EXHIBIT 10(n)
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THE EXECUTIVE NON-QUALIFIED EXCESS PLAN
ADOPTION AGREEMENT
THIS AGREEMENT is made the 31st day of December, 2001, by Employers
Mutual Casualty Company (the "Employer"), having its principal office at 000
Xxxxxxxx, Xxx Xxxxxx, XX 00000 and EXECUTIVE BENEFIT SERVICES, INC. (the
"Sponsor"), having its principal office at 000 Xxxxxxxxxxxx Xxxxxx, Xxxxx
0000, Xxxxxxx, Xxxxx Xxxxxxxx 00000.
W I T N E S S E T H:
WHEREAS, the Sponsor has established The Executive Non-qualified Excess
Plan (the "Plan"); and
WHEREAS, the Employer desires to adopt the Plan as an unfunded,
non-qualified deferred compensation plan, for the benefit of the
Employer's X Employees and/or Independent Contractors;
--- ----
NOW, THEREFORE, the Employer hereby adopts the Plan in accordance with
the terms and conditions set forth in this Adoption Agreement:
ARTICLE I
Terms used in this Adoption Agreement shall have the same meaning as in
the Plan, unless some other meaning is expressly herein set forth. The
Employer hereby represents and warrants that the Plan has been adopted by
the Employer upon proper authorization and the Employer hereby elects to
adopt the Plan for the benefit of its Participants as referred to in the
Plan. By the execution of this Adoption Agreement, the Employer hereby
agrees to be bound by the terms of the Plan.
This Adoption Agreement may only be used in connection with The
Executive Non-qualified Excess Plan. The Sponsor will inform the Employer of
any amendments to the Plan or of the discontinuance or abandonment of the
Plan. For questions concerning the Plan, the Employer may call the Sponsor
at (000) 000-0000.
ARTICLE II
The Employer hereby makes the following designations or elections for
the purpose of the Plan [Section references below correspond to Section
references in the Plan]:
2.4 Adjustment Date: The Deferred Compensation Account of Participants
shall be adjusted for the amount of any Salary Deferral Credits, Employer
Matching Credits and Employer Performance Incentive Credits to such account
on the last business day of each Plan Year and such other times as may be
designated below [check any additional desired Adjustment Dates]:
___ (i) The last business day of each calendar quarter during the
Plan Year.
___ (ii) The last business day of each month during the Plan Year.
X (iii) The last business day of each payroll period during the Plan
--- Year.
___ (iv) Each day securities are traded on a national stock exchange.
___ (v) Other [specify] _________________________________________
_____________________________________________________.
2.9 Compensation: The "Compensation" of a Participant shall mean all of
each Participant's [check desired option(s)]:
X (i) compensation received as an Employee reportable in box 1,
--- Wages, Tips and other Compensation, on Form W-2.
___ (ii) annual base salary.
___ (iii) annual bonus.
___ (iv) long term incentive plan compensation.
___ (v) compensation received as an Independent Contractor reportable
on Form 1099.
___ (vi) other [specify] _______________________________________
___________________________________________________.
Notwithstanding the foregoing, Compensation _X_ SHALL ____ SHALL NOT include
Salary Deferral Credits under this Plan and amounts contributed by the
Participant pursuant to a Salary Deferral Agreement to another employee
benefit plan of the Employer which are not includible in the gross income of
the Employee under Section 125, 402(e)(3), 402(h) or 403(b) of the Code.
2.13 Effective Date: [check desired option]:
___ (i) This is a newly-established Plan, and the Effective Date of
the Plan is ____________________.
X (ii) This is an amendment and restatement of the Plan (Employers
--- Mutual Casualty Company Excess Deferral Plan) with an
effective date of January 1, 2001, and the Effective Date of
this amended and restated Plan is January 1, 2002. This is
amendment number 1.
2.20 Normal Retirement Age: The Normal Retirement Age of a Participant
shall be [check desired option]:
X (i) Age 65.
---
___ (ii) The later of age ____ or the ______ anniversary of the
participation commencement date. The participation
commencement date is the first day of the first Plan Year in
which the Participant commenced participation in the Plan.
2.22 Participating Employer(s): As of the Effective Date, the following
Participating Employer(s) are parties to the Plan [list all employer-
Parties, including the Employer]:
Name of Employer Address Telephone No. EIN
Employers Mutual Casualty X.X. Xxx 000 515-280-2772 00-0000000
Xxx Xxxxxx, XX 00000
Modern Life Company SAME
Farm & City Insurance Co. SAME
2.23 Plan: The name of the Plan as applied to the Employer is
Executive Non-qualified Excess Plan of Employers Mutual Casualty
2.24 Plan Administrator: The Plan Administrator shall be [check desired
option]:
___ (i) Committee.
X (ii) Employer.
---
___ (iii) Other (specify): .
2.25 Plan Year: The Plan Year shall be the 12 consecutive calendar
month period ending on the last day of the month of December, and each
anniversary thereof.
2.33 Trust: [check desired option]:
___ (i) The Employer does desire to establish a "rabbi" trust for the
purpose of setting aside assets of the Employer contributed
thereto for the payment of benefits under the Plan.
X (ii) The Employer does not desire to establish a "rabbi" trust for
--- the purpose of setting aside assets of the Employer
contributed thereto for the payment of benefits under the
Plan.
2.35 Years of Service: For vesting purposes, Years of Service of a
Participant shall be calculated from the date designated below [check
desired option]:
X (i) First Day of Service.
---
___ (ii) Effective Date of the Plan.
___ (iii) Plan Entry Date
___ (iiii) Each Contribution Date. Under this option (iiii), each
Employer Matching Credit or Performance Incentive Credit shall vest in
accordance with the applicable schedule selected in Section 7 of this
Adoption Agreement based on the Years of Service of a Participant from the
Adjustment Date on which each Employer Matching Credit or Performance
Incentive Credit is credited to his or her Deferred Compensation Account.
3.1 Salary Deferral Credits: A Participant may elect to have his
Compensation (as selected in Section 2.9 of this Adoption Agreement) reduced
by the following percentage or amount per pay period, or for a specified pay
period or periods, as designated in writing to the Committee [check the
applicable options]:
X (i) annual base salary:
--- [complete the following blanks only if a minimum or maximum
deferral is desired]:
minimum deferral: $__________ or __________%
maximum deferral: $__________ or 25 %
___ (ii) annual bonus:
[complete the following blanks only if a minimum or maximum
deferral is desired]:
minimum deferral: $__________ or __________%
maximum deferral: $__________ or __________%
___ (iii) other [please specify type, as selected in Section 2.9 of
this Adoption Agreement]: ___________________:
[complete the following blanks only if a minimum or maximum
deferral is desired]:
minimum deferral: $__________ or __________%
maximum deferral: $__________ or __________%
___ (iv) no salary deferral provision.
3.1.3 Termination of Salary Deferrals: A Participant may terminate his
Salary Deferral Agreement effective as of [check desired option]:
X (i) the first full payroll period commencing after the date
--- written notice of the termination is received by the
Committee.
___ (ii) the January 1 occurring after the date written notice of the
termination is received by the Committee.
3.2 Employer Matching Credits: The Employer may make matching credits
to the Deferred Compensation Account of each eligible Participant in an
amount determined as follows [check desired option(s)]:
Participants eligible to receive an Employer Match are defined as follows:
o Title of EMPLOYERS MUTUAL CASUALTY COMPANY Vice President or above,
President of Employers Modern Life Company,
President of Farm & City Insurance Company.
o Earnings in the top 10% of employees.
o Currently deferring the maximum allowed into the 401(k) qualified plan.
___ (i) ____% of the Participant's Salary Deferral Credits.
X (ii) 100 % of the first 5 % of the Participant's Compensation which is
--- elected as a Salary Deferral Credit.
___ (iii) An amount determined each Plan Year by the Employer.
___ (iv) The Employer shall decide from year to year whether matching
credits will be made and shall notify Participants annually of the
manner in which matching credits will be calculated for the
subsequent year.
___ (v) The Employer shall not match amounts provided above in excess
of $______________, or in excess of ___% of the Participant's
Compensation per Plan Year.
___ (vi) No Employer matching credits provision.
3.3 Employer Performance Incentive Credits: The Employer may make
performance incentive credits to the Deferred Compensation Account of each
Active Participant in an amount determined as follows:
___ (i) Such amount out of the current or accumulated net profit of the
Employer for such year as the Employer in its sole discretion
shall determine.
___ (ii) Such amount as the Employer in its sole discretion shall determine
without regard to current or accumulated net profit.
___ (iii) The Employer shall not make Performance Incentive Credits in
excess of $__________, or in excess of ____% of the Participant's
Compensation per Plan Year.
X (iv) No Employer performance incentive credits provision.
---
4.1 Death of a Participant: If the Participant dies while in Service,
the Employer shall pay a benefit to the Beneficiary in an amount equal to
the Accrued Benefit of the Participant determined as of the date payments to
the Beneficiary commence, plus [check if desired]:
___ (i) An amount to be determined by the Committee.
___ (ii) A lump sum of $ ____________.
___ (iii) _____ times the annual base salary of the Participant at his date
of death.
___ (iv) Other [specify]:
________________________________________.
X (v) No additional benefits.
---
4.4.2 Early Retirement: The Employer may elect to provide for Early
Retirement. If Early Retirement is permitted, it shall be subject to the
following eligibility requirements [check desired option and fill in
appropriate blanks]:
___ (i) Completion of _____ Years of Service.
X (ii) Attainment of age 55 .
---
___ (iii) Completion of _____ Years of Service and attainment of age ____.
___ (iv) No Early Retirement provisions.
5.1 Regular In-Service withdrawals: [check desired option]:
___ (i) The Employer does elect to permit regular in-service withdrawals
by a Participant from his Deferred Compensation Account.
X (ii) The Employer does not elect to permit regular in-service
--- withdrawals by a Participant from his Deferred Compensation
Account.
5.3 "Haircut" Withdrawals: [check desired option]:
X (i) The Employer does elect to permit "haircut" withdrawals by a
--- Participant from his Deferred Compensation Account.
Specify percentage (not less than 10%) of amount withdrawn that
shall be forfeited: 10 %
___ (ii) The Employer does not elect to permit "haircut" withdrawals by a
Participant from his Deferred Compensation Account.
5.4 College Education Withdrawals: [check desired option]:
___ (i) The Employer does elect to permit college education withdrawals
by a Participant from his Deferred Compensation Account.
X (ii) The Employer does not elect to permit college education
--- withdrawals by a Participant from his Deferred Compensation
Account.
6.1 Payment Options: Any benefit payable under the Plan may be made to
the Participant or his Beneficiary (as applicable) in any of the following
payment forms, as selected by the Participant upon his entry into the Plan
[check desired option(s)]:
X (i) A lump sum in cash as soon as feasible following the date
--- Participant's service with the Employer terminates for any reason
(including Retirement, Disability or death).
X (ii) Approximately equal annual installments over a term of 5 or 10
--- years as elected by the Participant upon his entry into the Plan.
Payment of the benefit shall commence as of the following date
[select desired option]:
___ The first business day of the calendar year following the
date Participant's service with the Employer terminates for
any reason (including Retirement, Disability or death).
___ The first business day of the calendar quarter following the
date Participant's service with the Employer terminates for
any reason (including Retirement, Disability or death).
X The first business day of the calendar month following the
--- date Participant's service with the Employer terminates for
any reason (including Retirement, Disability or death).
The payment of each annual installment shall be made on the
anniversary of the date selected for the commencement of the
installment payments in this subsection (ii). The amount of the
annual installment shall be adjusted on each anniversary date of
the commencement of the installment payments for credits or debits
to the Participant's account pursuant to Section 8 of the Plan.
Such adjustment shall be made by dividing the balance in the
Deferred Compensation Account on each such date (following
adjustment on such date) by the number of annual installments
remaining to be paid hereunder; provided that the last annual
installment due under the Plan shall be the entire amount credited
to the Participant's account on the date of payment.
___ (iii) Other [specify]: __________________________________
7. Vesting:
(i) Vesting of Employer Matching Credits: The nonforfeitable
percentage of each Participant in his Accrued Benefit attributable
to any applicable Employer Matching Credits shall be as follows
[check (a), (b), (c), (d), (e), (f) or (g)]:
___ (a) Immediate 100% vesting.
X (b) 100% vesting after 5 Years of Service.
---
___ (c) 100% vesting at age ____.
___ (d) Number of Years Vested
of Service Percentage
Less than 1 0%
1 20%
2 40%
3 60%
4 80%
5 or more 100%
___ (e) Number of Years Vested
of Service Percentage
Less than 3 0%
3 20%
4 40%
5 60%
6 80%
7 or more 100%
___ (f) Number of Years Vested
of Service Percentage
Less than 1 %
1 %
2 %
3 %
4 %
5 %
6 %
7 %
8 %
9 %
10 or more %
___ (g) Not applicable
In addition, the nonforfeitable percentage of each Participant in his
Accrued Benefit attributable to any applicable Employer Matching Credits
__X__SHALL _______SHALL NOT become 100% vested at the Death, Disability or
Retirement of the Participant, or Plan Termination.
(ii) Vesting of Employer Performance Incentive Credits: The
nonforfeitable percentage of each Participant in his Accrued
Benefit attributable to any applicable Employer Performance
Incentive Credits shall be as follows [check (a), (b), (c), (d),
(e), (f) or (g)]:
___ (a) Immediate 100% vesting.
___ (b) 100% vesting after ____ Years of Service.
___ (c) 100% vesting at age ____.
___ (d) Number of Years Vested
of Service Percentage
Less than 1 0%
1 20%
2 40%
3 60%
4 80%
5 or more 100%
___ (e) Number of Years Vested
of Service Percentage
Less than 3 0%
3 20%
4 40%
5 60%
6 80%
7 or more 100%
___ (f) Number of Years Vested
of Service Percentage
Less than 1 %
1 %
2 %
3 %
4 %
5 %
6 %
7 %
8 %
9 %
10 or more %
X (g) Not applicable
---
In addition, the nonforfeitable percentage of each Participant in his
Accrued Benefit attributable to any applicable Employer Performance
Incentive Credits ____ SHALL __X__ SHALL NOT become 100% vested at the
Death or Disability of the Participant.
14. Amendment or Termination of Plan: [check or complete all that apply]:
___ (i) Notwithstanding any provision in this Adoption Agreement or the
Plan to the contrary, Section _____ of the Plan shall be
amended to read as follows:
See attached Exhibit ____.
X (ii) The Plan shall be terminated upon the occurrence of one or more
--- of the following events [check if desired]:
___ (a) The amount of shareholders equity shown on the
financial statements of the Employer for each of the
two most recent fiscal years is less than $__________.
___ (b) The aggregate net loss (after tax) as reported on the
financial statements of the Employer for the two most
recent fiscal years is greater than $____________.
___ (c) There is a change of control of the Employer. For
this purpose, a "change of control" shall be deemed to
have occurred if: (A) any person other than an officer
who is an employee of the Employer for at least one
year preceding the change of control, acquires or
becomes the beneficial owner, directly or indirectly,
of securities of the Employer representing _____ %
[insert percentage] or more of the combined voting
power of the Employer's then outstanding
securities and thereafter, the membership of the Board
becomes such that a majority are persons who were not
members of the Board at the time of the acquisition of
securities; or (B) the Employer, or its assets, are
acquired by or combined with another entity and less
than a majority of the outstanding voting shares of
such entity after the acquisition or combination are
owned, immediately after the acquisition or
combination, by the owners of voting shares of the
Employer immediately prior to the acquisition or
combination.
X (d) Other [specify]:
--- The Board may at anytime terminate the Plan with
respect to new Contributions or in its entirety if the
continuance of the Plan would not be in the best
interest of the Employer.
17.9 Construction: The provisions of the Plan and Trust (if any) shall be
construed and enforced according to the laws of the State of Iowa, except to
the extent that such laws are superseded by ERISA.
IN WITNESS WHEREOF, this Agreement has been executed as of the
day and year first above stated.
Employers Mutual Casualty Company
---------------------------------
Name of Employer
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------
Authorized Person
NOTE: Execution of this Adoption Agreement creates a legal liability of the
Employer with significant tax consequences to the Employer and Participants.
The Employer should obtain legal and tax advice from its professional
advisors before adopting the Plan. The Sponsor disclaims all liability for
the legal and tax consequences which result from the elections made by the
Employer in this Adoption Agreement.
The Plan is adopted by the following Participating Employers:
Employers Mutual Casualty
-------------------------
Name of Employer
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------
Authorized Person
Modern Life Company
-------------------
Name of Employer
By:
-------------------------
Authorized Person
Farm & City Insurance Co.
-------------------------
Name of Employer
By:
-------------------------
Authorized Person
THE EXECUTIVE NON-QUALIFIED EXCESS PLAN
PLAN DOCUMENT
TABLE OF CONTENTS
THE EXECUTIVE NON-QUALIFIED EXCESS PLAN
Page
Section 1. Purpose ............................................... 93
Section 2. Definitions ........................................... 93
2.1 "Accrued Benefit" ..................................... 93
2.2 "Active Participant" .................................. 93
2.3 "Adoption Agreement" .................................. 93
2.4 "Adjustment Date" ..................................... 93
2.5 "Beneficiary" ......................................... 93
2.6 "Board" ............................................... 93
2.7 "College Education Account" ........................... 93
2.8 "Committee" ........................................... 93
2.9 "Compensation" ........................................ 93
2.10 "Deferred Compensation Account" ....................... 94
2.11 "Dependent Subaccount" ................................ 94
2.12 "Disability" .......................................... 94
2.13 "Effective Date" ...................................... 94
2.14 "Eligible Dependent" .................................. 94
2.15 "Employee" ............................................ 94
2.16 "Employer" ............................................ 94
2.17 "Employer Matching Credits" ........................... 94
2.18 "Employer Performance Incentive Credits" .............. 94
2.19 "Independent Contractor" .............................. 95
2.20 "Normal Retirement Age" ............................... 95
2.21 "Participant" ......................................... 95
2.22 "Participating Employer" .............................. 95
2.23 "Plan" ................................................ 95
2.24 "Plan Administrator" .................................. 95
2.25 "Plan Year" ........................................... 95
2.26 "Qualified Distribution Event" ........................ 95
2.27 "Regular In-Service Withdrawals Account" .............. 95
2.28 "Retire" of "Retirement" .............................. 95
2.29 "Salary Deferral Agreement" ........................... 95
2.30 "Salary Deferral Credits" ............................. 96
2.31 "Service" ............................................. 96
2.32 "Sponsor" ............................................. 96
2.33 "Spouse" or "Surviving Spouse" ........................ 96
2.34 "Trust" ............................................... 96
2.35 "Trustee" ............................................. 96
2.36 "Years of Service" .................................... 96
Section 3. Credits to Deferred Compensation Account .............. 96
3.1 Salary Deferral Credits ............................... 96
3.2 Employer Matching Credits ............................. 97
3.3 Employer Performance Incentive Credits ................ 97
Section 4. Qualifiying Distribution Events ....................... 97
4.1 Death of a Participant ................................ 97
4.2 Disability ............................................ 97
4.3 Termination of Service ................................ 97
4.4 Retirement ............................................ 98
Section 5. In-Service Withdrawals ................................ 98
5.1 Regular In-Service Withdrawals ........................ 98
5.2 Financial Hardship Withdrawals ........................ 99
5.3 "Haircut" Withdrawals ................................. 100
5.4 College Education Withdrawals ......................... 100
Section 6. Qualified Distribution Events Payment Options ......... 101
6.1 Payment Options ....................................... 101
6.2 Prepayment ............................................ 101
6.3 Benefit Exchange ...................................... 101
Section 7. Vesting ............................................... 101
Section 8. Account; Deemed Investment; Adjustment of Accounts .... 101
8.1 Account ............................................... 101
8.2 Deemed Investments .................................... 102
8.3 Adjustments to Deferred Compensation Accounts ......... 102
Section 9. Administration by Committee ........................... 102
9.1 Membership of Committee ............................... 102
9.2 Committee officers; Subcommittee ...................... 102
9.3 Committee meetings .................................... 103
9.4 Transaction of business ............................... 103
9.5 Committee records ..................................... 103
9.6 Establishment of rules ................................ 103
9.7 Conflicts of interest ................................. 103
9.8 Correction of errors .................................. 103
9.9 Authority to interpret Plan ........................... 103
9.10 Third party advisors .................................. 103
9.11 Compensation of members ............................... 104
9.12 Expense reimbursement ................................. 104
9.13 Indemnification ....................................... 104
Section 10. Contractual Liability; Trust .......................... 104
10.1 Contractual Liability ................................. 104
10.2 Trust ................................................. 104
Section 11. Allocation of Responsibilities ........................ 104
11.1 Board ................................................. 104
11.2 Committee ............................................. 105
11.3 Plan Administrator .................................... 105
Section 12. Benefits Not Assignable; Facility of Payments ......... 105
12.1 Benefits not assignable ............................... 105
12.2 Payments to minors and others ......................... 105
Section 13. Beneficiary ........................................... 106
Section 14. Amendment and Termination of Plan ..................... 106
Section 15. Communication to Participants ......................... 106
Section 16. Claims Procedure ...................................... 106
16.1 Filing of a claim for benefits ........................ 106
16.2 Notification to claimant of decision .................. 107
16.3 Procedure for review .................................. 107
16.4 Decision on review .................................... 107
16.5 Action by authorized representative of claimant ....... 107
Section 17. Miscellaneous Provisions .............................. 108
17.1 Set off ............................................... 108
17.2 Notices ............................................... 108
17.3 Lost distributees ..................................... 108
17.4 Reliance on data ...................................... 108
17.5 Receipt and release for payments ...................... 108
17.6 Headings .............................................. 108
17.7 Continuation of employment ............................ 108
17.8 Merger or consolidation ............................... 109
17.9 Construction .......................................... 109
THE EXECUTIVE NON-QUALIFIED EXCESS PLAN
Section 1. Purpose:
By execution of the Adoption Agreement, the Employer has adopted the
Plan set forth herein to provide a means by which certain management
Employees and Independent Contractors of the Employer may elect to defer
receipt of current Compensation from the Employer in order to provide
Retirement and other benefits on behalf of such Employees and Independent
Contractors. The Plan is not intended to be a tax-qualified retirement plan
under Section 401(a) of the Internal Revenue Code (the "Code"). The Plan is
intended to be an unfunded plan maintained primarily for the purpose of
providing deferred compensation benefits for a select group of management or
highly compensated Employees under Sections 201(2), 301(a)(3) and 401(a)(1)
of the Employee Retirement Income Security Act of 1974.
Section 2. Definitions:
As used in the Plan, including this Section 2, references to one gender
shall include the other and, unless otherwise indicated by the context:
2.1 "Accrued Benefit" shall mean, with respect to each Participant, the
balance credited to his Deferred Compensation Account.
2.2 "Active Participant" shall mean, with respect to any day or date, a
Participant who is in Service on such day or date; provided, that a
Participant who is in Service shall cease to be an Active Participant
immediately upon a determination by the Committee that the Participant has
ceased to be an Employee or Independent Contractor.
2.3 "Adoption Agreement" shall mean the written agreement pursuant to
which the Employer adopts the Plan. The Adoption Agreement is a part of the
Plan as applied to the Employer.
2.4 "Adjustment Date" shall mean the date designated in the Adoption
Agreement for crediting the amount of any Salary Deferral Credits, Employer
Matching Credits and Employer Performance Incentive Credits to each Deferred
Compensation Account.
2.5 "Beneficiary" shall mean the person, persons, entity or entities
designated or determined pursuant to the provisions of Section 13 of the
Plan.
2.6 "Board" shall mean the Board of Directors of the Employer, if the
Employer is a corporation. If the Employer is not a corporation, "Board"
shall mean the Employer.
2.7 "College Education Account" shall mean the separate account to be kept
for each Participant and to be divided into one or more Dependent
Subaccounts, as described in Section 5.4.
2.8 "Committee" shall mean the administrative committee provided for in
Section 9.
2.9 "Compensation" shall have the meaning designated in the Adoption
Agreement.
2.10 "Deferred Compensation Account" shall mean the separate account to
be kept for each Participant, as described in Sections 3 and 8. To the
extent applicable, the Deferred Compensation Account may be credited with
Salary Deferral Credits, Employer Matching Credits and Employer Performance
Incentive Credits.
2.11 "Dependent Subaccount" shall mean each separate subaccount to be kept
for each Participant as part of his College Education Account, as described
in Section 5.4. To the extent applicable, each Dependent Subaccount may be
credited with Salary Deferral Credits, Employer Matching Credits, and
Employer Performance Incentive Credits.
2.12 "Disability" shall mean the inability of a Participant to perform his
regular duties with the Employer or any other duties which the Employer is
willing to assign to him by reason of any medically determinable physical or
mental impairment that can be expected to result in death or to be of long
continued or indefinite duration. The determination of the existence or
nonexistence of Disability shall be made by the Committee in a
nondiscriminatory manner pursuant to an examination by a medical doctor
selected or approved by the Committee.
2.13 "Effective Date" shall be the date designated in the Adoption Agreement
as of which the Plan first becomes effective.
2.14 "Eligible Dependent" shall mean any child (including any legally
adopted child) of a Participant who has not attained age 18 and who the
Participant designates as an Eligible Dependent in his Salary Deferral
Agreement; provided, however, that the Committee in its discretion may
approve the designation of an individual other than the child of a
Participant as an Eligible Dependent.
2.15 "Employee" shall mean an individual in the Service of the Employer if
the relationship between the individual and the Employer is the legal
relationship of employer and employee and if the individual is a highly
compensated or management employee of the Employer. An individual shall
cease to be an Employee upon the first to occur of the following:
(i) the Employee's termination of Service; or (ii) a determination by the
Committee that the Employee no longer meets the eligibility requirements for
participation in the Plan.
2.16 "Employer" shall mean the Employer identified in the Adoption
Agreement, and any Participating Employer which adopts this Plan. The
Employer may be a corporation, a partnership or sole proprietorship. All
references herein to the Employer shall be applied separately to each such
Employer as if the Plan were solely the Plan of that Employer.
2.17 "Employer Matching Credits" shall mean the amounts credited to the
Participant's Deferred Compensation Account by the Employer pursuant to the
provisions of Section 3.2.
2.18 "Employer Performance Incentive Credits" shall mean the amounts
credited to the Participant's Deferred Compensation Account by the Employer
pursuant to the provisions of Section 3.3.
2.19 "Independent Contractor" shall mean an individual in the Service of the
Employer if the relationship between the individual and the Employer is not
the legal relationship of employer and employee. An individual shall cease
to be an Independent Contractor upon the termination of the Independent
Contractor's Service. An Independent Contractor shall include a director of
the Employer who is not an Employee.
2.20 "Normal Retirement Age" of a Participant shall mean the age designated
in the Adoption Agreement. The "Normal Retirement Date" of a Participant
shall mean the date the Participant attains his Normal Retirement Age.
2.21 "Participant" shall mean with respect to any Plan Year an Employee or
Independent Contractor who has been designated by the Committee as a
Participant and who has entered the Plan or who has an Accrued Benefit under
the Plan. An Employee or Independent Contractor designated by the Committee
as a Participant who has not otherwise entered the Plan shall enter the Plan
and become a Participant as of the date determined by the Committee. A
Participant who separates from Service with the Employer and who later
returns to Service will not be eligible to defer Compensation under the Plan
except upon satisfaction of such terms and conditions as the Committee shall
establish upon the Participant's return to Service, whether or not the
Participant shall have an Accrued Benefit remaining under the Plan on the
date of his return to Service.
2.22 "Participating Employer" shall mean any trade or business (whether or
not incorporated) which adopts this Plan with the consent of the Employer
identified in the Adoption Agreement.
2.23 "Plan" shall mean The Executive Non-qualified Excess Plan, as herein set
out or as duly amended. The name of the Plan as applied to the Employer
shall be designated in the Adoption Agreement.
2.24 "Plan Administrator" shall mean the person designated in the Adoption
Agreement. If the Plan Administrator designated in the Adoption Agreement is
unable to serve, the Employer shall be the Plan Administrator.
2.25 "Plan Year" shall mean the twelve-month period ending on the last day
of the month designated in the Adoption Agreement.
2.26 "Qualifying Distribution Event" shall mean the Participant's Retirement
or the termination of Participant's Service with the Employer for any
reason, including as a result of his death or Disability.
2.27 "Regular In-Service Withdrawals Account" shall mean the separate
account to be kept for each Participant, as described in Section 5.1. To the
extent applicable, the Regular In-Service Withdrawals Account may be
credited with Salary Deferral Credits.
2.28 "Retire" or "Retirement" shall mean Retirement within the meaning of
Section 4.4.
2.29 "Salary Deferral Agreement" shall mean a written agreement entered
into between a Participant and the Employer pursuant to the provisions of
Section 3.
2.30 "Salary Deferral Credits" shall mean the amounts credited to the
Participant's Deferred Compensation Account by the Employer pursuant to the
provisions of Section 3.
2.31 "Service" shall mean employment by the Employer as an Employee. If
the Participant is an Independent Contractor, "Service" shall mean the
period during which the contractual relationship exists between the Employer
and the Participant.
2.32 "Sponsor" shall mean Executive Benefit Services, Inc.
2.33 "Spouse" or "Surviving Spouse" shall mean, except as otherwise
provided in the Plan, the legally married spouse or surviving spouse of a
Participant.
2.34 "Trust" shall mean the trust fund established pursuant to Section 10.2,
if designated by the Employer in the Adoption Agreement.
2.35 "Trustee" shall mean the trustee, if any, named in the agreement
establishing the Trust and such successor or additional trustee as may be
named pursuant to the terms of the agreement establishing the Trust.
2.36 "Years of Service" shall mean each Plan Year of Service completed by
the Participant. For vesting purposes, Years of Service shall be calculated
from the date designated in the Adoption Agreement.
Section 3. Credits to Deferred Compensation Account:
3.1 Salary Deferral Credits: To the extent provided in the Adoption
Agreement, each Active Participant may elect, by entering into a Salary
Deferral Agreement with the Employer, to reduce his Compensation from the
Employer by a dollar amount or percentage specified in the Salary Deferral
Agreement. The amount of the Participant's Salary Reduction Credit shall be
credited by the Employer to the Deferred Compensation Account maintained for
the Participant pursuant to Section 8. The following special provisions
shall apply with respect to the Salary Deferral Credits of a Participant:
3.1.1 The Employer shall credit to the Participant's Deferred
Compensation Account on each Adjustment Date an amount equal to the total
Salary Reduction Credit for the period ending on such Adjustment Date.
3.1.2 An election pursuant to Section 3.1 shall be made by the
Participant by executing and delivering a Salary Deferral Agreement to the
Committee. The Salary Deferral Agreement shall become effective with respect
to such Participant as of the first full payroll period commencing on or
immediately following the January 1 which occurs after the date such Salary
Deferral Agreement is received by the Committee; provided, that a
Participant who first becomes a Participant in the Plan during a Plan Year
may enter into a Salary Deferral Agreement to be effective as of the first
payroll period next following the date he enters the Plan. A Participant's
election shall continue in effect, unless earlier modified by the
Participant, until the Service of the Participant is terminated, or, if
earlier, until the Participant ceases to be an Active Participant under the
Plan.
3.1.3 A Participant may unilaterally modify a Salary Deferral Agreement
(either to increase or decrease the portion of his future Compensation which
is subject to salary deferral within the percentage limits set forth in
Section 3.1) by providing a written modification of the Salary Deferral
Agreement to the Employer. The modification shall become effective as of the
first full payroll period commencing on or immediately following the January
1 which occurs after the date such written modification is received by the
Committee. The Participant may terminate the Salary Deferral Agreement
effective as of the date designated in the Adoption Agreement.
3.1.4 The Committee may from time to time establish policies or rules
governing the manner in which Salary Deferral Credits may be made.
3.2 Employer Matching Credits: If designated by the Employer in the
Adoption Agreement, as of each Adjustment Date, the Employer shall cause the
Committee to credit to the Deferred Compensation Account of each Participant
an Employer matching credit in accordance with the Adoption Agreement.
3.3 Employer Performance Incentive Credits: If designated by the Employer in
the Adoption Agreement, the Employer may credit to the Plan for such Plan
Year any amount as the Board in its discretion shall determine. The
Committee shall have the discretion to credit to the Deferred Compensation
Account of each Active Participant an amount of the Employer Performance
Incentive Credit for the Plan Year as directed by the Employer.
Section 4. Qualifying Distribution Events:
4.1 Death of a Participant: If a Participant dies while in Service, the
Employer shall pay a benefit to the Participant's Beneficiary in the amount
designated in the Adoption Agreement. Payment of such benefit shall be made
by the Employer pursuant to Section 6. If a Participant dies following his
Retirement or termination of Service for any reason, including Disability,
and before all payments to him under the Plan have been made, the balance of
the Participant's vested Accrued Benefit shall be paid by the Employer to
the Participant's Beneficiary pursuant to Section 6, and such balance shall
be determined as of the commencement date of the payments.
4.2 Disability: If a Participant suffers a Disability while in Service prior
to his Normal Retirement Date, he shall terminate Service with the Employer
as of the date of the establishment of his Disability, whereupon he shall
commence receiving payment of his vested Accrued Benefit, determined as of
the commencement date of the payments. Such benefit shall be paid by the
Employer as provided in Section 6.
4.3 Termination of Service: If the Service of a Participant with the
Employer shall be terminated for any reason other than Retirement,
Disability or death, his vested Accrued Benefit shall be paid to him by the
Employer as provided in Section 6, and such Accrued Benefit shall be
determined as of the commencement date of the payments. If a Participant's
Accrued Benefit is not fully vested at his termination of employment, he
shall forfeit that portion of his Accrued Benefit that is not fully vested.
If he subsequently returns to Service with the Employer, he shall be treated
as a new Participant for purposes of determining the vested portion of his
Accrued Benefit.
4.4 Retirement:
4.4.1 Normal Retirement: A Participant who is in Service shall be
eligible to Retire from Service at his Normal Retirement Date and commence
receiving payment of his Accrued Benefit, determined as of the commencement
date of the payments. Payment of such benefit shall be made by the Employer
pursuant to Section 6.
4.4.2 Early Retirement: If so designated by the Employer in the
Adoption Agreement, and subject to the requirements for early retirement set
forth therein, a Participant may elect early retirement effective on any
date prior to his Normal Retirement Date by filing 30 days' written notice
with the Committee before such date. The Participant shall commence
receiving payment of his Accrued Benefit determined as of the commencement
date of the payments. Such benefit shall be paid by the Employer as provided
in Section 6.
4.4.3 Delayed Retirement: If a Participant shall remain in Service
following his Normal Retirement Date, his Retirement date shall be the date
he actually terminates Service for reasons other than death or Disability,
whereupon he shall commence receiving payment of his Accrued Benefit,
determined as of the commencement date of the payments. Payment of such
benefit shall be made by the Employer pursuant to Section 6. During the
period that such Participant remains in Service pursuant to this Section
4.4.3, he shall continue to be a Participant for each Plan Year in which he
meets the requirements therefor. If an Employee or Independent Contractor
not otherwise a Participant becomes eligible to enter the Plan following his
Normal Retirement Date, the provisions of this Section 4.4.3 shall apply in
determining his Retirement date.
Section 5. In-Service Withdrawals:
5.1 Regular In-Service Withdrawals: If the Employer designates in the
Adoption Agreement that regular in-service withdrawals shall be permitted
under the Plan, a Participant may make an irrevocable election in the Salary
Deferral Agreement to withdraw a designated amount from his Deferred
Compensation Account at the specified time or times designated by the
Participant in the Salary Deferral Agreement, and the Participant's Regular
In-Service Withdrawals Account shall be credited in an amount equal to the
amount so designated for regular in-service withdrawals. The following
special provisions shall apply with respect to the regular in-service
withdrawals:
5.1.1 The Regular In-Service Withdrawals Account shall be established,
adjusted for payments, credited with Salary Deferral Credits, Employer
Matching Credits, and Employer Performance Incentive Credits, and credited
or debited for deemed investment gains or losses in the same manner and at
the same time as such adjustments are made to the Deferred Compensation
Account under Section 8 and in accordance with the rules and elections in
effect under Section 8.
5.1.2 Notwithstanding any provision in this Section 5 to the contrary,
if Participant incurs a Qualifying Distribution Event prior to the date on
which the entire balance of his Regular In-Service Withdrawals Account has
been distributed to him, then the balance in the Regular In-Service
Withdrawals Account on the date of the Qualifying Distribution Event shall
be combined with the Participant's Deferred Compensation Account and
distributed to him in the same manner and at the same time as his Deferred
Compensation Account is distributed to him under Section 6 and in accordance
with the rules and elections in effect under Section 6.
5.2 Financial Hardship Withdrawals: A distribution of the Deferred
Compensation Account may be made to a Participant on account of financial
hardship, subject to the following provisions:
5.2.1 A Participant may, at any time prior to his Retirement or
termination of Service for any reason, including Disability, make
application to the Committee to receive a distribution in a lump sum of all
or a portion of the total vested amount credited to his Deferred
Compensation Account (determined as of the date the distribution, if any, is
made under this Section 5.2) because of an unforeseeable emergency that
results in severe financial hardship to the Participant. A distribution
because of an unforeseeable emergency shall not exceed the amount required
to meet the immediate financial need created by the unforeseeable emergency
and not otherwise reasonably available from other resources of the
Participant. Examples of an unforeseeable emergency shall include but shall
not be limited to those financial needs arising on account of a sudden or
unexpected illness or accident of the Participant or of a dependent of
the Participant, loss of the Participant's property due to casualty, or
other similar extraordinary and unforeseeable circumstances arising as a
result of events beyond the control of the Participant.
5.2.2 The Participant's request for a distribution on account of
financial hardship must be made in writing to the Committee. The request
must specify the nature of the financial hardship, the total amount
requested to be distributed from the Deferred Compensation Account, and the
total amount of the actual expense incurred or to be incurred on account of
financial hardship.
5.2.3 If a distribution under this Section 5.2 is approved by the
Committee, such distribution will be made as soon as practicable following
the date it is approved. The processing of the request shall be completed as
soon as practicable from the date on which the Committee receives the
properly completed written request for a distribution on account of a
financial hardship. If a Participant's termination of Service occurs after a
request is approved in accordance with this Section 5.2.3, but prior to
distribution of the full amount approved, the approval of the request shall
be automatically null and void and the benefits which the Participant is
entitled to receive under the Plan shall be distributed in accordance with
the applicable distribution provisions of the Plan. Only one financial
hardship distribution shall be made within any Plan Year.
5.2.4 The Committee may from time to time adopt additional policies or
rules governing the manner in which such distributions may be made so that
the Plan may be conveniently administered.
5.3 "Haircut" Withdrawals: If the Employer designates in the Adoption
Agreement that "haircut" withdrawals shall be permitted under the Plan, a
Participant in Service may at his option make one or more withdrawals from
his Deferred Compensation Account by written request to the Committee;
provided, however, that a Participant who requests a withdrawal under this
Section 5.3 shall incur a penalty (the "haircut") equal to a percentage (not
less than 10%), as designated by the Employer in the Adoption Agreement, of
the amount withdrawn, and this penalty shall be forfeited from the Deferred
Compensation Account of the Participant notwithstanding the provisions of
Section 7.
5.4 College Education Withdrawals: If the Employer designates in the
Adoption Agreement that college education withdrawals shall be permitted
under the Plan, a Participant may elect in the Salary Deferral Agreement for
a designated percentage or dollar amount of the Salary Deferral Credits to
be credited to a College Education Account to be used to fund the college
education of the Participant's Eligible Dependent or Eligible Dependents.
The College Education Account shall be divided into Dependent Subaccounts
for each of the Participant's Eligible Dependents, and the Participant may
designate in the Salary Deferral Agreement the percentage or dollar amount
of each Salary Deferral Credit to be credited to each Dependent Subaccount;
provided, however, that the minimum credit that a Participant may elect
to make to any Dependent Subaccount is $1,000. In the absence of a clear
designation, all credits made to the College Education Subaccount shall be
equally allocated to each Dependent Subaccount. As soon as practicable after
an Eligible Dependent of the Participant attains age 18, the Employer shall
pay to the Participant the balance in the Dependent Subaccount with respect
to such Eligible Dependent in annual installments over a period of four,
five or six years, as designated by the Participant in the Salary Deferral
Agreement. The following special provisions shall apply with respect to the
Dependent Subaccounts:
5.4.1 The Dependent Subaccounts shall be established, adjusted for
payments, credited with Salary Deferral Credits, Employer Matching Credits,
and Employer Performance Incentive Credits, and credited or debited for
deemed investment gains or losses in the same manner and at the same time as
such adjustments are made to the Deferred Compensation Account under Section
8 and in accordance with the rules and elections in effect under Section 8.
5.4.2 Notwithstanding any provision in this Section 5 to the contrary,
if Participant incurs a Qualifying Distribution Event prior to the date on
which the entire balance of his College Education Account has been
distributed to him, then the balance in the College Education Account on the
date of the Qualifying Distribution Event shall be combined with the
Participant's Deferred Compensation Account and distributed to him in the
same manner and at the same time as his Deferred Compensation Account is
distributed to him under Section 6 and in accordance with the rules and
elections in effect under Section 6.
Section 6. Qualifying Distribution Events Payment Options:
6.1 Payment Options: The Employer shall designate in the Adoption
Agreement the payment options available upon a Qualifying Distribution
Event. Upon a Participant's entry into the Plan, the Participant shall elect
among these designated payment options the method under which his vested
Accrued Benefit or, in the event of his death, any benefit payable as a
result, will be distributed; provided, however, that the Participant may
change the method of payment with the consent of the Committee by filing a
written election with the Committee at least one year prior to the
commencement date of the payments.
6.2 Prepayment: Notwithstanding any other provisions of this Plan, if a
Participant or any other person (a "recipient") is entitled to receive
payments under the Plan, the Committee in its sole discretion may direct the
Employer to prepay all or any part of the payments remaining to be made to
or on behalf of the recipient, or to shorten the payment period. The amount
of such prepayment shall be in full satisfaction of the Employer's
obligations hereunder to the recipient and to all persons claiming under or
through the recipient with respect to the payments being prepaid. In the
event of a partial prepayment, the Committee shall designate which
installments are being prepaid and, if applicable, the accounts of the
Participant from which such prepayments shall be debited. The Committee's
determinations under this Section 6.2 shall be final and conclusive upon all
parties claiming benefits under this Plan.
6.3 Benefit Exchange: Notwithstanding any other provisions of this Plan, the
Employer and the Participant may enter into an agreement under which, in
lieu of the payment of the Participant's vested Accrued Benefit upon a
Qualifying Distribution Event, the Participant's vested Accrued Benefit will
be exchanged for another non-qualified benefit in accordance with rules
established by the Committee.
Section 7. Vesting:
A Participant shall be fully vested (that is, nonforfeitable) in the portion
of his Deferred Compensation Account attributable to Salary Deferral
Credits, and all income, gains and losses attributable thereto. A
Participant shall become fully vested in the portion of his Deferred
Compensation Account attributable to Employer Matching Credits, Employer
Performance Incentive Credits, and income, gains and losses attributable
thereto, on the first to occur of: (i) normal Retirement; (ii) Early
Retirement; (iii) death while in Service; or (iv) in accordance with the
vesting schedule and provisions designated by the Employer in the Adoption
Agreement.
Section 8. Account; Deemed Investment; Adjustment of Accounts:
8.1 Account: The Committee shall establish a book reserve account, entitled
the "Deferred Compensation Account," on behalf of each Participant. Such
account shall be adjusted pursuant to the provisions of Section 8.3.
8.2 Deemed Investments: The Deferred Compensation Account of a Participant
shall be credited with an investment return determined as if the account
were invested in one or more investment funds made available by the
Committee. The Participant shall elect the investment funds in which his
Deferred Compensation Account shall be deemed to be invested. Such election
shall be made in the manner prescribed by the Committee and shall take
effect upon the entry of the Participant into the Plan. The investment
election of the Participant shall remain in effect until a new election is
made by the Participant. In the event the Participant fails for any reason
to make an effective election of the investment return to be credited to his
account, the investment return shall be determined by the Committee.
8.3 Adjustments to Deferred Compensation Accounts: With respect to each
Participant who has a Deferred Compensation Account under the Plan, the
amount credited to such account shall be adjusted by the following debits
and credits, at the times and in the order stated:
8.3.1 The Deferred Compensation Account shall be debited each business
day with the total amount of any payments made from such account since the
last preceding business day to him or for his benefit.
8.3.2 The Deferred Compensation Account shall be credited on each
Adjustment Date with the total amount of any Salary Deferral Credits,
Employer Matching Credits and Employer Performance Incentive Credits to such
account since the last preceding Adjustment Date.
8.3.3 The Deferred Compensation Account shall be credited or debited
on each day securities are traded on a national stock exchange with the
amount of deemed investment gain or loss resulting from the performance of
the investment funds elected by the Participant in accordance with Section
8.2. The amount of such deemed investment gain or loss shall be determined
by the Committee and such determination shall be final and conclusive upon
all concerned.
Section 9. Administration by Committee:
9.1 Membership of Committee: The Committee shall consist of at least
three individuals who shall be appointed by the Board to serve at the
pleasure of the Board. Any member of the Committee may resign, and his
successor, if any, shall be appointed by the Board. The Committee shall be
responsible for the general administration and interpretation of the Plan
and for carrying out its provisions, except to the extent all or any of such
obligations are specifically imposed on the Board.
9.2 Committee officers; Subcommittee: The members of the Committee
shall elect a Chairman and may elect an acting Chairman. They shall also
elect a Secretary and may elect an acting Secretary, either of whom may be
but need not be a member of the Committee. The Committee may appoint from
its membership such subcommittees with such powers as the Committee shall
determine, and may authorize one or more of its members or any agent to
execute or deliver any instruments or to make any payment on behalf of the
Committee.
9.3 Committee meetings: The Committee shall hold such meetings upon
such notice, at such places and at such intervals as it may from time to
time determine. Notice of meetings shall not be required if notice is waived
in writing by all the members of the Committee at the time in office, or if
all such members are present at the meeting.
9.4 Transaction of business: A majority of the members of the Committee
at the time in office shall constitute a quorum for the transaction of
business. All resolutions or other actions taken by the Committee at any
meeting shall be by vote of a majority of those present at any such meeting
and entitled to vote. Resolutions may be adopted or other action taken
without a meeting upon written consent thereto signed by all of the members
of the Committee.
9.5 Committee records: The Committee shall maintain full and complete
records of its deliberations and decisions. The minutes of its proceedings
shall be conclusive proof of the facts of the operation of the Plan.
9.6 Establishment of rules: Subject to the limitations of the Plan, the
Committee may from time to time establish rules or by-laws for the
administration of the Plan and the transaction of its business.
9.7 Conflicts of interest: No individual member of the Committee shall
have any right to vote or decide upon any matter relating solely to himself
or to any of his rights or benefits under the Plan (except that such member
may sign unanimous written consent to resolutions adopted or other action
taken without a meeting), except relating to the terms of his Salary
Deferral Agreement.
9.8 Correction of errors: The Committee may correct errors and, so far as
practicable, may adjust any benefit or credit or payment accordingly. The
Committee may in its discretion waive any notice requirements in the Plan;
provided, that a waiver of notice in one or more cases shall not be deemed
to constitute a waiver of notice in any other case. With respect to any
power or authority which the Committee has discretion to exercise under the
Plan, such discretion shall be exercised in a nondiscriminatory manner.
9.9 Authority to interpret Plan: Subject to the claims procedure set forth
in Section 16, the Plan Administrator and the Committee shall have the duty
and discretionary authority to interpret and construe the provisions of the
Plan and to decide any dispute which may arise regarding the rights of
Participants hereunder, including the discretionary authority to construe
the Plan and to make determinations as to eligibility and benefits under the
Plan. Determinations by the Plan Administrator and the Committee shall
apply uniformly to all persons similarly situated and shall be binding and
conclusive upon all interested persons.
9.10 Third party advisors: The Committee may engage an attorney,
accountant, actuary or any other technical advisor on matters regarding the
operation of the Plan and to perform such other duties as shall be required
in connection therewith, and may employ such clerical and related personnel
as the Committee shall deem requisite or desirable in carrying out the
provisions of the Plan. The Committee shall from time to time, but no less
frequently than annually, review the financial condition of the Plan and
determine the financial and liquidity needs of the Plan. The Committee shall
communicate such needs to the Employer so that its policies may be
appropriately coordinated to meet such needs.
9.11 Compensation of members: No fee or compensation shall be paid to any
member of the Committee for his Service as such.
9.12 Expense reimbursement: The Committee shall be entitled to
reimbursement by the Employer for its reasonable expenses properly and
actually incurred in the performance of its duties in the administration of
the Plan.
9.13 Indemnification: No member of the Committee shall be personally liable
by reason of any contract or other instrument executed by him or on his
behalf as a member of the Committee nor for any mistake of judgment made in
good faith, and the Employer shall indemnify and hold harmless, directly
from its own assets (including the proceeds of any insurance policy the
premiums for which are paid from the Employer's own assets), each
member of the Committee and each other officer, employee, or director of the
Employer to whom any duty or power relating to the administration or
interpretation of the Plan may be delegated or allocated, against any
unreimbursed or uninsured cost or expense (including any sum paid in
settlement of a claim with the prior written approval of the Board) arising
out of any act or omission to act in connection with the Plan unless arising
out of such person's own fraud, bad faith, willful misconduct or gross
negligence.
Section 10. Contractual Liability; Trust:
10.1 Contractual Liability: The obligation of the Employer to make payments
hereunder shall constitute a contractual liability of the Employer to the
Participant. Such payments shall be made from the general funds of the
Employer, and the Employer shall not be required to establish or maintain
any special or separate fund, or otherwise to segregate assets to assure
that such payments shall be made, and the Participant shall not have any
interest in any particular assets of the Employer by reason of its
obligations hereunder. To the extent that any person acquires a right to
receive payment from the Employer, such right shall be no greater than the
right of an unsecured creditor of the Employer.
10.2 Trust: If so designated in Section 2.34 of the Adoption Agreement, the
Employer may establish a Trust with the Trustee, pursuant to such terms and
conditions as are set forth in the Trust Agreement. The Trust, if and when
established, is intended to be treated as a grantor trust for purposes of
the Code. The establishment of the Trust is not intended to cause
Participants to realize current income on amounts contributed thereto, and
the Trust shall be so interpreted and administered.
Section 11. Allocation of Responsibilities:
The persons responsible for the Plan and the duties and responsibilities
allocated to each are as follows:
11.1 Board:
(i) To amend the Plan;
(ii) To appoint and remove members of the Committee;
and
(iii) To terminate the Plan.
11.2 Committee:
(i) To designate Participants;
(ii) To interpret the provisions of the Plan and to determine the
rights of the Participants under the Plan, except to the extent otherwise
provided in Section 16 relating to claims procedure;
(iii) To administer the Plan in accordance with its terms, except to the
extent powers to administer the Plan are specifically delegated to another
person or persons as provided in the Plan;
(iv) To account for the Accrued Benefits of Participants;
and
(v) To direct the Employer in the payment of benefits.
11.3 Plan Administrator:
(i) To file such reports as may be required with the United States
Department of Labor, the Internal Revenue Service and any other government
agency to which reports may be required to be submitted from time to time;
and
(ii) To administer the claims procedure to the extent provided in
Section 16.
Section 12. Benefits Not Assignable; Facility of Payments:
12.1 Benefits not assignable: No portion of any benefit credited or paid
under the Plan with respect to any Participant shall be subject in any
manner to anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance or charge, and any attempt so to anticipate, alienate, sell,
transfer, assign, pledge, encumber or charge the same shall be void, nor
shall any portion of such benefit be in any manner payable to any assignee,
receiver or any one trustee, or be liable for his debts, contracts,
liabilities, engagements or torts.
12.2 Payments to minors and others: If any individual entitled to receive a
payment under the Plan shall be physically, mentally or legally incapable of
receiving or acknowledging receipt of such payment, the Committee, upon the
receipt of satisfactory evidence of his incapacity and satisfactory evidence
that another person or institution is maintaining him and that no guardian
or committee has been appointed for him, may cause any payment otherwise
payable to him to be made to such person or institution so maintaining him.
Payment to such person or institution shall be in full satisfaction of all
claims by or through the Participant to the extent of the amount thereof.
Section 13. Beneficiary:
The Participant's beneficiary shall be the person or persons designated by
the Participant on the beneficiary designation form provided by and filed
with the Committee or its designee. If the Participant does not designate a
beneficiary, the beneficiary shall be his Surviving Spouse. If the
Participant does not designate a beneficiary and has no Surviving Spouse,
the beneficiary shall be the Participant's estate. The designation of a
beneficiary may be changed or revoked only by filing a new beneficiary
designation form with the Committee or its designee. If a beneficiary (the
"primary beneficiary") is receiving or is entitled to receive payments under
the Plan and dies before receiving all of the payments due him, the balance
to which he is entitled shall be paid to the contingent beneficiary, if any,
named in the Participant's current beneficiary designation form. If there is
no contingent beneficiary, the balance shall be paid to the estate of the
primary beneficiary. Any beneficiary may disclaim all or any part of any
benefit to which such beneficiary shall be entitled hereunder by filing a
written disclaimer with the Committee before payment of such benefit is to
be made. Such a disclaimer shall be made in a form satisfactory to the
Committee and shall be irrevocable when filed. Any benefit disclaimed shall
be payable from the Plan in the same manner as if the beneficiary who filed
the disclaimer had died on the date of such filing.
Section 14. Amendment and Termination of Plan:
The Board may amend any provision of the Plan or terminate the Plan at any
time; provided, that in no event shall such amendment or termination reduce
any Participant's Accrued Benefit as of the date of such amendment or
termination, nor shall any such amendment affect the terms of the Plan
relating to the payment of such Accrued Benefit. Notwithstanding the
foregoing, the Plan shall be terminated upon the occurrence of one or more
of the events designated in the Adoption Agreement. Upon the occurrence of a
termination event, the Accrued Benefit of each Participant shall become
fully vested and payable to the Participant in a lump sum.
Section 15. Communication to Participants:
The Employer shall make a copy of the Plan available for inspection by
Participants and their beneficiaries during reasonable hours at the
principal office of the
Employer.
Section 16. Claims Procedure:
The following claims procedure shall apply with respect to the Plan:
16.1 Filing of a claim for benefits: If a Participant or beneficiary (the
"claimant") believes that he is entitled to benefits under the Plan which
are not being paid to him or which are not being accrued for his benefit, he
shall file a written claim therefor with the Plan Administrator. In the
event the Plan Administrator shall be the claimant, all actions which are
required to be taken by the Plan Administrator pursuant to this Section 16
shall be taken instead by another member of the Committee designated by the
Committee.
16.2 Notification to claimant of decision: Within 90 days after receipt of a
claim by the Plan Administrator (or within 180 days if special circumstances
require an extension of time), the Plan Administrator shall notify the
claimant of his decision with regard to the claim. In the event of such
special circumstances requiring an extension of time, there shall be
furnished to the claimant prior to expiration of the initial 90-day period
written notice of the extension, which notice shall set forth the special
circumstances and the date by which the decision shall be furnished. If such
claim shall be wholly or partially denied, notice thereof shall be in
writing and worded in a manner calculated to be understood by the claimant,
and shall set forth: (i) the specific reason or reasons for the denial; (ii)
specific reference to pertinent provisions of the Plan on which the denial
is based; (iii) a description of any additional material or information
necessary for the claimant to perfect the claim and an explanation of why
such material or information is necessary; and (iv) an explanation of the
procedure for review of the denial. If the Plan Administrator fails to
notify the claimant of the decision in timely manner, the claim shall be
deemed denied as of the close of the initial 90-day period (or the close of
the extension period, if applicable).
16.3 Procedure for review: Within 60 days following receipt by the claimant
of notice denying his claim, in whole or in part, or, if such notice shall
not be given, within 60 days following the latest date on which such notice
could have been timely given, the claimant shall appeal denial of the claim
by filing a written application for review with the Committee. Following
such request for review, the Committee shall fully and fairly review the
decision denying the claim. Prior to the decision of the Committee, the
claimant shall be given an opportunity to review pertinent documents and to
submit issues and comments in writing.
16.4 Decision on review: The decision on review of a claim denied in whole
or in part by the Plan Administrator shall be made in the following manner:
16.4.1 Within 60 days following receipt by the Committee of the request
for review (or within 120 days if special circumstances require an extension
of time), the Committee shall notify the claimant in writing of its decision
with regard to the claim. In the event of such special circumstances
requiring an extension of time, written notice of the extension shall be
furnished to the claimant prior to the commencement of the extension. If the
decision on review is not furnished in a timely manner, the claim shall be
deemed denied as of the close of the initial 60-day period (or the close of
the extension period, if applicable).
16.4.2 With respect to a claim that is denied in whole or in part, the
decision on review shall set forth specific reasons for the decision, shall
be written in a manner calculated to be understood by the claimant, and
shall cite specific references to the pertinent Plan provisions on which the
decision is based.
16.4.3 The decision of the Committee shall be final and conclusive.
16.5 Action by authorized representative of claimant: All actions set forth
in this Section 16 to be taken by the claimant may likewise be taken by a
representative of the claimant duly authorized by him to act in his behalf
on such matters. The Plan Administrator and the Committee may require such
evidence as either may reasonably deem necessary or advisable of the
authority to act of any such representative.
Section 17. Miscellaneous Provisions:
17.1 Set off: Notwithstanding any other provision of this Plan, the Employer
may reduce the amount of any payment otherwise payable to or on behalf of a
Participant hereunder by the amount of any loan, cash advance, extension of
credit or other obligation of the Participant to the Employer that is then
due and payable, and the Participant shall be deemed to have consented to
such reduction.
17.2 Notices: Each Participant who is not in Service and each beneficiary
shall be responsible for furnishing the Committee or its designee with his
current address for the mailing of notices and benefit payments. Any notice
required or permitted to be given to such Participant or beneficiary shall
be deemed given if directed to such address and mailed by regular United
States mail, first class, postage prepaid. If any check mailed to such
address is returned as undeliverable to the addressee, mailing of checks
will be suspended until the Participant or beneficiary furnishes the proper
address. This provision shall not be construed as requiring the mailing of
any notice or notification otherwise permitted to be given by posting or
by other publication.
17.3 Lost distributees: A benefit shall be deemed forfeited if the Plan
Administrator is unable to locate the Participant or beneficiary to whom
payment is due on or before the fifth anniversary of the date payment is to
be made or commence; provided, that the deemed investment rate of return
pursuant to Section 8.2 shall cease to be applied to the Participant's
account following the first anniversary of such date; provided further,
however, that such benefit shall be reinstated if a valid claim is made by
or on behalf of the Participant or beneficiary for all or part of the
forfeited benefit.
17.4 Reliance on data: The Employer, the Committee and the Plan
Administrator shall have the right to rely on any data provided by the
Participant or by any beneficiary. Representations of such data shall be
binding upon any party seeking to claim a benefit through a Participant, and
the Employer, the Committee and the Plan Administrator shall have no
obligation to inquire into the accuracy of any representation made at any
time by a Participant or beneficiary.
17.5 Receipt and release for payments: Subject to the provisions of
Section 17.1, any payment made from the Plan to or with respect to any
Participant or beneficiary, or pursuant to a disclaimer by a beneficiary,
shall, to the extent thereof, be in full satisfaction of all claims
hereunder against the Plan and the Employer with respect to the Plan.
The recipient of any payment from the Plan may be required by the Committee,
as a condition precedent to such payment, to execute a receipt and release
with respect thereto in such form as shall be acceptable to the Committee.
17.6 Headings: The headings and subheadings of the Plan have been inserted
for convenience of reference and are to be ignored in any construction of
the provisions hereof.
17.7 Continuation of employment: The establishment of the Plan shall not
be construed as conferring any legal or other rights upon any Employee or
any persons for continuation of employment, nor shall it interfere with the
right of the Employer to discharge any Employee or to deal with him without
regard to the effect thereof under the Plan.
17.8 Merger or consolidation: No employer-party to the Plan shall
consolidate or merge into or with another corporation or entity, or transfer
all or substantially all of its assets to another corporation, partnership,
trust or other entity (a "Successor Entity") unless such Successor Entity
shall assume the rights, obligations and liabilities of the employer-party
under the Plan and upon such assumption, the Successor Entity shall become
obligated to perform the terms and conditions of the Plan.
17.9 Construction: The Employer shall designate in the Adoption Agreement
the state according to whose laws the provisions of the Plan shall be
construed and enforced, except to the extent that such laws are superseded
by ERISA.
