NATIONAL FUEL GAS COMPANY
DEFERRED COMPENSATION PLAN
As amended effective June 16, 1989,
December 15, 1989, June 16, 1993,
August 1, 1993, May 1, 1994 and
March 20, 1997
NATIONAL FUEL GAS COMPANY
DEFERRED COMPENSATION PLAN
Table of Contents
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Page
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Purpose 1
Article 1 - Definitions 2
1.1 Account 2
1.2 Accumulation Account 2
1.3 Base Salary 2
1.4 Beneficiary 2
1.5 Committee 2
1.6 Company 2
1.7 Deferral Agreement 2
1.8 Deferral Amount 2
1.9 Deferral Period 3
1.10 Employer 3
1.11 Index 3
1.12 Maximum Matching Contribution Percentage 3
1.13 Moody's Election 3
1.14 Participant 3
1.15 Plan 3
1.16 Plan Year 3
1.17 Retirement and Retire 3
1.18 Retirement Account 4
1.19 Retirement Benefit Date 4
1.20 Savings Account 4
1.21 S&P 500 4
1.22 S&P 500 Minus 1.2% Election 4
1.23 Termination of Employment 4
1.24 TDSP 4
Article 2 - Eligibility 5
2.1 Selection 5
2.2 Deferral Agreement of Participant 5
Article 3 - Deferral Commitments 6
3.1 Minimum Deferral 6
3.2 Maximum Deferral 6
3.3 Withholding of Deferral Amounts 6
3.4 Commitments as Percentage of Salary 6
Article 4 - Deferral Crediting Rates Accounts 7
4.1 Basic Interest Rate 7
4.2 Supplemental Interest Rate 7
4.3 Available Accounts 7
4.4 Crediting of Deferrals and Interest 7
4.5 Account Statements 8
Article 5 - Savings Account 9
5.1 Definition 9
5.2 Four Year Minimum 9
5.3 Distribution of Savings Account 9
5.4 Elections within Savings Account 9
Article 6 - Retirement Account 10
6.1 Definition 10
6.2 Retirement Benefit 10
6.3 Forms of Annuity 10
6.4 Determination of Annuity 10
6.5 Death Prior to Completion of Retirement Benefits 10
6.6 Elections within Retirement Account 11
Article 7 - Termination 12
7.1 Termination 12
7.2 Death 12
Article 8 - Beneficiary Designation 13
8.1 Beneficiary Designation 13
8.2 Change of Beneficiary Designation 13
8.3 No Beneficiary Designation 13
8.4 Effect of Payment 13
Article 9 - Other Benefits and Agreements 14
9.1 Coordination With Other Benefits 14
9.2 Coordination With Tophat Plan 14
Article 10 - Termination and Modification 15
10.1 Termination and Amendment 15
10.2 Change in Interest Rate 15
10.3 Limited Power of President to Amend Plan 15
Article 11 - Administration 16
11.1 Committee Duties 16
11.2 Agents 16
11.3 Binding Effect of Decisions 16
11.4 Indemnity of Committee 16
Article 12 - Miscellaneous 17
12.1 Unsecured General Creditor 17
12.2 Nonassignability 17
12.3 Not a Contract of Employment 17
12.4 Health Information 17
12.5 Governing Law 17
12.6 Withholding 18
12.7 Binding Effect 18
12.8 Borrowing 18
12.9 Validity 18
12.10 Incapacity of Person Entitled to Payment 18
12.11 Captions 18
12.12 Construction 18
NATIONAL FUEL GAS COMPANY
DEFERRED COMPENSATION PLAN
Purpose
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The primary purposes of the National Fuel Gas Company Deferred
Compensation Plan ("Plan") are to help attract and retain high caliber employees
in high-level management positions and to provide such employees with a
tax-favored vehicle to accumulate assets and to enhance retirement benefits.
Selected executives of National Fuel Gas Company and its subsidiaries and
certain other select management and highly-compensated employees will be allowed
to participate in the Plan.
Article I
Definitions
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For purposes hereof, unless otherwise clearly apparent from
the context, the following phrases or terms shall have the following indicated
meanings:
1.1 "Account" shall mean an individual account maintained on behalf
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of a Participant under the Plan. Accounts shall be utilized
solely as recordkeeping devices for the measurement and
determination of the amounts to be paid to the Participant
pursuant to this Plan. Separate Accounts may be maintained
respecting separate Deferral Periods. A Participant's Accounts
shall not constitute or be treated as trust funds or in other
respects as the property of the Participants for which they are
maintained.
1.2 "Accumulation Account" shall have the meaning ascribed to it in
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Article 4.
1.3 "Base Salary" shall mean gross cash compensation per regular
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payroll period, including salary continuation payments made by
an Employer on account of sickness or accident, which are paid
to a Participant for employment services rendered to an
Employer, before reduction for compensation deferred pursuant to
this Plan or pursuant to the National Fuel Gas Company
Tax-Deferred Savings Plan for Non-Union Employees, and shall
also include payments made to a participant pursuant to the
Company's Annual At Risk Compensation Incentive Program, or a
successor plan thereto, but shall exclude all other fees,
commissions, special, extra or nonperiodic compensation in any
form.
1.4 "Beneficiary" shall mean the person, persons, or entity
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designated by the Participant to receive any benefits payable
under this Plan upon the death of a Participant.
1.5 "Committee" shall mean the committee appointed to manage and
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administer the Plan in accordance with the provisions of Article
11.
1.6 "Company" shall mean National Fuel Gas Company and all successor
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companies thereto.
1.7 "Deferral Agreement" shall mean the form of written agreement,
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as amended from time to time, which is entered into by and
between an Employer and a Participant, respecting each Deferral
Period prior to the commencement thereof.
1.8 "Deferral Amount" shall mean the amount of Base Salary deferred
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by a Participant with respect to a Deferral Period pursuant to
his or her election in the form of a Deferral Agreement.
1.9 "Deferral Period" shall mean the period established from time to
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time by the Company during which amounts of Base Salary may be
deferred by means of the deferral election of the Participant as
set forth in the Participant's Deferral Agreement. The first
Deferral Period consisted of four Plan Years beginning August 1,
1986. The Company, by action of or pursuant to the authorization
of its Board of Directors, may from time to time establish
subsequent Deferral Periods and set forth the particular terms
and conditions therefor. Each cycle is a Deferral Period.
1.10 "Employer" shall mean the Company and each of its subsidiaries
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which has one or more eligible employees who have been selected
to participate in the Plan. Where the context dictates, the term
"Employer" as used herein refers to the particular Employer that
has entered into a Deferral Agreement with a specific
Participant.
1.11 "Maximum Matching Contribution Percentage" shall mean the
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maximum employer matching contribution percentage to which a
Participant would be entitled under the TDSP.
1.12 "Moody's Index" shall mean the Moody's Composite Average of
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Yields on Corporate Bonds, an economic indicator prepared and
published by Moody's Investors Service, Inc., which is an
arithmetic average of yields on representative bonds:
industrials, public utilities, Aaa, Aa, A and Baa, as it shall
be constituted from time to time, or some other index as
selected by the Committee which shall be reasonably similar or
reasonably reflective of long-term corporate bond yields.
1.13 "Moody's Election" shall mean the election by a Participant,
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respecting Cycle III-A (which has a Deferral Period of May 1,
1994 through July 31, 1997) and subsequent cycles, to earn a
return on his or her Deferral Amounts, on a semimonthly basis,
equal to the semimonthly equivalent of the Basic Interest Rate
in accordance with Sections 4.1 and 4.4(b), which return shall
be compounded.
1.14 "Participant" shall mean any person currently or formerly in the
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regular full-time employment of an Employer, who was made
eligible to defer compensation under the Plan by the President
of the Company, who has deferred compensation under the Plan,
and whose Accounts have not been completely distributed to him
or her.
1.15 "Plan" shall mean the National Fuel Gas Company Deferred
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Compensation Plan, as amended from time to time.
1.16 "Plan Year" shall mean the 12 consecutive month period
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commencing on August 1 and ending on the next following July 31.
1.17 "Retirement" and "Retire" shall mean severance from employment
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with the Employer at or after the attainment of age fifty-five
(55), or prior thereto pursuant to the disability retirement
provisions of the National Fuel Gas Company Retirement Plan
("Retirement Plan").
1.18 "Retirement Account" shall have the meaning ascribed to it in
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Article 6.
1.19 "Retirement Benefit Date" shall mean the date at which the
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Retired Participant has commenced retirement under the
Retirement Plan or a successor plan thereto; i.e., the date as
of which he or she first receives retirement benefits.
1.20 "Savings Account" shall have the meaning ascribed to it in
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Article 5.
1.21 "S&P 500" shall mean the Standard & Poors 500 stock index, an
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index of American stocks published by Standard and Poors Inc.,
or some other index as selected by the Committee which shall be
reasonably similar to or reasonably reflective of the
performance of the American stock market.
1.22 "S&P 500 Minus 1.2% Election" shall mean the election by a
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Participant, respecting Cycle III-A, IV and subsequent cycles,
to earn a return on his or her Deferral Amounts, on a
semimonthly basis, equal to the semimonthly return of the S&P
500 (including reinvestment of dividends), minus .045%, which
when compounded will provide a total return approximately equal
to the total annual return of the S&P 500, minus 1.2%, from time
to time. A Participant making this election shall, beginning six
months before his or her Retirement (if he or she retires),
cease earning a return on the above basis. Instead, for such
six-month period, he or she shall earn a return as if he or she
had then made the Moody's Election.
1.23 "Termination of Employment" shall mean the cessation of
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employment with the Company, voluntarily or involuntarily, for
any reason other than Retirement.
1.24 "TDSP" shall mean the National Fuel Gas Company Tax-Deferred
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Savings Plan for Non-Union Employees, as it may be amended from
time to time.
Article 2
Eligibility
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2.1 Selection. The President of the Company shall have the sole
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discretion to determine the management and highly compensated
employees of an Employer who are eligible to become Participants
in the Plan with respect to each Deferral Period, subject to any
restrictions the Company's Board of Directors may impose. The
President shall be eligible to be a Participant in the Plan for
each Deferral Period during which he or she is President of the
Company.
2.2 Deferral Agreement of Participant. As a condition of deferral of
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compensation with respect to each Plan Deferral Period, each
Participant shall complete, execute and return to the Employer a
Deferral Agreement by the enrollment deadline respecting each
Deferral Period.
Article 3
Deferral Commitments
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3.1 Minimum Deferral. The Participant must agree to defer no less
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than $10,000 over the Deferral Period as a condition of Plan
participation respecting that Deferral Period, or such other
minimum as may be established from time to time by the
Committee.
3.2 Maximum Deferral. The Participant may defer no more than 60% of
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Base Salary in any Plan Year, or such other maximum as may be
established from time to time by the Committee.
3.3 Withholding of Deferral Amounts. The percentage of Base Salary
--------------------------------
deferred by a Participant pursuant to his or her Deferral
Agreement shall be withheld over the Deferral Period in which he
or she participates in the manner set forth in the Deferral
Agreement of the Participant.
3.4 Commitments as Percentage of Salary. A Participant's deferral
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commitment respecting each Deferral Period, and each deferral
commitment to his or her Savings Account or Retirement Account,
must be expressed as a whole percentage of his or her Base
Salary. A Participant shall, prior to the Deferral Period, make
his or her commitment (if any) for all or part of the Deferral
Period, at varying percentages, provided that those percentages
shall be constant for each 6-month period beginning August 1 and
February 1 (unless different periods are authorized by the
Committee, from time to time). If, within any such six months
(or other authorized period), a Participant's Base Salary
changes, such change shall not be reflected in the amount of his
or her deferral until the next February 1 or August 1.
Article 4
Deferral Crediting Rates and Accounts
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4.1 Basic Interest Rate. Respecting all cycles, the Basic Interest
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Rate for a Plan Year shall equal the Moody's Index in effect
during the month of May prior thereto.
4.2 Supplemental Interest Rate. For all Plan cycles prior to Cycle
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III-A, the Supplemental Interest Rate for each Plan Year in the
Deferral Period equals 35% of the Basic Interest Rate in effect
for that Plan Year. For Plan cycles beginning in and after 1994
(i.e., Cycle III-A, IV and subsequent cycles), there shall be no
Supplemental Interest Rate.
4.3 Available Accounts. Each Participant shall have either a Savings
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Account or a Retirement Account, and may have both, depending
upon his or her deferral election as expressed in his or her
Deferral Agreement. Each Participant in Cycles I, II, II-A and
III shall also have an Accumulation Account.
4.4 Crediting of Deferrals and Interest. Each Participant's Deferral
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Amounts shall be credited to his or her Retirement Account
and/or Savings Account in accordance with his or her deferral
election as expressed in his or her Deferral Agreement, on or
about such time as the Participant would have been paid such
Deferral Amounts had he or she not participated in the Plan. The
percentage of Base Annual Salary credited from time to time to a
Participant's Accounts shall equal the percentage thereof that
the Participant has deferred.
(a) Respecting Cycles I, II, II-A, and III, interest on each
Participant's Deferral Amounts shall be credited semimonthly at
the semimonthly equivalent of the Basic Interest Rate, and shall
be compounded semimonthly. Each Participant shall have an
Accumulation Account to which additional interest shall be
credited (subject to forfeiture as described in Article 7).
Interest shall be credited to the Accumulation Account, and
compounded, semimonthly, at the semimonthly equivalent of (i)
the Basic Interest Rate plus Supplemental Interest Rate times
the aggregate of Retirement Account, Savings Account and
Accumulation Account balances, less (ii) the Basic Interest Rate
times the aggregate of Retirement Account and Savings Account
balances.
(b) Respecting Cycles III-A, IV and subsequent cycles, for
Participants making the Moody's Election, interest on Deferral
Amounts shall be credited semimonthly at the semimonthly
equivalent of the Basic Interest Rate, and shall be compounded
semimonthly.
(c) Respecting Cycle III-A, IV and subsequent cycles, for
Participants making the S&P 500 Minus 1.2% Election, a return on
each Participant's Deferral Amounts shall be credited
semimonthly, at a rate equal to the semimonthly total return of
the S&P 500 (including reinvestment of dividends) minus .045%,
and shall be compounded semimonthly. Such return may, from time
to time, be negative.
4.5 Account Statements. Each Participant will receive a statement of
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his or her accounts annually or at such other time periods as
the Committee decides.
Article 5
Savings Account
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5.1 Definition. A "Savings Account" is an Account to which a
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Participant may defer a percentage of his or her Base Salary, as
he or she shall designate pursuant to his or her Deferral
Agreement.
5.2 Four Year Minimum. Respecting each Deferral Period, all funds in
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a Participant's Savings Account must remain in the Plan until at
least the end of the fourth (4th) year after the commencement of
the Deferral Period (or for such other minimum period as is
established by the Company), unless the Participant terminates
employment, in which case he or she thereupon should receive his
or her Savings Account.
5.3 Distribution of Savings Account. As part of his or her Deferral
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Agreement, a Participant shall designate the date(s), but no
more than three per Deferral Agreement, on or about which his or
her Savings Account is to be distributed to him, and the
apportionment of such distribution if more than one is to be
made. If a Participant retires or otherwise terminates
employment, his or her Savings Account shall be paid to him or
her then in a lump sum payment even if that date is earlier than
the date(s) he or she elected. Notwithstanding the above, for
Cycle IV and subsequent cycles, a Participant may elect to
receive all or a portion of his or her Savings Account on a
date(s) that occurs after his or her actual Retirement, but no
later than his or her 70th birthday. The Company may from time
to time revise these requirements and establish other
requirements as to Savings Account elections and distributions.
5.4 Elections Within Savings Account. With respect to a
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Participant's Deferral Amounts allocated to his or her Savings
Account for Cycle III-A, IV or subsequent cycles, the
Participant may make either the Moody's Election or the S&P 500
Minus 1.2% Election, but not both.
Article 6
Retirement Account
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6.1 Definition. A "Retirement Account" is an Account to which a
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Participant may defer a percentage of his or her Base Salary as
he or she shall designate pursuant to his or her Deferral
Agreement.
6.2 Retirement Benefit. A Participant who Retires shall become
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eligible to receive, in accordance with this Article, a monthly
payment based on his or her Retirement Account and Accumulation
Account. However, if the Participant has no Retirement Account
balance and his or her Accumulation Account balance is less than
$5,000 (or such other amount as the Committee, in its
discretion, shall establish from time to time) at the date of
his or her Retirement, that account shall be paid in the form of
a lump sum equal to the value of such account.
6.3 Forms of Annuity. A Participant who Retires shall receive a
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15-year certain annuity, commencing on the Retirement Benefit
Date (except as described above), unless he or she has elected
to receive a 5 or 10 year certain annuity prior to the Deferral
Period. The Participant must give the Company at least 90 days
notice of Retirement. Notwithstanding the above, respecting
Cycle III-A, IV and subsequent cycles, the Participant may elect
to have the 5, 10 or 15 year certain annuity he or she has
chosen pursuant to this Section commence on the latter of his or
her retirement or as of the first of the month coinciding with
or next following a designated birthday, but no later than his
or her 70th birthday.
6.4 Determination of Annuity.
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(a) Respecting Plan balances attributable to the Deferral
Periods for Cycles I, II, II-A and III, the annuity shall be
determined by using an interest rate equal to 135% of the
average of the Moody's Index in effect for the 60-month period
that ends with the month preceding the month in which the
Participant's Retirement Benefit Date occurs.
(b) Respecting Plan balances attributable to Cycle III-A, IV and
subsequent cycles, the annuity shall be determined by using the
average of the Moody's Index in effect for the 60-month period
that ends with the month preceding the month in which the
Participant's Retirement Benefit Date occurs, unless the
Participant has made an election to commence receipt of his or
her Plan benefits in the form of a 5, 10 or 15 year certain
annuity for such cycle or cycles at a later date pursuant to the
last sentence of Section 6.3, in which case the same 60-month
formula shall be used but the 60 months shall end with the month
preceding the month in which the annuity commences.
6.5 Death Prior to Completion of Retirement Benefits. If a Retired
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Participant dies before the retirement annuity hereunder has
commenced or has been paid in full, any unpaid benefit payments
shall continue and be paid to that Participant's Beneficiary.
6.6 Elections within Retirement Account.
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(a) With respect to a Participant's Deferral Amounts allocated
to his or her Retirement Account for Cycle III-A, IV or
subsequent cycles, the Participant may make either the Moody's
Election or the S&P 500 Minus 1.2% Election, but not both.
(b) For Cycle III-A, IV and subsequent cycles, a Participant who
had made the S&P 500 Minus 1.2% Election for his or her
Retirement Account may, after his or her 55th birthday, at one
time only, switch all his or her Retirement Account balances out
of such election effective as of the first of the month
following receipt by the Company of his or her written
notification requesting the switch. If a Participant makes such
a switch, such Retirement Account balance will commence earning
a return, on a semimonthly basis, equal to the semimonthly
equivalent of the Basic Interest Rate.
Article 7
Termination
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7.1 Termination. If the Participant incurs a Termination of
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Employment by means other than death, such Participant shall
receive any undistributed Savings Account balance, and his or
her Retirement Account balance, as soon as reasonably
practicable thereafter, but shall forfeit his or her
Accumulation Account balance, if any.
7.2 Death. If the Participant incurs a Termination of Employment by
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reason of death, his or her Beneficiary shall receive his or her
Retirement Account balance, any undistributed Savings Account
balance, and his or her Accumulation Account balance (if any),
as soon as reasonably practicable thereafter, in the form of a
lump sum payment.
Article 8
Beneficiary Designation
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8.1 Beneficiary Designation. Each Participant shall have the right,
-----------------------
at any time, to designate any person, persons or entity as his
or her primary and secondary Beneficiary or Beneficiaries.
8.2 Change of Beneficiary Designation. Any Beneficiary designation
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may be changed by a Participant at any time by executing and
filing a form prescribed by the Committee. The filing of a new
Beneficiary designation form will cancel all Beneficiary
designations previously filed. The Committee shall be entitled
to rely on the last designation filed by the Participant prior
to his or her death.
8.3 No Beneficiary Designation. If a Participant fails to designate
--------------------------
a Beneficiary as provided above, or if all designated
Beneficiaries predecease the Participant or die prior to
complete distribution of the Participant's benefits, then the
Participant's designated Beneficiary shall be deemed to be the
surviving spouse. If the Participant has no surviving spouse,
the benefits remaining under the Plan shall be payable to the
Participant's personal representative, executor or administrator
of the Participant's estate.
8.4 Effect of Payment. The payment of benefits under the Plan to the
-----------------
named Beneficiary shall completely discharge the Employer's
obligations under this Plan.
Article 9
Other Benefits and Agreements
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9.1 Coordination With Other Benefits. The benefits provided for a
---------------------------------
Participant or for the Beneficiary of a Participant under the
Plan are in addition to any other benefits to which the
Participant or Beneficiary may be entitled under any other plan
or program of the Employer. This Plan shall supplement and shall
not supersede, modify, amend, enhance or diminish any other such
plan or program except as may otherwise be expressly provided in
this Plan or the governing documents of such other plan or
program.
9.2 Coordination with Tophat Plan. A Participant in the Plan who
-------------------------------
thereby suffers a loss of benefits under the provisions of other
plans or programs of the Company shall be eligible for
recompense in accordance with the terms of the National Fuel Gas
Company Tophat Plan.
Article 10
Termination and Modification
----------------------------
10.1 Termination and Amendment. The Company reserves the right
-------------------------
to terminate or amend the Plan in whole or in part at any
time. Such termination or amendment shall have a binding
effect on Participants and their Beneficiaries. Upon
termination of the Plan, the Participants' Accounts shall
be paid out at such time and in such manner as the
Committee deems appropriate.
10.2 Change in Interest Rate. The Company may, at any time it
------------------------
deems it appropriate (on a prospective or retrospective
basis), increase the Supplemental Interest Rate. The
Company may also reduce or eliminate the Supplemental
Interest Rate on a prospective basis with respect both to
future deferrals and future interest on past deferrals.
The Company has eliminated the Supplemental Interest Rate
with respect to Cycle III-A and IV.
10.3 Limited Power of President to Amend Plan. The President is
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empowered to amend, restate or otherwise change the Plan
as (i) counsel may advise to be necessary or appropriate
in order to ensure that the Plan continues to operate as a
plan of deferred compensation for tax purposes, remains
exempt from many of the provisions of ERISA and otherwise
continues to fulfill the purposes for which the Plan was
adopted and intended, (ii) as he or she may deem necessary
in order to make technical or clarifying changes not
inconsistent with or in order to fulfill the purposes of
the Plan, and (iii) in other respects except as will
materially increase the cost of the Plan to the Company or
its subsidiaries or the benefits of the Plan to
Participants.
Article 11
Administration
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11.1 Committee Duties. This Plan shall be administered by a
-----------------
Committee, the members of which shall be appointed by the
Board of Directors of the Company. The Committee shall
have the authority to make, amend, interpret, and enforce
all appropriate rules, regulations, and procedures for the
administration of this Plan, and to decide or resolve any
and all questions including interpretations of this Plan,
as may arise in connection with the Plan. The Committee
shall have no power to waive or in any other way modify
the terms of Deferral Agreements. Members of the Committee
who are eligible to participate in the Plan may
participate to the same extent as other Participants but
shall not take part in any determination directly relating
only to their own participation or benefits.
11.2 Agents. In the administration of this Plan, the Committee
------
may, from time to time, employ agents, including employees
of the Company and Plan Participants, and may delegate to
them such administrative duties as it sees fit, and may
from time to time consult with counsel who may be counsel
to the Employer.
11.3 Binding Effect of Decisions. The decision or action of the
---------------------------
Committee with respect to any question arising out of or
in connection with the administration, interpretation and
application of the Plan and the rules and regulations
promulgated hereunder shall be final, conclusive and
binding upon all persons having any interest in the Plan.
11.4 Indemnity of Committee. The Company and Employer shall
-----------------------
indemnify and hold harmless the members of the Committee
and their agents and delegates against any and all claims,
losses, damage, expense (including counsel fees) or
liability arising from any action or failure to act with
respect to this Plan, except in the case of willful
misconduct by the Committee or any of its members or
agents.
Article 12
Miscellaneous
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12.1 Unsecured General Creditor. Participants and their
------------------------------
Beneficiaries, heirs, successors and assigns shall have no
legal or equitable rights, interest or claims in any
property or assets of any Employer, nor shall they be
Beneficiaries of, or have any rights, claims or interests
in any life insurance policies, annuity contracts or the
proceeds therefrom owned or which may be acquired by the
Employer ("Policies"). Such Policies or other assets of
the Employer shall not be held under any trust for the
benefit of Participants, their Beneficiaries, heirs,
successors or assigns, or held in any way as collateral
security for the fulfilling of the obligations of the
Employer under this Plan. Any and all of the Employer's
assets and Policies shall be, and remain, the general
assets of the Employer. The Employer's obligation under
the Plan shall merely constitute an unfunded and unsecured
promise of the Employer to pay money in the future.
12.2 Nonassignability. Neither a Participant nor any other
---------------- person shall have any right to sell,
assign, transfer, pledge, mortgage or otherwise encumber,
hypothecate or convey in advance of actual receipt, the
amounts, if any, payable hereunder, or any part thereof or
interest therein. No part of the amounts payable shall,
prior to actual payment, be subject to seizure or
sequestration for the payment of any debts, judgments,
alimony or separate maintenance owed by a Participant or
any other person, nor be transferable by operation of law
in the event of a Participant's or any other person's
bankruptcy or insolvency.
12.3 Not a Contract of Employment. The terms and conditions of
----------------------------
this Plan shall not be deemed to constitute a contract of
employment between the Employer and the Participant, and
the Participant (or his or her Beneficiary) shall have no
rights against the Employer except as may otherwise be
specifically provided herein. Moreover, nothing in this
Plan shall be deemed to give a Participant the right to be
retained in the service of the Employer or to deny to the
Employer the right to discipline a Participant (including
reducing his or her salary) or discharge him or her at any
time.
12.4 Health Information. The Participant shall provide to the
-------------------
Company, if so requested and as a precondition for Plan
participation, all health information and other
information as the Company may require in order to
purchase Policies.
12.5 Governing Law. The provisions of the Plan shall be
--------------
construed and interpreted according to the laws of the
State of New York.
12.6 Withholding. All payments that are to be made by an
-----------
Employer to a Participant shall be subject to withholding
for any and all taxes as the Employer in its discretion
deems appropriate.
12.7 Binding Effect. The provisions of this Plan shall bind the
--------------
Participant and his or her Beneficiaries, and shall bind
and inure to the benefit of the Employer and its
successors and assigns.
12.8 Borrowing. No portions of any Accounts may be borrowed by
---------
a Participant or his or her Beneficiaries under this Plan.
12.9 Validity. In case any provision of this Plan shall be
--------
illegal or invalid for any reason, said illegality or
invalidity shall not affect the remaining parts hereof,
but this Plan shall be construed and enforced as if such
illegal and invalid provision had never been inserted
herein.
12.10 Incapacity of Person Entitled To Payment. If the Committee
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shall reasonably determine, upon evidence satisfactory to
it, that it is not desirable, because of the incapacity of
the person who shall be entitled to receive any payment in
accordance with the provisions of the Plan, to make such
payment directly to such person, the Committee may apply
such payment for the benefit of such person in any way
that the Committee shall deem advisable, or the Committee
may make such payment to any third person who, in the
judgment of the Committee, will apply such payment for the
benefit of the person entitled thereto. Such payment for
the benefit of the person entitled thereto, or to a third
person for his or her benefit, shall be a complete
discharge of all liability with respect to such payment.
The Committee may retain any amount that would otherwise
be payable in accordance with the provisions of the Plan
to a person who may be under legal disability until a
representative of such person competent to receive such
payment on his or her behalf shall have been appointed
pursuant to law.
12.11 Captions. The captions of the articles, sections and
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paragraphs of the Plan are for convenience only and shall
not control or affect the meaning or construction of any
of its provisions.
12.12 Construction. Whenever any words are used herein in the
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singular or in the plural, they shall be construed as
though they were used in the plural or the singular, as
the case may be, in all cases where they would so apply.
l:\kmh\sjm\empb\plans\dcp-cy4.doc
Revised: March 20, 1997