Metro One Telecommunications
DEFERRED COMPENSATION PLAN
DOCUMENT
METRO ONE TELECOMMUNICATIONS
DEFERRED COMPENSATION PLAN
TABLE OF CONTENTS
ARTICLE I - DEFINITIONS Section
Account.................................................................1.1
Base Annual Salary......................................................1.2
Beneficiary.............................................................1.3
Board of Directors......................................................1.4
Code....................................................................1.5
Committee...............................................................1.6
Company.................................................................1.7
Deferred Compensation Ledger............................................1.8
Disability..............................................................1.9
Elective Deferral......................................................1.10
Eligible Bonus.........................................................1.11
Investment Fund........................................................1.12
Participant............................................................1.13
Plan...................................................................1.14
Plan Year..............................................................1.15
Retirement.............................................................1.16
Term of Deferral.......................................................1.17
Valuation Date.........................................................1.18
Year of Service........................................................1.19
ARTICLE II - ELIGIBILITY
ARTICLE III - ELECTIVE DEFERRALS
Elective Deferrals......................................................3.1
ARTICLE IV - ACCOUNT
Establishing a Participant's Account....................................4.1
Crediting of Elective Deferrals.........................................4.2
Crediting of Interest...................................................4.3
ARTICLE V - VESTING AND EVENTS CAUSING FORFEITURE
Vesting.................................................................5.1
Forfeiture for Cause....................................................5.2
Forfeiture for Competition..............................................5.3
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ARTICLE VI - DISTRIBUTIONS
Death..................................................................6.1
Expiration of Term of Deferral.........................................6.2
Hardship Withdrawals...................................................6.3
Payment Restrictions on Any Portion of a Benefit
Determined Not to Be Deductible........................................6.4
Responsibility for Distributions and
Withholding and Taxes..................................................6.5
ARTICLE VII - ADMINISTRATION
Committee Appointment..................................................7.1
Committee Organization and Voting......................................7.2
Powers of the Committee................................................7.3
Committee Discretion...................................................7.4
Annual Statements......................................................7.5
Reimbursement of Expenses..............................................7.6
Limitation on Liability of the Committee...............................7.7
ARTICLE VIII - AMENDMENT AND/OR TERMINATION
Amendment or Termination of the Plan...................................8.1
No Retroactive Effect on Awarded Benefits..............................8.2
Effect of Termination..................................................8.3
Change of Control......................................................8.4
ARTICLE IX - FUNDING
Payments Under This Agreement Are the Obligation
of the Company.......................................................9.1
Rabbi Trust to Enable Company to Meet
Its Obligations Under- the Agreement.................................9.2
Participants Must Reply Only on General
Credit of the Company................................................9.3
ARTICLE X - MISCELLANEOUS
Limitation of Rights..................................................10.1
Distributions to Incompetent of Minors................................10.2
Nonalienation of Benefits.............................................10.3
Severability..........................................................10.4
Notice................................................................10.5
Gender and Number.....................................................10.6
Governing Law.........................................................10.7
Unfunded Arrangement..................................................10.8
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METRO ONE TELECOMMUNICATIONS
DEFERRED COMPENSATION PLAN
WHEREAS, METRO ONE TELECOMMUNICATIONS Desires to establish the METRO
ONE TELECOMMUNICATIONS Deferred Compensation Plan (the "Plan") to provide
deferred compensation for a select group of management or highly compensated
employees so as to retain their loyalty and to offer a further incentive to them
to maintain and increase their standard of performance;
NOW, THEREFORE, METRO ONE TELECOMMUNICATIONS adopts the Plan as
follows:
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ARTICLE I
DEFINITIONS
1.1 Account. "Account" means a Participant's Account in the Deferred
Compensation Ledger maintained by the Committee which reflects the benefits a
Participant is entitled to under this Plan.
1.2 Base Annual Salary. "Base Annual Salary" means a Participant's
wages from the Company for the Plan Year as defined in section 3401(a) of the
Code (for purposes of federal income tax withholding), adjusted by including any
Elective Deferrals under the Plan for the Plan Year and any elective
contributions that are made by the Company on behalf of the Participant that are
not includible in the Participant's gross income under section 125 or section
402(e)(3) of the Code for the Plan Year, and adjusted further by disregarding
reimbursements or other expense allowances, fringe benefits (cash and non-cash),
moving expenses, deferred compensation, welfare benefits and all bonuses for the
Plan Year.
1.3 Beneficiary. "Beneficiary" means a person or entity designated
by the Participant under the terms of this Plan to receive any amounts
distributed under the Plan upon the death of the Participant.
1.4 Board of Directors. "Board of Directors" means the Board of
Directors of the Company.
1.5 Code. "Code" means the Internal Revenue Code of 1986, as amended
from time to time.
1.6 Committee. "Committee" means the persons who are serving as
members of the committee administering this Plan.
1.7 Company. "Company" means METRO ONE TELECOMMUNICATIONS
1.8 Deferred Compensation Ledger. "Deferred Compensation Ledger"
means the ledger maintained by the Committee for each Participant which reflects
the amounts contributed by the Company on behalf of each Participant and the
amount of interest credited on those amounts.
1.9 Disability. "Disability" means a physical or mental condition
that results in the termination of employment of the Participant and meets the
eligibility requirements for the receipt of disability income under the terms of
the long-term disability plan sponsored by the Company.
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1.10 Elective Deferral. "Elective Deferral" means the compensation
of a Participant that is deferred under Section 3.1 of the Plan.
1.11 Eligible Bonus. "Eligible Bonus" means a bonus that the
Committee determines is eligible to be deferred under the Plan for the Plan
Year, which bonus shall be specifically identified on the form of deferral
election agreement furnished by the Committee to a Participant for a Plan Year.
1.12 Investment Fund. "Investment Fund" means a mutual fund or other
investment option that is designated by the Committee for purposes of
determining the amount of the Company's deferred compensation obligation to a
Participant under the Plan.
1.13 Participant. "Participant" means an employee of the Company who
is participating in the Plan.
1. 14 Plan. "Plan" means the METRO ONE TELECOMMUNICATIONS Deferred
Compensation Plan set forth in this document, as amended from time to time.
1.15 Plan Year. "Plan Year" means initially, the nine month period
which commences on April 1, 1999, and ends on December 31, 1999; and,
thereafter, the twelve-month period which ends on December 31.
1.16 Retirement. "Retirement" means the retirement of a Participant
from the Company in accordance with the Company's retirement policy after
attaining the age of 65, or after attaining the age of 55 and completing ten
Years of Service.
1.17 Term of Deferral. "Term of Deferral" means the period of
deferral chosen by the Participant under the election procedure established in
Section 3.1 which pertains to that portion of the Base Annual Salary or Eligible
Bonus for a given Plan Year and accumulated income thereon that has been
deferred under the Plan.
1.18 Valuation Date. "Valuation Date" means the last business day of
each calendar quarter.
1.19 Year of Service. "Year of Service" means a year for which the
Participant is entitled to credit for vesting purposes.
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ARTICLE II
ELIGIBILITY
The individuals who shall be eligible to participate in the Plan
shall be those individuals as the Committee shall determine from time to time.
The Board of Directors may designate one or more individuals who shall not be
eligible to participate in the Plan. An individual will become a Participant
during the Plan Year in which he is notified by the Committee that he is
eligible to participate in the Plan. Once an individual has become a
Participant, he will continue to participate in the Plan until he is no longer a
common-law employee of the Company or the Committee determines that he is no
longer in a select group of management or a highly compensated employee of the
Company. In the event a Participant shall be determined not to be in a select
group of management or a highly compensated employee of the Company, the
Participant's Account under this Plan shall be distributed to him.
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ARTICLE III
ELECTIVE DEFERRALS AND COMPANY CONTRIBUTIONS
3.1 Elective Deferrals. A Participant may elect during the election
period established by the Committee prior to the beginning of any Plan Year:
(1) the percentage of his Base Annual Salary and Eligible
Bonuses for the ensuing Plan Year which is to be deferred under this
Plan;
(2) the length of the period of deferral, which period must be
for at least until (a) the last day of the third Plan Year following
the Plan Year in which the compensation would have been paid to the
Participant but for his deferral election, or (b) the Participant's
termination of employment with the Company and all affiliates of the
Company; and
(3) the form of payment of the amount that has been elected to
be deferred and earnings (or losses) thereon, which may be either
(a) a lump sum payment or (b) quarterly or annual installment
payments over no more than 15 years.
If a Participant elects a deferral period of a number of years
or to a date certain, the deferral period shall end upon the
Participant's termination of employment with the Company, if
earlier.
Once a deferral election has been made for a Plan Year, it
becomes irrevocable except that the Participant may change his
election of the form of payment he previously elected during a
30-day period ending one year prior to the expiration of the Term of
Deferral. If a Participant originally elected a Term of Deferral of
a number of years or until a date certain and, as a result of the
Participant's election to take Retirement, the Participant will
retire before the expiration of the Term of Deferral, the
Participant may elect to change the form of payment during a 30-day
period ending one year prior to the Retirement date chosen by the
Participant by written notice to the Company. If after a Participant
changes his deferral election, the Participant incurs an involuntary
termination of employment, then the distribution or the first
installment, whichever is applicable, shall not be made earlier than
one year after the election was changed; however, if the Participant
voluntarily terminates his employment, then the change of election
will be ineffective.
If for any reason the revised Term of Deferral does not end
until after one year following the end of the 30-day election period
because of a postponement of Retirement or otherwise, the change of
election shall remain in effect and no further changes of election
shall be permitted.
The election to participate in the Plan for a given Plan Year will
be effective only upon receipt by the Committee of the Participant's election on
such form as will be determined by the Committee from time to time. If the
Participant does not exercise his right to defer, the Participant
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will be deemed to have elected not to defer any part of his compensation under
the Plan for that Plan Year.
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ARTICLE IV
ACCOUNT
4.1 Establishing a Participant's Account. The Committee will
establish a bookkeeping Account for each Participant in a special Deferred
Compensation Ledger which will be maintained by the Company. The Account will
reflect the amount of the Company's obligation to the Participant at any given
time.
4.2 Crediting of Elective Deferrals. A Participant's Elective
Deferrals will be credited to his Account as of the last business day of the
month in which the Base Annual Salary and Eligible Bonuses that are deferred by
the Participant under the Plan would have been paid to the Participant but for
his deferral election.
4.3 Crediting of Interest. As part of a Participant's total deferred
compensation under the Plan, each Participant's Account shall be credited with
earnings (or losses) equal to the amount which is deemed to be earned on his
bookkeeping Account established to enable the Company to determine its
obligations under the Plan. Each Valuation Date the Committee or its delegate
will determine the amount of earnings (or losses) to be allocated to a
Participant's Account and will credit that amount to the Participant's Account.
For the purpose of determining the earnings (or losses) to be credited to the
Participant's Account, the Committee shall assume that the Participant's Account
is invested in units or shares of the Investment Funds in the proportions
selected by the Participant in accordance with procedures established by the
Committee. This amount accrued by the Committee as additional deferred
compensation shall be a part of the Company's obligation to the Participant and
payment of it shall be a general obligation of the Company. Earnings (or losses)
will continue to be credited to a Participant's Account each Valuation Date
until his entire benefit due under the Plan has been paid in full. The
determination of interest based on the income and appreciation of the
Participant's Account shall in no way affect the ability of the general
creditors of the Company to reach the assets of the Company or the rabbi trust
in the event of the insolvency or bankruptcy of the Company or place the
Participants in a secured position ahead of the general creditors of the
Company. Although a Participant's investment selections made in accordance with
the terms of the Plan and such procedures as may be established by the Committee
shall be relevant for purposes of determining the Company's obligation to the
Participant under the Plan, there is no requirement that any assets of the
Company (including those held in any rabbi trust) shall be invested in
accordance with the Participant's investment selections.
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ARTICLE V
VESTING AND EVENTS CAUSING FORFEITURE
5.1 Vesting. All Elective Deferrals and all income accrued on the
Elective Deferrals will be 100 percent vested except for the events of
forfeiture described in Sections 5.2 and 5.3.
5.2 Forfeiture for Cause. If the Committee finds, after full
consideration of the facts presented on behalf of both the Company and a former
Participant, that the Participant was discharged by the Company for fraud,
embezzlement, theft, commission of a felony, proven dishonesty in the course of
his employment by the Company which damaged the Company, or for disclosing trade
secrets of the Company, the entire amount credited to his Account in the
Deferred Compensation Ledger, exclusive of an amount equal to the sum of the
total Elective Deferrals of the Participant, will be forfeited. The decision of
the Committee as to the cause of a former Participant's discharge and the damage
done to the Company will be final. No decision of the Committee will affect the
finality of the discharge of the Participant by the Company in any manner.
5.3 Forfeiture for Competition. If at the time a distribution is
being made or to be made to a Participant or former Participant, the Committee
finds after full consideration of the facts presented on behalf of the Company
and the Participant or former Participant, that the Participant or former
Participant at any time within two years from his termination of employment with
the Company, and without written consent of the Company, directly or indirectly
owns, operates, manages, controls or participates in the ownership, management,
operation or control of or is employed by, or is paid as a consultant or other
independent contractor by a business which competes or at any time did compete
with the Company by which he was formerly employed in a trade area served by the
Company at the time distributions are being made or to be made and in which the
Participant or former Participant had represented the Company while employed by
it; and, if the Participant or former Participant continues to be so engaged 60
days after written notice has been given to him, the Committee will forfeit all
amounts otherwise due the Participant or former Participant, exclusive of an
amount equal to the sum of the total remaining Elective Deferrals of the
Participant or former Participant.
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ARTICLE VI
DISTRIBUTIONS
6.1 Death. Upon the death of a Participant prior to his Retirement,
the Participant's Beneficiary or Beneficiaries will receive a lump sum cash
distribution of the vested balance credited to the Participant's Account in the
Deferred Compensation Ledger as of the Valuation Date coincident with or
immediately preceding the date of distribution, increased by any Elective
Deferrals attributable to the Participant but not yet credited to his Account.
The distribution will be made 90 days after the Participant's death.
Upon the death of a Participant on or after his Retirement, the
Participant's Beneficiary or Beneficiaries will receive a distribution of the
vested balance credited to the Participant's Account in the Deferred
Compensation Ledger as of the Valuation Date coincident with or immediately
preceding the date of distribution, increased by any Elective Deferrals and
accruals attributable to the Participant but not yet credited to his Account.
The distribution will be paid in a lump sum or in installments, as elected by
the Participant prior to his death. If the benefit is payable in the form of a
lump sum, the distribution will be made 90 days after the Participant's death.
If the benefit is payable in installments, the first installment will be paid 60
days after the calendar in which the Participant died.
Each Participant, upon making his initial deferral election, will
file with the Committee a designation of one or more Beneficiaries to whom
distributions otherwise due the Participant will be made in the event of his
death prior to the complete distribution of the amount credited to his Account
in the Deferred Compensation Ledger. The designation will be effective upon
receipt by the Committee of a properly executed form which the Committee has
approved for that purpose. The Participant may from time to time revoke or
change any designation of Beneficiary by filing another approved Beneficiary
designation form with the Committee. If there is no valid designation of
Beneficiary on file with the Committee at the time of the Participant's death,
or if all of the Beneficiaries designated in the last Beneficiary designation
have predeceased the Participant or otherwise ceased to exist, the Beneficiary
will be the Participant's spouse, if the spouse survives the Participant, or
otherwise the Participant's estate. If any Beneficiary survives the Participant
but dies or otherwise ceases to exist before receiving all amounts due the
Beneficiary from the Participant's Account, the balance of the amount which
would have been paid to that Beneficiary Will, unless the Participant's
designation provides otherwise, be distributed to the individual deceased
Beneficiary's estate or to the Participant's estate in the case of a Beneficiary
which is not an individual. Any Beneficiary designation which designates any
person or entity other than the Participant's spouse must be consented to in
writing in a form acceptable to the Committee in order to be effective.
6.2 Expiration of Term of Deferral. Upon the expiration of the Term
of Deferral, the Participant shall receive in cash the balance credited to the
Participant's Account in the Deferred Compensation Ledger as of the Valuation
Date coincident with or immediately
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preceding the date of distribution, increased by any Elective Deferrals and
Company matching accruals attributable to the Participant but not yet credited
to his Account. The lump sum distribution or the first installment of the
periodic distribution will be made 90 days after the expiration of the Term of
Deferral without regard to whether the Participant is still employed by the
Company.
Notwithstanding any other provision of the Plan, upon the
Participant's termination of employment with the Company for any reason other
than death, Disability or Retirement, the Participant shall receive in cash the
vested balance credited to his Account in the Deferred Compensation Ledger as of
the Valuation Date coincident with or immediately preceding the date of
distribution, increased by any Elective Deferrals and Company matching accruals
attributable to the Participant but not yet credited to his Account; which
payment shall be made in the form of a lump sum distribution or in five annual
installments as determined by the Committee in its sole discretion. Subject to
Section 3.1, the lump sum distribution or the first installment of the periodic
distribution will be made 90 days after the Participant's termination of
employment with the Company.
6.3 Hardship Withdrawals. Any Participant who is in the employ of a
Company and is not entitled to a distribution from this Plan may request a
hardship withdrawal. No hardship withdrawal can exceed the lesser of the amount
credited to the Participant's Account or the amount reasonably needed to satisfy
the emergency need. Whether a hardship exists and the amount reasonably needed
to satisfy the emergency need will be determined by the Committee based upon the
evidence presented by the Participant and the rules established in this Section.
If a hardship withdrawal is approved by the Committee it will be made in cash
within ten days of the Committee's determination. A hardship for this purpose is
a severe financial hardship of the Participant resulting from a sudden and
unexpected illness or accident of the Participant or of a dependent (as defined
in section 152(a) of the Code) of the Participant, loss of the Participant's
property due to casualty, or any similar extraordinary and unforeseeable
circumstance arising as a result of events beyond the control of the
Participant. The circumstances that will constitute a hardship will depend upon
the facts of each case, but, in any case, payment may not be made to the extent
that the hardship is or may be relieved: (a) through reimbursement or
compensation by insurance or otherwise, (b) by liquidation of the Participant's
assets, to the extent the liquidation of such assets will not itself cause
severe financial hardship, or (e) by cessation of Elective Deferrals under this
Plan. Such foreseeable needs for funds as the desire to send a Participant's
child to college or purchase a home will not be considered to be a hardship.
6.4 Payment Restrictions on Any Portion of a Benefit Determined Not
to Be Deductible. Except for hardship withdrawals under Section 6.3, if a
Participant has a benefit that is due during a Plan Year and the Committee
determines that section 162(m) of the Code could affect the Company's deduction
on the amount paid, the distribution of his benefit will be delayed until
December lst following the end of the Plan Year. Then on December lst if the
Company's deduction is determined by the Committee not to be affected, the
benefits then due to be paid will be distributed immediately; however, if the
Committee determines that
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some portion of the benefit is affected, then only that portion of the benefit
which is deductible by the Company shall be distributed on December lst and the
distribution of the remaining portion of the benefit will be delayed to the
first day of the first complete month of the Plan Year or Plan Years on which a
portion or all of the remaining distribution can be made and deducted by the
Company on its federal income tax return. The Committee may waive the mandatory
deferral required by this Section 6.4 with respect to a Participant who is not a
member of the Committee but such waiver shall only be made on an individual
basis and at the time the distribution is to be made.
6.5 Responsibility for Distributions and Withholding of Taxes. The
Committee will calculate the deductions from the amount of the benefit paid
under the Plan for any taxes required to be withheld by federal, state or local
government and will cause them to be withheld.
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ARTICLE VII
ADMINISTRATION
7.1 Committee Appointment. The Committee will be appointed by the
Board of Directors. Each Committee member will serve until his or her
resignation or removal. The Board of Directors will have the sole discretion to
remove any one or more Committee members and appoint one or more replacement or
additional Committee members from time to time.
7.2 Committee Organization and Voting. The Committee will select
from among its members a chairman who will preside at all of its meetings and
will elect a secretary without regard to whether that person is a member of the
Committee. The secretary will keep all records, documents and data pertaining to
the Committee's supervision and administration of the Plan. A majority of the
members of the Committee will constitute a quorum for the transaction of
business and the vote of a majority of the members present at any meeting will
decide any question brought before the meeting. In addition, the Committee may
decide any question by vote, taken without a meeting, of a majority of its
members. A member of the Committee who is also a Participant will not vote or
act on any matter relating solely to himself.
7.3 Powers of the Committee. The Committee will have the exclusive
responsibility for the general administration of the Plan according to the terms
and provisions of the Plan and will have all powers necessary to accomplish
those purposes, including but not by way of limitation the right, power and
authority:
(a) to make rules and regulations for the administration of the
Plan;
(b) to construe all terms, provisions, conditions and limitations of
the Plan;
(c) to correct any defect, supply any omission or reconcile any
inconsistency that may appear in the Plan in the manner and to the extent
it deems expedient to carry the Plan into effect for the greatest benefit
of all parties at interest;
(d) to designate the persons eligible to become Participants and to
establish the maximum and minimum amounts that may be elected to be
deferred;
(e) to select the menu of Investment Funds available for purposes of
determining the amount of the Company's obligation to any Participant
under the Plan;
(f) to determine all controversies relating to the administration of
the Plan, including but not limited to:
(1) differences of opinion arising between the Company and a
Participant; and
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(2) any question it deems advisable to determine in order to
promote the uniform administration of the Plan for the benefits of all
parties at interest; and
(g) to delegate by written notice those clerical and recordation
duties of the Committee, as it deems necessary or advisable for the proper
and efficient administration of the Plan.
7.4 Committee Discretion. The Committee in exercising any power or
authority granted under this Plan or in making any determination under this Plan
shall perform or refrain from performing those acts using its sole discretion
and judgment. Any decision made by the Committee or any refraining to act or any
act taken by the Committee in good faith shall be final and binding on all
parties. The Committee's decision shall never be subject to de novo review.
7.5 Quarterly Statements. The Committee will cause each Participant
to receive a quarterly statement as soon as administratively practicable after
the conclusion of each calendar quarter indicating the Plan contribution by the
Company during that calendar quarter, the interest applicable to that amount,
the total Account balance and the amount vested as of the end of that calendar
quarter.
7.6 Reimbursement of Expenses. The Committee members will serve
without compensation for their services but will be reimbursed by the Company
for all expenses properly and actually incurred in the performance of their
duties under the Plan.
7.7 Limitation on Liability of the Committee. The Committee will not
be liable for any decision or action taken in good faith in connection with the
administration of this Plan. Without limiting the generality of the foregoing,
any decision or action taken by the Committee when it relies upon information
supplied it by any officer of the Company, the Company's legal counsel, the
Company's independent accountants or other advisors in connection with the
administration of this Plan will be deemed to have been taken in good faith.
Neither the Company nor the Committee shall bear any liability with respect to
the investment performance of any of the Investment Funds and neither is under
any obligation to furnish the Participants any financial information concerning
the Investment Funds. Each Participant is solely responsible for the results of
any investment selections and neither the Company nor the Committee makes any
representations concerning the advisability of investing or refraining from
investing in any particular Investment Fund.
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ARTICLE VIII
AMENDMENT AND/OR TERMINATION
8.1 Amendment or Termination of the Plan. The Board of Directors may
amend or terminate this Plan at any time by an instrument in writing.
8.2 No Retroactive Effect on Awarded Benefits. No amendment will
affect the rights of any Participant to the amounts then standing to his credit
in his Account in the Deferred Compensation Ledger or change the method of
calculating the rate of interest already accrued prior to the date of the
amendment. However, the Board of Directors shall retain the right at any time to
change in any manner the method of calculating the rate of interest to accrue
after the date of the amendment if it has been announced to the Participants.
8.3 Effect of Termination. If the Plan is terminated, all amounts
contributed to the Plan on behalf of a Participant will immediately vest and
interest will be applied to the Account in accordance with Section 4.3 as if the
Participant were entitled to and did retire on the date the Plan terminated.
Distribution would then commence in accordance with Section 6.2 and interest
during the distribution period would be calculated and credited in accordance
with Section 4.3. The forfeiture provisions of Section 5.4 would continue to
apply throughout the period of distribution.
8.4 Change of Control. In the event of a Change of Control of the
Company, no amendment or termination of this Plan made after the effective date
of the Change of Control shall reduce any Participant's benefit accrued under
the Plan as of the date of such amendment or termination. A Change of Control
for purposes of this Plan shall mean (1) the purchase or other acquisition by
any person, entity or group of persons of beneficial ownership of 50 percent or
more of either the outstanding shares of common stock or the combined voting
power of the Company's then outstanding voting securities entitled to vote, or
(2) a liquidation or dissolution of the Company or of the sale of all or
substantially all of the Company's assets.
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ARTICLE IX
FUNDING
9.1 Payments Under This Agreement Are the Obligation of the Company.
The trustee of the trust agreement entered into to assist the Company in meeting
its obligations under the Plan will pay the benefits due the Participants under
this Plan; however, should it fail to do so when a benefit is due, the benefit
will be paid by the Company. If the trust fails to pay for any reason, the
Company still remains liable for the payment of all benefits provided by this
Plan.
9.2 Rabbi Trust to Enable Company to Meet Its Obligations Under the
Agreement. The Company shall contribute to a rabbi trust assets sufficient to
fund the obligations of the Company under this Plan. However, under all
circumstances, the Participants will have no rights to any assets held in the
trust other than those rights expressed in this agreement. Nothing contained in
the trust agreement which creates the trust will constitute a guarantee by the
Company that assets of the Company transferred to the trust will be sufficient
to pay any benefits under this Plan or would place the Participant in a secured
position ahead of general creditors should the Company become insolvent or
bankrupt.
9.3 Participants Must Rely Only on General Credit of the Company. It
is also specifically recognized by both the Company and the Participants that
this Plan is only a general corporate commitment and that each Participant must
rely upon the general credit of the Company for the fulfillment of its
obligations hereunder. Under all circumstances the rights of Participants to any
asset held by the Company will be no greater than the rights expressed in this
agreement. Nothing contained in this agreement will constitute a guarantee by
the Company that the assets of the Company will be sufficient to pay any
benefits under this Plan or would place the Participant in a secured position
ahead of general creditors of the Company; the Participants are only unsecured
creditors of the Company with respect to their Plan benefits and the Plan
constitutes a mere promise by the Company to make benefit payments in the
future. Though the Company has established a rabbi trust, as indicated in
Section 9.2, to accumulate assets to fulfill its obligations, the Plan and the
trust will not create any lien, claim, encumbrance, right, title or other
interest of any kind whatsoever in any Participant in any asset held by the
Company, contributed to the trust or otherwise designated to be used for payment
of any of its obligations created in this agreement. No specific assets of the
Company have been or will be set aside, or will in any way be transferred to the
trust or will be pledged in any way for the performance of the Company's
obligations under this Plan which would remove such assets from being subject to
the general creditors of the Company.
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ARTICLE X
MISCELLANEOUS
10.1 Limitation of Rights. Nothing in this Plan will be construed:
(a) to give any employee of the Company any right to be
designated a Participant in the Plan;
(b) to give a Participant any right with respect to the Plan
contributions or the interest credited in the Deferred Compensation
Ledger except in accordance with the terms of this Plan;
(c) to limit in any way the right of the Company to terminate
a Participant's employment with the Company at any time;
(d) to evidence any agreement or understanding, expressed or
implied, that the Company will employ a Participant in any
particular position or for any particular remuneration; or
(e) to give a Participant or any other person claiming through
him any interest or right under this Plan other than that of any
unsecured general creditor of the Company.
10.2 Distributions to Incompetents or Minors. Should a Participant
become incompetent or should a Participant designate a Beneficiary who is a
minor or incompetent, the Committee is authorized to pay the funds due to the
parent of the minor or to the guardian of the minor or incompetent or directly
to the minor or to apply those funds for the benefit of the minor or incompetent
in any manner the Committee determines in its sole discretion.
10.3 Nonalienation of Benefits. No right or benefit provided in this
Plan will be transferable by the Participant except, upon his death, to a named
Beneficiary as provided in this Plan. No right or benefit under this Plan will
be subject to anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance, attachment, or garnishment by creditors of the Participant or the
Participant's Beneficiary. Any attempt to anticipate, alienate, sell, assign,
pledge, encumber, or charge the same will be void. No right or benefit under
this Plan will in any manner be liable for or subject to any debts, contracts,
liabilities or torts of the person entitled to such benefits. If any Participant
or any Beneficiary becomes bankrupt or attempts to anticipate, alienate, sell,
assign, pledge, encumber or charge any right or benefit under this Plan, that
right or benefit will, in the discretion of the Committee, cease. In that event,
the Committee may have the Company hold or apply the right or benefit or any
part of it to the benefit of the Participant or Beneficiary, his or her spouse,
children or other dependents or any of them in any manner and in any proportion
the Committee believes to be proper in its sole and absolute discretion, but is
not required to do so.
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10.4 Severability. If any term, provision, covenant or condition of
the Plan is held to be invalid, void or otherwise unenforceable, the rest of the
Plan will remain in full force and effect and will in no way be affected,
impaired or invalidated.
10.5 Notice. Any notice or filing required or permitted to be given
to the Committee or a Participant will be sufficient if in writing and hand
delivered or sent by U.S. mail to the principal office of the Company or to the
residential mailing address of the Participant. Notice will be deemed to be
given as of the date of hand delivery or if delivery is by mail, as of the date
shown on the postmark.
10.6 Gender and Number. If the context requires it, words of one
gender when used in this Plan will include the other gender, and words used in
the singular or plural will include the other.
10.7 Governing Law. The Plan will be construed, administered and
governed in all respects by the laws of the State of Oregon.
10.8 Unfunded Arrangement. It is intended that this Plan shall be
unfunded for tax purposes and for purposes of Title 1 of the Employee Retirement
Income Security Act of 1974, as amended.
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IN WITNESS WHEREOF, the Company has caused this document to be
executed by its authorized officer on this______day of March 1999, effective
April 1, 1999.
METRO ONE TELECOMMUNICATIONS
By:________________________________
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