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Exhibit 4 (b) - Computer Task Group, Incorporated Nonqualified Key Employee
Deferred Compensation Plan
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COMPUTER TASK GROUP, INCORPORATED
NONQUALIFIED KEY EMPLOYEE DEFERRED COMPENSATION PLAN
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ARTICLE I
DEFINITIONS, BACKGROUND, PURPOSE AND EFFECTIVE DATE
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SECTION 1.1 DEFINITIONS. For purposes of the Plan,
the following terms shall have the definitions stated below unless the context
clearly indicates otherwise:
(a) "BOARD" means the Board of Directors of
Computer Task Group, Incorporated.
(b) "CHAIRMAN" means the Chairman and Chief
Executive Officer of the Corporation.
(c) "CODE" means the Internal Revenue Code of
1986, as amended.
(d) "COMMITTEE" means the Compensation Committee
of the Board.
(e) "COMPENSATION" means base salary and bonus
compensation actually earned by a Participant
in a calendar year, including any compensation
deferred by a Participant under the
Corporation's plan qualified under 401(k) Plan
and including any Elective Deferrals under this
Plan from base salary and bonus compensation,
and excluding, without limitation, (i) any
amounts paid to a Participant under any other
qualified or nonqualified compensation plan,
including without limitation any amounts paid
pursuant to a stock option or other stock plan
and (ii) any noncash compensation such as
relocation expenses, advances on salary and
travel advances.
(f) "CORPORATION" means Computer Task Group,
Incorporated.
(g) "CORPORATION CONTRIBUTION ACCOUNT" means a
sub-account of the Deferred Compensation
Account comprised of Corporation Contributions
credited thereto and earnings thereon.
(h) "CORPORATION STOCK" means shares of common
stock, $.02 par value, issued by the
Corporation, or any successor securities
thereto.
(i) "DEFERRED COMPENSATION ACCOUNT" means the
account maintained for each Participant to
which are credited all amounts allocated
thereto in accordance with this Plan, and
adjusted for earnings thereon.
(j) "EMPLOYEE CONTRIBUTION ACCOUNT" means a
sub-account of the Deferred Compensation
Account comprised of the Employee Contributions
allocated to such account and earnings thereon.
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(k) "ERISA" means the Employee Retirement Income
Security Act of 1974, as amended.
(l) "PARTICIPANT" means an employee selected to
participate in the Plan pursuant to Section 2.1.
(m) "PLAN" means the Computer Task Group,
Incorporated Nonqualified Key Executive
Deferred Compensation Plan as initially
approved by the Committee on February 2, 1995
and as it shall be amended from time to time.
(n) "PLAN ADMINISTRATOR" means the Committee.
(o) "PLAN YEAR" means the calendar year, unless
otherwise determined by the Committee. The
first Plan Year shall commence on January 1,
1995.
(p) "RABBI TRUST" means a trust agreement, if
established, entered into by and between the
Corporation and any trustee, to provide certain
benefits under the Plan.
(q) "401(K) PLAN" means the Computer Task Group,
Incorporated 401(k) Retirement Plan.
(r) "SEPARATION FROM SERVICE" means an employee's
termination of employment for any reason, such
that the employee is not employed by the
Corporation or any company in an affiliated
group for tax purposes with the Corporation.
(s) "YEAR OF PARTICIPATION" means a Plan Year
during which the Participant is a Participant
for the entire Plan Year. Notwithstanding the
preceding sentence, each employee who is
selected as a Participant at the commencement
of the Plan shall be deemed a Participant
beginning on January 1, 1995 for this purpose.
Any other employee selected as a Participant
shall become a Participant on January 1 of the
Plan Year immediately following the employee's
selection.
SECTION 1.2 BACKGROUND AND PURPOSE OF THE PLAN. The
purpose of the Plan is to establish an unfunded plan to provide
Corporation-provided deferred compensation commensurate with the performance of
the Corporation for a select group of highly compensated employees to retain
the services of certain of such employees and to provide an additional elective
opportunity for certain of such employees to defer a portion of their
compensation, in all events upon such terms as shall be established by the
Committee.
SECTION 1.3 EFFECTIVE DATE. Except as otherwise
provided, the effective date of the Plan is January 1, 1995.
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ARTICLE II
PARTICIPATION
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SECTION 2.1 ELIGIBILITY FOR PARTICIPATION. An
employee of the Corporation shall be eligible to participate in the Plan if,
with respect to the ability to make Elective Contributions pursuant to Section
3.1 and/or to be awarded Corporation Contributions pursuant to Section 3.2, the
employee is recommended by the Chairman to participate in the Plan and such
recommendation is approved by the Committee, in its sole discretion.
SECTION 2.2 CESSATION OF ELIGIBILITY. With respect
to any Plan Year, a Participant shall continue to be eligible to elect to defer
Compensation pursuant to Section 3.1 and/or to receive an award of Corporation
Contributions pursuant to Section 3.2 if the Participant's eligibility is not
terminated (with respect to the Plan Year no later than 90 days after the
beginning of such Plan Year) by recommendation of the Chairman and approval of
such recommendation by the Committee, and if the Participant remains in the
employ of the Corporation for the entire Plan Year.
ARTICLE III
CONTRIBUTIONS
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SECTION 3.1 EMPLOYEE CONTRIBUTIONS. With respect to
any Plan Year commencing after December 31, 1994, a Participant may irrevocably
elect prior to December 1 of the Plan Year preceding such Plan Year (except
with respect to the Plan Year ending December 31, 1995, prior to June 16, 1995)
to defer all or a part of his or her Compensation in a certain dollar amount or
percentage not to exceed that permitted by the Committee ("Employee
Contributions"). The Committee shall credit the Participant's Employee
Contribution Account with an amount equal to such Employee Contributions at
such times and in such amounts as would otherwise have been paid or made
available to such Participant. The elections described in this subsection
shall be made by such time and using such forms as the Plan Administrator shall
provide.
SECTION 3.2 CORPORATION CONTRIBUTIONS. With respect
to each Plan Year commencing after December 31, 1994, a Participant eligible to
receive an award of Corporation Contributions shall be awarded an amount equal
to a specified percentage of the Participant's Compensation for the Plan Year.
The percentage shall be determined for each Plan Year based on the degree of
achievement by the Corporation of certain performance targets recommended by
the Chairman and approved by the Committee. Both the award percentages and the
degree of the achievement of the performance targets shall be determined by the
Committee, in its sole discretion at a meeting of the Committee following the
close of the audit of the Corporation by its outside accountants for the Plan
Year. Such award shall be credited to the Participant's Corporation
Contribution Account as of January 1 of the Plan Year following the Plan Year
for which the Corporation Contribution is awarded, and such award may be in the
form of cash or Corporation Stock at the sole discretion of the Committee.
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ARTICLE IV
ACCOUNTS AND INVESTMENTS
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SECTION 4.1 THE DEFERRED COMPENSATION ACCOUNT. The
Committee shall maintain for each Participant a Deferred Compensation Account
to which it shall credit all amounts allocated thereto in accordance with
Sections 3.1 and 3.2. Each Participant's Deferred Compensation Account shall
be adjusted no less often than annually, beginning January 1, 1995, to reflect
the credits made to the Deferred Compensation Account and any interest,
earnings, gains and losses thereon pursuant to Section 4.2. Such adjustments
shall be made as long as any amount remains credited to the Deferred
Compensation Account. The amounts allocated and the adjustments made shall
comprise the Deferred Compensation Account at any time.
SECTION 4.2 INTEREST, EARNINGS, GAINS AND LOSSES.
Amounts represented by the Deferred Compensation Accounts of all Participants
shall be credited with interest or invested in an investment vehicle(s)
(including but not limited to Corporation Stock) in the sole discretion of the
Committee. A Deferred Compensation Account shall be credited with its share of
the interest thereon or the earnings, gains and losses of such investment
vehicles for the period for which the Account is so invested no less often than
annually. Interest, earnings, gains and losses shall accrue annually on the
balance as of the first day of each Plan Year and shall be credited annually as
of the last day of the Plan Year during which such interest, earnings, gains
and losses accrued.
SECTION 4.3 THE RABBI TRUST. The Committee may
determine that the Corporation shall establish a Rabbi Trust to which the
Corporation shall contribute all amounts credited to the Employee and
Corporation Contribution Accounts in accordance with Sections 3.1, 3.2, and 4.2
of the Plan.
SECTION 4.4 RIGHTS AS GENERAL CREDITOR. Unless the
Corporation establishes the Rabbi Trust, a Deferred Compensation Account does
not constitute a trust fund or escrow. A Participant's interest in the
Deferred Compensation Account and in the Rabbi Trust, if established, is
limited to the right to receive payments as provided under the Plan and the
Rabbi Trust, if any, and the Participant's position is that of a general
unsecured creditor of the Corporation with respect to the entire Deferred
Compensation Account, i.e., the Corporation Contributions, Employee
Contributions, and interest, earnings, gains and losses thereon.
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SECTION 4.5 VESTING IN EMPLOYEE CONTRIBUTION
ACCOUNT. Except as otherwise provided in this Article, a Participant shall at
all times have a 100% nonforfeitable right to the value of his or her Employee
Contribution Account.
SECTION 4.6 VESTING IN CORPORATION CONTRIBUTION
ACCOUNT. Except as otherwise provided in this Article,
(a) A Participant who first becomes a
Participant in the Plan in 1995 shall have a
100% nonforfeitable right to the value of the
Participant's Corporation Contribution
Account on January 1, 2003, and, in the case
of any other Participant, such Participant
shall have a 100% nonforfeitable right to the
value of the Participant's Corporation
Contribution Account on the January 1
following eight full calendar years after the
Participant first becomes a Participant in
the Plan, and no Participant shall have any
right to any amount in such Account prior to
such respective date.
(b) Notwithstanding subsection (a), prior to
January 1, 2003, in the case of a Participant
who first becomes a Participant in the Plan
in 1995, or, prior to the January 1 following
eight full calendar years after the
Participant first becomes a Participant in
the Plan, in the case of a Participant who
first becomes a Participant in the Plan after
1995, if a Participant incurs a Separation
from Service (i) involuntarily and without
Cause, (ii) due to death, disability (as
hereafter defined), or retirement at age 65
or later, or (iii) if there is a Change of
Control, as defined in Section 4.8, such
Participant shall have a nonforfeitable right
in a portion of the Participant's Corporation
Contribution Account equal to 12.5% times the
Participant's Years of Participation.
(c) Notwithstanding subsections (a) or (b), if a
Participant incurs a Separation from Service
for Cause, the Participant shall forfeit all
amounts in the Participant's Corporation
Contribution Account.
(d) For purposes of this Plan, Separation from
Service due to disability shall mean
separation from service due to a physical or
mental condition which prevents the
Participant from engaging in any gainful
occupation in which the Participant might
reasonably be expected to engage, with due
regard for the Participant's education,
training, experience, and prior economic
status. The determination shall be made on
medical evidence by a licensed physician
assigned by the Committee. Separation from
Service due to disability shall exclude
disabilities arising from: (i) intentionally
self-inflicted injury or intentionally
self-induced sickness, (ii) a proven unlawful
act or enterprise on the part of the
Participant, or (iii) military service where
the Participant is eligible to receive a
government military disability pension. In
all cases, the Committee shall make the final
determination whether a Participant has
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incurred a Separation from Service due to
disability for purposes of this Plan.
(e) For purposes of this Plan, Separation from
Service for Cause shall mean termination of
employment due to:
(i) Embezzlement from the Corporation
(ii) Theft from the Corporation
(iii) Defrauding the Corporation
(iv) Drug addiction
(v) Habitual intoxication
(vi) Use or disclosure of Corporation or
client confidential or proprietary
information
(vii) Engaging in activities or businesses
which are substantially in
competition with the Corporation
(viii) Any other action, activity or course
of conduct which is substantially
detrimental to the Corporation's
business or business reputation
(ix) Violation of the provision of the
terms of any nondisclosure and
nonsolicitation, noncompetition, or
other contractual agreement between
the Participant and the Corporation.
SECTION 4.7 PAYMENT OF BENEFITS.
(a) COMMENCEMENT. Except as otherwise provided
in this Section and subject to the vesting
provisions of Section 4.6, if the Participant
does not make an election in the time and
manner specified in (c), the vested value of
a Participant's Deferred Compensation Account
shall be paid under the Plan as soon as
practicable on or after the Participant's
Separation from Service but in any event not
later than 90 days after such Separation from
Service. In the case of a Change of Control,
as defined in Section 4.8, the vested value
of a Participant's Deferred Compensation
Account shall be paid in cash immediately
following such Change of Control.
(b) NORMAL FORM OF PAYMENT. Except as otherwise
provided in this Section and subject to the
vesting provisions of Section 4.6, if the
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Participant does not make an election in the
time and manner specified in (c), benefits
payable under the Plan (i.e. vested benefits)
shall be paid in the form of a single lump
sum payment and shall, with respect to the
Employee Contribution Account, be in the form
of cash, and with respect to the Corporation
Contribution Account, be in the form of cash,
Corporation Stock, or a combination of cash
and such Corporation Stock, to be determined
in the sole discretion of the Committee.
Shares of Corporation Stock used to satisfy
the obligation of the Corporation under this
Plan shall be valued at their fair market
value. For purposes of this Plan, fair
market value means as of any date the average
of the highest and lowest reported sales
prices on such date (or if such date is not a
trading day, then the most recent prior date
which is a trading day) of a share of
Corporation Stock as reported on the
composite tape, or similar reporting system,
for issues listed on the New York Stock
Exchange (or, if the Corporation Stock is no
longer traded on the New York Stock Exchange,
on such other national securities exchange on
which the Corporation Stock is listed or
national securities or central market system
upon which transactions in Corporation Stock
are reported, as either shall be designated
by the Committee for the purposes hereof) or
if sales of Corporation Stock are not
reported in any manner specified above, the
average of the high bid and low asked
quotations on such date (or if such date is
not a trading day, then on the most recent
prior date which is a trading day) in the
over-the-counter market as reported by the
National Association of Securities Dealers'
Automated System or, if not so reported, by
National Quotation Bureau, Incorporated or
similar organization selected by the
Committee.
(c) ELECTION OF FORM OF PAYMENT. Notwithstanding
(a) and (b), the Participant may elect any
future date or event with respect to the time
at which payment of the Employee Contribution
Account will be made, subject to the approval
of the Committee, in its sole discretion, and
provided that such written election is filed
with the Committee at the same time and with
respect to the Compensation that is deferred
for the same period pursuant to Section 3.1,
i.e. prior to the calendar year for which the
Compensation is deferred (except with respect
to the Plan Year ending December 31, 1995,
prior to June 16, 1995). However, in no
event shall such payment be later than 90
days after the Participant's Separation from
Service, or, if earlier, immediately
following a Change of Control.
(d) UNFORESEEABLE EMERGENCY. In the case of an
unforeseeable emergency, as defined below, a
Participant may submit a written request to
the Committee for (1) a distribution of all
or a part of his or her Employee Contribution
Account and, if fully vested, all or a part
of his or her Corporation Contribution
Account prior to the date benefits otherwise
would be payable, or (2) an acceleration of
the payment of installment payments that have
already begun. Withdrawals or acceleration
because of an unforeseeable emergency shall
be permitted only to the extent
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reasonably necessary to satisfy the
emergency. An unforeseeable emergency is a
severe financial hardship resulting from
extraordinary and unforeseeable circumstances
arising as a result of one or more recent
events beyond the control of the Participant.
The need to send the Participant's child to
college or the desire to purchase a residence
will not be considered unforeseeable
emergencies. Withdrawals or acceleration
will not be permitted to the extent such
emergency is or may be relieved: (1) through
reimbursement or compensation by insurance or
otherwise, or (2) by liquidation of the
Participant's assets, to the extent the
liquidation of such assets would not itself
cause severe financial hardship.
(e) Notwithstanding any other provision of the
Plan, a Participant shall forfeit all future
benefits payable from his or her Corporation
Contribution Account under the Plan if the
Committee determines the Participant to be
engaged in any of the following activities:
(i) Use or disclosure of Corporation or
client confidential or proprietary
information
(ii) Engaging in activities or businesses
which are substantially in
competition with the Corporation
(iii) Any other action, activity or course
of conduct which is substantially
detrimental to the Corporation's
business or business reputation
(iv) Violation of the provision of the
terms of any nondisclosure and
nonsolicitation, noncompetition, or
other contractual agreement between
the Member and the Corporation.
SECTION 4.8 CHANGE OF CONTROL. A Change of Control
shall be deemed to have occurred if:
(a) any Person, which shall mean a "person" as
such term is used in Sections 13(d) and 24(d)
of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") (other than the
Corporation, any trustee or other fiduciary
holding securities under an employee benefit
plan of the Corporation, or any company
owned, directly or indirectly, by the
stockholders of the Corporation in
substantially the same proportions as their
ownership of stock of the Corporation), is or
becomes the "beneficial owner" (as defined in
Rule 13d-3 under the Exchange Act), directly
or indirectly, of securities of the
Corporation representing 30% or more of the
combined voting power of the Corporation's
then outstanding voting securities;
(b) during any period of 24 consecutive months,
individuals who at the beginning of such
period constitute the Board, and any new
director
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whose election by the Board, or whose
nomination for election by the Corporation's
stockholders, was approved by a vote of at
least two-thirds (2/3) of the directors
(other than in connection with a contested
election) before the beginning of the period
cease, for any reason, to constitute at least
a majority thereof;
(c) the stockholders of the Corporation approve
(1) a plan of complete liquidation of the
Corporation or (2) the sale or disposition by
the Corporation of all or substantially all
of the Corporation's assets unless the
acquirer of the assets or its directors shall
meet the conditions for a merger or
consolidation in subparagraphs (d)(i) or
(d)(ii); or
(d) the stockholders of the Corporation approve
a merger or consolidation of the Corporation
with any other company other than:
(i) such a merger or consolidation which
would result in the voting
securities of the Corporation
outstanding immediately prior
thereto continuing to represent
(either by remaining outstanding or
by being converted into voting
securities of the surviving entity)
more than 70% of the combined voting
power of the Corporation's or such
surviving entity's outstanding
voting securities immediately after
such merger of consolidation; or
(ii) such a merger or consolidation which
would result in the directors of the
Corporation who were directors
immediately prior thereto continuing
to constitute more than 50% of the
directors of the surviving entity
immediately after such merger or
consolidation.
In this paragraph (d), "surviving entity"
shall mean only an entity in which all of the
Corporation's stockholders immediately before
such merger or consolidation become
stockholders by the terms of such merger or
consolidation, and the phrase "directors of
the Corporation who were directors
immediately prior thereto" shall include only
individuals who were directors of the
Corporation at the beginning of the 24
consecutive month period preceding the date
of such merger or consolidation, or who were
new directors (other than any director
nominated in connection with a contested
election or designated by a Person who has
entered into an agreement with the
Corporation to effect a transaction described
in paragraph (a), (b), (d)(i) or (d)(ii) of
this Section) whose election by the Board, or
whose nomination for election by the
Corporation's stockholders, was approved by a
vote of at least two-thirds (2/3) of the
directors before the beginning of such
period.
SECTION 4.9 DEATH BENEFITS. If a Participant dies
after he or she becomes entitled to a benefit under Section 4.6 and before
payment to the Participant has been made under Section 4.7, the balance of
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the Participant's benefit shall be paid to his or her Beneficiary in the form
of a single lump sum cash payment as soon as practicable after the death of the
Participant. "Beneficiary" shall mean any one or more persons, corporations or
trusts, or any combination thereof, last designated by the Participant to
receive the death benefits provided under the Plan. Each Participant may
designate the Beneficiary for the benefits provided on his or her death under
the Plan. Such designation may be changed from time to time. All designations
shall be made on forms provided by and filed with the Plan Administrator. If
the Committee, in its sole discretion, determines that there is not a valid
designation, the Beneficiary shall be the executor or administrator of the
Participant's estate.
SECTION 4.10 SET-OFF. Notwithstanding any other
provision of this Plan, any amounts payable to the Participant or any
beneficiary under this Plan may be used by the Corporation to set off any
indebtedness owed to the Corporation by such Participant or beneficiary for any
reason.
ARTICLE V
AMENDMENT, SUSPENSION, OR TERMINATION
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SECTION 5.1 AMENDMENT, SUSPENSION, OR TERMINATION.
The Committee may amend, suspend or terminate the Plan, in whole or in part, at
any time and from time to time by resolution adopted at a regular or special
meeting of the Committee, and only in such manner.
SECTION 5.2 NO REDUCTION. No amendment, suspension
or termination shall operate to adversely affect the benefit otherwise
available to a Participant under the Plan determined as if the Participant had
ceased being a Participant on or before the effective date of such amendment,
suspension, or termination. The value of a Participant's Deferred Compensation
Account, if any, determined as of the effective date of such amendment,
suspension or termination shall continue to be adjusted for investment results
as provided in Sections 4.1 and 4.2 until paid. Any benefit determined as of
such date shall continue to be payable as provided in Sections 4.6 through 4.8.
ARTICLE VI
ADMINISTRATION OF THE PLAN
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SECTION 6.1 NAMED FIDUCIARY. The named fiduciary of
the Plan is the Committee.
SECTION 6.2 ADMINISTRATION BY COMMITTEE. The general
administration of this Plan, as well as construction and interpretation
thereof, shall be the responsibility of the Committee, the number and members
of which shall be designated and appointed from time to time by, and shall
serve at the pleasure of the Board. Any such member of the Committee may
resign by notice in writing filed with the Secretary of the Committee.
Vacancies shall be filled promptly by the Board. The Corporation shall pay any
and all expenses incurred in the administration of the Plan.
SECTION 6.3 DELEGATION. The Board may designate one
of the members of the Committee as Chairman and may appoint a Secretary who
need not be a member of the Committee and may be a Participant in the Plan.
The Secretary shall keep minutes of the Committee's proceedings and all data,
records and documents relating to the Committee's administration of the Plan.
The Committee may appoint from its number such subcommittees with such powers
as the Committee shall determine and may
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authorize one or more members of the Committee or any agent to execute or
deliver any instrument or make any payment on behalf of the Committee.
SECTION 6.4 MAJORITY VOTE. All resolutions or other
actions taken by the Committee shall be by vote of a majority of those present
at a meeting at which a majority of the members are present, or in writing by
all the members at the time in office if they act without a meeting.
SECTION 6.5 EXCLUSIVE RIGHT TO INTERPRET PLAN.
Subject to the Plan, the Committee shall, from time to time, establish rules,
forms and procedures for the administration of the Plan. Except as herein
otherwise expressly provided, the Committee shall have the exclusive right to
interpret the Plan and to decide any and all matters arising thereunder or in
connection with the administration of the Plan. The decisions, actions and
records of the Committee shall be conclusive and binding upon the Corporation
and all persons having or claiming to have any right or interest in or under
the Plan.
SECTION 6.6 RELIANCE. The members of the Committee
and the officers and directors of the shall be entitled to rely on all
certificates and reports made by any duly appointed accountants, and on all
opinions given by any duly appointed legal counsel, which legal counsel may be
counsel for the Corporation.
SECTION 6.7 INDEMNIFICATION. No member of the
Committee shall be liable for any act or omission of any other member of the
Committee, nor for any act or omission on his or her own part. The Corporation
shall indemnify and save harmless each member of the Committee against any and
all expenses and liabilities arising out of his membership on the Committee.
Expenses against which a member of the Committee shall be indemnified hereunder
shall include, without limitation, the amount of any settlement or judgment,
costs, counsel fees, and related charges reasonably incurred in connection with
a claim asserted, or a proceeding brought or settlement thereof. The foregoing
right of indemnification shall be in addition to any other rights to which any
such member on the Committee may be entitled as a matter of law.
SECTION 6.8 ADDITIONAL POWERS. In addition to the
powers specified above, the Committee shall have the power to compute and
certify under the Plan the amount and kind of benefits from time to time
payable to Participants and their beneficiaries and to authorize all
disbursements for such purposes.
SECTION 6.9 INFORMATION. To enable the Committee to
perform its functions, the Corporation shall supply full and timely information
to the Committee on all matters relating to the compensation of all
Participants, their retirement, death or other termination of employment, and
such other pertinent facts as the Committee may require.
ARTICLE VII
GENERAL PROVISIONS
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SECTION 7.1 FUNDING. The Plan and the Rabbi Trust,
if established, constitute an unfunded arrangement and shall have the status as
an unfunded plan maintained for the purpose of providing deferred compensation
for a select group of management or highly compensated employees for purposes
of Title 1 of ERISA. The plan is not intended to be the principal source of
retirement income for the Participants or the Participants' beneficiaries.
SECTION 7.2 NONASSIGNABILITY. The interests of any
person under the Plan (other than the Corporation) shall not be subject in any
manner to anticipation, alienation, sale, transfer, assignment,
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pledge, attachment or encumbrance, or to the claims of creditors of such
person, and any attempt to effectuate any such actions shall be void.
SECTION 7.3 INTEREST OF PARTICIPANT. Except as
provided in the Rabbi Trust, if any, a Participant and the Participant's
beneficiaries, in respect of the Participant's Deferred Compensation Account,
and any benefit to be paid under the Plan, shall be and remain simply a
creditor of the Corporation in the same manner as any other creditor having a
general claim, if and when the Participant's or beneficiaries' rights to
receive payments shall mature and become payable. Except as provided in the
Rabbi Trust, if any, at no time shall the Participant be deemed to have any
right, title or interest, legal or equitable, in any asset of the Corporation,
including, but not limited to any investments held.
SECTION 7.4 LEAVES OF ABSENCE. The Committee may, in
its sole discretion, permit the Participant to take a leave of absence for a
period not to exceed one year. During such leave, the Participant will still
be considered to be in the continuous employment of this Corporation for all
purposes of this Plan.
SECTION 7.5 WITHHOLDING. The Corporation shall have
the right to deduct or withhold from the benefits paid under the Plan (or from
other amounts payable to the Participant, if necessary) all taxes which may be
required to be deducted or withheld under any provision of law (including, but
not limited to, Social Security payments, income tax withholding and any other
deduction or withholding required by law) now in effect or which may become
effective any time during the term of the Plan.
SECTION 7.6 EXCLUSIVITY OF PLAN. The Plan is
intended solely for the purpose of providing deferred compensation to the
Participants to the mutual advantage of the parties. Nothing contained in the
Plan shall in any way affect or interfere with the right of a Participant to
participate in any other benefit plan in which he or she may be entitled to
participate.
SECTION 7.7 NO RIGHT TO CONTINUED SERVICE. Neither
the Plan nor any agreements signed in relationship to the Plan, either singly
or collectively, shall obligate the Corporation in any way to continue the
employment of a Participant with the Corporation or prohibit the Corporation
from terminating a Participant's employment. Nor does this Plan or the Plan
Participation Agreement prohibit or restrict the right of a Participant to
terminate employment with the Corporation. Termination of a Participant's
employment with the Corporation, whether by action of the Corporation or by the
Participant, shall immediately terminate the Participant's future participation
in the Plan. All further obligations of either party shall be determined under
the provisions of this Plan according to the nature of the termination. The
Corporation is an at will employer.
SECTION 7.8 NOTICE. Each notice and other
communication to be given pursuant to the Plan shall be in writing and shall be
deemed given only when (a) delivered by hand, (b) transmitted by telex or
telecopier (provided that a copy is sent at approximately the same time by
registered or certified mail, return receipt requested), (c) received by the
addressee, if sent by registered or certified mail, return receipt requested,
or by Express Mail, Federal Express or other overnight delivery service, to the
Corporation at its principal office and to a Participant at the last known
address of such Participant (or to such other address or telecopier number as a
party may specify by notice given to the other party pursuant to this Section).
14
SECTION 7.9 CLAIMS PROCEDURES. If a Participant or
the Participant's Designated Beneficiary does not receive benefits to which he
or she believes he or she is entitled, such person may file a claim in writing
with the Committee. The Committee shall establish a claims procedure under
which:
(a) the Committee shall be required to provide
adequate notice in writing to the Participant
or the Designated Beneficiary whose claim for
benefits has been denied, setting forth
specific reasons for such denial, written in
a manner calculated to be understood by the
Participant or the Designated Beneficiary;
and
(b) the Committee shall afford a reasonable
opportunity to the Participant or the
Designated Beneficiary whose claim for
benefits has been denied for a full and fair
review by the Committee of the decision
denying the claim.
SECTION 7.10 NEW YORK LAW CONTROLLING. The Plan
shall be construed in accordance with the laws of the State of New York. Any
and all controversies arising under or relating to this Plan shall be
adjudicated in a court of competent jurisdiction located in the State of New
York, and the Participant hereby consents to jurisdiction in the State of New
York for purposes of said legal action.
SECTION 7.11 SEVERABILITY. Every provision of the
Plan is intended to be severable. If any provision of the Plan is illegal or
invalid for any reason whatsoever, the illegality or invalidity of that
provision shall not affect the validity or legality of the remainder of the
Plan, and the Plan shall be construed and enforced as if the illegal or invalid
provision had never been made part of the Plan.
SECTION 7.12 BINDING ON SUCCESSORS. The Plan shall
be binding upon the Participants and the Corporation, their heirs, successors,
legal representatives and assigns.
SECTION 7.13 DISCRETIONARY NATURE OF PLAN.
Participation in and determination of amounts of benefits under the Plan shall
be determined in the sole discretion of the Committee. No employee shall have
any right to receive benefits under the Plan for any reason (including but not
limited to, length of service, performance, receipt of benefits in prior
periods, and awards to other individuals) other than as determined by the
Committee acting in its sole discretion.
SECTION 7.14 TITLES. Titles to the Articles and
Sections of this of this Plan are included for convenience only and shall not
control the meaning or interpretation of any provision of this Plan.