THE EXECUTIVE NONQUALIFIED EXCESS PLAN SM
PLAN DOCUMENT
c 2/2005 Executive Benefit Services, Inc.
4140 ParkLake Avenue, Suite 500
Raleigh, NC 27612
TABLE OF CONTENTS
THE EXECUTIVE NONQUALIFIED EXCESS PLAN SM
Page
----
Section 1. Purpose: 1
Section 2. Definitions: 1
2.1 "Active Participant" 1
2.2 "Adoption Agreement" 2
2.3 "Beneficiary" 2
2.4 "Board" 2
2.5 "Change in Control" 2
2.6 "Committee" 3
2.7 "Compensation" 3
2.8 "Crediting Date" 3
2.9 "Deferred Compensation Account" 4
2.10 "Disabled" 4
2.11 "Education Account" 4
2.12 "Effective Date" 4
2.13 "Employee" 5
2.14 "Employer" 5
2.15 "Employer Credits" 5
2.16 "Independent Contractor" 5
2.17 "In-Service Account" 5
2.18 "Normal Retirement Age" 6
2.19 "Participant 6
2.20 "Participating Employer" 6
2.21 "Performance-Based Compensation" 6
2.22 "Plan" 6
2.23 "Plan Administrator" 6
2.24 "Plan-Approved Domestic Relations Order" 6
2.25 "Plan Year" 8
2.26 "Provider" 8
2.27 "Qualifying Distribution Event" 8
2.28 "Salary Deferral Agreement" 8
2.29 "Salary Deferral Credits" 8
2.30 "Service" 9
2.31 "Service Bonus" 9
2.32 "Spouse" or "Surviving Spouse" 9
2.33 "Student" 9
2.34 "Trust" 9
2.35 "Trustee" 9
2.36 "Unforeseeable Emergency" 9
2.37 "Years of Service" 9
i
Section 3. Participation: 10
Section 4. Credits to Deferred Compensation Account: 10
4.1 Salary Deferral Credits 10
4.2 Employer Credits 11
4.3 Deferred Compensation Account 12
Section 5. Qualifying Distribution Events: 12
5.1 Separation from Service 12
5.2 Disability 12
5.3 Death 12
5.4 In-Service Distributions 12
5.5 Education Withdrawals 13
5.6 Unforeseeable Emergency 14
Section 6. Qualifying Distribution Events Payment Options: 15
6.1 Payment Options 15
6.2 De Minimis Amounts 16
6.3 Subsequent Elections 16
6.4 Acceleration Prohibited 17
Section 7. Vesting: 17
Section 8. Accounts; Deemed Investment; Adjustments to Account: 17
8.1 Accounts 17
8.2 Deemed Investments 18
8.3 Adjustments to Deferred Compensation Account 18
Section 9. Administration by Committee: 18
9.1 Membership of Committee 18
9.2 Committee Officers; Subcommittee 19
9.3 Committee Meetings 19
9.4 Transaction of Business 19
9.5 Committee Records 19
9.6 Establishment of Rules 20
9.7 Conflicts of Interest 20
9.8 Correction of Errors 20
9.9 Authority to Interpret Plan 20
9.10 Third Party Advisors 20
9.11 Compensation of Members 21
9.12 Expense Reimbursement 21
9.13 Indemnification 21
ii
Section 10. Contractual Liability; Trust: 21
10.1 Contractual Liability 21
10.2 Trust 22
Section 11. Allocation of Responsibilities: 22
11.1 Board. 22
11.2 Committee. 22
11.3 Plan Administrator. 23
Section 12. Benefits Not Assignable; Facility of Payments: 23
12.1 Benefits not Assignable 23
12.2 Plan-Approved Domestic Relations Orders 23
12.3 Payments to Minors and Others 24
Section 13. Beneficiary: 24
Section 14. Amendment and Termination of Plan: 25
14.1 Termination Upon Change in Control 25
14.2 Termination On or Before December 31, 2005 26
14.3 No Financial Triggers 26
Section 15. Communication to Participants: 26
Section 16. Claims Procedure: 26
16.1 Filing of a Claim for Benefits 26
16.2 Notification to Claimant of Decision 26
16.3 Procedure for Review 27
16.4 Decision on Review 27
16.5 Action by Authorized Representative of Claimant 28
Section 17. Miscellaneous Provisions: 28
17.1 Set off 28
17.2 Notices 28
17.3 Lost Distributees 29
17.4 Reliance on Data 29
17.5 Receipt and Release for Payments 29
17.6 Headings 29
17.7 Continuation of Employment 30
17.8 Merger or Consolidation; Assumption of Plan 30
17.9 Construction 30
iii
THE EXECUTIVE NONQUALIFIED EXCESS PLAN SM
Section 1. Purpose:
---------- --------
By execution of the Adoption Agreement, the Employer has adopted
the Plan set forth herein to provide a means by which certain management
Employees and Independent Contractors of the Employer may elect to defer
receipt of current Compensation from the Employer in order to provide
retirement and other benefits on behalf of such Employees and Independent
Contractors of the Employer, as selected in the Adoption Agreement. The
Plan is intended to be a nonqualified deferred compensation plan that
complies with the provisions of Section 409A of the Internal Revenue Code
(the "Code"). The Plan is intended to be an unfunded plan maintained
primarily for the purpose of providing deferred compensation benefits for a
select group of management or highly compensated employees under
Sections 201(2), 301(a)(3) and 401(a)(1) of the Employee Retirement Income
Security Act of 1974 and independent contractors.
Section 2. Definitions:
---------- ------------
As used in the Plan, including this Section 2, references to one
gender shall include the other and, unless otherwise indicated by the
context:
2.1 "Active Participant" means, with respect to any day or date,
a Participant who is in Service on such day or date; provided, that a
Participant shall cease to be an Active Participant immediately upon a
determination by the Committee that the Participant has ceased to be an
Employee or Independent Contractor, or that the Participant no longer meets
the eligibility requirements of the Plan.
2.2 "Adoption Agreement" means the written agreement pursuant to
which the Employer adopts the Plan. The Adoption Agreement is a part of
the Plan as applied to the Employer.
2.3 "Beneficiary" means the person, persons, entity or entities
designated or determined pursuant to the provisions of Section 13 of the
Plan.
2.4 "Board" means the Board of Directors of the Employer, if the
Employer is a corporation. If the Employer is not a corporation, "Board"
shall mean the Employer.
2.5 "Change in Control" of a corporation shall occur on the
earliest of the following events:
2.5.1 Change in Ownership: A change in ownership of a
corporation occurs on the date that any one person, or more than
one person acting as a group, acquires ownership of stock of the
corporation that, together with stock held by such person or
group, constitutes more than 50% of the total fair market value
or total voting power of the stock of the corporation, excluding
the acquisition of additional stock by a person or more than one
person acting as a group who is considered to own more than 50%
of the total fair market value or total voting power of the stock
of the corporation.
2.5.2 Change in Effective Control: A change in
effective control of a corporation occurs on the date that
either:
(i) Any one person, or more than one person acting as
a group, acquires (or has acquired during the 12-month
period ending on the date of the most recent acquisition by
such person or persons) ownership of stock of the
corporation possessing 35% or more of the total voting
power of the stock of the corporation; or
(ii) A majority of the members of the board of
directors of the corporation is replaced during any 12-
month period by directors whose appointment or election is
not endorsed by a majority of the members of the board of
directors prior to the date of the appointment or election;
provided, that this paragraph (ii) shall apply only to a
corporation for which no other corporation is a majority
shareholder.
2.5.3 Change in Ownership of Substantial Assets: A
change in the ownership of a substantial portion of a
corporation's assets occurs on the date that any one person, or
more than one person acting as a group, acquires (or has acquired
during the 12-month period ending on the date of the most recent
2
acquisition by such person or persons) assets from the
corporation that have a total gross fair market value equal to or
more than 40% of the total gross fair market value of the assets
of the corporation immediately prior to such acquisition or
acquisitions. For this purpose, gross fair market value means
the value of the assets of the corporation, or the value of the
assets being disposed of, determined without regard to any
liabilities associated with such assets.
For this purpose, the Change in Control must relate to (i) a corporation
that is the Employer of the Participant; (ii) a corporation that is liable
for the payment of benefits under this Plan; (iii) a corporation that is a
majority shareholder of the corporation described in (i) or (ii); or (iv)
any corporation in a chain of corporations in which each corporation is a
majority shareholder of another corporation in the chain, ending with the
corporation described in (i) or (ii). A Change in Control shall not be
deemed to have occurred until a majority of the members of the Board
receive written certification from the Committee that one of the events set
forth in this Section 2.5 has occurred. The occurrence of an event
described in this Section 2.5 must be objectively determinable by the
Committee and, if made in good faith on the basis of information available
at the time, such determination shall be conclusive and binding on the
Committee, the Employer, the Participants and their Beneficiaries for all
purposes of the Plan.
2.6 "Committee" means the person designated in the Adoption
Agreement. If the Committee designated in the Adoption Agreement is unable
to serve, the Employer shall satisfy the duties of the Committee provided
for in Section 9.
2.7 "Compensation" shall have the meaning designated in the
Adoption Agreement.
2.8 "Crediting Date" means the date designated in the Adoption
Agreement for crediting the amount of any Salary Deferral Credits to the
Deferred Compensation Account of a Participant. Employer Credits may be
credited to the Deferred Compensation Account of a Participant on any day
that securities are traded on a national securities exchange.
3
2.9 "Deferred Compensation Account" means the account maintained
with respect to each Participant under the Plan. The Deferred Compensation
Account shall be credited with Salary Deferral Credits and Employer
Credits, credited or debited for deemed investment gains or losses, and
adjusted for payments in accordance with the rules and elections in effect
under Section 8. The Deferred Compensation Account of a Participant shall
include any In-Service Account or Education Account of the Participant, if
applicable.
2.10 "Disabled" means a Participant who is unable to engage in
any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or
can be expected to last for a continuous period of not less than 12 months,
or is, by reason of any medically determinable physical or mental
impairment which can be expected to result in death or can be expected to
last for a continuous period of not less than 12 months, receiving income
replacement benefits for a period of not less than three months under an
accident and health plan covering Employees of the Employer.
2.11 "Education Account" means a separate account to be kept for
each Participant that has elected to take education distributions as
described in Section 5.5. The Education Account shall be adjusted in the
same manner and at the same time as the Deferred Compensation Account under
Section 8 and in accordance with the rules and elections in effect under
Section 8.
2.12 "Effective Date" shall be the date designated in the
Adoption Agreement as of which the Plan first becomes effective.
Notwithstanding the foregoing, any amounts credited to the account of a
Participant pursuant to the terms of a predecessor plan of the Employer
which are not earned and vested before January 1, 2005, shall be subject to
the terms of this Plan.
4
2.13 "Employee" means an individual in the Service of the
Employer if the relationship between the individual and the Employer is the
legal relationship of employer and employee and if the individual is a
highly compensated or management employee of the Employer. An individual
shall cease to be an Employee upon the Employee's termination of Service.
2.14 "Employer" means the Employer identified in the Adoption
Agreement, and any Participating Employer which adopts this Plan. The
Employer may be a corporation, a limited liability company, a partnership
or sole proprietorship. All references herein to the Employer shall
include each trade or business (whether or not incorporated) that is
required to be aggregated with the Employer under rules similar to
subsections (b) and (c) of Section 414 of the Code.
2.15 "Employer Credits" means the amounts credited to the
Participant's Deferred Compensation Account by the Employer pursuant to the
provisions of Section 4.2.
2.16 "Independent Contractor" means an individual in the Service
of the Employer if the relationship between the individual and the Employer
is not the legal relationship of employer and employee. An individual
shall cease to be an Independent Contractor upon the termination of the
Independent Contractor's Service. An Independent Contractor shall include
a director of the Employer who is not an Employee.
2.17 "In-Service Account" means a separate account to be kept for
each Participant that has elected to take in-service distributions as
described in Section 5.4. The In-Service Account shall be adjusted in the
same manner and at the same time as the Deferred Compensation Account under
Section 8 and in accordance with the rules and elections in effect under
Section 8.
5
2.18 "Normal Retirement Age" of a Participant means the age
designated in the Adoption Agreement.
2.19 "Participant" means with respect to any Plan Year an
Employee or Independent Contractor who has been designated by the Committee
as a Participant and who has entered the Plan or who has a Deferred
Compensation Account under the Plan.
2.20 "Participating Employer" means any trade or business
(whether or not incorporated) which adopts this Plan with the consent of
the Employer identified in the Adoption Agreement.
2.21 "Performance-Based Compensation" means any compensation
based on services performed over a period of at least twelve months as
provided in regulations and administrative guidance promulgated under
Section 409A of the Code.
2.22 "Plan" means The Executive Nonqualified Excess PlanT, as
herein set out or as duly amended. The name of the Plan as applied to the
Employer shall be designated in the Adoption Agreement.
2.23 "Plan Administrator" means the person designated in the
Adoption Agreement. If the Plan Administrator designated in the Adoption
Agreement is unable to serve, the Employer shall be the Plan Administrator.
2.24 "Plan-Approved Domestic Relations Order" shall mean a court
order that is lawfully directed to this Plan and that is served upon the
Plan Administrator before the Participant receives a distribution of his
benefit that pursuant to a state domestic relations law creates or
recognizes the existence of the right of an alternate payee to receive all
or a portion of a Participant's benefit and that meets all of the following
requirements. An order shall not be a Plan-Approved Domestic Relations
Order unless the Plan Administrator determines that the court order on its
face and without reference to any other document states all of the
following:
6
(a) The court order expressly states that it relates to the
provision of child support, alimony, or marital property rights to a
spouse, former spouse, or child of a Participant and is made pursuant to
State domestic relations law.
(b) The court order clearly and unambiguously specifies that it
refers to this Plan.
(c) The court order clearly and unambiguously specifies the name
of the Participant's Employer.
(d) The court order clearly specifies: the name, mailing
address, and social security number of the Participant; and the name,
mailing address, and social security number of each alternate payee.
(e) The court order clearly specifies the amount or percentage,
or the manner in which the amount or percentage is to be determined, of the
Participant's benefit to be paid to or segregated for the separate account
of the alternate payee.
(f) The court order expressly states that the alternate payee's
segregated account shall bear all fees and expenses as though the alternate
payee were a Participant.
(g) The court order clearly specifies that any distribution to
the alternate payee becomes payable only after a Qualifying Distribution
Event of the Participant and only upon the alternate payee's written claim
made to the Administrator.
(h) The court order clearly specifies that any distribution to
any alternate payee shall be payable only as a lump sum.
(i) The court order expressly states that it does not require
this Plan to provide any type or form of benefit or any option not
otherwise provided under this Plan.
(j) The court order expressly states that the order does not
require this Plan to provide increased benefits.
(k) The court order expressly states that any provision of it
that would have the effect of requiring any distribution to an alternate
payee of deferred compensation that is required to be paid to another
person under any court order is void.
(l) The court order expressly states that nothing in the order
shall have any effect concerning any party's tax treatment, and that
nothing in the order shall direct any person's tax reporting or
withholding.
An order shall not be a Plan-approved Domestics Relations Order if it
includes any provision that does not relate to this Plan. Without limiting
the comprehensive effect of the preceding sentence, an order shall not be a
Plan-Approved Domestic Relations Order if the order includes any provision
7
relating to any pension plan, retirement plan, deferred compensation plan,
health plan, welfare benefit plan, or employee benefit plan other than this
Plan. An order shall not be a Plan-Approved Domestic Relations Order
unless the order provides for only one alternate payee. An order shall not
be a Plan-Approved Domestic Relations Order if the order includes any
provision that would permit the alternate payee to designate any
Beneficiary for any purpose. However, an order does not fail to qualify as
a Plan-approved Domestic Relations Order because it provides that any
rights not paid before the alternate payee's death shall be payable to the
duly appointed and then-currently serving personal representative of the
alternate payee's estate. The Plan Administrator may assume that the
alternate payee named by the court order is a proper payee and need not
inquire into whether the person named is a spouse or former spouse or child
of the Participant.
2.25 "Plan Year" means the twelve-month period ending on the last
day of the month designated in the Adoption Agreement; provided, that the
initial Plan Year may have fewer than twelve months.
2.26 "Provider" means Executive Benefit Services, Inc.
2.27 "Qualifying Distribution Event" means (i) the separation
from Service of the Participant, (ii) the date the Participant becomes
Disabled, (iii) the death of the Participant, (iv) the time specified by
the Participant for an in-service or education distribution, or (v) an
Unforeseeable Emergency, each to the extent provided in Section 5.
2.28 "Salary Deferral Agreement" means a written agreement
entered into between a Participant and the Employer pursuant to the
provisions of Section 4.1
2.29 "Salary Deferral Credits" means the amounts credited to the
Participant's Deferred Compensation Account by the Employer pursuant to the
provisions of Section 4.1.
8
2.30 "Service" means employment by the Employer as an Employee.
If the Participant is an Independent Contractor, "Service" shall mean the
period during which the contractual relationship exists between the
Employer and the Participant.
2.31 "Service Bonus" means any bonus paid to a Participant by the
Employer which is not Performance-Based Compensation.
2.32 "Spouse" or "Surviving Spouse" means, except as otherwise
provided in the Plan, a person who is the legally married spouse or
surviving spouse of a Participant.
2.33 "Student" means the individual designated by the Participant
in the Salary Deferral Agreement with respect to whom the Participant will
create an Education Account.
2.34 "Trust" means the trust fund established pursuant to Section
10.2, if designated by the Employer in the Adoption Agreement.
2.35 "Trustee" means the trustee, if any, named in the agreement
establishing the Trust and such successor or additional trustee as may be
named pursuant to the terms of the agreement establishing the Trust.
2.36 "Unforeseeable Emergency" means a severe financial hardship
to the Participant resulting from a sudden or unexpected illness or
accident of the Participant, the Participant's Spouse or dependent (as
defined in Section 152(a) of the Code), loss of the Participant's property
due to casualty, or other similar extraordinary and unforeseeable
circumstances arising as a result of events beyond the control of the
Participant.
2.37 "Years of Service" means each Plan Year of Service completed
by the Participant. For vesting purposes, Years of Service shall be
calculated from the date designated in the Adoption Agreement.
9
Section 3. Participation:
---------- --------------
The Committee in its discretion shall designate each Employee or
Independent Contractor who is eligible to participate in the Plan. An
Employee or Independent Contractor designated by the Committee as a
Participant who has not otherwise entered the Plan shall enter the Plan and
become a Participant as of the date determined by the Committee. A
Participant who separates from Service with the Employer and who later
returns to Service will not be an Active Participant under the Plan except
upon satisfaction of such terms and conditions as the Committee shall
establish upon the Participant's return to Service, whether or not the
Participant shall have a balance remaining in the Deferred Compensation
Account under the Plan on the date of the return to Service.
Section 4. Credits to Deferred Compensation Account:
---------- -----------------------------------------
4.1 Salary Deferral Credits. To the extent provided in the
Adoption Agreement, each Active Participant may elect, by entering into a
Salary Deferral Agreement with the Employer, to defer the receipt of
Compensation from the Employer by a dollar amount or percentage specified
in the Salary Deferral Agreement. The amount of the Participant's Salary
Deferral Credit shall be credited by the Employer to the Deferred
Compensation Account maintained for the Participant pursuant to Section 8.
The following special provisions shall apply with respect to the Salary
Deferral Credits of a Participant:
4.1.1 The Employer shall credit to the Participant's
Deferred Compensation Account on each Crediting Date an amount
equal to the total Salary Deferral Credit for the period ending
on such Crediting Date.
4.1.2 An election pursuant to Section 4.1 shall be made
by the Participant by executing and delivering a Salary Deferral
Agreement to the Committee. The Salary Deferral Agreement shall
become effective with respect to such Participant as of the first
day of January following the date such Salary Deferral Agreement
is received by the Committee; provided, that in the case of the
first year in which the Participant becomes eligible to
participate in the Plan, the Participant may execute and deliver
10
a Salary Deferral Agreement to the Committee within 30 days after
the date the Participant enters the Plan to be effective as of
the first payroll period next following the date the Salary
Deferral Agreement is received by the Committee. A Participant's
election shall continue in effect, unless earlier modified by the
Participant, until the Participant separates from Service, or, if
earlier, until the Participant ceases to be an Active Participant
under the Plan.
4.1.3 A Participant may unilaterally modify a Salary
Deferral Agreement (either to terminate, increase or decrease the
portion of his future Compensation which is subject to salary
deferral within the percentage limits set forth in Section 4.1 of
the Adoption Agreement) by providing a written modification of
the Salary Deferral Agreement to the Employer. The modification
shall become effective as of the first day of January following
the date such written modification is received by the Committee.
Notwithstanding the foregoing, at any time during the calendar
year 2005, a Participant may terminate a Salary Deferral
Agreement, or modify a Salary Deferral Agreement to reduce the
amount of Compensation subject to the deferral election, so long
as the Compensation subject to the terminated or modified Salary
Deferral Agreement is includible in the income of the Participant
in calendar year 2005 or, if later, in the taxable year in which
the amounts are earned and vested.
4.1.4 Notwithstanding Sections 4.1.2 and 4.1.3, a Salary
Deferral Agreement relating to the deferral of Performance-Based
Compensation must be executed and delivered to the Committee no
later than the date which is 6 months prior to the end of the
performance period, and may not be modified after such date.
4.1.5 The Committee may from time to time establish
policies or rules consistent with the requirements of Section
409A of the Code to govern the manner in which Salary Deferral
Credits may be made.
4.1.6 The requirements of Section 4.1.2 relating to the
timing of the Salary Deferral Agreement shall not apply to any
deferral elections made on or before March 15, 2005, provided
that (a) the amounts to which the deferral election relate have
not been paid or become payable at the time of the election, (b)
the Plan was in existence on or before December 31, 2004, (c) the
election to defer compensation is made in accordance with the
terms of the Plan as in effect on December 31, 2005 (other than a
requirement to make a deferral election after March 15, 2005),
(d) the Plan is otherwise operated in accordance with the
requirements of Section 409A of the Code, and (e) the Plan is
amended to comply with Section 409A in accordance with Q&A 19 of
Notice 2005-1.
4.2 Employer Credits. If designated by the Employer in the
Adoption Agreement, the Employer shall cause the Committee to credit to the
11
Deferred Compensation Account of each Active Participant an Employer Credit
as determined in accordance with the Adoption Agreement.
4.3 Deferred Compensation Account. All Salary Deferral Credits
and Employer Credits shall be credited to the Deferred Compensation Account
of the Participant.
Section 5. Qualifying Distribution Events:
---------- -------------------------------
5.1 Separation from Service. If the Participant separates from
Service with the Employer, the vested balance in the Deferred Compensation
Account shall be paid to the Participant by the Employer as provided in
Section 6. Notwithstanding the foregoing, no distribution shall be made
earlier than six months after the date of separation from Service (or, if
earlier, the date of death) with respect to a Participant who is a key
employee (as defined in Section 416(i) of the Code without regard to
paragraph (5) thereof) of a corporation the stock in which is traded on an
established securities market or otherwise.
5.2 Disability. If the Participant becomes Disabled while in
Service, the vested balance in the Deferred Compensation Account shall be
paid to the Participant by the Employer as provided in Section 6.
5.3 Death. If the Participant dies while in Service, the
Employer shall pay a benefit to the Participant's Beneficiary in the amount
designated in the Adoption Agreement. Payment of such benefit shall be
made by the Employer as provided in Section 6. If a Participant dies
following his separation from Service for any reason, and before all
payments under the Plan have been made, the vested balance in the Deferred
Compensation Account shall be paid by the Employer to the Participant's
Beneficiary pursuant to Section 6.
5.4 In-Service Distributions. If the Employer designates in the
Adoption Agreement that in-service distributions are permitted under the
Plan, a Participant may designate in the Salary Deferral Agreement to have
a specified amount credited to the Participant's In-Service Account for in-
12
service distributions at the later of the date specified by the Participant
or as specified in the Adoption Agreement. In no event may an in-service
distribution be made prior to two years following the establishment of the
In-Service Account of the Participant. If the Participant elects to
receive in-service distributions in annual installment payments, the
payment of each annual installment shall be made on the anniversary of the
date of the first installment payment, and the amount of the annual
installment shall be adjusted on such anniversary for credits or debits to
the Participant's account pursuant to Section 8 of the Plan. Such
adjustment shall be made by dividing the balance in the In-Service Account
on such date by the number of annual installments remaining to be paid
hereunder; provided that the last annual installment due under the Plan
shall be the entire amount credited to the Participant's In-Service Account
on the date of payment. Notwithstanding the foregoing, if a Participant
incurs a Qualifying Distribution Event prior to the date on which the
entire balance in the In-Service Account has been distributed, then the
balance in the In-Service Account on the date of the Qualifying
Distribution Event shall be distributed to the Participant in the same
manner and at the same time as the balance in the Deferred Compensation
Account is distributed under Section 6 and in accordance with the rules and
elections in effect under Section 6.
5.5 Education Withdrawals. If the Employer designates in the
Adoption Agreement that education distributions are permitted under the
Plan, a Participant may designate in the Salary Deferral Agreement to have
a specified amount credited to the Participant's Education Account for
education distributions at the later of the date specified by the
Participant or the date specified in the Adoption Agreement. If the
Participant designates more than one Student, the Education Account will be
divided into a separate Education Account for each Student, and the
Participant may designate in the Salary Deferral Agreement the percentage
or dollar amount to be credited to each Education Account. In the absence
13
of a clear designation, all credits made to the Education Account shall be
equally allocated to each Education Account. The Employer shall pay to the
Participant the balance in the Education Account with respect to the
Student at the time and in the manner designated by the Participant in the
Salary Deferral Agreement. If the Participant elects to receive education
distributions in annual installment payments, the payment of each annual
installment shall be made on the anniversary of the date of the first
installment payment, and the amount of the annual installment shall be
adjusted on such anniversary for credits or debits to the Participant's
Education Account pursuant to Section 8 of the Plan. Such adjustment shall
be made by dividing the balance in the Education Account on such date by
the number of annual installments remaining to be paid hereunder; provided
that the last annual installment due under the Plan shall be the entire
amount credited to the Participant's Education Account on the date of
payment. Notwithstanding the foregoing, if the Participant incurs a
Qualifying Distribution Event prior to the date on which the entire balance
of the Education Account has been distributed, then the balance in the
Education Account on the date of the Qualifying Distribution Event shall be
distributed to the Participant in the same manner and at the same time as
the Deferred Compensation Account is distributed under Section 6 and in
accordance with the rules and elections in effect under Section 6.
5.6 Unforeseeable Emergency. A distribution from the Deferred
Compensation Account may be made to a Participant in the event of an
Unforeseeable Emergency, subject to the following provisions:
5.6.1 A Participant may, at any time prior to his
separation from Service for any reason, make application to the
Committee to receive a distribution in a lump sum of all or a
portion of the vested balance in the Deferred Compensation
Account (determined as of the date the distribution, if any, is
made under this Section 5.6) because of an Unforeseeable
Emergency. A distribution because of an Unforeseeable Emergency
shall not exceed the amount required to satisfy the Unforeseeable
Emergency plus amounts necessary to pay taxes reasonably
anticipated as a result of such distribution, after taking into
account the extent to which the Unforeseeable Emergency may be
relieved through reimbursement or compensation by insurance or
14
otherwise or by liquidation of the Participant's assets (to the
extent the liquidation of such assets would not itself cause
severe financial hardship).
5.6.2 The Participant's request for a distribution on
account of Unforeseeable Emergency must be made in writing to the
Committee. The request must specify the nature of the financial
hardship, the total amount requested to be distributed from the
Deferred Compensation Account, and the total amount of the actual
expense incurred or to be incurred on account of the
Unforeseeable Emergency.
5.6.3 If a distribution under this Section 5.6 is
approved by the Committee, such distribution will be made as soon
as practicable following the date it is approved. The processing
of the request shall be completed as soon as practicable from the
date on which the Committee receives the properly completed
written request for a distribution on account of an Unforeseeable
Emergency. A distribution due to Unforeseeable Emergency shall
not affect any deferral election previously made by the
Participant. If a Participant's separation from Service occurs
after a request is approved in accordance with this Section
5.6.3, but prior to distribution of the full amount approved, the
approval of the request shall be automatically null and void and
the benefits which the Participant is entitled to receive under
the Plan shall be distributed in accordance with the applicable
distribution provisions of the Plan.
5.6.4 The Committee may from time to time adopt
additional policies or rules consistent with the requirements of
Section 409A of the Code to govern the manner in which such
distributions may be made so that the Plan may be conveniently
administered.
Section 6. Qualifying Distribution Events Payment Options:
---------- -----------------------------------------------
6.1 Payment Options. The Employer shall designate in the
Adoption Agreement the payment options which may be elected by the
Participant. The Participant shall elect in the Salary Deferral Agreement
the method under which the vested balance in the Deferred Compensation
Account will be distributed from among the designated payment options.
Payment shall be made in the manner elected by the Participant and shall
commence as soon as practicable following the Qualifying Distribution
Event. The Participant may elect a different method of payment for each
Qualifying Distribution Event as specified in the Adoption Agreement. If
the Participant elects the installment payment option, the payment of each
15
annual installment shall be made on the anniversary of the date of the
first installment payment, and the amount of the annual installment shall
be adjusted on such anniversary for credits or debits to the Participant's
account pursuant to Section 8 of the Plan. Such adjustment shall be made
by dividing the balance in the Deferred Compensation Account on such date
by the number of annual installments remaining to be paid hereunder;
provided that the last annual installment due under the Plan shall be the
entire amount credited to the Participant's account on the date of payment.
In the event the Participant fails to make a valid election of the payment
method, the distribution will be made in a single lump sum payment upon the
Qualifying Distribution Event. Notwithstanding the provisions of Sections
6.3 or 6.4 of the Plan, a Participant may elect on or before December 31,
2005, the method of payment of amounts deferred prior to the date of such
election.
6.2 De Minimis Amounts. Notwithstanding any payment election
made by the Participant, the vested balance in the Deferred Compensation
Account of the Participant will be distributed in a single lump sum payment
if the payment accompanies the termination of the Participant's entire
interest in the Plan and the amount of such payment does not exceed
$10,000. Such payment shall be made on or before the later of (i) December
31 of the calendar year in which the Participant separates from Service
from the Employer, or (ii) the date that is 2-1/2 months after the
Participant separates from Service from the Employer.
6.3 Subsequent Elections. With the consent of the Committee, a
Participant may delay or change the method of payment of the Deferred
Compensation Account subject to the following requirements:
6.3.1 The new election may not take effect until at
least 12 months after the date on which the new election is made.
6.3.2 If the new election relates to a payment for a
Qualifying Distribution Event other than the death of the
16
Participant, the Participant becoming Disabled, or an
Unforeseeable Emergency, the new election must provide for the
deferral of the first payment for a period of at least five years
from the date such payment would otherwise have been made.
6.3.3 If the new election relates to a payment from the
In-Service Account or Education Account, the new election must be
made at least 12 months prior to the date of the first scheduled
payment from such account.
6.4 Acceleration Prohibited. The acceleration of the time or
schedule of any payment due under the Plan is prohibited except as provided
in regulations and administrative guidance promulgated under Section 409A
of the Code. It is not an acceleration of the time or schedule of payment
if the Employer waives or accelerates the vesting requirements applicable
to a benefit under the Plan.
Section 7. Vesting:
---------- --------
A Participant shall be fully vested in the portion of his
Deferred Compensation Account attributable to Salary Deferral Credits, and
all income, gains and losses attributable thereto. A Participant shall
become fully vested in the portion of his Deferred Compensation Account
attributable to Employer Credits, and income, gains and losses attributable
thereto, in accordance with the vesting schedule and provisions designated
by the Employer in the Adoption Agreement. If a Participant's Deferred
Compensation Account is not fully vested upon separation from Service, the
portion of the Deferred Compensation Account that is not fully vested shall
thereupon be forfeited.
Section 8. Accounts; Deemed Investment; Adjustments to Account:
---------- ----------------------------------------------------
8.1 Accounts. The Committee shall establish a book reserve
account, entitled the "Deferred Compensation Account," on behalf of each
Participant. The Committee shall also establish an In-Service Account and
Education Account as a part of the Deferred Compensation Account of each
Participant, if applicable. The amount credited to the Deferred
Compensation Account shall be adjusted pursuant to the provisions of
Section 8.3.
17
8.2 Deemed Investments. The Deferred Compensation Account of a
Participant shall be credited with an investment return determined as if
the account were invested in one or more investment funds made available by
the Committee. The Participant shall elect the investment funds in which
his Deferred Compensation Account shall be deemed to be invested. Such
election shall be made in the manner prescribed by the Committee and shall
take effect upon the entry of the Participant into the Plan. The investment
election of the Participant shall remain in effect until a new election is
made by the Participant. In the event the Participant fails for any reason
to make an effective election of the investment return to be credited to
his account, the investment return shall be determined by the Committee.
8.3 Adjustments to Deferred Compensation Account. With respect
to each Participant who has a Deferred Compensation Account under the Plan,
the amount credited to such account shall be adjusted by the following
debits and credits, at the times and in the order stated:
8.3.1 The Deferred Compensation Account shall be debited
each business day with the total amount of any payments made from
such account since the last preceding business day to him or for
his benefit.
8.3.2 The Deferred Compensation Account shall be
credited on each Crediting Date with the total amount of any
Salary Deferral Credits and Employer Credits to such account
since the last preceding Crediting Date.
8.3.3 The Deferred Compensation Account shall be
credited or debited on each day securities are traded on a
national stock exchange with the amount of deemed investment gain
or loss resulting from the performance of the investment funds
elected by the Participant in accordance with Section 8.2. The
amount of such deemed investment gain or loss shall be determined
by the Committee and such determination shall be final and
conclusive upon all concerned.
Section 9. Administration by Committee:
---------- ----------------------------
9.1 Membership of Committee. If elected in the Adoption
Agreement, the Committee shall consist of at least three individuals who
shall be appointed by the Board to serve at the pleasure of the Board. Any
18
member of the Committee may resign, and his successor, if any, shall be
appointed by the Board. The Committee shall be responsible for the general
administration and interpretation of the Plan and for carrying out its
provisions, except to the extent all or any of such obligations are
specifically imposed on the Board.
9.2 Committee Officers; Subcommittee. The members of the
Committee may elect Chairman and may elect an acting Chairman. They may
also elect a Secretary and may elect an acting Secretary, either of whom
may be but need not be a member of the Committee. The Committee may
appoint from its membership such subcommittees with such powers as the
Committee shall determine, and may authorize one or more of its members or
any agent to execute or deliver any instruments or to make any payment on
behalf of the Committee.
9.3 Committee Meetings. The Committee shall hold such meetings
upon such notice, at such places and at such intervals as it may from time
to time determine. Notice of meetings shall not be required if notice is
waived in writing by all the members of the Committee at the time in
office, or if all such members are present at the meeting.
9.4 Transaction of Business. A majority of the members of the
Committee at the time in office shall constitute a quorum for the
transaction of business. All resolutions or other actions taken by the
Committee at any meeting shall be by vote of a majority of those present at
any such meeting and entitled to vote. Resolutions may be adopted or other
action taken without a meeting upon written consent thereto signed by all
of the members of the Committee.
9.5 Committee Records. The Committee shall maintain full and
complete records of its deliberations and decisions. The minutes of its
proceedings shall be conclusive proof of the facts of the operation of the
Plan.
19
9.6 Establishment of Rules. Subject to the limitations of the
Plan, the Committee may from time to time establish rules or by-laws for
the administration of the Plan and the transaction of its business.
9.7 Conflicts of Interest. No individual member of the
Committee shall have any right to vote or decide upon any matter relating
solely to himself or to any of his rights or benefits under the Plan
(except that such member may sign unanimous written consent to resolutions
adopted or other action taken without a meeting), except relating to the
terms of his Salary Deferral Agreement.
9.8 Correction of Errors. The Committee may correct errors and,
so far as practicable, may adjust any benefit or credit or payment
accordingly. The Committee may in its discretion waive any notice
requirements in the Plan; provided, that a waiver of notice in one or more
cases shall not be deemed to constitute a waiver of notice in any other
case. With respect to any power or authority which the Committee has
discretion to exercise under the Plan, such discretion shall be exercised
in a nondiscriminatory manner.
9.9 Authority to Interpret Plan. Subject to the claims
procedure set forth in Section 16 the Plan Administrator and the Committee
shall have the duty and discretionary authority to interpret and construe
the provisions of the Plan and to decide any dispute which may arise
regarding the rights of Participants hereunder, including the discretionary
authority to construe the Plan and to make determinations as to eligibility
and benefits under the Plan. Determinations by the Plan Administrator and
the Committee shall apply uniformly to all persons similarly situated and
shall be binding and conclusive upon all interested persons.
9.10 Third Party Advisors. The Committee may engage an attorney,
accountant, actuary or any other technical advisor on matters regarding the
operation of the Plan and to perform such other duties as shall be required
in connection therewith, and may employ such clerical and related personnel
20
as the Committee shall deem requisite or desirable in carrying out the
provisions of the Plan. The Committee shall from time to time, but no less
frequently than annually, review the financial condition of the Plan and
determine the financial and liquidity needs of the Plan. The Committee
shall communicate such needs to the Employer so that its policies may be
appropriately coordinated to meet such needs.
9.11 Compensation of Members. No fee or compensation shall be
paid to any member of the Committee for his Service as such.
9.12 Expense Reimbursement. The Committee shall be entitled to
reimbursement by the Employer for its reasonable expenses properly and
actually incurred in the performance of its duties in the administration of
the Plan.
9.13 Indemnification. No member of the Committee shall be
personally liable by reason of any contract or other instrument executed by
him or on his behalf as a member of the Committee nor for any mistake of
judgment made in good faith, and the Employer shall indemnify and hold
harmless, directly from its own assets (including the proceeds of any
insurance policy the premiums for which are paid from the Employer's own
assets), each member of the Committee and each other officer, employee, or
director of the Employer to whom any duty or power relating to the
administration or interpretation of the Plan may be delegated or allocated,
against any unreimbursed or uninsured cost or expense (including any sum
paid in settlement of a claim with the prior written approval of the Board)
arising out of any act or omission to act in connection with the Plan
unless arising out of such person's own fraud, bad faith, willful
misconduct or gross negligence.
Section 10. Contractual Liability; Trust:
----------- -----------------------------
10.1 Contractual Liability. The obligation of the Employer to
make payments hereunder shall constitute a contractual liability of the
Employer to the Participant. Such payments shall be made from the general
21
funds of the Employer, and the Employer shall not be required to establish
or maintain any special or separate fund, or otherwise to segregate assets
to assure that such payments shall be made, and the Participant shall not
have any interest in any particular assets of the Employer by reason of its
obligations hereunder. To the extent that any person acquires a right to
receive payment from the Employer, such right shall be no greater than the
right of an unsecured creditor of the Employer.
10.2 Trust. If so designated in the Adoption Agreement, the
Employer may establish a Trust with the Trustee, pursuant to such terms and
conditions as are set forth in the Trust Agreement. The Trust, if and when
established, is intended to be treated as a grantor trust for purposes of
the Code and all assets of the Trust shall be held in the United States.
The establishment of the Trust is not intended to cause Participants to
realize current income on amounts contributed thereto, and the Trust shall
be so interpreted and administered.
Section 11. Allocation of Responsibilities:
----------- -------------------------------
The persons responsible for the Plan and the duties and
responsibilities allocated to each are as follows:
11.1 Board.
(i) To amend the Plan;
(ii) To appoint and remove members of the Committee; and
(iii) To terminate the Plan as permitted in Section 14.
11.2 Committee.
(i) To designate Participants;
(ii) To interpret the provisions of the Plan and to
determine the rights of the Participants under the Plan, except
to the extent otherwise provided in Section 16 relating to claims
procedure;
22
(iii) To administer the Plan in accordance with its terms,
except to the extent powers to administer the Plan are
specifically delegated to another person or persons as provided
in the Plan;
(iv) To account for the amount credited to the Deferred
Compensation Account of a Participant; and
(v) To direct the Employer in the payment of benefits.
11.3 Plan Administrator.
(i) To file such reports as may be required with the United
States Department of Labor, the Internal Revenue Service and any
other government agency to which reports may be required to be
submitted from time to time; and
(ii) To administer the claims procedure to the extent
provided in Section 16.
Section 12. Benefits Not Assignable; Facility of Payments:
----------- ----------------------------------------------
12.1 Benefits not Assignable. No portion of any benefit credited
or paid under the Plan with respect to any Participant shall be subject in
any manner to anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance or charge, and any attempt so to anticipate, alienate, sell,
transfer, assign, pledge, encumber or charge the same shall be void, nor
shall any portion of such benefit be in any manner payable to any assignee,
receiver or any one trustee, or be liable for his debts, contracts,
liabilities, engagements or torts. Notwithstanding the foregoing, in the
event that all or any portion of the benefit of a Participant is
transferred to the former spouse of the Participant incident to a divorce,
the Committee shall maintain such amount for the benefit of the former
spouse until distributed in the manner required by an order of any court
having jurisdiction over the divorce, and the former spouse shall be
entitled to the same rights as the Participant with respect to such
benefit.
12.2 Plan-Approved Domestic Relations Orders. The Plan
Administrator shall establish written procedures for determining whether an
order directed to the Plan is a Plan-Approved Domestic Relations Order.
23
12.2.1 Review by Plan Administrator: The Plan
Administrator shall make a determination on each final court
order directed to the Plan as to whether the order is a Plan-
Approved Domestic Relations Order. The Plan Administrator may
delay the commencement of its consideration of any order until
the later of the date that is 30 days after the date of the order
or the date that the Plan Administrator is satisfied that all
rehearing and appeal rights with respect to the order have
expired.
12.2.2 Payment to Alternate Payee: If the Plan
Administrator determines that an order is a Plan-approved
Domestic Relations Order, the Plan Administrator shall cause the
payment of amounts pursuant to or segregate a separate account as
provided by (and to prevent any payment or act which might be
inconsistent with) the Plan-Approved Domestic Relations Order.
12.2.3 Expenses: The Employer and the Plan Administrator
shall not be obligated to incur any cost to defend against or set
aside any judgment, decree, or order relating to the division,
attachment, garnishment, or execution of or levy upon the
Participant's account or any distribution, including (but not
limited to) any domestic relations proceeding. Notwithstanding
the foregoing, if any such person is joined in any proceeding,
the party may take such action as it considers necessary or
appropriate to protect any and all of its legal rights, and the
Participant (or Beneficiary) shall reimburse all actual fees of
lawyers and legal assistants and expenses reasonably incurred by
such party.
12.3 Payments to Minors and Others. If any individual entitled
to receive a payment under the Plan shall be physically, mentally or
legally incapable of receiving or acknowledging receipt of such payment,
the Committee, upon the receipt of satisfactory evidence of his incapacity
and satisfactory evidence that another person or institution is maintaining
him and that no guardian or committee has been appointed for him, may cause
any payment otherwise payable to him to be made to such person or
institution so maintaining him. Payment to such person or institution
shall be in full satisfaction of all claims by or through the Participant
to the extent of the amount thereof.
Section 13. Beneficiary:
----------- ------------
The Participant's Beneficiary shall be the person or persons
designated by the Participant on the Beneficiary designation form provided
by and filed with the Committee or its designee. If the Participant does
not designate a Beneficiary, the Beneficiary shall be his Surviving Spouse.
24
If the Participant does not designate a Beneficiary and has no Surviving
Spouse, the Beneficiary shall be the Participant's estate. The designation
of a Beneficiary may be changed or revoked only by filing a new Beneficiary
designation form with the Committee or its designee. If a Beneficiary (the
"primary Beneficiary") is receiving or is entitled to receive payments
under the Plan and dies before receiving all of the payments due him, the
balance to which he is entitled shall be paid to the contingent
Beneficiary, if any, named in the Participant's current Beneficiary
designation form. If there is no contingent Beneficiary, the balance shall
be paid to the estate of the primary Beneficiary. Any Beneficiary may
disclaim all or any part of any benefit to which such Beneficiary shall be
entitled hereunder by filing a written disclaimer with the Committee before
payment of such benefit is to be made. Such a disclaimer shall be made in
a form satisfactory to the Committee and shall be irrevocable when filed.
Any benefit disclaimed shall be payable from the Plan in the same manner as
if the Beneficiary who filed the disclaimer had predeceased the
Participant.
Section 14. Amendment and Termination of Plan:
----------- ----------------------------------
The Board may amend any provision of the Plan or terminate the
Plan at any time; provided, that in no event shall such amendment or
termination reduce the balance in any Participant's Deferred Compensation
Account as of the date of such amendment or termination, nor shall any such
amendment affect the terms of the Plan relating to the payment of such
Deferred Compensation Account. Notwithstanding the foregoing, the
following special provisions shall apply:
14.1 Termination Upon Change in Control. If the Employer
terminates the Plan within twelve months of a Change in Control, the
Deferred Compensation Account of each Participant shall become fully vested
and payable to the Participant in a lump sum.
25
14.2 Termination On or Before December 31, 2005. The Employer
may terminate the Plan on or before December 31, 2005, and distribute the
vested balance in the Deferred Compensation Account to each Participant so
long as all amounts deferred under the Plan are included in the income of
the Participant in the taxable year in which the termination occurs.
14.3 No Financial Triggers. The Employer may not terminate the
Plan and make distributions to a Participant due solely to a change in the
financial health of the Employer.
Section 15. Communication to Participants:
----------- ------------------------------
The Employer shall make a copy of the Plan available for
inspection by Participants and their beneficiaries during reasonable hours
at the principal office of the Employer.
Section 16. Claims Procedure:
----------- -----------------
The following claims procedure shall apply with respect to the
Plan:
16.1 Filing of a Claim for Benefits. If a Participant or
Beneficiary (the "claimant") believes that he is entitled to benefits under
the Plan which are not being paid to him or which are not being accrued for
his benefit, he shall file a written claim therefor with the Plan
Administrator. In the event the Plan Administrator shall be the claimant,
all actions which are required to be taken by the Plan Administrator
pursuant to this Section 16 shall be taken instead by another member of the
Committee designated by the Committee.
16.2 Notification to Claimant of Decision. Within 90 days after
receipt of a claim by the Plan Administrator (or within 180 days if special
circumstances require an extension of time), the Plan Administrator shall
notify the claimant of the decision with regard to the claim. In the event
of such special circumstances requiring an extension of time, there shall
be furnished to the claimant prior to expiration of the initial 90-day
26
period written notice of the extension, which notice shall set forth the
special circumstances and the date by which the decision shall be
furnished. If such claim shall be wholly or partially denied, notice
thereof shall be in writing and worded in a manner calculated to be
understood by the claimant, and shall set forth: (i) the specific reason
or reasons for the denial; (ii) specific reference to pertinent provisions
of the Plan on which the denial is based; (iii) a description of any
additional material or information necessary for the claimant to perfect
the claim and an explanation of why such material or information is
necessary; and (iv) an explanation of the procedure for review of the
denial and the time limits applicable to such procedures, including a
statement of the claimant's right to bring a civil action under ERISA
following an adverse benefit determination on review. Notwithstanding the
forgoing, if the claim relates to a Participant who is Disabled, the Plan
Administrator shall notify the claimant of the decision within 45 days
(which may be extended for an additional 30 days if required by special
circumstances).
16.3 Procedure for Review. Within 60 days following receipt by
the claimant of notice denying his claim, in whole or in part, or, if such
notice shall not be given, within 60 days following the latest date on
which such notice could have been timely given, the claimant shall appeal
denial of the claim by filing a written application for review with the
Committee. Following such request for review, the Committee shall fully
and fairly review the decision denying the claim. Prior to the decision of
the Committee, the claimant shall be given an opportunity to review
pertinent documents and to submit issues and comments in writing.
16.4 Decision on Review. The decision on review of a claim
denied in whole or in part by the Plan Administrator shall be made in the
following manner:
16.4.1 Within 60 days following receipt by the Committee
of the request for review (or within 120 days if special
circumstances require an extension of time), the Committee shall
notify the claimant in writing of its decision with regard to the
claim. In the event of such special circumstances requiring an
extension of time, written notice of the extension shall be
27
furnished to the claimant prior to the commencement of the
extension. Notwithstanding the forgoing, if the claim relates to
a Participant who is Disabled, the Committee shall notify the
claimant of the decision within 45 days (which may be extended
for an additional 45 days if required by special circumstances).
16.4.2 With respect to a claim that is denied in whole or
in part, the decision on review shall set forth specific reasons
for the decision, shall be written in a manner calculated to be
understood by the claimant, and shall cite specific references to
the pertinent Plan provisions on which the decision is based.
16.4.3 The decision of the Committee shall be final and
conclusive.
16.5 Action by Authorized Representative of Claimant. All
actions set forth in this Section 16 to be taken by the claimant may
likewise be taken by a representative of the claimant duly authorized by
him to act in his behalf on such matters. The Plan Administrator and the
Committee may require such evidence as either may reasonably deem necessary
or advisable of the authority to act of any such representative.
Section 17. Miscellaneous Provisions:
----------- -------------------------
17.1 Set off. Notwithstanding any other provision of this Plan,
the Employer may reduce the amount of any payment otherwise payable to or
on behalf of a Participant hereunder (net of any required withholdings) by
the amount of any loan, cash advance, extension of credit or other
obligation of the Participant to the Employer that is then due and payable,
and the Participant shall be deemed to have consented to such reduction.
17.2 Notices. Each Participant who is not in Service and each
Beneficiary shall be responsible for furnishing the Committee or its
designee with his current address for the mailing of notices and benefit
payments. Any notice required or permitted to be given to such Participant
or Beneficiary shall be deemed given if directed to such address and mailed
by regular United States mail, first class, postage prepaid. If any check
mailed to such address is returned as undeliverable to the addressee,
mailing of checks will be suspended until the Participant or Beneficiary
furnishes the proper address. This provision shall not be construed as
28
requiring the mailing of any notice or notification otherwise permitted to
be given by posting or by other publication.
17.3 Lost Distributees. A benefit shall be deemed forfeited if
the Plan Administrator is unable to locate the Participant or Beneficiary
to whom payment is due on or before the fifth anniversary of the date
payment is to be made or commence; provided, that the deemed investment
rate of return pursuant to Section 8.2 shall cease to be applied to the
Participant's account following the first anniversary of such date;
provided further, however, that such benefit shall be reinstated if a valid
claim is made by or on behalf of the Participant or Beneficiary for all or
part of the forfeited benefit.
17.4 Reliance on Data. The Employer, the Committee and the Plan
Administrator shall have the right to rely on any data provided by the
Participant or by any Beneficiary. Representations of such data shall be
binding upon any party seeking to claim a benefit through a Participant,
and the Employer, the Committee and the Plan Administrator shall have no
obligation to inquire into the accuracy of any representation made at any
time by a Participant or Beneficiary.
17.5 Receipt and Release for Payments. Subject to the provisions
of Section 17.1, any payment made from the Plan to or with respect to any
Participant or Beneficiary, or pursuant to a disclaimer by a Beneficiary,
shall, to the extent thereof, be in full satisfaction of all claims
hereunder against the Plan and the Employer with respect to the Plan. The
recipient of any payment from the Plan may be required by the Committee, as
a condition precedent to such payment, to execute a receipt and release
with respect thereto in such form as shall be acceptable to the Committee.
17.6 Headings. The headings and subheadings of the Plan have
been inserted for convenience of reference and are to be ignored in any
construction of the provisions hereof.
29
17.7 Continuation of Employment. The establishment of the Plan
shall not be construed as conferring any legal or other rights upon any
Employee or any persons for continuation of employment, nor shall it
interfere with the right of the Employer to discharge any Employee or to
deal with him without regard to the effect thereof under the Plan.
17.8 Merger or Consolidation; Assumption of Plan. No Employer
shall consolidate or merge into or with another corporation or entity, or
transfer all or substantially all of its assets to another corporation,
partnership, trust or other entity (a "Successor Entity") unless such
Successor Entity shall assume the rights, obligations and liabilities of
the Employer under the Plan and upon such assumption, the Successor Entity
shall become obligated to perform the terms and conditions of the Plan.
Nothing herein shall prohibit the assumption of the obligations and
liabilities of the Employer under the Plan by any Successor Entity.
17.9 Construction. The Employer shall designate in the Adoption
Agreement the state according to whose laws the provisions of the Plan
shall be construed and enforced, except to the extent that such laws are
superseded by ERISA and the applicable requirements of the Code.
30