Exhibit 10.2



 
	
  



 


Valspar Corporation Nonqualified


Deferred Compensation Plan


 


April 1, 2014


 


IMPORTANT NOTE


This document has not been approved by the Department of Labor,
Internal Revenue Service or any other governmental entity. An adopting Plan Sponsor
must determine whether the Plan is subject to the Federal securities laws and
the securities laws of the various states. An adopting Plan Sponsor may not
rely on this document to ensure any particular tax consequences or to ensure
that the Plan is “unfunded and maintained primarily for the purpose of
providing deferred compensation to a select group of management or highly
compensated employees” under Title I of the Employee Retirement Income Security
Act of 1974, as amended, with respect to the Employer’s particular situation.
Fidelity Employer Services Company, its affiliates and employees cannot provide
you with legal advice in connection with the execution of this document. This
document should be reviewed by the Plan Sponsor’s attorney prior to execution.





TABLE
OF CONTENTS


	
  

 	
  

 
	
 PREAMBLE

 
	
  

 	
  

 
	
 ARTICLE 1 – GENERAL

 
	
 1.1

 	
 Plan

 
	
 1.2

 	
 Effective Dates

 
	
 1.3

 	
 Amounts Not
 Subject to Code Section 409A

 
	
  

 	
  

 
	
 ARTICLE 2 – DEFINITIONS

 
	
 2.1

 	
 Account

 
	
 2.2

 	
 Administrator

 
	
 2.3

 	
 Adoption Agreement

 
	
 2.4

 	
 Beneficiary

 
	
 2.5

 	
 Board or Board of
 Directors

 
	
 2.6

 	
 Bonus

 
	
 2.7

 	
 Change in Control

 
	
 2.8

 	
 Code

 
	
 2.9

 	
 Compensation

 
	
 2.10

 	
 Director

 
	
 2.11

 	
 Disability

 
	
 2.12

 	
 Eligible Employee

 
	
 2.13

 	
 Employer

 
	
 2.14

 	
 ERISA

 
	
 2.15

 	
 Identification
 Date

 
	
 2.16

 	
 Key Employee

 
	
 2.17

 	
 Participant

 
	
 2.18

 	
 Plan

 
	
 2.19

 	
 Plan Sponsor

 
	
 2.20

 	
 Plan Year

 
	
 2.21

 	
 Related Employer

 
	
 2.22

 	
 Retirement

 
	
 2.23

 	
 Separation from
 Service

 
	
 2.24

 	
 Unforeseeable
 Emergency

 
	
 2.25

 	
 Valuation Date

 
	
 2.26

 	
 Years of Service

 
	
  

 	
  

 
	
 ARTICLE
 3 – PARTICIPATION

 
	
 3.1

 	
 Participation

 
	
 3.2

 	
 Termination of
 Participation

 


i





 


	
  

 	
  

 
	
 ARTICLE
 4 – PARTICIPANT ELECTIONS

 
	
 4.1

 	
 Deferral Agreement

 
	
 4.2

 	
 Amount of Deferral

 
	
 4.3

 	
 Timing of Election
 to Defer

 
	
 4.4

 	
 Election of
 Payment Schedule and Form of Payment

 
	
  

 	
  

 
	
 ARTICLE
 5 – EMPLOYER CONTRIBUTIONS

 
	
 5.1

 	
 Matching
 Contributions

 
	
 5.2

 	
 Other Contributions

 
	
  

 	
  

 
	
 ARTICLE
 6 – ACCOUNTS AND CREDITS

 
	
 6.1

 	
 Establishment of
 Account

 
	
 6.2

 	
 Credits to Account

 
	
  

 	
  

 
	
 ARTICLE
 7 – INVESTMENT OF CONTRIBUTIONS

 
	
 7.1

 	
 Investment Options

 
	
 7.2

 	
 Adjustment of
 Accounts

 
	
  

 	
  

 
	
 ARTICLE
 8 – RIGHT TO BENEFITS

 
	
 8.1

 	
 Vesting

 
	
 8.2

 	
 Death

 
	
 8.3

 	
 Disability

 
	
  

 	
  

 
	
 ARTICLE
 9 – DISTRIBUTION OF BENEFITS

 
	
 9.1

 	
 Amount of Benefits
 

 
	
 9.2

 	
 Method and Timing
 of Distributions

 
	
 9.3

 	
 Unforeseeable
 Emergency

 
	
 9.4

 	
 Payment Election
 Overrides

 
	
 9.5

 	
 Cashouts of
 Amounts Not Exceeding Stated Limit

 
	
 9.6

 	
 Required Delay in
 Payment to Key Employees

 
	
 9.7

 	
 Change in Control

 
	
 9.8

 	
 Permissible Delays
 in Payment

 
	
 9.9

 	
 Permitted
 Acceleration of Payment

 


ii









	
  

 	
  

 
	
 ARTICLE
 10 – AMENDMENT AND TERMINATION

 
	
 10.1

 	
 Amendment by Plan
 Sponsor

 
	
 10.2

 	
 Plan Termination
 Following Change in Control or Corporate Dissolution 

 
	
 10.3

 	
 Other Plan
 Terminations

 
	
  

 	
  

 
	
 ARTICLE
 11 – THE TRUST

 
	
 11.1

 	
 Establishment of
 Trust

 
	
 11.2

 	
 Rabbi Trust

 
	
 11.3

 	
 Investment of
 Trust Funds

 
	
  

 	
  

 
	
 ARTICLE
 12 – PLAN ADMINISTRATION

 
	
 12.1

 	
 Powers and
 Responsibilities of the Administrator

 
	
 12.2

 	
 Claims and Review
 Procedures

 
	
 12.3

 	
 Plan
 Administrative Costs

 
	
  

 	
  

 
	
 ARTICLE
 13 – MISCELLANEOUS

 
	
 13.1

 	
 Unsecured General
 Creditor of the Plan Sponsor

 
	
 13.2

 	
 Plan Sponsor’s
 Liability

 
	
 13.3

 	
 Limitation of
 Rights

 
	
 13.4

 	
 Anti-Assignment

 
	
 13.5

 	
 Facility of
 Payment

 
	
 13.6

 	
 Notices

 
	
 13.7

 	
 Tax Withholding

 
	
 13.8

 	
 Indemnification

 
	
 13.9

 	
 Successors

 
	
 13.10

 	
 Disclaimer

 
	
 13.11

 	
 Governing Law

 


iii





PREAMBLE


The Plan is intended
to be a “plan which is unfunded and is maintained by an 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 Employee Retirement Income Security Act of 1974,
as amended, or an “excess benefit plan” within the meaning of Section 3(36) of
the Employee Retirement Income Security Act of 1974, as amended, or a
combination of both. The Plan is further intended to conform with the
requirements of Internal Revenue Code Section 409A and the final regulations
issued thereunder and shall be interpreted, implemented and administered in a
manner consistent therewith. 








ARTICLE 1 – GENERAL


	
  

 	
  

 	
  

 
	
 1.1

 	
 Plan.
	
 The Plan will be referred to by
 the name specified in the Adoption Agreement.

 
	
  

 	
  

 
	
 1.2

 	
 Effective
 Dates.

 
	
  

 	
  

 
	
  

 	
 (a)

 	
 Original Effective Date. The Original Effective Date is
 the date as of which the Plan was initially adopted.

 
	
  

 	
  

 	
  

 
	
  

 	
 (b)

 	
 Amendment Effective Date. The Amendment Effective Date is
 the date specified in the Adoption Agreement as of which the Plan is amended
 and restated. Except to the extent otherwise provided herein or in the
 Adoption Agreement, the Plan shall apply to amounts deferred and benefit
 payments made on or after the Amendment Effective Date.

 
	
  

 	
  

 	
  

 
	
  

 	
 (c)

 	
 Special Effective Date. A Special Effective Date may apply to any given
 provision if so specified in Appendix A of the Adoption Agreement. A Special
 Effective Date will control over the Original Effective Date or Amendment
 Effective Date, whichever is applicable, with respect to such provision of
 the Plan.

 
	
  

 	
  

 	
  

 
	
 1.3

 	Amounts Not Subject to Code Section 409A



	
  

 	
  

 	
  

 
	
  

 	
  

 	
 Except as otherwise indicated by the Plan Sponsor in
 Section 1.01 of the Adoption Agreement, amounts deferred before January 1,
 2005 that are earned and vested on December 31, 2004 will be separately
 accounted for and administered in accordance with the terms of the Plan as in
 effect on December 31, 2004.

 


1-1





ARTICLE
2 – DEFINITIONS


Pronouns used in the Plan are in the
masculine gender but include the feminine gender unless the context clearly
indicates otherwise. 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 an account established for
 the purpose of recording amounts credited on behalf of a Participant and any
 income, expenses, gains, losses or distributions included thereon. The Account
 shall be a bookkeeping entry only and shall be utilized solely as a device
 for the measurement and determination of the amounts to be paid to a
 Participant or to the Participant’s Beneficiary pursuant to the Plan. 

 
	
  

 	
  

 
	
 2.2

 	
  “Administrator” means the person or persons
 designated by the Plan Sponsor in Section 1.05 of the Adoption Agreement to
 be responsible for the administration of the Plan. If no Administrator is
 designated in the Adoption Agreement, the Administrator is the Plan Sponsor.

 
	
  

 	
  

 
	
 2.3

 	
  “Adoption
 Agreement”
 means the agreement adopted by the Plan Sponsor that establishes the Plan.

 
	
  

 	
  

 
	
 2.4

 	
  “Beneficiary”
 means the
 persons, trusts, estates or other entities entitled under Section 8.2 to
 receive benefits under the Plan upon the death of a Participant.

 
	
  

 	
  

 
	
 2.5

 	
  “Board”
 or “Board of Directors” means the Board of Directors of the Plan Sponsor.

 
	
  

 	
  

 
	
 2.6

 	
  “Bonus” means an amount of incentive
 remuneration payable by the Employer to a Participant.

 
	
  

 	
  

 
	
 2.7

 	
  “Change
 in Control”
 means the occurrence of an event involving the Plan Sponsor that is described
 in Section 9.7.

 
	
  

 	
  

 
	
 2.8

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

 
	
  

 	
  

 
	
 2.9

 	
  “Compensation” has the meaning specified in
 Section 3.01 of the Adoption Agreement.

 
	
  

 	
  

 
	
 2.10

 	
  “Director” means a non-employee member of
 the Board who has been designated by the Plan Sponsor as eligible to
 participate in the Plan.

 


2-1









	
  

 	
  

 
	
 2.11

 	
  “Disability”
 means a
 determination by the Administrator that the Participant is either (a) unable
 to engage in any substantial gainful activity by reason of any medically
 determinable physical or mental impairment which can be expected to result in
 death or can be expected to last for a continuous period of not less than 12
 months, or (b) is, by reason of any medically determinable physical or mental
 impairment which can be expected to result in death or last for a continuous
 period of not less than twelve months, receiving income replacement benefits
 for a period of not less than three months under an accident and health plan
 covering employees of the Employer. A Participant will be considered to have
 incurred a Disability if he is determined to be totally disabled by the
 Social Security Administration or the Railroad Retirement Board.

 
	
  

 	
  

 
	
 2.12

 	
  “Eligible
 Employee”
 means an employee of the Employer who satisfies the requirements in Section
 2.01 of the Adoption Agreement.

 
	
  

 	
  

 
	
 2.13

 	
  “Employer”
 means the
 Plan Sponsor and any other entity which is authorized by the Plan Sponsor to
 participate in and, in fact, does adopt the Plan.

 
	
  

 	
  

 
	
 2.14

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

 
	
  

 	
  

 
	
 2.15

 	
  “Identification
 Date”
 means the date as of which Key Employees are determined which is specified in
 Section 1.06 of the Adoption Agreement.

 
	
  

 	
  

 
	
 2.16

 	
  “Key
 Employee” means
 an employee who satisfies the conditions set forth in Section 9.6.

 
	
  

 	
  

 
	
 2.17

 	
  “Participant”
 means an
 Eligible Employee or Director who commences participation in the Plan in
 accordance with Article 3.

 
	
  

 	
  

 
	
 2.18

 	
  “Plan”
 means the
 unfunded plan of deferred compensation set forth herein, including the
 Adoption Agreement and any trust agreement, as adopted by the Plan Sponsor
 and as amended from time to time. 

 
	
  

 	
  

 
	
 2.19

 	
  “Plan
 Sponsor” means
 the entity identified in Section 1.03 of the Adoption Agreement or any
 successor by merger, consolidation or otherwise.

 
	
  

 	
  

 
	
 2.20

 	
  “Plan
 Year” means
 the period identified in Section 1.02 of the Adoption Agreement. 

 
	
  

 	
  

 
	
 2.21

 	
  “Related
 Employer”
 means the Employer and (a) any corporation that is a member of a controlled
 group of corporations as defined in Code Section 414(b) that includes the
 Employer and (b) any trade or business that is under common control as
 defined in Code Section 414(c) that includes the Employer.

 


2-2









	
  

 	
  

 
	
 2.22

 	
  “Retirement” has the meaning specified in
 6.01(f) of the Adoption Agreement.

 
	
  

 	
  

 
	
 2.23

 	“Separation from Service” means the date that the Participant dies, retires
 or otherwise has a termination of employment with respect to all entities comprising the Related Employer. A Separation from
 Service does not occur if the Participant is on military leave, sick leave or other bona fide leave of absence if the period
 of leave does not exceed six months or such longer period during which the Participant’s right to re-employment is provided
 by statute or contract. If the period of leave exceeds six months and the Participant’s right to re-employment is not provided
 either by statute or contract, a Separation from Service will be deemed to have occurred on the first day following the six-month
 period. If the period of leave is due to any medically determinable physical or mental impairment that can be expected to result
 in death or can be expected to last for a continuous period of not less than six months, where the impairment causes the Participant
 to be unable to perform the duties of his or her position of employment or any substantially similar position of employment,
 a 29 month period of absence may be substituted for the six month period.

 
	
  

 	
  

 
	
  

 	
 Whether a termination of employment has occurred is based
 on whether the facts and circumstances indicate that the Related Employer and
 the Participant reasonably anticipated that no further services would be
 performed after a certain date or that the level of bona fide services the
 Participant would perform after such date (whether as an employee or as an
 independent contractor) would permanently decrease to no more than 20 percent
 of the average level of bona fide services performed (whether as an employee
 or an independent contractor) over the immediately preceding 36 month period
 (or the full period of services to the Related Employer if the employee has
 been providing services to the Related Employer for less than 36 months).

 
	
  

 	
  

 
	
  

 	
 An independent contractor is considered to have
 experienced a Separation from Service with the Related Employer upon the
 expiration of the contract (or, in the case of more than one contract, all
 contracts) under which services are performed for the Related Employer if the
 expiration constitutes a good-faith and complete termination of the
 contractual relationship.

 
	
  

 	
  

 
	
  

 	
 If a Participant provides services as both an employee and
 an independent contractor of the Related Employer, the Participant must
 separate from service both as an employee and as an independent contractor to
 be treated as having incurred a Separation from Service. If a Participant
 ceases providing services as an independent contractor and begins providing services as an employee,
 or ceases providing services as an employee and begins providing services as
 an independent 

 


2-3









	
  

 	
  

 
	
  

 	
 contractor, the Participant will not be considered to have
 experienced a Separation from Service until the Participant has ceased
 providing services in both capacities.

 
	
  

 	
  

 
	
  

 	
 If a Participant provides services both as an employee and
 as a member of the board of directors of a corporate Related Employer (or an
 analogous position with respect to a noncorporate Related Employer), the
 services provided as a director are not taken into account in determining
 whether the Participant has incurred a Separation from Service as an employee
 for purposes of a nonqualified deferred compensation plan in which the
 Participant participates as an employee that is not aggregated under Code
 Section 409A with any plan in which the Participant participates as a
 director.

 
	
  

 	
  

 
	
  

 	
 If a Participant provides services both as an employee and
 as a member of the board of directors of a corporate related Employer (or an
 analogous position with respect to a noncorporate Related Employer), the
 services provided as an employee are not taken into account in determining
 whether the Participant has experienced a Separation from Service as a
 director for purposes of a nonqualified deferred compensation plan in which
 the Participant participates as a director that is not aggregated under Code
 Section 409A with any plan in which the Participant participates as an
 employee.

 
	
  

 	
  

 
	
  

 	
 All determinations of whether a Separation from Service
 has occurred will be made in a manner consistent with Code Section 409A and
 the final regulations thereunder.

 
	
  

 	
  

 
	
 2.24

 	
  “Unforeseeable
 Emergency” means a severe financial hardship of 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 Code Section 152, without regard to Code section
 152(b)(1), (b)(2) and (d)(1)(B); loss of the Participant’s property due to
 casualty; or other similar extraordinary and unforeseeable circumstances
 arising as a result of events beyond the control of the Participant. 

 
	
  

 	
  

 
	
 2.25

 	
  “Valuation
 Date” means
 each business day of the Plan Year that the New York Stock Exchange is open.

 
	
  

 	
  

 
	
 2.26

 	
  “Years
 of Service”
 means each one year period for which the Participant receives service credit
 in accordance with the provisions of Section 7.01(d) of the Adoption
 Agreement.

 


2-4





ARTICLE 3 –
PARTICIPATION


	
  

 	
  

 
	
 3.1

 	
 Participation.
 The
 Participants in the Plan shall be those Directors and employees of the
 Employer who satisfy the requirements of Section 2.01 of the Adoption
 Agreement.

 
	
  

 	
  

 
	
 3.2

 	
 Termination
 of Participation. The Administrator may terminate a Participant’s participation in the
 Plan in a manner consistent with Code Section 409A. If the Employer
 terminates a Participant’s participation before the Participant experiences a
 Separation from Service the Participant’s vested Accounts shall be paid in
 accordance with the provisions of Article 9.

 


3-1





ARTICLE 4 –
PARTICIPANT ELECTIONS


	
  

 	
  

 
	
 4.1

 	
 Deferral
 Agreement. If permitted by the Plan Sponsor in accordance
 with Section 4.01 of the Adoption Agreement, each Eligible Employee and
 Director may elect to defer his Compensation within the meaning of Section
 3.01 of the Adoption Agreement by executing in writing or electronically, a
 deferral agreement in accordance with rules and procedures established by the
 Administrator and the provisions of this Article 4.

 
	
  

 	
  

 
	
  

 	
 A new deferral agreement must be
 timely executed for each Plan Year during which the Eligible Employee or
 Director desires to defer Compensation. An Eligible Employee or Director who
 does not timely execute a deferral agreement shall be deemed to have elected
 zero deferrals of Compensation for such Plan Year.

 
	
  

 	
  

 
	
  

 	
 A deferral agreement may be
 changed or revoked during the period specified by the Administrator. Except
 as provided in Section 9.3 or in Section 4.01(c) of the Adoption Agreement, a
 deferral agreement becomes irrevocable at the close of the specified period.

 
	
  

 	
  

 
	
 4.2

 	
 Amount of Deferral. An
 Eligible Employee or Director may elect to defer Compensation in any amount
 permitted by Section 4.01(a) of the Adoption Agreement.

 
	
  

 	
  

 
	
 4.3

 	
 Timing of
 Election to Defer. Each
 Eligible Employee or Director who desires to defer Compensation otherwise
 payable during a Plan Year must execute a deferral agreement within the
 period preceding the Plan Year specified by the Administrator. Each Eligible
 Employee who desires to defer Compensation that is a Bonus must execute a
 deferral agreement within the period preceding the Plan Year during which the
 Bonus is earned that is specified by the Administrator, except that if the
 Bonus can be treated as performance based compensation as described in Code
 Section 409A(a)(4)(B)(iii), the deferral agreement may be executed within the
 period specified by the Administrator, which period, in no event, shall end
 after the date which is six months prior to the end of the period during
 which the Bonus is earned, provided the Participant has performed services
 continuously from the later of the beginning of the performance period or the
 date the performance criteria are established through the date the
 Participant executed the deferral agreement and provided further that the
 compensation has not yet become ‘readily ascertainable’ within the meaning of
 Reg. Sec 1.409A-2(a)(8). In addition, if the Compensation qualifies as
 ‘fiscal year compensation’ within the meaning of Reg. Sec. 1.409A-2(a)(6),
 the deferral agreement may be made not later than the

 


4-1









	
  

 	
  

 
	
  

 	
 end of the Employer’s taxable
 year immediately preceding the first taxable year of the Employer in which
 any services are performed for which such Compensation is payable.

 
	
  

 	
  

 
	
  

 	
 Except
 as otherwise provided below, an employee who is classified or designated as
 an Eligible Employee during a Plan Year or a Director who is designated as
 eligible to participate during a Plan Year may elect to defer Compensation
 otherwise payable during the remainder of such Plan Year in accordance with
 the rules of this Section 4.3 by executing a deferral agreement within the
 thirty (30) day period beginning on the date the employee is classified or
 designated as an Eligible Employee or the date the Director is designated as
 eligible, whichever is applicable, if permitted by Section 4.01(b)(ii) of the
 Adoption Agreement. If Compensation is based on a specified performance
 period that begins before the Eligible Employee or Director executes his
 deferral agreement, the election will be deemed to apply to the portion of
 such Compensation equal to the total amount of Compensation for the
 performance period multiplied by the ratio of the number of days remaining in
 the performance period after the election becomes irrevocable and effective
 over the total number of days in the performance period. The rules of this
 paragraph shall not apply unless the Eligible Employee or Director can be
 treated as initially eligible in accordance with Reg. Sec. 1.409A-2(a)(7).

 
	
  

 	
  

 
	
 4.4

 	
 Election of Payment Schedule and Form of Payment.

 
	
  

 	
  

 
	
  

 	
 All
 elections of a payment schedule and a form of payment will be made
 in accordance with rules and procedures established by the Administrator and
 the provisions of this Section 4.4.

 
	
  

 	
  

 
	
  

 	
 (a)          If
 the Plan Sponsor has elected to permit annual distribution elections in
 accordance with Section 6.01(h) of the Adoption Agreement the following rules
 apply. At the time an Eligible Employee or Director completes a deferral
 agreement, the Eligible Employee or Director must elect a distribution event
 (which includes a specified time) and a form of payment for the Compensation
 subject to the deferral agreement from among the options the Plan Sponsor has
 made available for this purpose and which are specified in 6.01(b) of the
 Adoption Agreement. Prior to the time required by Reg. Sec. 1.409A-2, the
 Eligible Employee or Director shall elect a distribution event (which
 includes a specified time) and a form of payment for any Employer
 contributions that may be credited to the Participant’s Account during the
 Plan Year. If an Eligible Employee or Director fails to elect a distribution
 event, he shall be deemed to have elected Separation from Service as the distribution
 event. If he fails to elect a form of payment, he shall be deemed to have
 elected a lump sum form of payment.

 


4-2









	
  

 	
  

 
	
  

 	
 (b)          If
 the Plan Sponsor has elected not to permit annual distribution elections in
 accordance with Section 6.01(h) of the Adoption Agreement the following rules
 apply. At the time an Eligible Employee or Director first completes a
 deferral agreement but in no event later than the time required by Reg. Sec.
 1.409A-2, the Eligible Employee or Director must elect a distribution event
 (which includes a specified time) and a form of payment for amounts credited
 to his Account from among the options the Plan Sponsor has made available for
 this purpose and which are specified in Section 6.01(b) of the Adoption
 Agreement. If an Eligible Employee or Director fails to elect a distribution
 event, he shall be deemed to have elected Separation from Service in the
 distribution event. If the fails to elect a form of payment, he shall be
 deemed to have elected a lump sum form of payment.

 


4-3





ARTICLE 5 –
EMPLOYER CONTRIBUTIONS


	
  

 	
  

 
	
 5.1

 	
 Matching
 Contributions. If elected by the Plan Sponsor in Section 5.01(a) of the Adoption
 Agreement, the Employer will credit the Participant’s Account with a matching
 contribution determined in accordance with the formula specified in Section
 5.01(a) of the Adoption Agreement. The matching contribution will be treated
 as allocated to the Participant’s Account at the time specified in Section
 5.01(a)(iii) of the Adoption Agreement.

 
	
  

 	
  

 
	
 5.2

 	
 Other
 Contributions. If elected by the Plan Sponsor in Section 5.01(b) of the Adoption
 Agreement, the Employer will credit the Participant’s Account with a
 contribution determined in accordance with the formula or method specified in
 Section 5.01(b) of the Adoption Agreement. The contribution will be treated
 as allocated to the Participant’s Account at the time specified in Section
 5.01(b)(iii) of the Adoption Agreement.

 


5-1





ARTICLE 6 –
ACCOUNTS AND CREDITS


	
  

 	
  

 
	
 6.1

 	
 Establishment
 of Account. For
 accounting and computational purposes only, the Administrator will establish
 and maintain an Account on behalf of each Participant which will reflect the
 credits made pursuant to Section 6.2, distributions or withdrawals, along
 with the earnings, expenses, gains and losses allocated thereto, attributable
 to the hypothetical investments made with the amounts in the Account as
 provided in Article 7. The Administrator will establish and maintain such
 other records and accounts, as it decides in its discretion to be reasonably
 required or appropriate to discharge its duties under the Plan.

 
	
  

 	
  

 
	
 6.2

 	
 Credits
 to Account. A
 Participant’s Account will be credited for each Plan Year with the amount of
 his elective deferrals under Section 4.1 at the time the amount subject to
 the deferral election would otherwise have been payable to the Participant
 and the amount of Employer contributions treated as allocated on his behalf
 under Article 5. 

 



6-1







ARTICLE 7 –
INVESTMENT OF CONTRIBUTIONS


	
  

 	
  

 
	
 7.1

 	
 Investment
 Options. The
 amount credited to each Account shall be treated as invested in the
 investment options designated for this purpose by the Administrator.

 
	
  

 	
  

 
	
 7.2

 	
 Adjustment
 of Accounts. The amount credited to each Account shall be adjusted for hypothetical
 investment earnings, expenses, gains or losses in an amount equal to the
 earnings, expenses, gains or losses attributable to the investment options
 selected by the party designated in Section 9.01 of the Adoption Agreement
 from among the investment options provided in Section 7.1. If permitted by
 Section 9.01 of the Adoption Agreement, a Participant (or the Participant’s
 Beneficiary after the death of the Participant) may, in accordance with rules
 and procedures established by the Administrator, select the investments from
 among the options provided in Section 7.1 to be used for the purpose of
 calculating future hypothetical investment adjustments to the Account or to
 future credits to the Account under Section 6.2 effective as of the Valuation
 Date coincident with or next following notice to the Administrator. Each
 Account shall be adjusted as of each Valuation Date to reflect: (a) the
 hypothetical earnings, expenses, gains and losses described above; (b)
 amounts credited pursuant to Section 6.2; and (c) distributions or
 withdrawals. In addition, each Account may be adjusted for its allocable
 share of the hypothetical costs and expenses associated with the maintenance
 of the hypothetical investments provided in Section 7.1.

 


7-1





ARTICLE 8 – RIGHT
TO BENEFITS


	
  

 	
  

 
	
 8.1

 	
 Vesting.
 A
 Participant, at all times, has a 100% nonforfeitable interest in the amounts
 credited to his Account attributable to his elective deferrals made in
 accordance with Section 4.1.

 
	
  

 	
  

 
	
  

 	
 A Participant’s right to the amounts credited to his
 Account attributable to Employer contributions made in accordance with
 Article 5 shall be determined in accordance with the relevant schedule and
 provisions in Section 7.01 of the Adoption Agreement. Upon a Separation from
 Service and after application of the provisions of Section 7.01 of the
 Adoption Agreement, the Participant shall forfeit the nonvested portion of
 his Account.

 
	
  

 	
  

 
	
 8.2

 	
 Death.
 The Plan Sponsor may elect to accelerate vesting upon the death of the
 Participant in accordance with Section 7.01(c) of the Adoption Agreement
 and/or to accelerate distributions upon Death in accordance with Section
 6.01(b) or Section 6.01(d) of the Adoption Agreement. If the Plan Sponsor
 does not elect to accelerate distributions upon death in accordance with
 Section 6.01(b) or Section 6.01(d) of the Adoption Agreement, the vested
 amount credited to the Participant’s Account will be paid in accordance with
 the provisions of Article 9.

 
	
  

 	
  

 
	
  

 	
 A Participant may designate a
 Beneficiary or Beneficiaries, or change any prior designation of Beneficiary
 or Beneficiaries in accordance with rules and procedures established by the
 Administrator.

 
	
  

 	
  

 
	
  

 	
 A copy of the death notice or other sufficient
 documentation must be filed with and approved by the Administrator. If upon
 the death of the Participant there is, in the opinion of the Administrator,
 no designated Beneficiary for part or all of the Participant’s vested
 Account, such amount will be paid to his estate (such estate shall be deemed
 to be the Beneficiary for purposes of the Plan) in accordance with the
 provisions of Article 9.

 
	
  

 	
  

 
	
 8.3

 	
 Disability.
 If the
 Plan Sponsor has elected to accelerate vesting upon the occurrence of a
 Disability in accordance with Section 7.01(c) of the Adoption Agreement
 and/or to permit distributions upon Disability in accordance with Section
 6.01(b) or Section 6.01(d) of the Adoption Agreement, the determination of
 whether a Participant has incurred a Disability shall be made by the
 Administrator in its sole discretion in a manner consistent with the
 requirements of Code Section 409A.

 


9-1







ARTICLE 9 – DISTRIBUTION OF BENEFITS


	
  

 	
  

 
	
 9.1

 	
 Amount of Benefits. The vested amount credited to a
 Participant’s Account as determined under Articles 6, 7 and 8 shall determine
 and constitute the basis for the value of benefits payable to the Participant
 under the Plan.

 
	
  

 	
  

 
	
 9.2

 	
 Method and Timing of Distributions. Except as otherwise provided in this Article 9, distributions under the Plan shall
 be made in accordance with the elections made or deemed made by the
 Participant under Article 4. Subject to the provisions of Section 9.6
 requiring a six month delay for certain distributions to Key Employees,
 distributions following a payment event shall commence at the time specified
 in Section 6.01(a) of the Adoption Agreement. If permitted by Section 6.01(g)
 of the Adoption Agreement, a Participant may elect, at least twelve months
 before a scheduled distribution event, to delay the payment date for a
 minimum period of sixty months from the originally scheduled date of payment,
 provided the election does not take effect for at least twelve months from
 the date on which the election is made. The distribution election change must
 be made in accordance with procedures and rules established by the
 Administrator. The Participant may, at the same time the date of payment is deferred,
 change the form of payment but such change in the form of payment may not
 effect an acceleration of payment in violation of Code Section 409A or the
 provisions of Reg. Sec. 1.409A-2(b). For purposes of this Section 9.2, a
 series of installment payments is always treated as a single payment and not
 as a series of separate payments. 

 
	
  

 	
  

 
	
 9.3

 	
 Unforeseeable Emergency. A Participant may request a
 distribution due to an Unforeseeable Emergency if the Plan Sponsor has
 elected to permit Unforeseeable Emergency withdrawals under Section 8.01(a)
 of the Adoption Agreement. The request must be in writing and must be
 submitted to the Administrator along with evidence that the circumstances
 constitute an Unforeseeable Emergency. The Administrator has the discretion
 to require whatever evidence it deems necessary to determine whether a
 distribution is warranted, and may require the Participant to certify that
 the need cannot be met from other sources reasonably available to the
 Participant. Whether a Participant has
 incurred an Unforeseeable Emergency will be determined by the Administrator
 on the basis of the relevant facts and circumstances in its sole discretion,
 but, in no event, will an Unforeseeable Emergency be deemed to exist if the
 hardship can be relieved: (a) through reimbursement or compensation by
 insurance or otherwise, (b) by liquidation of the Participant’s assets to the

 


9-2









	
  

 	
  

 
	
  

 	
 extent such liquidation would
 not itself cause severe financial hardship, or (c) by cessation of deferrals
 under the Plan. A distribution due to an Unforeseeable Emergency must be
 limited to the amount reasonably necessary to satisfy the emergency need and
 may include any amounts necessary to pay any federal, state, foreign or local
 income taxes and penalties reasonably anticipated to result from the
 distribution.
 The distribution will be made in the form of a single lump sum cash payment.
 If permitted by Section 8.01(b) of the Adoption Agreement, a Participant’s
 deferral elections for the remainder of the Plan Year will be cancelled upon
 a withdrawal due to an Unforeseeable Emergency. If the payment of all or any
 portion of the Participant’s vested Account is being delayed in accordance
 with Section 9.6 at the time he experiences an Unforeseeable Emergency, the
 amount being delayed shall not be subject to the provisions of this Section
 9.3 until the expiration of the six month period of delay required by section
 9.6.

 
	
  

 	
  

 
	
 9.4

 	
 Payment
 Election Overrides. If the Plan Sponsor has elected
 one or more payment election overrides in accordance with Section 6.01(d) of
 the Adoption Agreement, the following provisions apply. Upon the occurrence
 of the first event selected by the Plan Sponsor, the remaining vested amount
 credited to the Participant’s Account shall be paid in the form designated to
 the Participant or his Beneficiary regardless of whether the Participant had
 made different elections of time and /or form of payment or whether the
 Participant was receiving installment payments at the time of the event. 

 
	
  

 	
  

 
	
 9.5

 	
 Cashouts Of Amounts Not Exceeding Stated
 Limit. If
 the vested amount credited to the Participant’s Account does not exceed the
 limit established for this purpose by the Plan Sponsor in Section 6.01(e) of
 the Adoption Agreement at the time he incurs a Separation from Service for
 any reason, the Employer shall distribute such amount to the Participant at
 the time specified in Section 6.01(a) of the Adoption Agreement in a single
 lump sum cash payment following such Separation from Service regardless of
 whether the Participant had made different elections of time or form of
 payment as to the vested amount credited to his Account or whether the
 Participant was receiving installments at the time of such termination. A
 Participant’s Account, for purposes of this Section 9.5, shall include any
 amounts described in Section 1.3.

 
	
  

 	
  

 
	
 9.6

 	
 Required Delay in Payment to Key
 Employees.
 Except as otherwise provided in this Section 9.6, a distribution made on
 account of Separation from Service (or Retirement, if applicable) to a
 Participant who is a Key Employee as of the date of his Separation from
 Service (or Retirement, if applicable) shall not be made before the date
 which is six months after the Separation from Service (or Retirement, if
 applicable). If payments to a

 


9-3









	
  

 	
  

 
	
  

 	
 Key Employee are delayed in accordance with this Section
 9.6, the payments to which the Key Employee would otherwise have been
 entitled during the six month period shall be accumulated and paid in a
 single lump sum at the time specified in Section 6.01(a) of the Adoption
 Agreement after the six month period elapses.

 
	
  

 	
  

 
	
  

 	
 (a) A Participant is treated as a Key Employee if (i) he
 is employed by a Related Employer any of whose stock is publicly traded on an
 established securities market, and (ii) he satisfies the requirements of Code
 Section 416(i)(1)(A)(i), (ii) or (iii), determined without regard to Code
 Section 416(i)(5), at any time during the twelve month period ending on the
 Identification Date.

 
	
  

 	
  

 
	
  

 	
 (b) A Participant who is a Key Employee on an
 Identification Date shall be treated as a Key Employee for purposes of the
 six month delay in distributions for the twelve month period beginning on the
 first day of a month no later than the fourth month following the
 Identification Date. The Identification Date and the effective date of the
 delay in distributions shall be determined in accordance with Section 1.06 of
 the Adoption Agreement.

 
	
  

 	
  

 
	
  

 	
 (c) The Plan Sponsor may elect to apply an alternative
 method to identify Participants who will be treated as Key Employees for purposes
 of the six month delay in distributions if the method satisfies each of the
 following requirements. The alternative method is reasonably designed to
 include all Key Employees, is an objectively determinable standard providing
 no direct or indirect election to any Participant regarding its application,
 and results in either all Key Employees or no more than 200 Key Employees
 being identified in the class as of any date. Use of an alternative method
 that satisfies the requirements of this Section 9.6(c) will not be treated as
 a change in the time and form of payment for purposes of Reg. Sec.
 1.409A-2(b).

 
	
  

 	
  

 
	
  

 	
 (d) The six month delay does not apply to payments
 described in Section 9.9(a),(b) or (d) or to payments that occur after the
 death of the Participant. If the payment of all or any portion of the
 Participant’s vested Account is being delayed in accordance with this Section
 9.6 at the time he incurs a Disability which would otherwise require a
 distribution under the terms of the Plan, no amount shall be paid until the
 expiration of the six month period of delay required by this Section 9.6.

 
	
  

 	
  

 
	
 9.7

 	
 Change in Control. If the Plan Sponsor has elected
 to permit distributions upon a Change in Control, the following provisions
 shall

 


9-4









	
  

 	
  

 
	
  

 	
 apply. A distribution made upon a Change in Control will
 be made at the time specified in Section 6.01(a) of the Adoption Agreement in
 the form elected by the Participant in accordance with the procedures
 described in Article 4. Alternatively, if the Plan Sponsor has elected in
 accordance with Section 11.02 of the Adoption Agreement to require
 distributions upon a Change in Control, the Participant’s remaining vested
 Account shall be paid to the Participant or the Participant’s Beneficiary at
 the time specified in Section 6.01(a) of the Adoption Agreement as a single
 lump sum payment. A Change in Control, for purposes of the Plan, will occur
 upon a change in the ownership of the Plan Sponsor, a change in the effective
 control of the Plan Sponsor or a change in the ownership of a substantial
 portion of the assets of the Plan Sponsor, but only if elected by the Plan
 Sponsor in Section 11.03 of the Adoption Agreement. The Plan Sponsor, for
 this purpose, includes any corporation identified in this Section 9.7. All
 distributions made in accordance with this Section 9.7 are subject to the
 provisions of Section 9.6.

 
	
  

 	
  

 
	
  

 	
 If a Participant continues to make deferrals in accordance
 with Article 4 after he has received a distribution due to a Change in
 Control, the residual amount payable to the Participant shall be paid at the
 time and in the form specified in the elections he makes in accordance with
 Article 4 or upon his death or Disability as provided in Article 8.

 
	
  

 	
  

 
	
  

 	
 Whether a Change in Control has occurred will be
 determined by the Administrator in accordance with the rules and definitions
 set forth in this Section 9.7. A distribution to the Participant will be
 treated as occurring upon a Change in Control if the Plan Sponsor terminates
 the Plan in accordance with Section 10.2 and distributes the Participant’s
 benefits within twelve months of a Change in Control as provided in Section
 10.3.

 






	
  

 	
  

 	
  

 
	
  

 	
 (a)

 	
 Relevant Corporations. To constitute a Change in Control
 for purposes of the Plan, the event must relate to (i) the corporation for
 whom the Participant is performing services at the time of the Change in
 Control, (ii) the corporation that is liable for the payment of the
 Participant’s benefits under the Plan (or all corporations liable if more
 than one corporation is liable) but only if either the deferred compensation
 is attributable to the performance of services by the Participant for such
 corporation (or corporations) or there is a bona fide business purpose for
 such corporation (or corporations) to be liable for such payment and, in
 either case, no significant purpose of making such corporation (or
 corporations) liable for such payment is the avoidance of federal income tax,
 or (iii) a corporation that is a majority shareholder of a corporation
 identified in (i) or (ii), or any corporation in a chain of corporations in
 which each corporation is a majority shareholder of another corporation in
 the chain, ending in a corporation identified in (i) or (ii). A majority
 shareholder is defined

 


9-5









	
  

 	
  

 	
  

 
	
  

 	
  

 	
 as a shareholder owning more than fifty percent (50%) of
 the total fair market value and voting power of such corporation.

 
	
  

 	
  

 	
  

 
	
  

 	
 (b)

 	
 Stock Ownership. Code Section 318(a) applies for
 purposes of determining stock ownership. Stock underlying a vested option is
 considered owned by the individual who owns the vested option (and the stock
 underlying an unvested option is not considered owned by the individual who
 holds the unvested option). If, however, a vested option is exercisable for
 stock that is not substantially vested (as defined by Treasury Regulation
 Section 1.83-3(b) and (j)) the stock underlying the option is not treated as
 owned by the individual who holds the option.

 
	
  

 	
  

 	
  

 
	
  

 	
 (c)

 	
 Change in the Ownership of a Corporation. A change in the ownership of a
 corporation occurs on the date that any one person or more than one person
 acting as a group, acquires ownership of stock of the corporation that,
 together with stock held by such person or group, constitutes more than fifty
 percent (50%) of the total fair market value or total voting power of the
 stock of such corporation. If any one person or more than one person acting
 as a group is considered to own more than fifty percent (50%) of the total
 fair market value or total voting power of the stock of a corporation, the
 acquisition of additional stock by the same person or persons is not
 considered to cause a change in the ownership of the corporation (or to cause
 a change in the effective control of the corporation as discussed below in
 Section 9.7(d)). An increase in the percentage of stock owned by any one
 person, or persons acting as a group, as a result of a transaction in which
 the corporation acquires its stock in exchange for property will be treated
 as an acquisition of stock. Section 9.7(c) applies only when there is a
 transfer of stock of a corporation (or issuance of stock of a corporation)
 and stock in such corporation remains outstanding after the transaction. For
 purposes of this Section 9.7(c), persons will not be considered to be acting as
 a group solely because they purchase or own stock of the same corporation at
 the same time or as a result of a public offering. Persons will, however, be
 considered to be acting as a group if they are owners of a corporation that
 enters into a merger, consolidation, purchase or acquisition of stock, or
 similar business transaction with the corporation. If a person, including an
 entity, owns stock in both corporations that enter into a merger,
 consolidation, purchase or acquisition of stock, or similar transaction, such
 shareholder is considered to be acting as a group with other shareholders in
 a corporation only with respect to ownership in that corporation prior to the
 transaction giving rise to the change and not with respect to the ownership
 interest in the other corporation.

 


9-6









	
  

 	
  

 	
  

 
	
  

 	
 (d)

 	
 Change in the effective control of a
 corporation.
 A change in the effective control of a corporation occurs on the date that
 either (i) any one person, or more than one person acting as a group,
 acquires (or has acquired during the twelve month period ending on the date
 of the most recent acquisition by such person or persons) ownership of stock
 of the corporation possessing thirty percent (30%) or more of the total
 voting power of the stock of such corporation, or (ii) a majority of members
 of the corporation’s board of directors is replaced during any twelve month
 period by directors whose appointment or election is not endorsed by a
 majority of the members of the corporation’s board of directors prior to the
 date of the appointment or election, provided that for purposes of this
 paragraph (ii), the term corporation refers solely to the relevant
 corporation identified in Section 9.7(a) for which no other corporation is a
 majority shareholder for purposes of Section 9.7(a). In the absence of an
 event described in Section 9.7(d)(i) or (ii), a change in the effective
 control of a corporation will not have occurred. A change in effective
 control may also occur in any transaction in which either of the two
 corporations involved in the transaction has a change in the ownership of
 such corporation as described in Section 9.7(c) or a change in the ownership
 of a substantial portion of the assets of such corporation as described in
 Section 9.7(e). If any one person, or more than one person acting as a group,
 is considered to effectively control a corporation within the meaning of this
 Section 9.7(d), the acquisition of additional control of the corporation by
 the same person or persons is not considered to cause a change in the
 effective control of the corporation or to cause a change in the ownership of
 the corporation within the meaning of Section 9.7(c). For purposes of this
 Section 9.7(d), persons will or will not be considered to be acting as a
 group in accordance with rules similar to those set forth in Section 9.7(c)
 with the following exception. If a person, including an entity, owns stock in
 both corporations that enter into a merger, consolidation, purchase or
 acquisition of stock, or similar transaction, such shareholder is considered
 to be acting as a group with other shareholders in a corporation only with
 respect to the ownership in that corporation prior to the transaction giving
 rise to the change and not with respect to the ownership interest in the
 other corporation.

 
	
  

 	
  

 	
  

 
	
  

 	
 (e)

 	
 Change in the
 ownership of a substantial portion of a corporation’s assets. A
 change in the ownership of a substantial portion of a corporation’s assets
 occurs on the date that any one person, or more than one person acting as a
 group (as determined in accordance with rules similar to those set forth in
 Section 9.7(d)), acquires (or has acquired during the twelve month period
 ending on the date of the most recent acquisition by such person or persons)
 assets from the corporation that have a total gross fair market value

 



9-7









	
  

 	
  

 	
  

 
	
  

 	
  

 	
 equal to or more than forty
 percent (40%) of the total gross fair market value of all of the assets of
 the corporation immediately prior to such acquisition or acquisitions. For
 this purpose, gross fair market value means the value of the assets of the
 corporation or the value of the assets being disposed of determined without
 regard to any liabilities associated with such assets. There is no Change in
 Control event under this Section 9.7(e) when there is a transfer to an entity
 that is controlled by the shareholders of the transferring corporation
 immediately after the transfer. A transfer of assets by a corporation is not
 treated as a change in ownership of such assets if the assets are transferred
 to (i) a shareholder of the corporation (immediately before the asset
 transfer) in exchange for or with respect to its stock, (ii) an entity, fifty
 percent (50%) or more of the total value or voting power of which is owned,
 directly or indirectly, by the corporation, (iii) a person, or more than one
 person acting as a group, that owns, directly or indirectly, fifty percent
 (50%) or more of the total value or voting power of all the outstanding stock
 of the corporation, or (iv) an entity, at least fifty (50%) of the total
 value or voting power of which is owned, directly or indirectly, by a person
 described in Section 9.7(e)(iii). For purposes of the foregoing, and except
 as otherwise provided, a person’s status is determined immediately after the
 transfer of assets.

 






	
  

 	
  

 
	
 9.8

 	
 Permissible Delays in Payment. Distributions may be delayed
 beyond the date payment would otherwise occur in accordance with the
 provisions of Articles 8 and 9 in any of the following circumstances as long
 as the Plan Sponsor treats all payments to similarly situated Participants on
 a reasonably consistent basis. 

 






	
  

 	
  

 	
  

 
	
  

 	
 (a)

 	
 The Plan Sponsor may delay
 payment if it reasonably anticipates that its deduction with respect to such
 payment would be limited or eliminated by the application of Code Section
 162(m). Payment must be made during the Participant’s first taxable year in
 which the Plan Sponsor reasonably anticipates, or should reasonably
 anticipate, that if the payment is made during such year the deduction of
 such payment will not be barred by the application of Code Section 162(m) or
 during the period beginning with the Participant’s Separation from Service
 and ending on the later of the last day of the Employer’s taxable year in
 which the Participant separates from service or the 15th day of the third
 month following the Participant’s Separation from Service. If a scheduled
 payment to a Participant is delayed in accordance with this Section 9.8(a),
 all scheduled payments to the Participant that could be delayed in accordance
 with this Section 9.8(a) will also be delayed. 

 


9-8









	
  

 	
  

 	
  

 
	
  

 	
 (b)

 	
 The Plan Sponsor may also delay
 payment if it reasonably anticipates that the making of the payment will
 violate federal securities laws or other applicable laws provided payment is
 made at the earliest date on which the Plan Sponsor reasonably anticipates
 that the making of the payment will not cause such violation. 

 
	
  

 	
  

 	
  

 
	
  

 	
 (c)

 	
 The Plan Sponsor reserves the
 right to amend the Plan to provide for a delay in payment upon such other
 events and conditions as the Secretary of the Treasury may prescribe in
 generally applicable guidance published in the Internal Revenue Bulletin. 

 






	
  

 	
  

 
	
 9.9

 	
 Permitted Acceleration of Payment. The Plan Sponsor may permit
 acceleration of the time or schedule of any payment or amount scheduled to be
 paid pursuant to a payment under the Plan provided such acceleration would be
 permitted by the provisions of Reg. Sec. 1.409A-3(j)(4), including the
 following events:

 






	
  

 	
  

 	
  

 
	
  

 	
 (a)

 	
 Domestic Relations Order. A payment may be accelerated if
 such payment is made to an alternate payee pursuant to and following the
 receipt and qualification of a domestic relations order as defined in Code
 Section 414(p).

 
	
  

 	
  

 	
  

 
	
  

 	
 (b)

 	
 Compliance with Ethics Agreements and
 Legal Requirements. A payment may be accelerated as may be necessary to comply with
 ethics agreements with the Federal government or as may be reasonably
 necessary to avoid the violation of Federal, state, local or foreign ethics
 law or conflicts of laws, in accordance with the requirements of Code Section
 409A.

 
	
  

 	
  

 	
  

 
	
  

 	
 (c)

 	
 De Minimis Amounts. A payment will be accelerated if
 (i) the amount of the payment is not greater than the applicable dollar
 amount under Code Section 402(g)(1)(B), (ii) at the time the payment is made
 the amount constitutes the Participant’s entire interest under the Plan and
 all other plans that are aggregated with the Plan under Reg. Sec.
 1.409A-1(c)(2). 

 
	
  

 	
  

 	
  

 
	
  

 	
 (d)

 	
 FICA Tax. A payment may be accelerated to
 the extent required to pay the Federal Insurance Contributions Act tax
 imposed under Code Sections 3101, 3121(a) and 3121(v)(2) of the Code with
 respect to compensation deferred under the Plan (the “FICA Amount”).
 Additionally, a payment may be accelerated to pay the income tax on wages
 imposed under Code Section 3401 of the Code on the FICA Amount and to pay the
 additional income tax at source on wages attributable to the pyramiding Code
 Section 3401 wages and taxes. The total payment under this subsection (d) may
 not exceed the aggregate of the FICA Amount and the income tax withholding
 related to the FICA Amount. 

 


9-9









	
  

 	
  

 	
  

 
	
  

 	
 (e)

 	
 Section 409A Additional Tax. A payment may be accelerated if
 the Plan fails to meet the requirements of Code Section 409A; provided that
 such payment may not exceed the amount required to be included in income as a
 result of the failure to comply with the requirements of Code Section 409A. 

 
	
  

 	
  

 	
  

 
	
  

 	
 (f)

 	
 Offset. A payment may be accelerated in
 the Plan Sponsor’s discretion as satisfaction of a debt of the Participant to
 the Employer, where such debt is incurred in the ordinary course of the
 service relationship between the Participant and the Employer, the entire
 amount of the reduction in any of the Employer’s taxable years does not
 exceed $5,000, and the reduction is made at the same time and in the same
 amount as the debt otherwise would have been due and collected from the
 Participant.

 
	
  

 	
  

 	
  

 
	
  

 	
 (g)

 	
 Other Events. A payment may be accelerated in
 the Administrator’s discretion in connection with such other events and
 conditions as permitted by Code Section 409A. 

 


9-10





ARTICLE 10 – AMENDMENT AND TERMINATION


	
  

 	
  

 
	
 10.1

 	
 Amendment by Plan
 Sponsor. The Plan
 Sponsor reserves the right to  amend the Plan (for
 itself and each Employer) through action of its Board  of Directors. No
 amendment can directly or  indirectly deprive any
 current or former Participant or Beneficiary of all or  any portion of his
 Account which had accrued and vested prior to the amendment.

 
	
  

 	
  

 
	
 10.2

 	
 Plan Termination Following Change in
 Control or Corporate Dissolution. If so
 elected by the Plan Sponsor in 11.01 of the Adoption  Agreement, the Plan
 Sponsor reserves the right to terminate the Plan and  distribute all amounts
 credited to all Participant Accounts within the 30  days preceding or the
 twelve months following a Change in Control as  determined in accordance
 with the rules set forth in Section 9.7. For this  purpose, the Plan will be
 treated as terminated only if all agreements, methods, programs and other
 arrangements sponsored by the Related Employer immediately after the Change
 in Control which are treated as a single plan under Reg. Sec. 1.409A-1(c)(2)
 are also terminated so that all participants under the Plan and all similar
 arrangements are required to  receive all amounts
 deferred under the terminated arrangements within  twelve months of the date
 the Plan Sponsor irrevocably takes all necessary action to terminate the
 arrangements. In addition,  the Plan Sponsor reserves
 the right to terminate the Plan within twelve months  of a corporate
 dissolution taxed under Code Section 331 or with the approval of a bankruptcy
 court pursuant to 11 U. S. C. Section  503(b)(1)(A) provided
 that amounts deferred under the Plan are included  in the gross incomes of
 Participants in the latest of (a) the calendar year in  which the termination and
 liquidation occurs, (b) the first calendar year in which the amount is  no longer subject to a
 substantial risk of forfeiture, or (c) the first calendar  year in which payment is
 administratively practicable. 

 
	
  

 	
  

 
	
 10.3

 	
 Other Plan Terminations. The Plan Sponsor  retains the discretion to
 terminate the Plan if (a) all arrangements  sponsored by the Plan
 Sponsor that would be aggregated with any terminated arrangement under Code
 Section 409A and Reg. Sec. 1.409A-1(c)(2) are terminated, (b) no payments other than
 payments that would be payable under the terms of the arrangements if the
 termination had not occurred are made within twelve months of the
 termination of the arrangements, (c) all payments are made within
 twenty-four months of the date the Plan Sponsor takes all necessary action to
 irrevocably terminate and liquidate the arrangements, (d) the
 Plan Sponsor does not adopt a new arrangement that would be aggregated with
 any terminated arrangement under Code Section 409A and the regulations
 thereunder at any time within the three year period following the date of termination of
 the arrangement, and (e) the termination does not occur proximate to a
 downturn in the financial health

 


10-1









	
  

 	
  

 
	
  

 	
 of the Plan sponsor. The Plan
 Sponsor also reserves the right to amend the Plan to provide that
 termination of the Plan will occur  under such conditions and
 events as may be prescribed by the Secretary of the Treasury in generally
 applicable guidance
 published in the Internal Revenue Bulletin.

 


10-2





ARTICLE 11 – THE TRUST


	
  

 	
  

 
	
 11.1

 	
 Establishment of Trust. The Plan Sponsor may but is not
 required to establish a trust to hold amounts which the Plan Sponsor may
 contribute from time to time to correspond to some or all amounts credited to
 Participants under Section 6.2. In the event that the Plan Sponsor wishes
 to establish a trust to provide a source of funds for the payment of Plan
 benefits, any such trust shall be constructed to constitute an unfunded
 arrangement that does not affect the status of the Plan as an unfunded plan
 for purposes of Title I of ERISA and the Code. If the Plan Sponsor elects
 to establish a trust in accordance with Section 10.01 of the Adoption
 Agreement, the provisions of Sections 11.2 and 11.3 shall become operative.

 
	
  

 	
  

 
	
 11.2

 	
 Rabbi Trust. Any trust established by the Plan
 Sponsor shall be between the Plan Sponsor and a trustee pursuant to a separate
 written agreement under which assets are held, administered and managed,
 subject to the claims of the Plan Sponsor’s creditors in the event of the
 Plan Sponsor’s insolvency. The trust is intended to be treated as a rabbi trust
 in accordance with existing guidance of the Internal Revenue Service, and the
 establishment of the trust shall not cause the Participant to realize current
 income on amounts contributed thereto. The Plan Sponsor must notify the
 trustee in the event of a bankruptcy or insolvency.

 
	
  

 	
  

 
	
 11.3

 	
 Investment of Trust Funds. Any amounts contributed to the
 trust by the Plan Sponsor shall be invested by the trustee in accordance with
 the provisions of the trust and the instructions of the Administrator. Trust
 investments need not reflect the hypothetical investments selected by
 Participants under Section 7.1 for the purpose of adjusting Accounts and the
 earnings or investment results of the trust need not affect the hypothetical
 investment adjustments to Participant Accounts under the Plan.

 


11-1





ARTICLE 12 – PLAN ADMINISTRATION


	
  

 	
  

 
	
 12.1

 	
 Powers and Responsibilities of the
 Administrator. The Administrator has the full power and the full responsibility to
 administer the Plan in all of its details, subject, however, to the
 applicable requirements of ERISA. The Administrator’s powers and
 responsibilities include, but are not limited to, the following:

 






	
  

 	
  

 	
  

 
	
  

 	
 (a)

 	
 To make and enforce such rules and procedures as it deems
 necessary or proper for the efficient administration of the Plan;

 
	
  

 	
  

 	
  

 
	
  

 	
 (b)

 	
 To interpret the Plan, its interpretation thereof to be
 final, except as provided in Section 12.2, on all persons claiming benefits
 under the Plan;

 
	
  

 	
  

 	
  

 
	
  

 	
 (c)

 	
 To decide all questions concerning the Plan and the
 eligibility of any person to participate in the Plan;

 
	
  

 	
  

 	
  

 
	
  

 	
 (d)

 	
 To administer the claims and review procedures specified
 in Section 12.2;

 
	
  

 	
  

 	
  

 
	
  

 	
 (e)

 	
 To compute the amount of benefits which will be payable to
 any Participant, former Participant 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 comply with the reporting and disclosure requirements
 of Part 1 of Subtitle B of Title I of ERISA;

 
	
  

 	
  

 	
  

 
	
  

 	
 (i)

 	
 To appoint such agents, counsel, accountants, and
 consultants as may be required to assist in administering the Plan;

 
	
  

 	
  

 	
  

 
	
  

 	
 (j)

 	
 By written instrument, to allocate and delegate its
 responsibilities, including the formation of an Administrative Committee to
 administer the Plan.

 


12-1









	
  

 	
  

 
	
 12.2

 	
 Claims and Review Procedures.

 






	
  

 	
  

 	
  

 
	
  

 	
 (a)

 	
 Claims Procedure. 

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 If any person believes he is being denied any rights or
 benefits under the Plan, such person may file a claim in writing with the
 Administrator. If any such claim is wholly or partially denied, the
 Administrator will notify such person of its decision in writing. Such
 notification will contain (i) specific reasons for the denial, (ii) specific
 reference to pertinent Plan provisions, (iii) a description of any additional
 material or information necessary for such person to perfect such claim and
 an explanation of why such material or information is necessary, and (iv) a
 description of the Plan’s review procedures and the time limits applicable to
 such procedures, including a statement of the person’s right to bring a civil
 action following an adverse decision on review. Such notification will be
 given within 90 days (45 days in the case of a claim regarding Disability)
 after the claim is received by the Administrator. The Administrator may
 extend the period for providing the notification by 90 days (30 days in the
 case of a claim regarding Disability) if special circumstances require an
 extension of time for processing the claim and if written notice of such
 extension and circumstance is given to such person within the initial 90 day
 period (45 day period in the case of a claim regarding Disability). If such
 notification is not given within such period, the claim will be considered
 denied as of the last day of such period and such person may request a review
 of his claim.

 
	
  

 	
  

 	
  

 
	
  

 	
 (b)

 	
 Review Procedure. 

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 Within 60 days (180 days in the case of a claim regarding
 Disability) after the date on which a person receives a written notification
 of denial of claim (or, if written notification is not provided, within 60
 days (180 days in the case of a claim regarding Disability) of the date
 denial is considered to have occurred), such person (or his duly authorized
 representative) may (i) file a written request with the Administrator for a
 review of his denied claim and of pertinent documents and (ii) submit written
 issues and comments to the Administrator. The Administrator will notify such
 person of its decision in writing. Such notification will be written in a
 manner calculated to be understood by such person and will contain specific
 reasons for the decision as well as specific references to pertinent Plan
 provisions. The notification will explain that the person is entitled to
 receive, upon request and free of charge,

 


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 reasonable access to and copies of all pertinent documents
 and has the right to bring a civil action following an adverse decision on
 review. The decision on review will be made within 60 days (45 days in the
 case of a claim regarding Disability). The Administrator may extend the
 period for making the decision on review by 60 days (45 days in the case of a
 claim regarding Disability) if special circumstances require an extension of
 time for processing the request such as an election by the Administrator to
 hold a hearing, and if written notice of such extension and circumstances is
 given to such person within the initial 60-day period (45 days in the case of
 a claim regarding Disability). If the decision on review is not made within
 such period, the claim will be considered denied.

 
	
  

 	
  

 	
  

 
	
  

 	
 (c)

 	
 Exhaustion of Claims Procedures and Right to Bring Legal
 Claim

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 No action at law or equity shall be brought more than one
 (1) year after the Administrator’s affirmation of a denial of a claim, or, if
 earlier, more than four (4) years after the facts or events giving rising to
 the claimant’s allegation(s) or claim(s) first occurred.

 






	
  

 	
  

 
	
 12.3

 	
 Plan Administrative Costs. All
 reasonable costs and expenses  (including legal,
 accounting, and employee communication fees) incurred by the Administrator in
 administering the Plan shall be paid by the  Plan to the extent not paid by the Employer.

 


12-3





ARTICLE 13 – MISCELLANEOUS


	
  

 	
  

 
	
 13.1

 	
 Unsecured General Creditor of the
 Employer.
 Participants and their Beneficiaries, heirs, successors and assigns shall
 have no legal or equitable rights, interests or claims in any property or
 assets of the Employer. For purposes of the payment of benefits under the
 Plan, any and all of the Employer’s assets shall be, and shall remain, the
 general, unpledged, unrestricted assets of the Employer. Each Employer’s
 obligation under the Plan shall be merely that of an unfunded and unsecured
 promise to pay money in the future. 

 
	
  

 	
  

 
	
 13.2

 	
 Employer’s Liability. Each Employer’s liability for the
 payment of benefits under the Plan shall be defined only by the Plan and by
 the deferral agreements entered into between a Participant and the Employer.
 An Employer shall have no obligation or liability to a Participant under the
 Plan except as provided by the Plan and a deferral agreement or agreements.
 An Employer shall have no liability to Participants employed by other
 Employers.

 
	
  

 	
  

 
	
 13.3

 	
 Limitation of Rights. Neither the establishment of the
 Plan, nor any amendment thereof, nor the creation of any fund or account, nor
 the payment of any benefits, will be construed as giving to the Participant
 or any other person any legal or equitable right against the Employer, the
 Plan or the Administrator, except as provided herein; and in no event will
 the terms of employment or service of the Participant be modified or in any
 way affected hereby.

 
	
  

 	
  

 
	
 13.4

 	
 Anti-Assignment. Except as may be necessary to
 fulfill a domestic relations order within the meaning of Code Section 414(p),
 none of the benefits or rights of a Participant or any Beneficiary of a
 Participant shall be subject to the claim of any creditor. In particular, to
 the fullest extent permitted by law, all such benefits and rights shall be
 free from attachment, garnishment, or any other legal or equitable process
 available to any creditor of the Participant and his or her Beneficiary.
 Neither the Participant nor his or her Beneficiary shall have the right to
 alienate, anticipate, commute, pledge, encumber, or assign any of the
 payments which he or she may expect to receive, contingently or otherwise,
 under the Plan, except the right to designate a Beneficiary to receive death
 benefits provided hereunder. Notwithstanding the preceding, the benefit
 payable from a Participant’s Account may be reduced, at the discretion of the
 administrator, to satisfy any debt or liability to the Employer.

 
	
  

 	
  

 
	
 13.5

 	
 Facility of Payment. If the Administrator
 determines, on the basis of medical reports or other evidence
 satisfactory to the Administrator, that the recipient of any benefit payments
 under the Plan is incapable of handling his affairs by reason of minority,
 illness, infirmity or other incapacity, the Administrator may

 


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 direct the Employer to disburse
 such payments to a person or institution designated by a court
 which has jurisdiction over such recipient or a person or institution otherwise
 having the legal authority under State law for the care and control of such
 recipient. The receipt by such person or institution of any such payments therefore,
 and any such payment to the extent thereof, shall discharge the liability
 of the Employer,
 the Plan and the Administrator  for the payment of
 benefits hereunder to such recipient.

 
	
  

 	
  

 
	
 13.6

 	
 Notices. Any notice or other communication
 to the Employer or Administrator in connection with the Plan shall be deemed
 delivered in writing if addressed to the Plan Sponsor at the address
 specified in Section 1.03 of the Adoption Agreement and if either actually
 delivered at said address or, in the case or a letter, 5 business days shall
 have elapsed after the same shall have been deposited in the United States
 mails, first-class postage prepaid and registered or certified.

 
	
  

 	
  

 
	
 13.7

 	
 Tax Withholding. If the Employer concludes that tax
 is owing with respect to any deferral or payment hereunder, the Employer
 shall withhold such amounts from any payments due the Participant or from
 amounts deferred, as permitted by law, or otherwise make appropriate
 arrangements with the Participant or his Beneficiary for satisfaction of such
 obligation. Tax, for purposes of this Section 13.7 means any federal, state,
 local or any other governmental income tax, employment or payroll tax, excise
 tax, or any other tax or assessment owing with respect to amounts deferred,
 any earnings thereon, and any payments made to Participants under the Plan.

 
	
  

 	
  

 
	
 13.8

 	
 Indemnification. (a) Each Indemnitee (as defined
 in Section 13.8(e)) shall be indemnified and held harmless by the Employer
 for all actions taken by him and for all failures to take action (regardless
 of the date of any such action or failure to take action), to the fullest
 extent permitted by the law of the jurisdiction in which the Employer is
 incorporated, against all expense, liability, and loss (including, without
 limitation, attorneys’ fees, judgments, fines, taxes, penalties, and amounts
 paid or to be paid in settlement) reasonably incurred or suffered by the
 Indemnitee in connection with any Proceeding (as defined in Subsection (e)).
 No indemnification pursuant to this Section shall be made, however, in any
 case where (1) the act or failure to act giving rise to the claim for
 indemnification is determined by a court to have constituted willful
 misconduct or recklessness or (2) there is a settlement to which the Employer
 does not consent.

 
	
  

 	
  

 
	
  

 	
 (b) The right to indemnification provided in this Section
 shall include the right to have the expenses incurred by the Indemnitee in
 defending any Proceeding paid by the Employer in advance of the final
 disposition of the Proceeding, to the fullest extent permitted by the law of the
 jurisdiction in which the Employer is incorporated; provided that, if such
 law requires, the payment of such expenses incurred by the Indemnitee in
 advance of the final disposition of a Proceeding shall be made only on
 delivery to the Employer of

 


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 an undertaking, by or on behalf of the Indemnitee, to
 repay all amounts so advanced without interest if it shall ultimately be
 determined that the Indemnitee is not entitled to be indemnified under this
 Section or otherwise.

 
	
  

 	
  

 
	
  

 	
 (c) Indemnification pursuant to this Section shall
 continue as to an Indemnitee who has ceased to be such and shall inure to the
 benefit of his heirs, executors, and administrators. The Employer agrees
 that the undertakings made in this Section shall be binding on its successors
 or assigns and shall survive the termination, amendment or restatement of the
 Plan.

 
	
  

 	
  

 
	
  

 	
 (d) The foregoing right to indemnification shall be in
 addition to such other rights as the Indemnitee may enjoy as a matter of law
 or by reason of insurance coverage of any kind and is in addition to and not
 in lieu of any rights to indemnification to which the Indemnitee may be
 entitled pursuant to the by-laws of the Employer.

 
	
  

 	
  

 
	
  

 	
 (e) For the purposes of this Section, the following
 definitions shall apply:

 
	
  

 	
  

 
	
  

 	
 (1) “Indemnitee” shall mean each person serving as an
 Administrator (or any other person who is an employee, director, or officer
 of the Employer) who was or is a party to, or is threatened to be made a
 party to, or is otherwise involved in, any Proceeding, by reason of the fact
 that he is or was performing administrative functions under the Plan.

 
	
  

 	
  

 
	
  

 	
 (2) “Proceeding” shall mean any threatened, pending, or
 completed action, suit, or proceeding (including, without limitation, an
 action, suit, or proceeding by or in the right of the Employer), whether
 civil, criminal, administrative, investigative, or through arbitration.

 






	
  

 	
  

 
	
 13.9

 	
 Successors. The provisions of the Plan shall
 bind and inure to the benefit of the Plan Sponsor, the Employer and their
 successors and assigns and the Participant and the Participant’s designated
 Beneficiaries.

 
	
  

 	
  

 
	
 13.10

 	
 Disclaimer. It is the Plan Sponsor’s
 intention that the Plan comply with the requirements of Code Section 409A.
 Neither the Plan Sponsor nor the Employer shall have any liability to any
 Participant should any provision of the Plan fail to satisfy the requirements
 of Code Section 409A.

 
	
  

 	
  

 
	
 13.11

 	
 Governing Law. The Plan will be construed,
 administered and enforced according to the laws of the State specified by the
 Plan Sponsor in Section 12.01 of the Adoption Agreement.

 


13-3