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EXHIBIT 4.11
MotivePower Industries, Inc.
DEFERRED COMPENSATION PLAN
FOR NON-EMPLOYEE DIRECTORS
ARTICLE I
PURPOSE AND BACKGROUND
The purpose of this Deferred Compensation Plan (the "Plan") is to
provide current tax planning opportunities as well as supplemental funds for the
retirement or death of non-employee members of the board of directors of
MotivePower Industries, Inc. ("Company") and its subsidiaries and affiliated
corporations and business entities. The Plan shall be in addition to existing
deferred compensation plans and arrangements maintained by the Company. It is
intended that the Plan will aid in attracting and retaining persons of
exceptional ability to serve as members of the Company's board of directors by
providing them with these benefits. The Plan was originally adopted effective as
of December , 1997 ("Effective Date").
References are to the Plan unless otherwise indicated.
ARTICLE II
DEFINITIONS
For the purposes of the Plan, the following terms have the meanings
indicated, unless the context clearly indicates otherwise:
2.1 Account. "Account" means the Account as maintained by the Company
in accordance with Article IV with respect to any Compensation deferred pursuant
to the Plan. A Participant's Account shall be utilized solely as a device for
the determination and measurement of the amounts to be paid to the Participant
pursuant to the Plan. Separate subaccounts shall be maintained to properly
reflect the Participant's balance and earnings thereon. A Participant's Account
shall not constitute or be treated as a trust fund of any kind.
2.2 Administrative Committee. "Administrative Committee" means the
committee appointed to administer the Plan as provided by Section 7.2.
2.3 Beneficiary. "Beneficiary" means the person, persons or entity
entitled under Article VI to receive any Plan Benefits payable after a
Participant's death.
2.4 Board. "Board" means the board of directors of the Company.
2.5 Code. "Code" means the Internal Revenue Code of 1986, as amended.
2.6 Company. "Company" means MotivePower Industries, Inc., any
successor to the business thereof, and any affiliated or subsidiary corporations
designated by the Compensation Committee.
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2.7 Company's Stock Fund. "Company's Stock Fund" means a hypothetical
fund consisting of MotivePower Industries, Inc. common stock.
2.8 Compensation. "Compensation" means any payments, including annual
fees and meeting fees payable to a Participant as a member of the Board or as a
member of a committee of the Board during the calendar year and considered to be
"earnings" for purposes of federal income taxation, increased by amounts
deferred under the Plan or any other deferral arrangements. Compensation does
not include expense reimbursements, any form of noncash Compensation or
benefits, group life insurance premiums, or any other payments or benefits other
than earnings as described above.
2.9 Compensation Committee. "Compensation Committee" means the
Compensation Committee of the Board.
2.10 Deferral Commitment. "Deferral Commitment" means an election to
defer Compensation made by a Participant pursuant to Article III and for which a
Participation Agreement has been submitted by the Participant to the
Administrative Committee.
2.11 Deferral Period. "Deferral Period" means the period over which a
Participant has elected to defer a portion of the Participant's Compensation.
Each calendar year shall be a separate Deferral Period, provided that the
Deferral Period may be modified pursuant to Section 3.4.
2.12 Determination Date. "Determination Date" means the last day of
each calender month.
2.13 Earnings Index. "Earnings Index" means the Company's Stock Fund or
the interim earnings rate provided for under Section 4.3 used to calculate the
Rate of Return.
2.14 Elective Deferred Compensation. "Elective Deferred Compensation"
means the amount of Compensation that a Participant elects to defer pursuant to
a Deferral Commitment.
2.15 ERISA. "ERISA" means the Employee Retirement Income Security Act
of 1974, as amended.
2.16 Financial Hardship. "Financial Hardship" means an unanticipated
emergency that is caused by an event beyond the control of the Participant that
would result in severe financial hardship if an early withdrawal from the Plan
were not permitted and to be determined by the Administrative Committee on the
basis of information supplied by the Participant.
2.17 Participant. "Participant" means any individual who is
participating, or has participated and has an Account balance, in this Plan as
provided in Article III.
2.18 Participation Agreement. "Participation Agreement" means the
agreement submitted by a Participant to the Administrative Committee prior to
the beginning of a Deferral Period, with respect to a Deferral Commitment made
for that Deferral Period.
2.19 Plan Benefit. "Plan Benefit" means the benefit payable to a
Participant as calculated in Article V.
2.20 Rate of Return. "Rate of Return" means the amount credited to a
Participant's Account under Section 4.5 to be determined by the Administrative
Committee based upon the net performance of the Earnings Index.
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2.21 Termination of Service. "Termination of Service" means the point
in time in which an individual's service as a member of the Board ends for any
reason, including but not limited to removal, election defeat, voluntary or
involuntary termination, retirement, death or disability.
ARTICLE III
PARTICIPATION AND DEFERRAL COMMITMENTS
3.1 Eligibility and Participation.
(a) Eligibility. Each non-employee member of the Board shall
be eligible to defer Compensation into this Plan.
(b) Participation. An eligible individual may elect to
participate in the Plan with respect to any Deferral Period by submitting a
Participation Agreement to the Administrative Committee by November 30 of the
calendar year immediately preceding the Deferral Period. With respect to amounts
earned commencing January 1 of any calendar year, the Administrative Committee,
at its sole discretion, may allow an eligible individual to submit a
Participation Agreement to the Administrative Committee by December 31 of the
immediately preceding calendar year.
(c) Part-Year Participation. In the event that an individual
first becomes eligible, or again becomes eligible following a period of
suspended eligibility, to defer Compensation during a calendar year, a
Participation Agreement must be submitted to the Administrative Committee no
later than thirty (30) days following notification to the individual of
eligibility to defer, and the Participation Agreement shall be effective only
with regard to Compensation earned or payable following the submission of the
Participation Agreement to the Administrative Committee.
3.2 Form of Deferral. A Deferral Commitment shall apply to the
Compensation payable by the Company to the Participant during the Deferral
Period. The amount to be deferred shall be stated as a percentage or dollar
amount.
3.3 Limitations on Deferral Commitments. The following limitations
shall apply to Deferral Commitments:
(a) Minimum. There shall be no minimum deferral amount of
Compensation.
(b) Maximum. The maximum deferral amount shall be 100 percent
(100%) of Compensation.
(c) Changes in Minimum or Maximum. The Administrative
Committee may change the minimum or maximum deferral amounts from time
to time by giving written notice to all Participants. No such change
may affect a Deferral Commitment made prior to the Administrative
Committee's action.
3.4 Modification of Deferral Commitment. A Deferral Commitment shall be
irrevocable except that the Administrative Committee may permit a Participant to
reduce the amount to be deferred, or waive the remainder of the Deferral
Commitment upon a finding that the Participant has suffered a Financial
Hardship.
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ARTICLE IV
DEFERRED COMPENSATION ACCOUNTS
4.1 Accounts. For record keeping purposes only, an Account shall be
maintained for each Participant.
4.2 Elective Deferred Compensation. Subject to Section 4.3, a
Participant's Elective Deferred Compensation shall be credited to the
Participant's Account at the same time as the corresponding nondeferred portion
of the Compensation becomes or would have become payable. Any withholding of
taxes or other amounts with respect to deferred Compensation which is required
by federal, state, or local law shall be withheld from the Participant's
nondeferred Compensation to the maximum extent possible with any excess being
withheld from the Participant's Account.
4.3 Allocation of Deferred Compensation. The Administrative Committee
shall direct the allocation of the Participant's Account and Elective Deferred
Compensation to the Earning Index.
An allocation to the Company's Stock Fund, however, will not become
effective until the Company could reasonably make an equivalent actual
investment in the Company's stock without any material disruption of the market
for its stock. This restriction applies whether or not the Company actually
causes an investment to be made in its stock upon an allocation to the Company's
Stock Fund. If the period of time between when an allocation would otherwise
have become effective without application of this Section 4.3 and the actual
effective date after application of this Section 4.3 exceeds thirty (30) days,
the portion of the Participant's Account which is to be invested in the
Company's Stock Fund will be deemed to have been invested at an interim earnings
rate equal to an annual rate of return, compounded monthly, of seven (7) percent
for that period. All determinations under this Section 4.3 shall be made by the
Administrative Committee.
4.4 Company Discretionary Contributions. The Company may make
discretionary contributions to the Participant's Account. Discretionary
contributions shall be credited at times and in amounts as the Compensation
Committee in its sole discretion shall determine. The amounts of any
discretionary contributions shall be evidenced in a special Participation
Agreement approved by the Administrative Committee.
4.5 Rate of Return. The Accounts shall be credited monthly with the
Rate of Return specified in Section 2.20.
4.6 Determination of Accounts. Each Participant's Account as of each
Determination Date shall consist of the balance of the Participant's Account as
of the immediately preceding Determination Date, plus the Participant's Elective
Deferred Compensation credited, any company discretionary contributions credited
and the applicable Rate of Return, minus the amount of any distributions made,
since the immediately preceding Determination Date.
4.7 Vesting of Accounts. Each Participant shall be 100% vested in all
amounts credited to that Participant's Account including any Company
discretionary contributions and earnings thereon.
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4.8 Statement of Accounts. The Administrative Committee shall submit to
each Participant, within one hundred twenty (120) days after the close of each
calendar year, or at another time as determined by the Administrative Committee,
a statement setting forth the balance to the credit of the Participant's
Account.
ARTICLE V
PLAN BENEFITS
5.1 Distributions Prior to Termination of Service. A Participant's
Account may be distributed to the Participant prior to Termination of Service as
follows:
(a) In-Service Withdrawals. A Participant may elect in a
Participation Agreement to withdraw all or any portion of the Elective
Deferred Compensation amount deferred by that Participation Agreement
as of a date specified in the election. The date shall not be sooner
than seven (7) years after the date the Deferral Period commences. The
amount withdrawn shall not exceed the amount of Compensation deferred,
without earnings. The election shall be made at the time the Deferral
Commitment is made and shall be irrevocable.
(b) Hardship Withdrawals. Upon a finding that a Participant
has suffered a Financial Hardship, the Administrative Committee may, in
its sole discretion, make distributions from the Participant's Account.
The amount of the withdrawal shall be limited to the amount reasonably
necessary to meet the Participant's needs resulting from the Financial
Hardship. If payment is made due to Financial Hardship under the Plan,
the Participant's deferrals under the Plan shall cease for a twelve
(12) month period. Any resumption of the Participant's deferrals under
the Plan after that twelve (12) month period shall be made only at the
election of the Participant in accordance with Article III herein.
(c) Form of Payment and Time. Any distribution pursuant to
Section 5.1(a) or 5.1(b) shall be payable in a lump sum. The
distribution shall be paid in the case of an in-service withdrawal, as
provided in the Participation Agreement, and in case of a Financial
Hardship, within thirty (30) days after the Administrative Committee
approves the Financial Hardship
5.2 Distributions Following Termination of Service. Upon a
Participant's Termination of Service (which termination shall be for a period of
at least five (5) days) the Company shall pay to the Participant or, in the case
of death, the Participant's Beneficiary, benefits equal to the vested balance in
the Participant's Account.
5.3 Form of Benefit Payment Following Termination of Service.
(a) Subject to Section 5.3(b), benefits shall be paid in the
form selected by the Participant in the Participation Agreement at the
time of the Deferral Commitment. Options include:
(i) A lump sum payment.
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(ii) Equal annual installments of the Account and
Rate of Return amortized over a period of five (5), ten (10),
or fifteen (15) years. The Account shall be initially
amortized with an assumed annual, monthly compounding, Rate of
Return of 7 percent (7%) unless the Participant selects, and
the Administrative Committee approves, an alternative assumed
Rate of Return. The Account shall be reamortized annually
based upon the actual annual Rate of Return for the Account
for the immediately preceding twelve (12) months.
(b) Small Account(s). Notwithstanding Section 5.3(a), if a
Participant's Account is less than fifty thousand dollars ($50,000) on
the date of Termination of Service, the benefit shall be paid in a lump
sum.
5.4 Commencement of Deferral Payment.
(a) Subject to Section 5.4(b), benefits that are payable upon
a Participant's Termination of Service shall commence as elected by the
Participant in a Participation Agreement. Options are:
(i) Payments to commence as soon as practical after
termination, but in no case more than sixty (60) days after
termination.
(ii) Payment to commence as soon as practical in the
calendar year following termination, but in no case more than
ninety (90) days after the beginning of the calendar year.
(iii) Payments to commence as soon as practical in
the calendar year following the later of the Participant's
termination or obtainment of an age selected by the
Participant, which shall not exceed age sixty-five (65). If a
Participant has selected this option and has an account
balance of less than fifty thousand dollars ($50,000) at
termination, the benefit shall commence as if the Participant
had selected payment under Section 5.4(a)(ii) above.
(b) Notwithstanding Section 5.4(a), a Participant who is a
"covered employee" as defined in Code Section 162(m)(3) shall receive
the first benefit payment as if the Participant had elected payment
under Section 5.4(a)(ii), unless the Participant elects payment under
Section 5.4(a)(iii) and the commencement date is after the date payable
under Section 5.4(a)(ii).
5.5 Timing of Election. As long as the election is made and filed with
the Administrative Committee at least twelve (12) full months prior to
Termination of Service a Participant may elect to change the form of benefit
payment (see Section 5.3) or the timing of benefit commencement (see Section
5.4). In no case may a Participant change an election in the twelve (12) months
preceding Termination of Service.
5.6 Death Benefit. Upon the death of a Participant, the Company shall
pay to the Participant's Beneficiary an amount equal to the remaining unpaid
balance of the Participant's Account in a lump sum.
5.7 Accelerated Distribution. Notwithstanding any other provision of
the Plan, a Participant shall be entitled to receive at any time, upon written
request to the Administrative Committee, a lump sum distribution equal to 90
percent (90%) of the Participant's vested Account balance as of the
Determination Date immediately preceding the date on which the Administrative
Committee receives the written request. The remaining balance shall be forfeited
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by the Participant. The amount payable under this section shall be paid in a
lump sum within thirty (30) days following the receipt of the notice by the
Administrative Committee from the Participant. If a Participant receives a
distribution under this Section, the Participant's Deferral Commitments for the
remaining portion of that calendar year shall be revoked and the Participant
shall not be permitted to make Deferral Commitments for a period of one (1) year
from the date of distribution.
5.8 Withholding for Taxes. To the extent required by the law in effect
at the time payments are made, the Company shall withhold from the payments made
hereunder any taxes required to be withheld by the federal or any state or local
government, including any amount which the Company determines is reasonably
necessary to pay any generation-skipping transfer tax which is or may become
due.
5.9 Valuation and Settlement. The amount of a lump sum payment and the
initial amount of installments shall be based on the value of the Participant's
Account on the Determination Date immediately preceding the payment or
commencement of installment payments.
5.10 Payment to Guardian. The Administrative Committee may direct
payment to the duly appointed guardian, conservator, or other similar legal
representative of a Participant or Beneficiary to whom payment is due. In the
absence of a legal representative, the Administrative Committee may, in it sole
and absolute discretion, make payment to a person having the care and custody of
a minor, incompetent or person incapable of handling the disposition of property
upon proof satisfactory to the Administrative Committee of incompetency,
minority, or incapacity. The distribution shall completely discharge the
Administrative Committee from all liability with respect to the benefit.
ARTICLE VI
BENEFICIARY DESIGNATION
6.1 Beneficiary Designation. Subject to Section 6.3, each Participant
shall have the right, at any time, to designate one (1) or more persons or an
entity as Beneficiary (both primary as well as secondary) to whom benefits under
this Plan shall be paid in the event of Participant's death prior to complete
distribution of the Participant's Account. Each Beneficiary designation shall be
in a written form prescribed by the Administrative Committee and shall be
effective only when filed with the Administrative Committee during the
Participant's lifetime.
6.2 Changing Beneficiary. Subject to Section 6.3, any Beneficiary
designation may be changed by a Participant without the consent of the
previously named Beneficiary by the filing of a new designation with the
Administrative Committee. The filing of a new designation shall cancel all
designations previously filed.
6.3 Community Property. If the Participant resides in a community
property state, the following rules shall apply:
(a) If the Participant is married, the Participant's
designation of a Beneficiary other than the Participant's spouse shall
not be effective unless the spouse executes a written consent that
acknowledges the
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effect of the designation, or it is established the consent cannot be
obtained because the spouse cannot be located.
(b) If the Participant is married, the Participant's
Beneficiary designation may be changed by a Participant with the
consent of the Participant's spouse as provided for in Section 6.3(a)
by the filing of a new designation with the Administrative Committee.
(c) If the Participant's marital status changes after the
Participant has designated a Beneficiary, the following shall apply:
(i) If the Participant is married at the time of
death but was unmarried when the designation was made, the
designation shall be void unless the spouse has consented to
it in the manner prescribed in Section 6.3(a).
(ii) If the Participant is unmarried at the time of
death but was married when the designation was made:
a) The designation shall, be void if the
spouse was named as Beneficiary.
b) The designation shall remain valid if a
nonspouse Beneficiary was named.
(iii) If the Participant was married when the
designation was made and is married to a different spouse at
death, the designation shall be void unless the new spouse has
consented to it in the manner prescribed above.
6.4 No Beneficiary Designation. If any Participant fails to designate a
Beneficiary in the manner provided above, if the designation is void, or if the
Beneficiary designated by a Participant dies before the Participant or before
complete distribution of the Participant's benefits, the Participant's
Beneficiary shall be the person in the first of the following classes in which
there is a survivor:
(a) The Participant's spouse;
(b) The Participant's children in equal shares, except that if
any of the children predeceases the Participant but leaves issue
surviving, then the issue shall take by right of representation the
share the parent would have taken if living;
(c) The Participant's estate.
ARTICLE VII
ADMINISTRATION
7.1 Administrative Committee; Duties. This Plan shall be administered
by the Administrative Committee. The Administrative Committee shall consist of
at least three (3) individuals appointed by the Compensation Committee or the
Company's Chief Executive Officer. Subject to Section 9.1, the Administrative
Committee shall have the authority to amend (but not terminate) the Plan,
interpret and enforce all appropriate rules
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and regulations for the administration of the Plan and decide or resolve any and
all legal or factual questions, including interpretations of the Plan, as may
arise in the administration. A majority vote of the Administrative Committee
members shall control any decision. Members of the Administrative Committee may
be Participants under this Plan.
7.2 Agents. The Administrative Committee may, from time to time, employ
agents and delegate to them administrative duties as it sees fit, and may from
time to time consult with counsel who may be counsel to the Company.
7.3 Binding Effect of Decisions. The decision or action of the
Administrative Committee with respect to any question arising out of or in
connection, with the administration, interpretation and application of the Plan
and the rules and regulations promulgated hereunder shall be final, conclusive
and, binding upon all persons having any interest in the Plan.
7.4 Indemnity of Administrative Committee. The Company shall indemnify
and hold harmless the members of the Administrative Committee against any and
all claims, loss, damage, expense or liability arising from any action or
failure to act with respect to this Plan on account of the person's service on
the Administrative Committee, except in the case of gross negligence or willful
misconduct.
ARTICLE VIII
CLAIMS PROCEDURE
8.1 Claim. The Administrative Committee shall establish rules and
procedures to be followed by Participants and Beneficiaries in (a) filing claims
for benefits, and (b) for furnishing and verifying proofs necessary to establish
the right to benefits in accordance with the Plan, consistent with the remainder
of this Article. The rules and procedures shall require that claims and proofs
be made in writing and directed to the Administrative Committee.
8.2 Review of Claim. The Administrative Committee shall review all
claims for benefits. Upon receipt by the Administrative Committee of a claim, it
shall determine all facts which are necessary to determine the right, if any, of
the claimant to benefits under the provisions of the Plan and the amount thereof
as herein provided within ninety (90) days of receipt of a claim. If prior to
the expiration of the initial ninety (90) day period, the Administrative
Committee determines additional time is needed to come to a determination on the
claim, the Administrative Committee shall provide written notice to the
Participant, Beneficiary or other claimant of the need for the extension, not to
exceed a total of one hundred eighty (180) days from the date the application
was received.
8.3 Notice of Denial of Claim. In the event that any Participant,
Beneficiary or other claimant claims to be entitled to a benefit under the Plan,
and the Administrative Committee determines that the claim should be denied in
whole or in part, the Administrative Committee shall, in writing, notify the
claimant that the claim has been denied, in whole or in part, setting forth the
specific reasons for the denial. The notification shall be written in a manner
reasonably expected to be understood by the claimant and shall refer to the
specific sections of the Plan relied on, shall describe any additional material
or information necessary for the claimant to perfect the
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claim and an explanation of why the material or information is necessary, and
where appropriate, shall include an explanation of how the claimant can obtain
reconsideration of the denial.
8.4 Reconsideration of Denied Claim.
(a) Within sixty (60) days after receipt of the notice of the
denial of a claim, the claimant or duly authorized representative may
request, by mailing or delivery of a written notice to the
Administrative Committee, a reconsideration by the Administrative
Committee of the decision denying the claim. If the claimant or duly
authorized representative fails to request a reconsideration within the
sixty (60) day period, it shall be conclusively determined for all
purposes of the Plan that the denial of the claim by the Administrative
Committee is correct. If the claimant or duly authorized representative
requests a reconsideration within the sixty (60) day period the
claimant or dully authorized representative shall have thirty (30) days
after filing a request for reconsideration to submit additional written
material in support of the claim, review pertinent documents, and
submit issues and comments in writing.
(b) After the reconsideration request, the Administrative
Committee shall determine within sixty (60) days of receipt of the
claimant's request for reconsideration whether the denial of the claim
was correct and shall notify the claimant in writing of its
determination. The written notice of decision shall be in writing and
shall include specific reasons for the decision, written in a manner
calculated to be understood by the claimant, as well as specific
references to the pertinent Plan provisions on which the decision is
based. In the event of special circumstances determined by the
Administrative Committee, the time for the Administrative Committee to
make a decision may be extended by an additional sixty (60) days upon
written notice to the claimant prior to the commencement of the
extension.
8.5 Company to Supply Information. To enable the Administrative
Committee to perform its functions, the Company shall supply full and timely
information to the Administrative Committee of all matters relating to the
retirement, death or other cause for Termination of Service of all Participants,
and the other pertinent facts as the Administrative Committee may require.
ARTICLE IX
AMENDMENT AND TERMINATION OF PLAN
9.1 Amendment. The Administrative Committee may at any time amend the
Plan by written instrument, notice of which is given to all Participants and to
any Beneficiaries to whom a benefit is due, subject to the following:
(a) Preservation of Account Balance. No amendment shall reduce
the amount accrued in any Account to the date the notice of the
amendment is given.
(b) Changes in Earnings Rate. No amendment shall reduce the
Rate of Return to be credited after the date of the amendment to the
amount already accrued in any Account and any Deferred Compensation
credited to the Account under Deferral Commitments already in effect on
that date.
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9.2 Company's Right to Terminate. The Compensation Committee may at any
time partially or completely terminate the Plan if, in its judgment, the tax,
accounting or other effects of the continuance of the Plan, or potential
payments thereunder would not be in the best interests of the Company.
(a) Partial Termination. The Compensation Committee may
partially terminate the Plan by instructing the Administrative
Committee not to accept any additional Deferral Commitments. If a
partial termination occurs, the Plan shall continue to operate and be
effective with regard to Deferral Commitments entered into prior to the
effective date of the partial termination.
(b) Complete Termination. The Compensation Committee may
completely terminate the Plan by instructing the Administrative
Committee not to accept any additional Deferral Commitments, and by
terminating all ongoing Deferral Commitments. If a complete termination
occurs, the Plan shall cease to operate and the Company shall pay out
each Account. Payment shall be made in substantially equal annual
installments over the following period, based on the Account balance:
Account Balance Payout Period
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Less than $100,000 Lump Sum
$100,000 but less than $500,000 3 Years
More than $500,000 5 Years
Payments shall commence within sixty (60) days after the Compensation
Committee terminates the Plan and the unpaid Account balance shall continue to
be credited with the applicable Rate of Return.
ARTICLE X
MISCELLANEOUS
10.1 Unfunded Plan. The Plan is an unfunded plan maintained primarily
to provide deferred compensation benefits to non-employees. It, therefore, is
generally not covered by ERISA.
10.2 Unsecured General Creditor. Participants and Beneficiaries shall
be unsecured general creditors, with no secured or preferential right to any
assets of the Company or any other party for payment of benefits under the Plan.
Any life insurance policies, annuity contracts or other property purchased by
the Company in connection with the Plan shall remain its general, unpledged and
unrestricted assets. The Company's obligation under the Plan shall be an
unfunded and unsecured promise to pay money in the future.
10.3 Trust Fund. At its discretion, the Company may establish one (1)
or more trusts, with any trustees as the Administrative Committee may approve,
for the purpose of providing for the payment of benefits owed under the Plan.
Although any such trust shall be irrevocable, its assets shall be held for
payment of all the Company's
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general creditors in the event of insolvency or bankruptcy. To the extent any
benefits provided under the Plan are paid from a trust, the Company shall have
no further obligation to pay them. If not paid from a trust, the benefits shall
remain the obligation of the Company.
10.4 Nonassignability. Neither a Participant nor any other person shall
have any right to commute, sell, assign, transfer, pledge, anticipate, mortgage
or otherwise encumber, transfer, hypothecate or convey in advance of actual
receipt of the amounts, if any, payable hereunder, or any part thereof, which
are, and all rights to which are, expressly declared to be unassignable and
nontransferable. No part of the amounts payable shall, prior to actual payment,
be subject to seizure or sequestration for the payment of any debts, judgments,
alimony or separate maintenance owed by a Participant or any other person, nor
be transferable by operation of law in the event of a Participant's or any other
person's bankruptcy or insolvency.
10.5 Not a Contract of Employment or for Services. This Plan shall not
constitute a contract of employment or for services between the Company and the
Participant. Nothing in this Plan shall give a Participant the right to be
retained in the service of the Company or to interfere with the right of the
Company to remove a Participant at any time, subject to applicable corporate
law, articles of incorporation, bylaws and other documents which affect the
governance of the Company.
10.6 Protective Provisions. A Participant will cooperate with the
Company by furnishing any and all information requested by Company in order to
facilitate the payment of benefits hereunder, and by taking any physical
examinations as the Company may deem necessary and taking other action as may be
requested by the Company.
10.7 Governing Law. The provisions of this Plan shall be construed and
interpreted according to the laws of the Commonwealth of Pennsylvania.
10.8 Validity. In case any provision of the Plan shall be held illegal
or invalid for any reason, the illegality or invalidity shall not affect the
remaining parts hereof, but the Plan shall be construed and enforced as if the
illegal and invalid provision had never been inserted herein.
10.9 Notice. Any notice required or permitted under the Plan shall be
sufficient if in writing and hand delivered or sent by registered or certified
mail. The notice shall be deemed as given as of the date of delivery or, if
delivery is made by mail, as of the date shown on the postmark on the receipt
for registration or certification. Mailed notice to the Administrative Committee
shall be directed to the Company's address. Mailed notice to a Participant or
Beneficiary shall be directed to the individuals last known address in the
Company's records.
10.10 Successors. The provisions of the Plan shall bind and inure to
the benefit of the Company and its successors and assigns. The term successors
as used herein shall include any corporate or other business entity which shall,
whether by merger, consolidation, purchase or otherwise, acquire all or
substantially all of the business and assets of the Company, and successors of
any such corporation or other business entity.
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