**Exhibit10.13**

 

 

**COMMUNITYFIRST BANKSHARES, INC.SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN**(2004 Restatement)

 

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**COMMUNITYFIRST BANKSHARES, INC.SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN(2004 Restatement)**

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** **

**TABLEOF CONTENTS**

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| SECTION 1. | INTRODUCTION AND  DEFINITIONS |                     |
|-----------------|-------------------------------|--------------------------|
|            | **1.1.**                      | **Restatement of  Plan** |   |
|            | **1.2.**                      | **Definitions**          |   |
|            |                          | 1.2.1.                   | Account |   |
|            |                          | 1.2.2.                   | Affiliate |   |
|            |                          | 1.2.3.                   | Annual Valuation Date |   |
|            |                          | 1.2.4.                   | Base Compensation |   |
|            |                          | 1.2.5.                   | Beneficiary |   |
|            |                          | 1.2.6.                   | Board of Directors or Board |   |
|            |                          | 1.2.7.                   | CEO |   |
|            |                          | 1.2.8.                   | Change of Control |   |
|            |                          | 1.2.9.                   | Code |   |
|            |                          | 1.2.10.                  | Committee |   |
|            |                          | 1.2.11.                  | Disability |   |
|            |                          | 1.2.12.                  | Effective Date |   |
|            |                          | 1.2.13.                  | Employer |   |
|            |                          | 1.2.14.                  | ERISA |   |
|            |                          | 1.2.15.                  | Incentive Compensation |   |
|            |                          | 1.2.16.                  | Measuring Investments |   |
|            |                          | 1.2.17.                  | Participant |   |
|            |                          | 1.2.18.                  | Plan |   |
|            |                          | 1.2.19.                  | Plan  Restatement |   |
|            |                          | 1.2.20.                  | Plan Year |   |
|            |                          | 1.1.21.                  | Plan Sponsor |   |
|            |                          | 1.2.22.                  | Qualified Plan |   |
|            |                          | 1.2.23.                  | Retirement |   |
|            |                          | 1.2.24.                  | Termination of  Employment |   |
|            |                          | 1.2.25.                  | Valuation Date |   |
|            |                          | 1.2.26.                  | Year of Service |   |
| SECTION 2. | PARTICIPATION                 |                     |

 

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|            | **2.1.**            | **Participation  by Selection**                  |                       |
|-----------------|---------------------|--------------------------------------------------|----------------------------|
|            | **2.2.**            | **Elections**                                    |                       |
|            |                | 2.2.1.                                           | Required Initial Elections |   |
|            |                | 2.2.2.                                           | Election Changes           |   |
|            |                | 2.2.3.                                           | No Spousal Rights          |   |
|            | **2.3.**            | **Commencement  of Participation**               |                       |
|            | **2.4.**            | **Loss of Eligibility**                          |                       |
|            | **2.5.**            | **Termination  of Participation**                |                       |
|            | **2.6.**            | **Leaves of Absence**                            |                       |
|            | **2.7.**            | **Specific Exclusion**                           |                       |
|            |                |                                             |                       |   |
| SECTION 3. | CREDITS TO ACCOUNTS |                                             |
|            |                |                                             |                       |   |
|            | **3.1.**            | **Base  Compensation Deferral Credits**          |                       |
|            |                | 3.1.1.                                           | Amount of Credits          |   |
|            |                | 3.1.2.                                           | Crediting to Accounts      |   |
|            | **3.2.**            | **Incentive Compensation Deferral  Credits**     |                       |
|            |                | 3.2.1.                                           | Amount of Credits          |   |
|            |                | 3.2.2.                                           | Crediting to Accounts      |   |
|            | **3.3.**            | **Qualified Plan Restoration  Credits**          |                       |
|            |                | 3.3.1.                                           | Amount of  Credits         |   |
|            |                | 3.3.2.                                           | Crediting  to Accounts     |   |
|            | **3.4.**            | **Employer  Matching Credits**                   |                       |
|            |                | 3.4.1.                                           | Amount of  Credits         |   |
|            |                | 3.4.2.                                           | Crediting to  Accounts     |   |
|            | **3.5.**            | **Employer Discretionary Credits**               |                       |
|            |                | 3.5.1.                                           | Amount of Credits          |   |
|            |                | 3.5.2.                                           | Crediting to  Accounts     |   |
|            | **3.6.**            | **Required  Employer Credits**                   |                       |
|            |                | 3.6.1.                                           | Amount of Credits          |   |
|            |                | 3.6.2.                                           | Crediting to Accounts      |   |
|            | **3.7.**            | **Rules Regarding Employee  Elections**          |                       |
|            |                |                                             |                       |   |
| SECTION 4. | ACCOUNTS            |                                             |                       |
|            |                |                                             |                       |
|            | **4.1.**            | **Establishment  of Accounts**                   |                       |
|            | **4.2.**            | **Vesting**                                      |                       |   |
|            | **4.3.**            | **Designation  of Measuring Investments**        |                       |
|            | **4.4.**            | **Adjustments  of Accounts**                     |                       |
|            | **4.5.**            | **Operational  Rules for Measuring Investments** |                       |
|            |                |                                             |                       |   |
| SECTION 5. | DISTRIBUTIONS       |                                             |                       |
|            |                |                                             |                       |   |
|            | **5.1.**            | **Form of Distribution**                         |                       |
|            |                | 5.1.1.                                           | Available Forms            |   |

 

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|            |                      | 5.1.2.                                                       | Default                                            |   |
|-----------------|---------------------------|--------------------------------------------------------------|----------------------------------------------------|--------|
|            |                      | 5.1.3.                                                       | Installment Amounts                                |   |
|            |                      | 5.1.4.                                                       | Minimum Amount                                     |   |
|            |                      | 5.1.5.                                                       | Death                                              |   |
|            | **5.2.**                  | **Retirement  Distributions**                                |                                               |
|            |                      | 5.2.1.                                                       | Form and Timing                                    |   |
|            |                      | 5.2.2.                                                       | Election to Delay  Distribution for Five (5) Years |   |
|            | **5.3.**                  | **Termination  Distribution**                                |                                               |
|            | **5.4.**                  | **Disability  Distribution**                                 |                                               |
|            | **5.5.**                  | **Hardship  Distribution**                                   |                                               |
|            |                      | 5.5.1.                                                       | When Available                                     |   |
|            |                      | 5.5.2.                                                       | Purposes                                           |   |
|            |                      | 5.5.3.                                                       | Limitations                                        |   |
|            |                      | 5.5.4.                                                       | Effect on  Participation                           |   |
|            | **5.6.**                  | **Change  of Control Distribution**                          |                                               |
|            |                      | 5.6.1.                                                       | When Available                                     |   |
|            |                      | 5.6.2.                                                       | Payment                                            |   |
|            |                      | 5.6.3.                                                       | Forfeiture                                         |   |
|            | **5.7.**                  | **Distribution  Based on Constructive Receipt**              |                                               |
|            | **5.8.**                  | **Designation  of Beneficiaries**                            |                                               |
|            |                      | 5.8.1.                                                       | Right to Designate                                 |   |
|            |                      | 5.8.2.                                                       | Failure of  Designation                            |   |
|            |                      | 5.8.3.                                                       | Disclaimers by  Beneficiaries                      |   |
|            |                      | 5.8.4.                                                       | Definitions                                        |   |
|            |                      | 5.8.5.                                                       | Special Rules                                      |   |
|            |                      | 5.8.6.                                                       | No Spousal Rights                                  |   |
|            | **5.9.**                  | **Death Prior to  Full Distribution**                        |                                               |
|            | **5.10.**                 | **Facility  of Payment**                                     |                                               |
|            | **5.11.**                 | **Cash Distributions**                                       |                                               |
|            | **5.12.**                 | **Code §162(m) Delay**                                  |                                               |
|            |                      |                                                         |                                               |   |
| SECTION 6. | FUNDING OF PLAN           |                                                         |
|            |                      |                                                         |                                               |   |
|            | **6.1.**                  | **Unfunded Obligation**                                      |                                               |
|            |                      | 6.1.1.                                                       | Hedging Investments                                |   |
|            |                      | 6.1.2.                                                       | Corporate Obligation                               |   |
|            | **6.2.**                  | **Spendthrift Provision**                                    |                                               |
|            |                      |                                                         |                                               |   |
| SECTION 7. | AMENDMENT AND TERMINATION |                                                         |
|            |                      |                                                         |                                               |   |
|            | **7.1.**                  | **Amendment**                                                |                                               |
|            | **7.2.**                  | **Discontinuance of Contributions  and Termination of Plan** |                                               |
|            | **7.3.**                  | **Change  of Control**                                       |                                               |
|            | **7.4.**                  | **No Oral  Amendments**                                      |                                               |
|            | **7.5.**                  | **Plan  Binding on Successors**                              |                                               |

 

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| SECTION 8.  | DETERMINATIONS — RULES AND  REGULATIONS |                                 |
|------------------|----------------------------------------------|--------------------------------------|
|             | **8.1.**                                     | **Determinations**                   |   |
|             | **8.2.**                                     | **Rules and Regulations**            |   |
|             | **8.3.**                                     | **Method  of Executing Instruments** |   |
|             | **8.4.**                                     | **Claims and  Review Procedure**     |   |
|             |                                         | 8.4.1.                               | Initial Claim |   |
|             |                                         | 8.4.2.                               | Notice of  Initial Adverse Determination |   |
|             |                                         | 8.4.3.                               | Request for Review |   |
|             |                                         | 8.4.4.                               | Claim on Review |   |
|             |                                         | 8.4.5.                               | Notice of  Adverse Determination for Claim on Review |   |
|             |                                         |                                 |   |   |
| SECTION 9.  | PLAN ADMINISTRATION                          |                                 |
|             |                                         |                                 |   |   |
|             | **9.1.**                                     | **Plan Sponsor**                     |   |
|             |                                         | 9.1.1.                               | Officers |   |
|             |                                         | 9.1.2.                               | Chief Executive  Officer |   |
|             | **9.2.**                                     | **Conflict  of Interest**            |   |
|             | **9.3.**                                     | **Administrator**                    |   |
|             | **9.4.**                                     | **Service of  Process**              |   |
|             | **9.5.**                                     | **Indemnity**                        |   |
|             |                                         |                                 |   |   |
| SECTION 10. | DISCLAIMERS                                  |                                 |   |
|             |                                         |                                 |   |   |
|             | **10.1.**                                    | **Term of  Employment**              |   |
|             | **10.2.**                                    | **Source  of Payment**               |   |
|             | **10.3.**                                    | **Delegation**                       |   |
|             |                                         |                                 |   |   |
| SECTION 11. | MISCELLANEOUS                                |                                 |
|             |                                         |                                 |   |   |
|             | **11.1.**                                    | **ERISA Status**                     |   |
|             | **11.2.**                                    | **IRC Status**                       |   |
|             | **11.3.**                                    | **Effect  on Other Plans**           |   |
|             | **11.4.**                                    | **Disqualification**                 |   |
|             | **11.5.**                                    | **Rules of  Document Construction**  |   |
|             | **11.6.**                                    | **References  to Laws**              |   |
|             | **11.7.**                                    | **Choice of Law**                    |   |
|             | **11.8.**                                    | **ERISA  Administrator**             |   |
|             | **11.9.**                                    | **Not  an Employment Contract**      |   |
|             | **11.10.**                                   | **Tax  Withholding**                 |   |
|             | **11.11.**                                   | **Expenses**                         |   |
|             | **11.12.**                                   | **Service  of Process**              |   |
|             | **11.13.**                                   | **Spendthrift Provision**            |   |
|             | **11.14.**                                   | **Certifications**                   |   |
|             | **11.15.**                                   | **Errors  in Computations**          |   |

 

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| SCHEDULE I  – |   | EMPLOYERS  PARTICIPATING IN THE COMMUNITY FIRST BANKSHARES, INC. SUPPLEMENTAL EXECUTIVE  RETIREMENT PLAN |
|-------------------------|--------|----------------------------------------------------------------------------------------------------------|

 

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**COMMUNITYFIRST BANKSHARES, INC.SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN(2004 Restatement)**

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# **SECTION 1**

# ** **

# **INTRODUCTION AND DEFINITIONS**

# ** **

## 1.1.                                          **Restatement****of Plan**. Community First Bankshares, Inc., a Delaware corporation, has previouslyestablished and maintained a nonqualified deferred compensation plan (“Plan”)for the benefit of a select group of management and highly compensatedemployees and, effective January 1, 2004, restates the Plan in thisdocument entitled “Community First Bankshares, Inc. Supplemental ExecutiveRetirement Plan (2004 Restatement).” Effective January 1, 2004, this document supercedes and replacessaid original Plan document and amendments and constitutes the entire statementof the Plan, subject to such amendments as may hereafter be adopted.

 

## 1.2.                                          **Definitions**.  Whenthe following terms are used herein with initial capital letters, they shallhave the following meanings:

 

### 1.2.1.                                                         **Account**— the separate bookkeeping account established foreach Participant which represents the separate unfunded and unsecured generalobligation of the Employers established with respect to each person who is aParticipant in this Plan in accordance with Section 2 and to which arecredited the dollar amounts specified in Section 3 and from which aresubtracted payments made pursuant to Section 5.

###  

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

###  

### 1.2.3.                                                         **Annual****ValuationDate** — each December 31.

###  

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

###  

### 

###  

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

###  

### 1.2.5.                                                         **Beneficiary**— a person designated by a Participant (orautomatically by operation of the Plan Restatement) to receive all or a part ofthe Participant’s Account in the event of the Participant’s death prior to fulldistribution thereof.  A person sodesignated shall not be considered a Beneficiary until the death of theParticipant.

###  

### 1.2.6.                                                         **Board****of Directors or Board**— the Board ofDirectors of the Plan Sponsor or its successor.  Board of Directors shall also mean and refer to any properlyauthorized committee of the Board of Directors.

###  

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

###  

### 1.2.8.                                                         **Change****of Control** — the occurrence of one of thefollowing events:

###  

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

####  

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

####  

#### (c)                                                                      thestockholders of Plan Sponsor approve a merger or consolidation of Plan Sponsorwith any other corporation, other than (i) a merger or

####  

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#### consolidation which wouldresult in the voting securities of Plan Sponsor outstanding immediately priorthereto continuing to represent (either by remaining outstanding or by beingconverted into voting securities of the merged or consolidated entity) 50% ormore of the combined voting power of the voting securities of Plan Sponsor orsuch merged or consolidated entity outstanding immediately after such merger orconsolidation, or (ii) a merger or consolidation effected to implement arecapitalization of Plan Sponsor or similar transaction in which no “person”acquires more than 25% of the combined voting power of Plan Sponsor’s thenoutstanding securities;

####  

#### (d)                                                                     thestockholders of Plan Sponsor approve a plan of complete liquidation or a saleor disposition by Plan Sponsor of all or substantially all of Plan Sponsor’sassets.  “The sale or disposition byPlan Sponsor of all or substantially all of Plan Sponsor’s assets” shall mean asale or other disposition transaction or series of related transactionsinvolving assets of Plan Sponsor or of any direct or indirect subsidiary ofPlan Sponsor (including the stock of any direct or indirect subsidiary of PlanSponsor) in which the value of the assets or stock being sold or otherwisedisposed of (as measured by the purchase price being paid therefor or by suchother method as the Board of Directors determines is appropriate in a casewhere there is no readily ascertainable purchase price) constitutes more than50% of the fair market value of Plan Sponsor. For purposes of the preceding sentence, the “fair market value of PlanSponsor” shall be the aggregate market value of Plan Sponsor’s outstandingcommon stock (on a fully diluted basis) plus the aggregate market value of PlanSponsor’s other outstanding equity securities. The aggregate market value of Plan Sponsor’s common stock shall bedetermined by multiplying the number of shares of Plan Sponsor common stock (ona fully diluted basis) outstanding on the date of the execution and delivery ofa definitive agreement (“Transaction Date”) with respect to the sale ordisposition by Plan Sponsor of all or substantially all of Plan Sponsor’sassets by the average closing price for Plan Sponsor’s common stock for the tentrading days immediately preceding the Transaction Date.  The aggregate market value of any otherequity securities of Plan Sponsor shall be determined in a manner similar tothat prescribed in the immediately preceding sentence for determining theaggregate market value of Plan Sponsor’s common stock or by such other methodas the Board of Directors shall determine is appropriate; or

####  

#### (e)                                                                      theBoard of Directors determines, by a vote of a majority of its entiremembership, that a tender offer statement by any person (as defined

####  

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#### above) indicates anintention on the part of such person to acquire control of Plan Sponsor.

####  

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

###  

### 1.2.10.                                                   **Committee**— the Administrative Committee consisting of oneor more members appointed by and serving at the pleasure of the CEO.

###  

### 1.2.11.                                                   **Disability**— a medically determinable physical or mentalimpairment that renders the individual disabled and eligible for long termdisability benefits as determined under the terms of the long-term disabilityplan sponsored by the Plan Sponsor.  TheCommittee shall determine the date on which the Disability shall have occurredif such determination is necessary.

###  

### 1.2.12.                                                   **Effective****Date** — January 1, 2004.

###  

### 1.2.13.                                                   **Employer**— the Plan Sponsor, each business entity listed asan Employer in the Schedule I to this Plan Restatement, any other businessentity that employs persons who are selected for participation underSection 2 of this Plan and any successor thereof.

###  

### 1.2.14.                                                   **ERISA**— the Employee Retirement Income Security Act of1974, as amended.

###  

### 1.2.15.                                                   **Incentive****Compensation** — a cash award or cash bonuspayable to the Participant under an incentive plan, program or arrangementsponsored by the Plan Sponsor, excluding the value of any equity or stockcompensation awarded or paid to Participant or any compensation resulting fromthe sale of stock of the Plan Sponsor or exercise of stock options of the PlanSponsor.

###  

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

###  

### 1.2.17.                                                   **Participant**— an employee of an Employer who is selectedfor participation in this Plan in accordance with the provisions ofSection 2.

###  

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

###  

### 1.2.19.                                                   **Plan Restatement** — this documententitled “Community First Bankshares, Inc. Supplemental Executive RetirementPlans (2004 Restatement)” as adopted by

###  

### 4

### 

###  

### the Committee andgenerally effective as of January 1, 2004 as the same may be amended fromtime to time thereafter.

###  

### 1.2.20.                                                   **Plan Year** — the twelve (12) consecutive month periodending on any Annual Valuation Date.

###  

### 1.2.21.                                                   **Plan Sponsor** — Community First Bankshares, Inc., aDelaware corporation, or any successor thereto.

###  

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

###  

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

###  

### 1.2.24.                                                   **Termination of****Employment** — a completeseverance of an employee’s employment relationship with the Employer and allAffiliates for any reason other than the employee’s death or Disability.  A transfer from employment with an Employerto employment with another Employer or an Affiliate of an Employer shall notconstitute a Termination of Employment. If an Employer who is an Affiliateceases to be an Affiliate because of a sale of substantially all the stock orassets of the Employer, then Participants who are employed by that Employer andwho cease to be employed by an Employer on account of such sale shall be deemedto have thereby had a Termination of Employment for the purpose of commencingdistributions from this Plan.

###  

### 1.2.25.                                                   **Valuation****Date** — any day that the U.S. securitiesmarkets are open and conducting business.

###  

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

###  

### 5

### 

###  

# **SECTION 2**

# ** **

# **PARTICIPATION**

# ** **

## 2.1.                                          **Participation by****Selection**.  An employee becomes a Participant in thePlan only upon being selected for participation by the Committee.  An employee selected for participation willbe notified in writing.  Employment inan executive capacity does not entitle an employee to selection forparticipation in the Plan.  TheCommittee shall not select an employee for participation unless it determinesthat such individual is a member of a select group of management or highlycompensated employees (as that expression is used in ERISA).  The Committee’s selection of an individualfor participation shall be made solely in its discretion and shall beconclusive and binding.  The Committeeshall select such employees for participation in this Plan on a PlanYear-by-Plan Year basis.  Selection forone Plan Year does not entitle the employee to be selected the next Plan Year.

##  

## 2.2.                                          **Elections**.

##  

### 2.2.1.                                                         **Required****Initial Elections**.  Prior to the date that an employee selectedfor participation first becomes a Participant, such employee shall as a conditionof participation in this Plan complete such forms and make such elections asthe Plan Sponsor may require for the effective administration of thisPlan.  At a minimum, the initialenrollment shall designate:

###  

#### (a)                                                                      Theform of the distribution of the Participant’s Account upon Retirement.

####  

#### (b)                                                                     TheMeasuring Investments to be used to measure income, gains and losses on theAccount.

####  

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

 

### 2.2.2.                                                         **Election****Changes**. After the initial election, a Participant may, from time to time, asdetermined by the Committee, elect to change prospectively the MeasuringInvestments used to measure income, gains and losses on the Participant’sAccount.  Any such election change shallbe filed in accordance with such rules as the Plan Sponsor shall establish.

###  

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

###  

## 2.3.                                          **Commencement****of Participation**.  An employee selected to participate in thePlan who has satisfied all enrollment requirements, including returning allrequired documents to the

##  

## 6

## 

##  

## Plan Sponsorwithin the specified time period, shall become a Participant in the Plan on thefirst day of the Plan Year for which the Participant has been selected toparticipate.  If an employee is selectedto participate in the Plan on or after the first day of a Plan Year, theemployee shall become a Participant in the Plan on the first day of the monthfollowing satisfaction of all enrollment requirements provided that suchrequirements are completed within 30 days after the employee is selected forparticipation.

##  

## 2.4.                                          **Loss****of Eligibility**.  If aParticipant’s employment status is changed such that Participant no longer is amember of a select group of management or highly compensated employees or theCommittee, in its sole discretion, determines that a Participant is no longereligible to participate in the Plan, the Participant shall cease to be eligibleto make deferrals to, or receive employer contributions under, the Plan butshall continue to be eligible to elect a change in Measuring Investments inaccordance with Section 4.3.  Theindividual’s Account balance shall remain in the Plan until distributed inaccordance with Section 5.

##  

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

##  

#### (a)                                                                      thedate the Participant no longer has any Account under the Plan (that is, theParticipant has received a distribution of all of the Participant’s Account, ifany); or

####  

#### (b)                                                                     thedate of the Participant’s death.

####  

## 2.6.                                          **Leaves****of Absence**.  Upon the commencement of a leave of absence, a Participant shallcease to be eligible to make deferrals to, or receive employer contributionsunder the Plan but shall continue to be eligible to elect a change in MeasuringInvestments in accordance with Section 4.3.  During the Participant’s leave of absence, the Participant’sAccount balance shall remain in the Plan unless otherwise distributable inaccordance with Section 5.  Uponreturn from the leave of absence, the Participant’s elections underSections 3.1, 3.2 and 3.3 in effect at the time the Participant went onleave shall be reactivated and the Participant shall not be allowed to changethose elections for the Plan Year in which the Participant returned from theleave.

##  

## 2.7.                                          **Specific****Exclusion**. Notwithstanding anything apparently to the contrary in the PlanRestatement or in any written communication, summary, resolution or document ororal communication, no individual shall be a Participant in this Plan, developbenefits under this Plan or be entitled to receive benefits under this Plan(either for himself or herself or his or her survivors) unless such individualis a member of a select group of management or highly compensated employees (asthat expression is used in ERISA).  If acourt of competent jurisdiction, any representative of the U.S. Department ofLabor or any other governmental, regulatory or similar body makes any direct orindirect, formal or informal, determination that an individual who is an activeParticipant is not a member of a select group of management or highlycompensated employees (as that expression is used in ERISA), such individualshall not

##  

## 7

## 

##  

## be (and shall nothave ever been) a Participant in this Plan at any time. If any person not sodefined has been erroneously treated as a Participant in this Plan, upon discoveryof such error such person’s erroneous participation shall immediately terminateeffective as of the date the individual initially became a Participant, withthe intended result being that the individual be treated as if the individualnever became a Participant.

##  

## 8

## 

##  

# **SECTION 3**

# ** **

# **CREDITS TO ACCOUNTS**

# ** **

## 3.1.                                          **Base Compensation****Deferral Credits**.

##  

### 3.1.1.                                                         **Amount****of Credits**.  Prior to the first day of any Plan Year, the Participant mayelect to defer a percentage of the Participant’s annual Base Compensation forthat Plan Year.  An election made by aParticipant for a Plan Year shall remain in effect for subsequent Plan Yearsunless, prior to a subsequent Plan Year, the election is changed or terminatedby the Participant or the Participant is not selected for participation forthat subsequent Plan Year.  The electionshall designate a percentage of the Participant’s annual Base Compensationwhich is earned during that Plan Year (without regard to whether it would bepaid during that or a subsequent Plan Year) which shall not be paid to theParticipant but instead shall be credited under this Plan under Section 3and distributed from this Plan under Section 5.  The percentage that can be designated shall not exceed fiftypercent (50%) of the Participant’s annual Base Compensation.

###  

### 3.1.2.                                                         **Crediting****to Accounts**.  The Plan Sponsor shall credit to the Account of each Participantthe amount, if any, of Base Compensation that the Participant elected todefer.  Such amount shall be credited incash.  Such amount shall be credited asnearly as practicable as of the time or times when the compensation would havebeen paid to the Participant but for the election to defer.

###  

## 3.2.                                          **Incentive Compensation****DeferralCredits**.

##  

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

###  

### 3.2.2.                                                         **Crediting to****Accounts**. The Plan Sponsor shall credit to the Account of each Participant theamount, if any, of Incentive Compensation that the Participant elected todefer.  Such amount shall be credited incash.  Such amount shall be credited asnearly as practicable as of the time or times when the compensation would havebeen paid to the Participant but for the election to defer.

###  

### 9

### 

###  

## 3.3.                                          **Qualified Plan Restoration****Credits**.

##  

### 3.3.1.                                                         **Amount of Credit****s**.  Prior to the first day of any Plan Year, the Participant will bedeemed to have elected to contribute all of the following amounts to theParticipant’s Account:

###  

#### (a)                                                                      theamount by which the Participant’s elective contributions to the Qualified Planare reduced to cause the Qualified Plan to comply with the limitations setforth in Code sections 401(k)(3);

####  

#### (b)                                                                     theamount by which the Participant’s elective contributions to the qualified planare limited by the restriction under Code section 401(a)(17);

####  

#### (c)                                                                      theamount by which the Participant’s elective contributions to the Qualified Planare limited by the restrictions imposed by the anti-discrimination standardsunder Code sections 401(a)(5)(B) and 414(s);

####  

#### (d)                                                                     theamount by which such Participant’s elective contributions to the Qualified Planexceed the limitation imposed by Code section 402(g); and

####  

#### (e)                                                                      theamount by which the Participant’s elective contributions to the Qualified Planare reduced to cause the Qualified Plan to comply with the limitation imposed byCode section 415.

####  

A Participant mayaffirmatively elect not to contribute the amounts specified above, but suchelection must be made prior to the Plan Year for which the election will beeffective, and such election must be not to contribute all (as opposed to some)of the amounts specified above.  Anelection made by a Participant for a Plan Year shall remain in effect forsubsequent Plan Years unless, prior to a subsequent Plan Year, the election ischanged or terminated by the Participant or the Participant is not selected forparticipation for that subsequent Plan Year.

 

### 3.3.2.                                                         **Crediting to Account****s**.  The Plan Sponsor shall credit to the Accountof each Participant the amount, if any, determined underSection 3.3.1.  Such amount shallbe credited in cash.  Insofar as ispracticable, the amount described in this Section 3.3 shall be credited tothe Account as of the time or times when such amount (or comparable amount)would actually have been contributed (not accrued) to the Qualified Plan butfor limitations or restrictions imposed by the Code.

###  

## 3.4.                                          **Employer Ma****tching Credits**.

##  

### 3.4.1.                                                         **Amount of Credits**.  Each Plan Year the Plan Sponsor may, but isnot required to, contribute to a Participant’s Account the amount by which theParticipant’s matching contributions to the Qualified Plan are reduced to causethe Qualified Plan to comply with the limitations set forth inSection 3.3.1. of this Plan Restatement and the limitation set forth inCode

###  

### 10

### 

###  

### section 401(m)(2).  Each Plan Year the Plan Sponsor may, but isnot required to, contribute to a Participant’s Account a match contributionbased on the amounts contributed by the Participant under Sections 3.1 and3.2.

###  

### 3.4.2.                                                         **Crediting to Acco****unts**.  The Plan Sponsor shall credit to the Accountof each Participant the amount, if any, determined underSection 3.4.1.  Such amount shallbe credited in cash.  Insofar as ispracticable, the amount described in this Section 3.4 shall be credited tothe Account as of the time or times when such amount (or comparable amount)would actually have been contributed (not accrued) to the Qualified Plan butfor limitations or restrictions imposed by the Code.

###  

## 3.5.                                          **Employer Discretionary****Credits**.

##  

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

###  

### 3.5.2.                                                         **Crediting to Ac****counts**.  The Plan Sponsor shall credit to the Accountof each Participant the amount, if any, determined underSection 3.5.1.  Such amount shallbe credited in cash.  Such amount shallbe credited as of the last day of the Plan Year for which the contribution isbeing made.  If a Participant is notemployed by the Employer as of the last day of a Plan Year for which thecontribution is being made other than by reason of Retirement, death orDisability, that Participant shall not be entitled to a contribution.

###  

## 3.6.                                          **Required Employe****r Credits**.

##  

### 3.6.1.                                                         **Amount o****f Credits**. Each Plan Year the Plan Sponsor shall contribute an amount equal to apercentage of the Participant’s Base Compensation to the Account of theParticipant.  The percentage shall bedetermined by the Plan Sponsor’s return on equity (as determined by generallyaccepted accounting principals and the Committee) in accordance with thefollowing schedule:

 

| **Return on  Equity** |        | **Percent of Participant’s Base  Compensation** |
|-----------------------|-------------|------------------------------------------------------|
| 22%                   | and Greater |                                                 | 7% |
| 21%                   |        |                                                 | 6% |
| 20%                   |        |                                                 | 5% |
| 19%                   |        |                                                 | 4% |
| 18%                   |        |                                                 | 3% |
| Less than 18%         |        |                                                 | 0% |

 

11

----

 

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

###  

## 3.7.                                          **Ru****lesRegarding Employee Elections**. Each election (or deemed election) by a Participant to defer orcontribute an amount to the Participant’s Account under Sections 3.1, 3.2 and3.3 shall:

##  

#### (a)                                                                      beirrevocable for the Plan Year with respect to which it is made once it has beenaccepted by the Plan Sponsor;

####  

#### (b)                                                                     bemade in writing upon forms furnished by the Plan Sponsor, shall be made at suchtime as the Plan Sponsor shall determine and shall conform to such otherprocedural and substantive rules as the Plan Sponsor shall establish; and

####  

#### (c)                                                                      bereceived by the Plan Sponsor prior to the first day of the Plan Year for whichthe deferral election is made.

####  

For a newlyeligible Participant, however, the deferral election must be received by thePlan Sponsor within 30 days after the first day of such eligibility, and, if soreceived, deferral shall be effective as of the first day of the monthfollowing such receipt and shall only apply to compensation and amounts earnedfollowing the effective date of the election.

 

12

----

 

# **SECTION 4**

# ** **

# **ACCOUNTS**

# ** **

## 4.1.                                          **Establishment of****Accounts**.  There shall be established for eachParticipant unfunded, bookkeeping Accounts which shall be adjusted eachValuation Date. The Accounts and Measuring Investments are specified solely asa device for computing the amounts of benefits to be paid to Participants underthe Plan, and the Plan Sponsor is not required to purchase such investments.

##  

## 4.2.                                          **Vesting**.  TheAccount of each Participant shall be fully (100%) vested and nonforfeitable atall times.

##  

## 4.3.                                          **Designation of Me****asuring Investments**. Inaccordance with procedures to be established by the Plan Sponsor, each Participantshall elect, as part of the initial enrollment process, and from time to timethereafter, one or more Measuring Investments which shall be used to determinethe value of such Participant’s Account. A Participant’s change in Measuring Investments shall designate:

##  

#### (a)                                                                      oneor more Measuring Investments for the current Account balance, and

####  

#### (b)                                                                     oneor more Measuring Investments for amounts that are credited to the Account inthe future.

####  

## An effective change inMeasuring Investments shall be effective as of the day after the Valuation Datecoincident with or immediately following the date the election change is filed.A Participant’s change in Measuring Investments shall not be effective unlesssuch election change complies with the procedures established by the PlanSponsor.  The Plan Sponsor may, in itssole discretion, add, discontinue or substitute a Measuring Investments.

##  

## 4.4.                              **Adjustments of****Accounts**.  As of each Valuation Date, the value of eachAccount shall be adjusted for credits, distributions and withholdingsubtractions under Section 10.6 during the valuation period and the valueof each Account shall be adjusted for income, gains and losses during thevaluation period as if the Account had in fact been invested in the MeasuringInvestments selected by the Participant during such period.  The Committee shall establish additionalrules for the adjustment of Accounts as the Committee may deem necessary andappropriate. The Committee shall provide to the Participant at least annually awritten statement setting for current value of each Account and any changes tothe Account.

##  

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

##  

13

----

 

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

 

14

----

 

# **SECTION 5**

# ** **

# **DISTRIBUTIONS**

# ** **

## 5.1.                                          **Form of****Distribution**.

##  

### 5.1.1.                                                         **Available For****ms**.  At the time of initial enrollment, a Participant shall elect oneof the following forms of distribution:

###  

#### (a)                                                                      asingle lump sum; or

####  

#### (b)                                                                     aseries of annual installments payable over five (5), ten (10), fifteen (15), ortwenty (20) years.

####  

### 5.1.2.                                                         **Def****ault**.  If for any reason a Participant shall havefailed to make a timely written designation of form for distribution (includingreasons entirely beyond the control of the Participant), the distribution shallbe made in a single lump sum as of the Valuation Date coincident with orimmediately following the Participant’s Termination of Employment and shall bemade as soon as practicable after such Valuation Date.

###  

### 5.1.3.                                                         **Installment Amounts**.  The amount of the annual installments shall be determined bydividing the amount of the Account as of the Annual Valuation Date as of whichthe installment is being paid by the number of remaining installment paymentsto be made (including the payment being determined).

###  

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

###  

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

####  

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

 

### 5.1.5.                                                         **Death**.  If theParticipant dies prior to the date of Participant’s Retirement, payment of theParticipant’s Account shall be made to the Participant’s Beneficiary in asingle

###  

### 15

### 

###  

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

###  

## 5.2.                                          **Retirement D****istributions**.

##  

### 5.2.1.                                                         **Form and Ti****ming. **Upona Participant’s Retirement, unless distributed earlier in accordance with thePlan, distribution of the Participant’s Account shall be made in the formdesignated in writing at the time of the Participant’s initial enrollment (tothe extent that such designation is consistent with the rules of the PlanRestatement).  If the Participantelected payment in the form of installments, the amount of the firstinstallment will be determined as soon as administratively feasible followingthe Plan Year in which the Participant retires and shall be actually paid assoon as practicable after such determination.

###  

### 5.2.2.                     **                                   ****Election to Delay Distributio****n for Five(5) Years**.  A Participant mayelect to delay distribution of all or a portion of the Participant’s Accountfor five (5) years.  Notwithstanding theforegoing, any election to delay distribution of all or a portion of theParticipant’s Account for five (5) years shall be disregarded as if it hadnever been filed unless the election to delay distribution:

###  

#### (a)                                                                      isfiled by the Participant while employed by the Employer,

####  

#### (b)                                                                     isfiled with the Committee at least twelve (12) months before the Participant’sscheduled distribution date following the Participant’s Retirement, and

####  

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

####  

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

 

## 5.3.                                          **Termination D****istribution**.  Upon a Participant’s Termination ofEmployment, unless distributed earlier in accordance with the Plan,distribution of the Participant’s Account shall be made in a single lump sumpayment as of the Valuation Date coincident with or immediately following theParticipant’s Termination of Employment and shall be made as soon aspracticable after such Valuation Date.

##  

## 5.4.                                          **Disability Distri****bution**.  If the Committee determines that aParticipant has a Disability, the Participant shall cease to be eligible tomake deferrals to, or receive employer

##  

## 16

## 

##  

## contributionsunder, the Plan and distribution of the Participant’s Account as of the Valuation Date coincident withor immediately following the date of Participant’s Disability shall be made inform of distribution elected by the Participant in the event of Retirement andshall be made or begin as soon as practicable after such Valuation Date.

##  

## 5.5.                                          **Hardship Distribution**.

##  

### 5.5.1.                                                         **When****Available**.  AParticipant may receive a hardship distribution from the Participant’s Accountif the Plan Sponsor determines that such hardship distribution is for a purposedescribed in Section 5.5.2 and the conditions in Section 5.5.3 havebeen fulfilled.  To receive such adistribution, the Participant must file a written hardship distributionapplication with the Plan Sponsor and furnish such supporting documentation asthe Plan Sponsor may require.  In theapplication, the Participant shall specify the basis for the distribution andthe dollar amount to be distributed.  Ifsuch hardship distribution is approved by the Plan Sponsor, distribution shallbe made as of the Valuation Date coincident with or next following the approvalof a completed application by the Plan Sponsor and such hardship distributionshall be made in a lump sum payment as soon as administratively feasible aftersuch Valuation Date.

###  

### 5.5.2.                                                         **Purpos****es**. Hardship distributions shall be allowed only if the Participantestablishes that the hardship distribution is to be made on account of animmediate and heavy financial need of the Participant for which the Participantdoes not have other available resources.

###  

### 5.5.3.                                                         **Limitations**.  The amount of the hardship distribution shall not exceed theamount of the Participant’s proven immediate and heavy financial need.  A hardship distribution shall not be madeafter the death of the Participant or after the occurrence of any distributionevent.  The amount of approved hardshipdistribution shall not exceed the value of the Account.

###  

### 5.5.4.                                                         **Effect on Part****icipation**.  Upon the approval of a hardshipdistribution, all elective contributions to the Participant’s Account shallcease for six (6) months after receipt of the hardship distribution and shallbe automatically reinstated after the expiration of the six (6) month period.

###  

## 5.6.                                          **Change of Control D****istribution**.

##  

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

###  

### 5.6.2.                                                         **Payme****nt**. Distribution of the entire Account (after reduction for the forfeituredescribed in Section 5.6.3) shall be made as of the Valuation Datecoincident with or

###  

### 17

### 

###  

### next following theapproval of a completed application by the Plan Sponsor.  Such Change of Control distribution shall bemade in a lump sum payment as soon as administratively feasible after suchValuation Date. The amount of the Change of Control distribution shall be equalto the value of the Account as of such Valuation Date (after reduction for theforfeiture described below).

###  

### 5.6.3.                                                         **Forfeitu****re**. Upon the approval of a Change of Control distribution, there shall beirrevocably forfeited from the Account of the Participant or Beneficiary anamount equal to ten percent (10%) of the Account.

###  

## 5.7.                                          **Distribution Base****d on Constructive Receipt**.  Any amounts in a Participant’s Account whichhave been determined by the Committee or a governmental agency to be taxableincome to the Participant based on the constructive receipt doctrine shall bedistributed to the Participant in a lump sum payment as soon asadministratively feasible.

##  

## 5.8.                                          **Designation of Be****neficiaries**.

##  

### 5.8.1.                                                         **Right to Desig****nate**.  Each Participant may designate, upon formsto be furnished by and filed with the Plan Sponsor, one or more primaryBeneficiaries or alternate Beneficiaries to receive all or a specified part ofsuch Participant’s Account in the event of such Participant’s death.  The Participant may change or revoke anysuch designation from time to time without notice to or consent from anyBeneficiary.  No such designation,change or revocation shall be effective unless executed by the Participant andreceived by the Plan Sponsor during the Participant’s lifetime.

###  

### 5.8.2.                                                         **Failure of Design****ation**.  If a Participant:

 

#### (a)                                                                      failsto designate a Beneficiary,

####  

#### (b)                                                                     designatesa Beneficiary and thereafter revokes such designation without naming anotherBeneficiary, or

####  

#### (c)                                                                      designatesone or more Beneficiaries and all such Beneficiaries so designated fail tosurvive the Participant,

####  

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

 

18

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Participant’s survivingspouseParticipant’s surviving issue per stirpes and not per capitaParticipant’s surviving parentsParticipant’s surviving brothers and sistersRepresentative of Participant’s estate.

 

### 5.8.3.                                                         **Disclaimers by B****eneficiaries**.  A Beneficiary entitled to a distribution ofall or a portion of a deceased Participant’s Account may disclaim an interesttherein subject to the following requirements. To be eligible to disclaim, a Beneficiary must be a natural person, mustnot have received a distribution of all or any portion of the Account at thetime such disclaimer is executed and delivered, and must have attained at leastage twenty-one (21) years as of the date of the Participant’s death.  Any disclaimer must be in writing and mustbe executed personally by the Beneficiary before a notary public.  A disclaimer shall state that theBeneficiary’s entire interest in the undistributed Account is disclaimed orshall specify what portion thereof is disclaimed.  To be effective, duplicate original executed copies of thedisclaimer must be both executed and actually delivered to the Plan Sponsorafter the date of the Participant’s death but not later than one hundred eighty(180) days after the date of the Participant’s death.  A disclaimer shall be irrevocable when delivered to the PlanSponsor.  A disclaimer shall beconsidered to be delivered to the Plan Sponsor only when actually received bythe Plan Sponsor.  The Plan Sponsorshall be the sole judge of the content, interpretation and validity of apurported disclaimer.  Upon the filingof a valid disclaimer, the Beneficiary shall be considered not to have survivedthe Participant as to the interest disclaimed. A disclaimer by a Beneficiary shall not be considered to be a transferof an interest in violation of the provisions of Section 6 and shall notbe considered to be an assignment or alienation of benefits in violation offederal law prohibiting the assignment or alienation of benefits under thisPlan.  No other form of attempteddisclaimer shall be recognized by the Plan Sponsor.

###  

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

###  

### 5.8.5.                                                         **Special Rul****es**. Unless the Participant has otherwise specified in the Participant’sBeneficiary designation, the following rules shall apply:

###  

#### (a)                                                                      Ifthere is not sufficient evidence that a Beneficiary was living at the time ofthe death of the Participant, it shall be deemed that the Beneficiary was notliving at the time of the death of the Participant.

####  

#### 19

#### 

####  

#### (b)                                                                     Theautomatic Beneficiaries specified in Section 5.7.2 and the Beneficiariesdesignated by the Participant shall become fixed at the time of theParticipant’s death so that, if a Beneficiary survives the Participant but diesbefore the receipt of all payments due such Beneficiary hereunder, suchremaining payments shall be payable to the representative of such Beneficiary’sestate.

####  

#### (c)                                                                      Ifthe Participant designates as a Beneficiary the person who is the Participant’sspouse on the date of the designation, either by name or by relationship, orboth, the dissolution, annulment or other legal termination of the marriagebetween the Participant and such person shall automatically revoke suchdesignation.  (The foregoing shall notprevent the Participant from designating a former spouse as a Beneficiary on aform executed by the Participant and received by the Plan Sponsor after thedate of the legal termination of the marriage between the Participant and suchformer spouse, and during the Participant’s lifetime.)

####  

#### (d)                                                                     Anydesignation of a nonspouse Beneficiary by name that is accompanied by adescription of relationship to the Participant shall be given effect withoutregard to whether the relationship to the Participant exists either then or atthe Participant’s death.

####  

#### (e)                                                                      Anydesignation of a Beneficiary only by statement of relationship to theParticipant shall be effective only to designate the person or persons standingin such relationship to the Participant at the Participant’s death.

####  

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

 

### 5.8.6.                                                         **No Spousal****Rights**. Prior to the death of the Participant, no spouse or surviving spouse ofa Participant and no person designated to be a Beneficiary shall have anyrights or interest in the benefits credited under this Plan including, but notlimited to, the right to be the sole Beneficiary or to consent to thedesignation of Beneficiaries (or the changing of designated Beneficiaries) bythe Participant.

###  

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

##  

## 20

## 

##  

## 5.10.                                    **Facility of Pay****ment**.  In case of the legal Disability, includingminority, of a Participant or Beneficiary entitled to receive any distributionunder this Plan, payment shall be made, if the Plan Sponsor shall be advised ofthe existence of such condition:

##  

#### (a)                                                                      tothe duly appointed guardian, conservator or other legal representative of suchParticipant or Beneficiary, or

####  

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

####  

Any payment madein accordance with the foregoing provisions of this section shallconstitute a complete discharge of any liability or obligation of the PlanSponsor therefor.

 

## 5.11.                                    **Cash Distrib****utions**. Distributions from this Plan shall be made in cash.

##  

## 5.12.                                    **Code §1****62(m) Delay**.  If the Plan Sponsor determines that delaying the time of anypayment made or commenced would increase the probability that such paymentwould be fully deductible for federal or state income tax purposes, the PlanSponsor may unilaterally delay the time of the making or commencement of suchpayment for up to twelve (12) months after the date such payment wouldotherwise be payable.

##  

## 21

## 

##  

# **SECTION 6**

# ** **

# **FUNDING OF PLAN**

# ** **

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

##  

### 6.1.1.                                                         **Hedging Inv****estments**. If the Plan Sponsor elects to finance all or a portion of the Employers’costs in connection with this Plan through the purchase of life insurance orother investments, the Participant agrees, as a condition of participation inthis Plan, to cooperate with the Plan Sponsor in the purchase of suchinvestment to any extent reasonably required by the Plan Sponsor andrelinquishes any claim the Participant or a Beneficiary might have to theproceeds of any such investment or any other rights or interests in suchinvestment.  If a Participant fails orrefuses to cooperate, then notwithstanding any other provision of this Plan thePlan Sponsor shall immediately and irrevocably terminate and forfeit theParticipant’s entitlement to benefits under this Plan.

###  

### 6.1.2.                                                         **Corporate Oblig****ation**.  Neither the Plan Sponsor’s officers nor anymember of its Committee in any way secures or guarantees the payment of anybenefit or amount which may become due and payable hereunder to or with respectto any Participant.  Each Participantand other person entitled at any time to payments hereunder shall look solelyto the assets of the Employers for such payments as an unsecured, generalcreditor.  After benefits shall havebeen paid to or with respect to a Participant and such payment purports tocover in full the benefit hereunder, such former Participant or other person orpersons, as the case may be, shall have no further right or interest in theother assets of the Employers in connection with this Plan.  No person shall be under any liability orresponsibility for failure to effect any of the objectives or purposes of thisPlan by reason of the insolvency of the Employers.

###  

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

##  

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

 

22

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

 

Thissection shall not prevent the Plan Sponsor from exercising, in itsdiscretion, any of the applicable powers and options granted to it upon theoccurrence of an distribution event, as such powers may be conferred upon it byany applicable provision hereof.

 

23

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# **SECTION 7**

# ** **

# **AMENDMENT AND TERMINATION**

# ** **

## 7.1.                                          **Amendment**.  ThePlan Sponsor reserves the power to amend this Plan Restatement eitherprospectively or retroactively or both:

##  

#### (a)                                                                      inany respect by resolution of the Compensation Committee of its Board ofDirectors; and

####  

#### (b)                                                                     inany respect that does not materially increase the cost of the Plan by action ofthe Committee;

####  

provided that noamendment shall be effective to reduce or divest the Account of any Participantor Beneficiary without the consent of such Participant or Beneficiary.

 

## 7.2.                              **Discontinuance of Contr****ibutions andTermination of Plan**.  ThePlan Sponsor reserves the right to reduce, suspend or discontinue itscontributions to the Plan and to terminate the Plan herein embodied in itsentirety by resolution of the Compensation Committee of its Board ofDirectors.  If the Plan is terminated,each Participant and Beneficiary with an Account in the Plan shall receive alump sum payment of the Account or remaining Account, as applicable, as soon asadministratively feasible after such Plan termination.

##  

## 7.3.                              **Change of Contro****l**.  Notwithstanding Section 7.1 and 7.2, for a period thatbegins on the date of a Change of Control and ends on the last day of thetwelfth (12th) month that begins after the month in which the Changeof Control occurs, the Plan may not be terminated or amended in any mannerwhatsoever that would adversely affect the amount and form of benefits payableunder this Plan unless eighty percent (80%) of all the Participants determinedas of the date of the Change of Control give knowing and voluntary writtenconsent to such amendment or termination.

##  

## 7.4.                                          **No Oral Amendm****ents**.  No modification of the terms of the PlanRestatement or termination of this Plan shall be effective unless it is inwriting and signed on behalf of the Plan Sponsor by a person authorized toexecute such writing.  No oralrepresentation concerning the interpretation or effect of the Plan Restatementshall be effective to amend the Plan Restatement.

##  

## 7.5.                                          **Plan Binding on Suc****cessors**.  The Plan Sponsor will require any successor(whether direct or indirect, by purchase, merger, consolidation or otherwise toall or substantially all of the business and/or assets of the Plan Sponsor), byagreement, to expressly assume and agree to perform this Plan in the same mannerand to the same extent that the Plan Sponsor would be required to perform it ifno such succession had taken place.

##  

## 24

## 

##  

# **SECTION 8**

# ** **

# **DETERMINATIONS –**RULES AND REGULATIONS

# ** **

## 8.1.                                          **Determ****inations**. The Plan Sponsor shall make such determinations as may be required fromtime to time in the administration of this Plan.  The Plan Sponsor shall have the discretionary authority andresponsibility to interpret and construe the Plan Restatement and to determineall factual and legal questions under this Plan, including, but not limited to,the entitlement of Participants and Beneficiaries, and the amounts of theirrespective interests.  Each interestedparty may act and rely upon all information reported to them hereunder and neednot inquire into the accuracy thereof, nor be charged with any notice to thecontrary.

##  

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

##  

## 8.3.                                          **Method of Executi****ng Instruments**.  Information to be supplied or writtennotices to be made or consents to be given by the Plan Sponsor pursuant to anyprovision of the Plan Restatement may be signed in the name of the Plan Sponsorby any officer who has been authorized to make such certification or to givesuch notices or consents.

##  

## 8.4.                                          **Claims and Re****view Procedure**.  Until modified by the Committee, the claims and review procedureset forth in this Section shall be the mandatory claims and reviewprocedure for the resolution of disputes and disposition of claims filed underthe Plan.  An application for adistribution shall be considered as a claim for the purposes of this Section.

##  

### 8.4.1.                                                         **Initial Cla****im**. An individual may, subject to any applicable deadline, file with the Committeea written claim for benefits under the Plan in a form and manner prescribed bythe Committee.

###  

#### (a)                                                                      Ifthe claim is denied in whole or in part, the Committee shall notify theclaimant of the adverse benefit determination within ninety (90) days afterreceipt of the claim.

####  

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

####  

### 8.4.2.                                                         **Notice of Initial****Adverse Determination**.** **A notice of an adversedetermination shall set forth in a manner calculated to be understood by theclaimant:

###  

### 25

### 

###  

#### (a)                                                                      thespecific reasons for the adverse determination;

####  

#### (b)                                                                     referencesto the specific provisions of the Plan Restatement (or other applicable Plandocument) on which the adverse determination is based;

####  

#### (c)                                                                      adescription of any additional material or information necessary to perfect theclaim and an explanation of why such material or information is necessary; and

####  

#### (d)                                                                     adescription of the claims review procedure, including the time limitsapplicable to such procedure, and a statement of the claimant’s right to bringa civil action under ERISA section 502(a) following an adversedetermination on review.

####  

### 8.4.3.                                                         **Request for****Review**. Within sixty (60) days after receipt of an initial adverse benefitdetermination notice, the claimant may file with the Committee a writtenrequest for a review of the adverse determination and may, in connectiontherewith submit written comments, documents, records and other informationrelating to the claim benefits.  Anyrequest for review of the initial adverse determination not filed within sixty(60) days after receipt of the initial adverse determination notice shall beuntimely.

###  

### 8.4.4.                                                         **Claim on Revi****ew**.** **Ifthe claim, upon review, is denied in whole or in part, the Committee shallnotify the claimant of the adverse benefit determination within sixty (60) daysafter receipt of such a request for review.

###  

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

####  

#### (b)                                                                     Inthe event that the time period is extended due to a claimant’s failure tosubmit information necessary to decide a claim on review, the claimant shallhave sixty (60) days within which to provide the necessary information and theperiod for making the claim determination on review shall be tolled from thedate on which the notification of the extension is sent to the claimant untilthe date on which the claimant responds to the request for additionalinformation or, if earlier, the expiration of sixty (60) days.

####  

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

####  

#### 26

#### 

####  

#### claimant relating to theclaim, without regard to whether such information was submitted or consideredin the initial benefit determination.

####  

### 8.4.5.                                                         **Notice of Advers****e Determination for Claim on Review**.** **A notice of an adversedetermination for a claim on review shall set forth in a manner calculated tobe understood by the claimant:

###  

#### (a)                                                                      thespecific reasons for the denial;

####  

#### (b)                                                                     referencesto the specific provisions of the Plan Restatement (or other applicable Plandocument) on which the adverse determination is based;

####  

#### (c)                                                                      astatement that the claimant is entitled to receive, upon request and free ofcharge, reasonable access to, and copies of, all documents, records, and otherinformation relevant to the claimant’s claim for benefits;

####  

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

####  

#### (e)                                                                      astatement of the claimant’s right to bring an action under ERISAsection 502(a).

####  

27

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# **SECTION 9**

# ** **

# **PLAN AD**MINISTRATION

# ** **

## 9.1.                                          **Plan Spon****sor**.

##  

### 9.1.1.                                                         **Offic****ers**. Except as hereinafter provided, functions generally assigned to the PlanSponsor shall be discharged by its officers or delegated and allocated asprovided herein.

###  

### 9.1.2.                                                         **Chief Executi****ve Officer**.  Except as hereinafter provided, the ChiefExecutive Officer of the Plan Sponsor may delegate or redelegate and allocateand reallocate to one or more persons or to a committee of persons jointly orseverally, and whether or not such persons are directors, officers oremployees, such functions assigned to the Plan Sponsor generally hereunder asthe Chief Executive Officer may from time to time deem advisable.

###  

## 9.2.                                          **Conflict of In****terest**.  If any individual to whom authority has beendelegated or redelegated hereunder shall also be a Participant in this Plan,such Participant shall have no authority with respect to any matter speciallyaffecting such Participant’s individual interest hereunder or the interest of aperson superior to him or her in the organization (as distinguished from theinterests of all Participants and Beneficiaries or a broad class ofParticipants and Beneficiaries), all such authority being reserved exclusivelyto other individuals as the case may be, to the exclusion of such Participant,and such Participant shall act only in such Participant’s individual capacityin connection with any such matter.

##  

## 9.3.                                          **Administrat****or**. The Plan Sponsor shall be the administrator for purposes ofsection 3(16)(A) of the Employee Retirement Income Security Act of 1974.

##  

## 9.4.                                          **Service of Pr****ocess**. In the absence of any designation to the contrary by the Plan Sponsor,the Secretary of the Plan Sponsor is designated as the appropriate andexclusive agent for the receipt of service of process directed to this Plan inany legal proceeding, including arbitration, involving this Plan.

##  

## 9.5.                              **Indemnit****y**. Each member of the Committee or officer, director or employee of theEmployer shall, except as prohibited by law, be indemnified and held harmlessby the Employer from any and all liabilities, costs and expenses (includinglegal fees), to the extent not covered by liability insurance, arising out ofany action taken by such individual with respect to the Plan, whether imposedunder ERISA or otherwise.  No suchindemnification, however, shall be required or provided if such liability arises(i) from the individual’s claim for his own benefit, or (ii) from the provengross negligence or the bad faith of the individual, or (iii) from the criminalmisconduct of such individual if the individual had reason to believe theconduct was unlawful.  Thisindemnification shall continue as to an individual who has ceased to be atrustee of the Plan or officer, director or employee of the Employer and shallinure to the benefit of the heirs, executors and administrators of such anindividual.

##  

28

----

 

# **SECTION 10**

# ** **

# **DISCLAIMERS**

# ** **

## 10.1.                                    **Term of Empl****oyment**. Neither the terms of the Plan Restatement nor the benefits hereunder northe continuance thereof shall be a term of the employment of any employee.  The Plan Sponsor shall not be obliged tocontinue this Plan.  The terms of thePlan Restatement shall not give any employee the right to be retained in theemployment of the Plan Sponsor.

##  

## 10.2.                                    **Source of Paymen****t**.  Neither the Plan Sponsor nor any of its officers nor any memberof its Committee in any way secure or guarantee the payment of any benefit oramount which may become due and payable hereunder to any Participant or to anyBeneficiary or to any creditor of a Participant or a Beneficiary.  Each Participant, Beneficiary or otherperson entitled at any time to payments hereunder shall look solely to theassets of the Plan Sponsor for such payments or to the Accounts distributed toany Participant or Beneficiary, as the case may be, for such payments.  In each case where Accounts shall have beendistributed to a former Participant or a Beneficiary or to the person or anyone of a group of persons entitled jointly to the receipt thereof and whichpurports to cover in full the benefit hereunder, such former Participant orBeneficiary, or such person or persons, as the case may be, shall have nofurther right or interest in the other assets of the Plan Sponsor.  Neither the Plan Sponsor nor any of itsofficers nor any member of its Committee shall be under any liability orresponsibility for failure to effect any of the objectives or purposes of thisPlan by reason of the insolvency of the Plan Sponsor.

##  

## 10.3.                                    **Delegatio****n**. The Plan Sponsor and its officers and the members of its Committee shallnot be liable for an act or omission of another person with regard to aresponsibility that has been allocated to or delegated to such other personpursuant to the terms of the Plan Restatement or pursuant to procedures setforth in the Plan Restatement.

##  

## 29

## 

##  

# **SECTION 11**

# ** **

# **MISCELLANEOUS**

# ** **

## 11.1.                                    **ERISA Sta****tus**. This Plan is adopted with the understanding that it is an unfunded planmaintained primarily for the purpose of providing deferred compensation for aselect group of management or highly compensated employees as provided insection 201(2), section 301(3) and section 401(a)(1) ofERISA.  Each provision shall beinterpreted and administered accordingly.

##  

## 11.2.                                    **IRC Stat****us**. This Plan is intended to be a nonqualified deferred compensationarrangement.  The rules ofsection 401(a) *et. seq.* of the Code shall not apply tothis Plan.  The rules ofsection 3121(v) and section 3306(r)(2) of the Code shall apply tothis Plan.

##  

## 11.3.                                    **Effect on Other****Plans**.  This Plan shall not alter, enlarge or diminishany person’s rights, benefits or obligations under any plan or programsponsored by the Plan Sponsor including without limitation the QualifiedPlan.  It is specifically contemplatedthat such plans or programs will, from time to time, be amended and possiblyterminated.  All such amendments andtermination shall be given effect under this Plan (it being expressly intendedthat this Plan shall not lock in the benefit structures of any other plan orprogram as it exists at the adoption of this Plan or upon the commencement ofparticipation, or commencement of benefits by any Participant).  The Plan shall supplement and not supercede,modify or amend any other plan or program sponsored by the Plan Sponsor, and theParticipant’s right to benefits, if any, under such plan or program shall bedetermined in accordance the terms of such plan or program.

##  

## 11.4.                                    **Disqualific****ation**. Notwithstanding any other provision of the Plan Restatement or anyelection or designation made under this Plan, any individual who feloniouslyand intentionally kills a Participant shall be deemed for all purposes of thisPlan and all elections and designations made under this Plan to have diedbefore such Participant.  A finaljudgment of conviction of felonious and intentional killing is conclusive forthis purpose.  In the absence of aconviction of felonious and intentional killing, the Plan Sponsor shalldetermine whether the killing was felonious and intentional for this purpose.

##  

## 11.5.                                    **Rules of Docume****nt Construction**.

##  

#### (a)                                                                      Anindividual shall be considered to have attained a given age on suchindividual’s birthday for that age (and not on the day before).  Individuals born on February 29 in aleap year shall be considered to have their birthdays on February 28 ineach year that is not a leap year.

####  

#### (b)                                                                     Wheneverappropriate, words used herein in the singular may be read in the plural, orwords used herein in the plural may be read in the singular; the masculine mayinclude the feminine; and the words “hereof,” “herein” or “hereunder” or othersimilar compounds of the word “here” shall mean and refer to the entire PlanRestatement and not to any particular

####  

#### 30

#### 

####  

#### paragraph orSection of the Plan Restatement unless the context clearly indicates tothe contrary.

####  

#### (c)                                                                      Thetitles given to the various Sections of the Plan Restatement are inserted forconvenience of reference only and are not part of the Plan Restatement, andthey shall not be considered in determining the purpose, meaning or intent ofany provision hereof.

####  

#### (d)                                                                     Notwithstandingany thing apparently to the contrary contained in the Plan Restatement, thePlan Restatement shall be construed and administered to prevent the duplicationof benefits provided under this Plan and any other qualified or nonqualifiedplan maintained in whole or in part by the Employers.

####  

## 11.6.                                    **References to La****ws**.  Any reference in the Plan Restatement to a statute or regulationshall be considered also to mean and refer to any subsequent amendment orreplacement of that statute or regulation.

##  

## 11.7.                                    **Choice of La****w**. This instrument has been executed and delivered in the State of NorthDakota and shall, except to the extent that federal law is controlling, beconstrued and enforced in accordance with the laws of the State of NorthDakota.

##  

## 11.8.                                    **ERISA Admini****strator**. The Plan Sponsor shall be the plan administrator of this Plan.

##  

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

##  

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

##  

## 11.11.                              **Expense****s**. All expenses of administering this Plan shall be borne by the PlanSponsor.

##  

## 11.12.                              **Service of Proces****s**.  In the absence of any designation to the contrary by the PlanSponsor, the Secretary of the Plan Sponsor is designated as the appropriate andexclusive agent for the receipt of service of process directed to this Plan inany legal proceeding, including arbitration, involving this Plan.

##  

## 31

## 

##  

## 11.13.                              **Spendthr****ift Provision**.  No Participant, surviving spouse, joint or contingent annuitantor Beneficiary shall have the power to transmit, assign, alienate, dispose of,pledge or encumber any benefit payable under this Plan before its actualpayment to such person.  The PlanSponsor shall not recognize any such effort to convey any interest under thisPlan.  No benefit payable under this Planshall be subject to attachment, garnishment, execution following judgment orother legal process before actual payment to such person.  This Section shall not prevent theEmployer or Committee from observing the terms of an approved qualifieddomestic relations order.

##  

## 11.14.                              **Certification****s**.  Information to be supplied or written notices to be made orconsents to be given by the Plan Sponsor pursuant to any provision of this Planmay be signed in the name of the Plan Sponsor by any officer who has beenauthorized to make such certification or to give such notices or consents.

##  

## 11.15.                              **Errors in Computa****tions**.  The Plan Sponsor shall not be liable orresponsible for any error in the computation of any benefit payable to or withrespect to any Participant resulting from any misstatement of fact made by theParticipant or by or on behalf of any Beneficiary to whom such benefit shall bepayable, directly or indirectly, to the Plan Sponsor, and used by the PlanSponsor in determining the benefit.  ThePlan Sponsor shall not be obligated or required to increase the benefit payableto or with respect to such Participant which, on discovery of the misstatement,is found to be understated as a result of such misstatement of the Participant.  However, the benefit of any Participantwhich is overstated by reason of any such misstatement or any other reasonshall be reduced to the amount appropriate in view of the truth (and to recoverany prior overpayment).

 

 
| March 5, 2004 | COMMUNITY FIRST BANKSHARES, INC. |
|--------------------|----------------------------------|
|               |                             |
|               |                             |
|               | By                               | /s/ Douglas G.Vang |
|               |                             |
|               |                             | Its | Executive Vice  President–Human Resources |

 

32

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**SCHEDULE I**

 

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

 

 

None

 

33

----