Exhibit 10.1
COX RADIO, INC.
SAVINGS PLUS RESTORATION
PLAN
Cox Radio, Inc. (the "Plan Sponsor") hereby adopts the Cox Radio, Inc. Savings
Plus Restoration Plan (the "Plan"), effective as of January 1, 2005, for the
benefit of a select group of its employees and the employees of certain of its
affiliates that participate herein in accordance with the following terms and
conditions. The list of affiliates that participate in the Plan is attached
hereto as Exhibit A, and shall be modified from time to time by the Plan
Sponsor. The Plan Sponsor and the affiliates listed on Exhibit A hereafter shall
be referred to as the Employer.
ARTICLE I
PURPOSE OF PLAN
The purpose of the Plan shall be to provide supplemental tax-deferred savings to
eligible employees of the Employer and to their beneficiaries by allowing a
select group of management-level employees to elect to defer through salary
reduction arrangements a designated percentage of their compensation. In
addition, the Plan Sponsor may in its discretion credit supplemental matching
contributions up to certain maximum limits. The Plan is designed to allow
participants to defer compensation through combination with the Cox Enterprises,
Inc. Savings and Investment Plan (the "401(k) Plan"). The Plan shall be
administered at all times to ensure that it does not in operation violate the
contingent benefits rule in Code Section 401(k)(4)(A).
For purposes of this Plan, all capitalized terms used herein shall have the same
meaning as set forth in the 401(k) Plan, except as otherwise expressly
indicated.
ARTICLE II
ELIGIBILITY AND PARTICIPATION
2.1 General Rule
Each Employee of the Employer who is a Participant in the 401(k) Plan
shall become an Eligible Employee for purposes of the Plan with respect to any
Plan Year during which he or she satisfies one of the following requirements:
(a) the Employee's Employee Contributions to the 401(k) Plan
with respect to the Plan Year equals the dollar limit for employee pre-tax
contributions thereto under Code Section 402(g) for such Plan Year, as adjusted
by the Secretary of the Treasury for cost of living increases; or
(b) the Employee is limited under the terms of the 401(k) Plan
to a maximum Employee Contribution of six percent (6%) of Compensation, and such
Eligible Employee is contributing to the 401(k) Plan at this maximum limit.
An Eligible Employee shall be eligible to participate in the Plan as
soon as practicable after satisfying the above requirements. Notwithstanding the
foregoing, an Eligible Employee who satisfies the requirements of subsection (b)
only shall be eligible to participate in the Plan as of any July 1 next
following the end of a calendar year in which he or she satisfies those
requirements and for the next twelve months thereafter, and such an Eligible
Employee shall remain eligible as of each successive July 1 only so long as the
Eligible Employee satisfies those requirements in subsequent years.
Eligible Employees first shall be eligible to participate in the Plan
as of the Plan's effective date.
2.2 Notice of Eligibility
The Committee shall notify each Employee of his or her status as an
Eligible Employee and potential right to participate in the Plan. Employees who
become eligible to participate in the Plan by reason of section 2.1(b) shall be
notified by the Committee in a reasonably practicable period of time prior to
the appropriate July 1 with respect thereto.
2.3 Election not to Participate
Each Eligible Employee who wishes to waive the right to participate in
the Plan shall be required, after receipt of notification from the Committee in
accordance with Section 2.2 hereof, to file a waiver election in a manner
prescribed by the Committee. Such election must be made on or before the first
date upon which the Eligible Employee is eligible to participate in the Plan. If
such election is not made on or before such date, the Employee shall be deemed
to have elected to participate in the Plan in accordance with the terms of this
Article II.
2.4 Participation by Committee Approval
The Committee may, from time to time, approve certain individuals who
are not Participants in the 401(k) Plan, to become Eligible Employees for
purposes of the Plan.
ARTICLE III
EMPLOYEE SUPPLEMENTAL CONTRIBUTIONS
3.1 Employee Supplemental Contribution
Each Eligible Employee may become a Participant under the Plan by
electing to make contributions through payroll deductions to the Plan ("Employee
Supplemental Contributions") commencing in accordance with the provisions of
Article II in an amount equal to a percentage of his or her Compensation not to
exceed fifteen percent (15%), reduced by the percentage contributed thereby to
the 401(k) Plan. A Participant shall be eligible to participate in this Plan
only to the extent that he or she has (i) made the maximum pre-tax contributions
to the 401(k) Plan, as determined by Code Section 402(g), or (ii) made the
maximum pre-tax contributions to the 401(k) Plan as permitted under the terms of
such plan (including, for this purpose, provisions in the 401(k) Plan to assure
compliance with the actual deferral percentage test under Code Section
401(k)(3)). For the purpose of this Plan, and notwithstanding any provisions in
the 401(k) Plan to the contrary, the dollar limitation applied to the term
Compensation in the 401(k) Plan shall not be applicable hereunder. Except for
Employee Supplemental Contributions made pursuant to Section 3.5, Employee
Supplemental Contributions shall continue to be made for each Participant at the
rate elected until the Participant elects to change the rate of contribution or
to end such contributions pursuant to Section 3.3, subject to the power of the
Committee to distribute elected Employee Supplemental Contributions to any
Participant to the extent such Participant's Employee Supplemental Contributions
exceed the maximum limit for Employee Supplemental Contributions set forth in
this Section 3.1 or the limits specified in Article IV.
3.2 Allocation and Investment Return of Employee and Employer Supplemental
Contributions
(a) Allocation
The Employee Supplemental Contributions and Employer
Supplemental Contributions, as defined below, of each Participant shall be
credited to the Participant's Plan Accounts, as defined in Article VI.
(b) Rate of Return
Each Participant shall be credited with a rate of return not
less than 5 percent for any Plan Year on Employee Supplemental Contributions and
Employer Supplemental Contributions. The rate of return will be determined
annually by the Plan Sponsor; provided, that the minimum rate of return for any
Plan Year will be 5 percent.
3.3 Participant Elections
The elections described in Section 3.1 shall be made under procedures
and on forms established by the Committee. The following elections may be made
at least 30 days prior to the beginning of any payroll period to take effect
with respect to that payroll period: (a) an election to contribute to the Plan
if the Eligible Employee is not already contributing, and (b) an election to
change the percentage of Compensation which shall be contributed to the Plan by
the Participant. A Participant who elects to stop making Employee Contributions
to the 401(k) Plan shall be deemed to have elected to stop making Employee
Supplemental Contributions to this Plan. A Participant cannot elect to stop
contributing to the Plan during a Plan Year unless he or she also elects to stop
contributing to the 401(k) Plan.
3.4 Employee Supplemental Contributions for Participants Eligible by
Committee Approval
Notwithstanding any provisions of the Plan to the contrary, each
Employee who becomes an Eligible Employee by Committee approval in accordance
with Section 2.4 may elect to become a Participant under the Plan by electing to
make Employee Supplemental Contributions in an amount equal to a percentage of
his or her Compensation not to exceed fifteen percent (15%), reduced by the
percentage that would be contributed to the 401(k) Plan on his or her behalf as
if such Employee were participating in the 401(k) Plan.
3.5 Bonus Deferral Program
Notwithstanding the 15% Compensation limit contained in Section 3.1 and
3.4, each Participant who is eligible to participate in the Bonus Deferral
Program may elect to defer up to an additional 75% (in 5% increments) of his or
her annual bonus under the Plan as an Employee Supplemental Contribution. The
election described in this Section 3.5 must be made by March 31st of each year
the bonus is earned. Once made, such election may not be revoked under any
circumstances. A Participant who has waived participation in the Plan or has
stopped contributing to the Plan and the 401(k) Plan must rescind their waiver
or resume participation to take advantage of the additional contribution
provided in this Section 3.5.
ARTICLE IV
EMPLOYER SUPPLEMENTAL CONTRIBUTIONS
4.1 Employer Supplemental Contribution
In each Plan Year, the Employer will provide a credit with respect to
each Participant in an amount equal to 50 percent of such Participant's Employee
Supplemental Contributions for such Plan Year up to a maximum credit equal to
the lesser of (a) an amount equal to 50 percent of 6 percent of his or her
Compensation, or (b) six thousand dollars ($6,000) (the "Employer Supplemental
Contributions"). Notwithstanding the foregoing, the maximum Employer
Supplemental Contribution that otherwise may be credited to a Participant under
this Plan shall be reduced by the Employer Contributions allocated to such
Participant in the same Plan Year under the 401(k) Plan.
4.2 Participant Need Be Employed
The Employer Supplemental Contributions credited by the Employer with
respect to a Plan Year shall not be credited to a Participant if the Participant
Terminates Employment prior to the end of such Plan Year, except where the
termination was due to retirement, death or disability.
4.3 Employer Supplemental Contributions for Participants Eligible by
Committee Approval
Notwithstanding any provisions of the Plan to the contrary, the
Employer may in its discretion provide a credit in accordance with Section 4.1
with respect to each Employee who becomes an Eligible Employee by Committee
approval in accordance with Section 2.4, reduced by the Employer Contribution
which would be allocated to such Employee as if such Employee were participating
in the 401(k) Plan.
ARTICLE V
ACCOUNTS AND CONTRIBUTIONS
The Employer shall establish and maintain the following separate bookkeeping
accounts for each Participant to reflect all amounts deferred or credited under
this Plan:
(a) An Employee Supplemental Contribution Account for each
Participant to which shall be credited Employee Supplemental Contributions under
Sections 3.1, 3.4 and 3.5.
(b) An Employer Supplemental Contribution Account for each
Participant to which shall be credited Employer Supplemental Contributions
credited to such Participant under Sections 4.1 and 4.3.
For all purposes under the Plan, the Employee Supplemental Contributions Account
and the Employer Supplemental Contributions Account collectively shall be
referred to as the Plan Accounts.
All Employee Supplemental Contributions shall be credited to the Employee
Supplemental Contribution Account as soon as administratively practicable. All
Employer Supplemental Contributions shall be credited to the Employer
Supplemental Contribution Account only once a year, and on or before the last
day of the first calendar quarter of the Plan Year next following the Plan Year
for which such Employer Supplemental Contributions are to be credited.
ARTICLE VI
BENEFICIARIES
Upon becoming a Participant in the Plan, each Employee shall designate a primary
Beneficiary and one or more secondary Beneficiaries. The procedure and
administrative forms used to designate Beneficiaries shall be determined by the
Committee. The Beneficiary of any unmarried Participant who does not designate a
Beneficiary under this Article VI shall be the same Beneficiary designated
thereby under the 401(k) Plan. For purposes of this Article VI, in the case of a
Participant (including a Former Participant) who is married on the date of
death, the Participant's Beneficiary automatically shall be the Participant's
surviving spouse unless the Participant has elected under the Plan to have such
benefit distributed to a Beneficiary other than the Participant's spouse. Such
an election shall be effective only if the Participant's spouse as of the date
of death has consented in writing to the election, such consent is witnessed by
a notary public and acknowledges the effect of the election. Such spousal
consent is not required if the Committee is satisfied that the Participant's
spouse cannot be located.
ARTICLE VII
RETIREMENT BENEFITS
7.1 Benefit Determination
Upon the retirement of the Participant on or after his or her Early Retirement
Date or Normal Retirement Date, the Participant shall be entitled to receive a
benefit equal in value to the sum of the amounts credited to the Participant's
Plan Accounts as of the date such benefits are distributed. Such benefit shall
be paid in accordance with the provisions of Article X.
7.2 Request for Alternative Benefit Distribution
(a) A Participant may request that Plan benefits be paid
thereto on account of retirement on or after such Participant's Normal
Retirement Date or Early Retirement Date may be paid in any alternative form
described in subparagraph (b) below, subject to approval of any such election by
the Committee acting in its sole discretion.
(b) A Participant may request that the benefit payable under
the Plan to him or her be payable in the form of a lump sum payment payable
immediately or in the form of annual installments for a maximum period of five
(5), ten (10) or fifteen (15) years commencing on the first day of any month
designated by the Committee.
7.3 Committee Approval
The Committee retains the absolute right, in its sole discretion, to approve or
reject any request for an alternative benefit distribution within the provisions
of this Article VII. The Committee shall determine the procedures and may
designate administrative forms to be used by Participants when making a request
permitted under this Article VII.
ARTICLE VIII
DEATH BENEFITS
8.1 Benefit Determination
Upon the death of a Participant prior to retirement or Termination of
Employment, the designated Beneficiary of the deceased Participant shall be
entitled to receive a benefit equal in value to the sum of the amount then
credited to the Participant's Plan Accounts as of the date such benefits are
distributed. Such benefit shall be paid to the Beneficiary in a lump sum
payment. Upon the death of a Former Participant to whom payment of benefits has
not been completed, the Designated Beneficiary shall be entitled to receive the
remainder of the benefit payments due to the Former Participant in the form and
in the amount selected by the Former Participant prior to death; if no such form
had been selected by the Former Participant prior to death, any benefit amount
payable shall be made in a lump sum payment.
8.2 Request for Alternative Death Benefit Distribution.
(a) A Beneficiary may request that Plan benefits be paid
thereto on account of the death of a Participant or Former Participant may be
paid in any alternative form described in subparagraph (b) below, subject to
approval of any such election by the Committee acting in its sole discretion.
(b) A Beneficiary of a Participant actually employed at death
may request that the benefit payable under the Plan to him or her be payable in
the form of a payment of annual installments for a maximum period of five (5),
ten (10) or fifteen (15) years commencing on the first day of any month
designated by the Committee. The Beneficiary of a Former Participant who prior
to death had elected a form of benefit payment may request that the benefit
payable under the Plan to him or her be payable in the form of a lump sum
payment.
8.3 Proof of Death
The Committee may require such proof of death and such evidence of the right of
any person to receive death benefit payments under the Plan as it may deem
appropriate, and its determination shall be conclusive and binding.
ARTICLE IX
EMPLOYMENT TERMINATION BENEFITS
9.1 Benefit Determination
Upon terminating employment, a Participant shall be entitled to receive a
benefit equal in value to the sum of the amount credited to the Participant's
Plan Accounts as of the date such benefits are distributed. Such benefit shall
be paid in accordance with the provisions of Article X.
9.2 Request for Alternative Benefit Distribution
A Participant may request that Plan benefits be paid thereto on account of
termination of employment before his or her Early Retirement Date be paid in any
alternative form described below, subject to approval of any such election by
the Committee acting in its sole discretion.
A Participant may request that the benefit payable under the Plan to him or her
be payable in the form of a lump sum payment payable immediately or the form of
the payment of annual installments for a maximum period of five (5), ten (10)
years or fifteen (15) years commencing on the first day of any month designated
by the Committee.
9.3 Committee Approval
The Committee retains the absolute right, in its sole discretion, to approve or
reject any request for an alternative benefit distribution within the provisions
of this Article X. The Committee shall determine the procedures and may
designate administrative forms to be used by Participants when making a request
permitted under this Article IX.
ARTICLE X
PAYMENT OF BENEFITS
10.1 Timing of Payment
As soon as practicable after the Participant retires or attains age 65,
whichever is later, the Committee shall cause the total balance credited to such
Participant's Plan Accounts to be paid to the Participant or to his or her
Beneficiary, as appropriate, in the form of a lump sum payment.
Notwithstanding any provisions of the Plan to the contrary, if the total balance
in a Participant's Plan Accounts at the time the Participant Terminates
Employment or retires is $3,500 or less, including any distributions previously
made to such Participant, then such balance shall be paid to the Participant in
a lump sum payment as soon as practicable after the date the Participant
Terminates Employment or retires.
10.2 Mode of Benefit Payment
The distribution of all benefits under the Plan whenever paid, shall be made in
cash.
10.3 Inability to Locate Benefit Recipient
If, after a reasonable effort has been made, the Committee is unable to locate a
Participant or Beneficiary entitled to receive a benefit provided for in the
Plan, the Plan Sponsor shall follow procedures determined by the Committee, in
its sole discretion.
10.4 Claims Procedure
All claims shall be processed in accordance with the claims procedure described
in the Summary Plan Description for the Plan.
ARTICLE XI
IN-SERVICE WITHDRAWALS
In the event that a Participant suffers an unforeseeable, immediate and heavy
financial need which cannot reasonably be met from other sources, the
Participant may request a withdrawal from his or her Plan Accounts in an amount
not to exceed that amount needed to meet the immediate and heavy financial need.
The Participant must first submit a written withdrawal request to the Employer
explaining the nature of the hardship and the amount required to meet the
financial need. The Participant will be required to certify that the need cannot
be reasonably met from other sources. The determination of financial need and
lack of availability of funds from other sources will be made by the Committee,
in its sole discretion. No withdrawal may be made under this Article XI for an
amount less than $10,000 and no withdrawal can be made less than 12 months after
the last previous withdrawal.
ARTICLE XII
INALIENABILITY OF BENEFITS
The right of any Participant or Beneficiary to any benefit provided under the
Plan or to the property contained in any separate Plan Account shall not be
subject to voluntary or involuntary transfer, alienation or assignment, and (to
the fullest extent permitted by law) shall not be subject to attachment,
execution, garnishment, sequestration or other legal or equitable process. In
the event a Participant or Beneficiary who is receiving or is entitled to
receive a benefit provided under the Plan attempts to assign, transfer or
dispose of such right, or if an attempt is made to subject said right to such
process, such assignment, transfer or disposition shall be null and void.
ARTICLE XIII
ADMINISTRATION AND FIDUCIARIES
13.1 General
The Employer shall have the sole responsibility for crediting the
contributions required under Articles IV and V. The Plan Sponsor shall have the
sole responsibility for appointing the Committee. It is intended that the Plan
Sponsor and the Committee shall be responsible only for the proper exercise of
their own powers, duties, responsibilities and obligations under the Plan and
shall not be responsible for any act or failure to act of another.
13.2 Named Fiduciaries.
(a) General
The following fiduciaries (referred to hereinafter individually as a "Named
Fiduciary" and collectively as "Named Fiduciaries") shall be responsible for the
control, management and administration of the Plan and the control:
(1) the Plan Sponsor;
(2) the Board of Directors of the Plan Sponsor;
(3) the Employer; and
(4) the Committee.
Each Named Fiduciary shall have only such powers and responsibilities as are
expressed in the Plan, and any power or responsibility for the control,
management or administration of the Plan which is not expressly allocated to any
Named Fiduciary, or with respect to which an allocation is in doubt, shall be
deemed allocated to the Plan Sponsor. Each Named Fiduciary shall have no
responsibility to inquire into the acts and omissions of any other Named
Fiduciary in the exercise of powers or the discharge of responsibilities
assigned to such other Named Fiduciary under the Plan.
(b) Allocation of Responsibility
Any Named Fiduciaries may, by agreement among themselves, allocate any
responsibility or duty assigned to a Named Fiduciary under this Plan, to one or
more other Named Fiduciaries, provided, that any agreement respecting such
allocation shall be in writing and shall be filed by the Committee with the
records of the Plan. No such agreement shall be effective as to any Named
Fiduciary which is not a party to such agreement until such Named Fiduciary has
so consented in writing filed with the Committee. Any Named Fiduciary may, by
written instrument filed by the Committee with the records of the Plan,
designate a person who is not a Named Fiduciary to carry out any of its
responsibilities under the Plan, provided, that no such designation shall be
effective as to any other Named Fiduciary until such other Named Fiduciary has
received written notice of such designation.
(c) Employees of Fiduciaries
Any Named Fiduciary, or a person designated by a Named Fiduciary to perform any
responsibility of a Named Fiduciary pursuant to the procedure described in the
preceding paragraph, may employ one or more persons to render advice with
respect to any responsibility such Named Fiduciary has under the Plan or such
person has by virtue of such designation.
(d) Multiple Roles
Any person may serve in more than one fiduciary capacity with respect to the
Plan, and any person who is a fiduciary may be a Participant if he or she
otherwise satisfies the applicable Plan requirements to be a Participant.
13.3 The Committee
(a) Administration of the Plan.
The Plan Sponsor shall administer the Plan through the Committee, which shall
have all powers necessary to administer the Plan; to construe and interpret the
Plan documents; to decide all questions relating to an individual's eligibility
to participate in the Plan; to determine the amount, manner and time of any
distribution of benefits or withdrawal under the Plan; to resolve any claim for
benefits; and to appoint or employ advisors, including legal counsel, to render
advice with respect to any of the Committee's responsibilities under the Plan.
Any construction, interpretation or application of the Plan by the Committee
shall be final, conclusive and binding.
(b) Records and Reports
The Committee shall be responsible for maintaining sufficient records deemed
necessary to allow it to administer the Plan.
(c) Allocation of Duties and Responsibilities
The Committee may by written instrument designate other persons to carry out any
of its duties and responsibilities under the Plan. Any such duties or
responsibilities thus allocated must be described in the written instrument. If
a person other than an Employee of the Employer is so designated, such person
must acknowledge in writing his or her acceptance of the duties and
responsibilities allocated to him or her. The Employer shall pay all expenses
authorized and incurred by the Committee in the administration of the Plan.
(d) Liabilities
The Committee shall be indemnified and held harmless by the Plan Sponsor with
respect to any liability, assessment, loss, expense or other cost, of any kind
or description whatsoever, including legal fees and expenses, actually incurred
by a member of the Committee on account of any alleged breach of
responsibilities performed or to be performed hereunder or any action or
proceeding, actual or threatened, which arises as a result of being a member of
the Committee, provided such action or allegation does not arise as a result of
the member's own gross negligence, willful misconduct or lack of good faith.
ARTICLE XIV
FUNDING
The Employer's obligations under this Plan shall be general obligations of the
Employer and shall not be secured in any manner. No asset of the Employer shall
be placed in trust or in escrow or otherwise physically or legally segregated
for the benefit of any Participant or his or her spouse or beneficiaries and the
eventual payment of benefits under this Plan shall not be secured by the
issuance of any negotiable instrument or other evidence of indebtedness of the
Employer. No Participant, beneficiary or other person shall be deemed to have
any property interest, legal or equitable, in any specific assets of the
Employer as a result of the benefits provided by this Plan. To the extent that
any person acquires any right to receive payments under this Plan, that right
shall be no greater than, nor shall it have any preference or priority over, the
rights of any unsecured general creditor of the Employer. In no event shall any
of the directors, officers or employees of the Employer or an Affiliate be
liable in their individual capacities to any person whomsoever for the payment
of benefits under the Plan.
ARTICLE XV
AMENDMENT OF THE PLAN
The Plan Sponsor shall have the right at any time, and from time to time, to
amend, in whole or in part, any or all of the provisions of this Plan by formal
action of the Board, or a committee thereof, in accordance with state law either
at a regularly scheduled meeting of the Board, or a committee thereof, or by
written consent. Any written amendment to the Plan under this Article XV shall
be executed by the Plan Sponsor on behalf of the Employer.
ARTICLE XVI
TERMINATION OF PLAN AND
DISCONTINUANCE OF CONTRIBUTIONS
The Plan Sponsor shall have the right, at any time, to terminate or partially
terminate the Plan by formal action of the Board, or a committee thereof, in
accordance with state law either at a regularly scheduled meeting of the Board,
or a committee thereof, or by written consent. The Plan Sponsor shall distribute
amounts in the Employee Supplemental Contribution Account and the Employer
Supplemental Contribution Account to all affected Participants in accordance
with the Plan Accounts of each participant at the time of distribution in such
manner as the Plan Sponsor shall determine in accordance with all applicable
law.
ARTICLE XVII
MISCELLANEOUS
17.1 Participants' Rights
Except as may be otherwise specifically provided by law, neither the
establishment of the Plan nor any modification thereof, nor the creation of any
Plan Account, nor the payment of any benefit, shall be construed to give to any
Participant or to any other person a legal or equitable right against the Plan
Sponsor, the Employer, any director, officer or employee thereof or the
Committee. Under no circumstances shall the terms of employment of any Employee
be deemed to have been modified or in any way affected by the establishment of
the Plan, and nothing contained in this Plan document or any related document
shall require the Employer to retain any Employee in its service.
17.2 Claims
Any payment to a Participant or Beneficiary or to their legal
representative, or heirs-at-law, made in accordance with the provisions of this
Plan shall to the extent thereof be in full satisfaction of all claims hereunder
against the Plan Sponsor, the Committee and the Employer, any of whom may
require such person, his or her legal representative or heirs-at-law, as a
condition precedent to such payment, to execute a receipt and release therefor
in such form as shall be determined by the Plan Sponsor, the Committee or the
Employer as the case may be.
17.3 Agent for Service of Process
The agent for service of process for the Plan shall be the person
currently listed in the records of the Secretary of State of Georgia as the
agent for service of process for the Plan Sponsor.
17.4 Construction of Agreement
To the extent not preempted by federal law, the Plan shall be construed
in accordance with the laws of the State of Georgia.
17.5 Savings Clause
In the event that any one or more of the terms, conditions, or
provisions, or any part thereof, contained in this Plan, or the application
thereof to any person or circumstance, shall for any reason, in any respect, or
to any extent be held to be invalid, illegal, or unenforceable by any court or
governmental agency of competent jurisdiction, such invalidity, illegality, or
unenforceability shall not affect the remainder of such term, condition, or
provision, nor any other provision of this Plan, nor the application of such
term, condition, or provision to persons or circumstances other than those as to
which it is held invalid, illegal, or unenforceable, and this Plan shall be
construed as if such invalid, illegal, or unenforceable term, condition, or
provision had never been contained herein, and each term, condition, or
provision hereof shall be valid and enforced to the fullest extent permitted by
law.
17.6 Headings
Headings of articles, sections and paragraphs of the Plan have been
inserted for convenience of reference and constitute no part of the Plan.
17.7 Tax Consequences
The Plan is intended to postpone the application of income taxes on
amounts credited to the Plan Accounts. However, notwithstanding anything to the
contrary, the Employer makes no representation regarding the tax consequences of
participation in this Plan. Amounts contributed to or paid from the Plan may be
subject to income, payroll or other taxes and the Employer may withhold taxes
from any payment, as required under federal, state and local laws.
17.8 Entire Plan
This Plan contains the entire understanding and undertaking of the Plan
Sponsor and its Affiliates with respect to the subject matter hereof, and
supersedes any and all prior and contemporaneous undertakings, agreements,
understandings, inducements or conditions, whether express or implied, oral or
written, except as herein contained. This Plan may not be modified or amended
other than by a written document adopted or executed pursuant to the terms
hereof.
17.9 Plan Binding on All Parties
This Plan shall be binding upon the parties hereto, their successors
and assigns, and upon all Participants and their Beneficiaries, heirs,
executors, administrators and assigns.
17.10 Effective Date
It is the intention of the Employer that the Plan shall comply with any
requirements of Title I of ERISA applicable to the Plan, and the terms of the
Plan shall be interpreted and administered so as to accomplish that result. The
Plan shall be placed into effect as of January 1, 2005