or considered in the initial benefit determination.               (iv) If the claim is subsequently also denied by the Review Panel, in whole or in part, thenthe Claimant shall be furnished with a denial notice that shall contain the following:               1) specific reason(s) for the denial;               2) reference to the specific Plan provision(s) on which the denial is based; and               3) an explanation of the Plan’s claims review procedure and the time limitsapplicable to such procedures, including a statement of the Claimant’s right to bring acivil action under ERISA Section 502(a) following the denial on review.               (v) The decision on review shall be issued within sixty (60) days following receipt of therequest for review. The period for decision may, however, be extended up to one hundred twenty(120) days after such receipt if the Review Panel determines that special circumstances requireextension. In the case of an extension, notice of the extension shall be furnished to the Claimantprior to the expiration of the initial sixty (60)-day period. In no event shall such extensionexceed a period of sixty (60) days from the end of such initial period. The extension notice shallindicate the special circumstances requiring an extension of time and the date by which the Planexpects to render the benefits determination.          (d) Special Procedure for Claims Due to Disability. To the extent an application fordistribution as a result of a Disability requires the Administrator or the Review Panel, asapplicable, to make a determination of Disability under the terms of the Plan, then suchdetermination shall be subject to all of the general rules described in this Article, except asthey are expressly modified by this Section.               (i) The initial decision on the claim for a Disability distribution will be made withinforty-five (45) days after the Plan receives the Claimant’s claim, unless special circumstancesrequire additional time, in which case the Administrator will notify the Claimant before the end ofthe initial forty-five (45)-day period of an extension of up to thirty (30) days. If necessary,the Administrator may notify the Claimant, prior to the end of the initial thirty (30)-dayextension period, of a second extension of up to thirty (30) days. If an extension is due to theClaimant’s failure to supply the necessary information, then the notice of extension will describethe additional information and the Claimant will have forty-five (45) days to provide theadditional information. Moreover, the period for making the determination will be delayed from thedate the notification of extension was sent out until the Claimant responds to the request foradditional information. No additional extensions may be made, except with the Claimant’s voluntaryconsent. The contents of the notice shall be the same as described in Section 10.3(b) above. If adisability distribution claim is denied in whole or in part, then the Claimant will receivenotification, as described in Section 10.3(b).
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               (ii) If an internal rule, guideline, protocol or similar criterion is relied upon in makingthe adverse determination, then the denial notice to the Claimant will either set forth theinternal rule, guideline, protocol or similar criterion, or will state that such was relied uponand willbe provided free of charge to the Claimant upon request (to the extent not legally-privileged)and if the Claimant’s claim was denied based on a medical necessity or experimental treatment orsimilar exclusion or limit, then the Claimant will be provided a statement either explaining thedecision or indicating that an explanation will be provided to the Claimant free of charge uponrequest.               (iii) Any Claimant whose application for a Disability distribution is denied in whole or inpart, may appeal the denial by submitting to the Review Panel a request for a review of theapplication within one hundred and eighty (180) days after receiving notice of the denial. Therequest for review shall be in the form and manner prescribed by the Review Panel. In the event ofsuch an appeal for review, the provisions of Section 10.3(c) regarding the Claimant’s rights andresponsibilities shall apply. Upon request, the Review Panel will identify any medical orvocational expert whose advice was obtained on behalf of the Review Panel in connection with thedenial, without regard to whether the advice was relied upon in making the determination. Theentity or individual appointed by the Review Panel to review the claim will consider the appealde novo, without any deference to the initial denial. The review will not include anyperson who participated in the initial denial or who is the subordinate of a person whoparticipated in the initial denial.               (iv) If the initial Disability distribution denial was based in whole or in part on a medicaljudgment, then the Review Panel will consult with a health care professional who has appropriatetraining and experience in the field of medicine involved in the medical judgment, and who wasneither consulted in connection with the initial determination nor is the subordinate of any personwho was consulted in connection with that determination; and upon notifying the Claimant of anadverse determination on review, include in the notice either an explanation of the clinical basisfor the determination, applying the terms of the Plan to the Claimant’s medical circumstances, or astatement that such explanation will be provided free of charge upon request.               (v) A decision on review shall be made promptly, but not later than forty-five (45) days afterreceipt of a request for review, unless special circumstances require an extension of time forprocessing. If an extension is required, the Claimant will be notified before the end of theinitial forty-five (45)-day period that an extension of time is required and the anticipated datethat the review will be completed. A decision will be given as soon as possible, but not laterthan ninety (90) days after receipt of a request for review. The Review Panel shall give notice ofits decision to the Claimant; such notice shall comply with the requirements set forth in paragraph(h) above. In addition, if the Claimant’s claim was denied based on a medical necessity orexperimental treatment or similar exclusion, then the Claimant will be provided a statementexplaining the decision, or a statement providing that such explanation will be furnished to theClaimant free of charge upon request. The notice shall also contain the following statement: “Youand 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 Officeand your State insurance regulatory agency.”
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     10.4 Exhaustion of Claims Procedure and Right to Bring Legal Claim. No action in lawor equity shall be brought more than one (1) year after the Review Panel’s affirmation of a denialof the claim, or, if earlier, more than four (4) years after the facts or events giving rise to theClaimant’s allegation(s) or claim(s) first occurred.     10.5 Plan’s Administrative Costs. The Company shall pay all reasonable costs andexpenses (including legal, accounting, and Participant communication fees) incurred by theAdministrator administering the Plan.
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     IN WITNESS WHEREOF, the Company by its duly authorized officer(s), has caused this Plan to beadopted effective October 14, 2005.         **INTER-TEL, INCORPORATED**           By:           
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