AGL RESOURCES INC. NONQUALIFIED SAVINGS PLAN As Amended and Restated Effective January 1, 2007 AGL RESOURCES INC. NONQUALIFIED SAVINGS PLAN

 

 

 

AGL RESOURCES INC.

 

NONQUALIFIED SAVINGS PLAN

 

 

 

 

 

 

 

 

 

 

Effective as of the 1st day of January, 2007, AGL Resources Inc., a corporation duly organized and existing under the laws of the State of Georgia (the “Controlling Company”), hereby amends and restates the AGL Resources Inc. Nonqualified Savings Plan (the “Plan”). The Plan was originally established as of July 1, 1995, and was previously amended and restated effective as of January 1, 2001.

 

 

 

A. The primary purpose of the Plan is to recognize the contributions made to the Controlling Company and its participating affiliates by certain employees and to reward those contributions by providing eligible employees with an opportunity to accumulate savings for their future security.

 

B. The Plan is intended to be an unfunded nonqualified deferred compensation plan maintained by the Controlling Company primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employees (within the meaning of §§ 201(2), 301(a)(3), 401(a)(1) and 4021(b)(6) of the Employee Retirement Income Security Act of 1974, as amended), and shall be construed in all respects in accordance with such intended purposes.

 

C. Any trust fund established to maintain and invest the amounts contributed to the Plan shall be established under a trust agreement, which meets the requirements of a “rabbi trust,” pursuant to guidelines issued by the Internal Revenue Service (the “IRS”).

 

D. Regardless of the establishment of a trust fund, all assets of the Plan shall remain assets of the Controlling Company and shall be subject to the general creditors of the Controlling Company. Participants and Beneficiaries shall have only the rights of unsecured creditors with respect to any assets of the Plan.

 

 

 

In order to amend and restate the Plan with the purposes and goals as hereinabove described, the Controlling Company hereby sets forth the terms and provisions of the amended and restated Plan as follows

 

		Page
STATEMENT OF PURPOSE		1
STATEMENT OF AGREEMENT		1
ARTICLE I	DEFINITIONS	5
1.1	1934 Act	5
1.2	Account	5
1.3	Active Participant	5
1.4	Administrative Committee	5
1.5	Affiliate	5
1.6	Aggregated Arrangements	5
1.7	Before-Tax Account	5
1.8	Before-Tax Contributions	5
1.9	Beneficiary	5
1.10	Board	5
1.11	Bonus	6
1.12	Bonus Compensation	6
1.13	Break in Service	6
1.14	Change in Control	6
1.15	Code	7
1.16	Company Contributions	7
1.17	Company Stock	7
1.18	Compensation	7
1.19	Contributions	7
1.20	Controlling Company	7
1.21	Covered Employee	7
1.22	Deferral Election	7
1.23	Disabled	8
1.24	Effective Date	8
1.25	Employee	8
1.26	Entry Date	8
1.27	Forfeiture	8
1.28	Hour of Service	8
1.29	Investment Committee	9
1.30	Investment Fund or Funds	9
1.31	Key Employee	9
1.32	Leave of Absence	9
1.33	Matching Account	10
1.34	Matching Contributions	10
1.35	Maternity or Paternity Leave	10
1.36	Normal Retirement Age	10
1.37	Participant	10
1.38	Participating Company	10
1.39	Payment Election	10
1.40	Plan	10
1.41	Plan Year	10
1.42	Retirement Savings Plus Plan or RSP	10
1.43	Separate from Service or Separation from Service	10
1.44	Special Bonus Deferral Election	10

 

 

 

		Page
1.45	Spouse or Surviving Spouse	11
1.46	Trust or Trust Agreement	11
1.47	Trustee	11
1.48	Trust Fund	11
1.49	Valuation Date	11
1.50	Year of Vesting Service	11
ARTICLE II	ELIGIBILITY	11
2.1	Initial Eligibility Requirements	11
2.2	Subsequent Eligibility Requirements	12
2.3	Treatment of Interruptions of Service	12
2.4	Change in Status	12
ARTICLE III	CONTRIBUTIONS	12
3.1	Before-Tax Contributions	12
3.2	Matching Contributions	14
3.3	Form of Contributions	15
ARTICLE IV	PARTICIPANTS’ ACCOUNTS; CREDITING AND ALLOCATIONS	15
4.1	Establishment of Participants’ Accounts	15
4.2	Allocation and Crediting of Before-Tax and Matching Contributions	15
4.3	Allocation and Crediting of Investment Experience	15
4.4	Notice to Participants of Account Balances	16
4.5	Good Faith Valuation Binding	16
4.6	Errors and Omissions in Accounts	16
ARTICLE V	INVESTMENT OF ACCOUNTS	16
5.1	Establishment of Trust Fund	16
5.2	Investment Funds	17
5.3	Investment Procedures	18
5.4	Acquisition of Company Stock	19
5.5	Value of Assets	19
ARTICLE VI	VESTING IN ACCOUNTS	20
6.1	General Vesting Rule	20
6.2	Vesting Upon Other Occurrences	20
6.3	Timing of Forfeitures	20
6.4	Vesting of Matching Contribution Accounts for NUI Participants	20
ARTICLE VII	PAYMENT OF BENEFITS	21
7.1	Benefit Payments	21
7.2	Election of Timing and Form of Benefit Payment	21
7.3	Forms of Payment Upon Separation from Service	23
7.4	Beneficiary Designation	23
7.5	Hardship Withdrawals	24
7.6	Unclaimed Benefits	24
7.7	Claims	25

 

 

		Page
ARTICLE VIII	ALLOCATION OF AUTHORITY AND RESPONSIBILITIES	26
8.1	Administrative Committee	26
8.2	Controlling Company and Board	28
8.3	Trustee	29
8.4	Delegation	29
ARTICLE IX	AMENDMENT, TERMINATION AND ADOPTION	29
9.1	Amendment	29
9.2	Termination	29
9.3	Delegation	29
ARTICLE X	MISCELLANEOUS	31
10.1	Nonalienation of Benefits and Spendthrift Clause	31
10.2	Headings	32
10.3	Construction, Controlling Law	32
10.4	No Contract of Employment	32
10.5	Legally Incompetent	32
10.6	Heirs, Assigns and Personal Representatives	32
10.7	Unsecured Creditor Rights	32
10.8	Legal Action	32
10.9	Severability	33
10.10	Predecessor Service	33
10.11	Plan Expenses	33
SCHEDULE A		34
SCHEDULE B		35

 

 

 

 

For purposes of the Plan, the following terms, when used with an initial capital letter, shall have the meanings set forth below unless a different meaning plainly is required by the context.

 

1.1  1934 Act shall mean the Securities Exchange Act of 1934, as amended.

 

1.2  Account shall mean, with respect to a Participant or Beneficiary, the amount of money or other property as is evidenced by the last balance posted in accordance with the terms of the Plan to the account record established for such Participant or Beneficiary. The Administrative Committee may establish and maintain separate subaccounts for each Participant and Beneficiary, provided allocations are made to such subaccounts in the manner described in Article IV of the Plan. “Account” shall refer to the aggregate of all separate subaccounts or to individual, separate subaccounts, as may be appropriate in context.

 

1.3  Active Participant shall mean, for any Plan Year (or any portion thereof), any Covered Employee who has been admitted to, and not removed from, active participation since the last date his employment commenced or recommenced.

 

1.4  Administrative Committee shall mean the committee designated by the Board which shall act on behalf of the Controlling Company to administer the Plan; provided, the Controlling Company may act in lieu of the Administrative Committee as it deems appropriate or desirable.

 

1.5  Affiliate shall mean, as of any date, (i) a Participating Company, and (ii) any company, person or organization which, on such date, (A) is a member of the same controlled group of corporations [within the meaning of Code §414(b)] as is a Participating Company; (B) is a trade or business (whether or not incorporated) which controls, is controlled by or is under common control with [within the meaning of Code §414(c)] a Participating Company; (C) is a member of an affiliated service group [as defined in Code §414(m)] which includes a Participating Company; or (D) is required to be aggregated with a Participating Company pursuant to regulations promulgated under Code §414(o).

 

1.6  Aggregated Arrangements shall mean the Plan and any other plan that that would be considered as a single plan with the Plan under Code § 409A and applicable guidance issued thereunder.

 

1.7  Before-Tax Account shall mean the separate subaccount(s) established and maintained on behalf of a Participant or his Beneficiary to reflect his interest in the Plan attributable to his Before-Tax Contributions.

 

1.8  Before-Tax Contributions shall mean the amounts paid by each Participating Company to the Plan at the election of Participants, all pursuant to the terms of §3.1(a).

 

1.9  Beneficiary shall mean the person(s) designated in accordance with §7.4 to receive any death benefits that may be payable under the Plan upon the death of a Participant.

 

1.10  Board shall mean the board of directors of the Controlling Company. A reference to the board of directors of any other Participating Company shall specify it as such.

 

1.11  Bonus shall mean an annual bonus payable under the terms of the AGL Resources Inc. Annual Incentive Plan (or its successor plan) or any other annual bonus plan sponsored by a Participating Company.

 

1.12  Bonus Compensation shall mean that portion of a Participant’s Compensation that is attributable to a Bonus.

 

1.13  Break in Service shall mean, with respect to an Employee, any year during which such Employee fails to complete more than 500 Hours of Service; provided, a Break in Service shall not be deemed to have occurred during any period for which he is granted a Leave of Absence if he returns to the service of an Affiliate within the time permitted as set forth in the Plan. A Break in Service shall be deemed to have commenced on the first day of the year in which it occurs.

 

For purposes of determining whether or not an Employee has incurred a Break in Service, an Employee absent from work due to a Maternity or Paternity Leave shall be credited with (i) the number of Hours of Service with which he normally would have been credited but for the Maternity or Paternity Leave, or (ii) if the Administrative Committee is unable to determine the hours described in (i), 8 Hours of Service for each day of absence included in the Maternity or Paternity Leave; provided, the maximum number of Hours of Service credited for purposes of this Section shall not exceed 501 hours. Hours of Service so credited shall be applied only to the year in which the Maternity or Paternity Leave begins, unless such Hours of Service are not required to prevent the Employee from incurring a Break in Service, in which event such Hours of Service shall be credited to the Employee in the immediately following year. No Hour of Service shall be credited due to Maternity or Paternity Leave as described in this Section unless the Employee furnishes proof satisfactory to the Administrative Committee (A) that his absence from work was due to a Maternity or Paternity Leave and (B) of the number of days he was absent due to the Maternity or Paternity Leave. The Administrative Committee shall prescribe uniform and nondiscriminatory procedures by which to make the above determinations.

 

As used in this Section, the term “year” shall mean the same 12-month period as forms the basis for determining a Year of Vesting Service.

 

1.14  Change in Control shall mean:

 

(a)  any “person” as defined in Section 3(a)(9) of the 1934 Act, and as used in Section 13(d) and 14(d) thereof, but excluding the Controlling Company and any subsidiary and any employee benefit plan sponsored or maintained by the Controlling Company or any subsidiary (including any trustee of such plan acting as trustee), directly or indirectly, becomes the “beneficial owner” (as determined pursuant to Rule 13d-3 under the 1934 Act), of securities of the Controlling Company representing 35% or more of the combined voting power of the Controlling Company’s then outstanding securities (unless the event causing the 35% threshold to be crossed is an acquisition of securities directly from the Controlling Company); or

 

(b)  the shareholders of the Controlling Company shall approve (i) any merger, share exchange, reorganization, or other business combination of the Controlling Company, (ii) any sale of 50% or more of the Controlling Company’s assets, or (iii) any combination of the foregoing transactions (the “Transactions”), other than a Transaction immediately following which the shareholders of the Controlling Company and any trustee or fiduciary of any Controlling Company employee benefit plan immediately prior to the Transaction own at least 80% of the voting power, directly or indirectly, of (A) the surviving corporation in any such merger, share exchange, reorganization, or other business combination; (B) the purchaser of the Controlling Company’s assets; (C) both the surviving corporation and the purchaser in the event of any combination of Transactions; or (D) the parent company owning 100% of such surviving corporation, purchaser or both the surviving corporation and the purchaser, as the case may be; or

 

(c)  A majority of members of the Board is replaced during any 24-month period by directors whose appointment or election is not endorsed by a majority of members of the Board prior to the date of their appointment or election.

 

1.15  Code shall mean the Internal Revenue Code of 1986, as amended, and any succeeding federal tax provisions.

 

1.16  Company Contributions shall mean Before-Tax and Matching Contributions made by the Participating Companies pursuant to the terms of the Plan.

 

1.17  Company Stock shall mean the common stock of the Controlling Company. As of the Effective Date, the term “Company Stock” shall mean the $5.00 par value common stock of AGL Resources Inc.

 

1.18  Compensation shall mean, for any Plan Year, the total of the amounts described in subsections (a) and (b), minus the amount described in subsection (c):

 

(a)  all such Participant’s wages, as defined in Code §3401(a) for purposes of income tax withholding at the source, that are reportable for federal income tax purposes on IRS Form W-2 (determined without regard to any rules that limit the remuneration included in wages based on the nature or location of the employment or the services performed (such as the exception for agricultural labor in Code §3401(a)(2)); plus

 

(b)  all before-tax, salary deferral or reduction contributions made to the Plan and other §401(k) and §125 plans (such as the Controlling Company’s Flex Plan) of the Participating Companies on behalf of a Participant for such Plan Year [including any contributions made under Code §402(a)(8) or §402(h)]; minus

 

(c)  any amounts (i) attributable to items listed on the attached Schedule B, as modified from time to time by the Administrative Committee to reflect changes in payroll codes listed thereunder, or (ii) paid or made available to a Participant during the Plan Year while he is not an Active Participant.

 

1.19  Contributions shall mean, individually or collectively, the Before-Tax and Matching Contributions permitted under the Plan.

 

1.20  Controlling Company shall mean AGL Resources Inc., a Georgia corporation with its principal office in Atlanta, Georgia, and its successors.

 

1.21  Covered Employee shall mean any Employee of a Participating Company who, as of his initial Entry Date or as of the December 1 immediately preceding a subsequent Plan Year, had an annual base salary in an amount equal to or in excess of the compensation limit designated by the IRS for determining “highly compensated employee” under Code §414(q)(1)(C) plus $10,000 (for example, the 2007 IRS limit is $100,000 plus $10,000 = $110,000).

 

1.22  Deferral Election shall mean a written election by an Active Participant directing the Participating Company of which he is an Employee to withhold a percentage of his Compensation from his paychecks and to contribute such withheld amount to the Plan as a Before-Tax Contribution, all as provided in §3.1.

 

1.23  Disabled shall mean that a Participant is (i) wholly prevented from engaging in any substantially gainful activity by reason of a medically-determinable physical or mental impairment which can be expected to result in death or to be of long-continued and indefinite duration, and (ii) determined eligible to receive long term disability benefits from a Participating Company’s long term disability plan, or if no such plan exists, upon the discretionary determination by the Administrative Committee that the employee meets the definition of “disabled” under the Controlling Company’s long-term disability plan.

 

1.24  Effective Date shall mean January 1, 2007, the date that this amendment and restatement of the Plan shall be effective; provided, any effective date specified herein for any provision, if different from the “Effective Date”, shall control. The Plan was initially adopted effective as of July 1, 1995.

 

1.25  Employee shall mean any individual who is employed by a Participating Company (including officers, but excluding directors who are not officers or otherwise employees) and shall include leased employees of a Participating Company within the meaning of Code §414(n). Notwithstanding the foregoing, if leased employees constitute 20 percent or less of a Participating Company’s non highly compensated work force within the meaning of Code §414(n)(5)(C)(ii), the term “Employee” shall not include those leased employees covered by a plan described in Code §414(n)(5)(B).

 

1.26  Entry Date shall mean each business day during which the Plan remains in effect.

 

1.27  Forfeiture shall mean, for any Plan Year, the nonvested dollar amount of an Account of a former Participant who separates from service from all Affiliates. Forfeitures shall be used to reduce Matching Contributions.

 

1.28  Hour of Service shall mean the increments of time described in subsection (a) hereof, as modified by subsections (b), (c) and (d) hereof:

 

(a)  (1)Each hour for which an Employee is paid, or entitled to payment, for the performance of duties for an Affiliate during the applicable computation period;

 

(2)  Each hour for which an Employee is paid, or entitled to payment, by an Affiliate on account of a period of time during which no duties are performed (irrespective of whether the employment relationship has terminated) due to vacation, holiday, illness, incapacity (including disability), layoff, jury duty, military duty or Leave of Absence; provided:

 

(A)  No more than 501 Hours of Service shall be credited under this subsection (2) to an Employee for any single continuous period during which he performs no duties as an employee of an Affiliate (whether or not such period occurs in a single computation period);

 

(B)  An hour for which an Employee is directly or indirectly paid, or entitled to payment, on account of a period during which he performs no duties as an employee of an Affiliate shall not be credited as an Hour of Service if such payment is made or due under a plan maintained solely to comply with applicable workers’ compensation, unemployment compensation or disability insurance laws; and

 

(C)  Hours of Service shall not be credited to an Employee for a payment which solely reimburses such Employee for medical or medically related expenses incurred by him.

 

For purposes of this subsection (2), a payment shall be deemed to be made by or due from an Affiliate regardless of whether such payment is made by or due from an Affiliate directly, or indirectly through, among others, a trust fund or insurer, to which the Affiliate contributes or pays premiums and regardless of whether contributions made or due to the trust fund, insurer or other entity are for the benefit of particular employees or are on behalf of a group of employees in the aggregate; and

 

(3)  Each hour for which back pay, irrespective of mitigation of damages, is either awarded or agreed to by an Affiliate; provided, the same Hours of Service shall not be credited both under subsection (1) or subsection (2), as the case may be, and under this subsection (3); and, provided further, crediting of Hours of Service for back pay awarded or agreed to with respect to periods described in subsection (2) shall be subject to the limitations set forth in that subsection.

 

(b)  Each Employee for whom an Affiliate does not keep records of actual Hours of Service shall be credited, in accordance with this Section and applicable regulations promulgated by the Department of Labor, with 45 Hours of Service for each week for which such Employee would be required to be credited with at least 1 Hour of Service.

 

(c)  The rate or manner used for crediting Hours of Service may be changed at the direction of the Administrative Committee from time to time so as to facilitate administration and to equitably reflect the purposes of the Plan; provided, no change shall be effective as to any Plan Year for which allocations have been made pursuant to Article IV at the time such change is made; and, provided further, Hours of Service shall be credited and determined in compliance with Department of Labor Regulation §2530.200b-2(b) and (c), 29 CFR Part 2530, as may be amended from time to time, or such other federal regulations as may from time to time be applicable.

 

(d)  For purposes of this Section, a “computation period” shall mean the 12-month period that forms the basis for determining an Employee’s Years of Vesting Service.

 

1.29  Investment Committee shall mean the committee which is appointed by and acts on behalf of the Controlling Company with respect to making and effecting investment decisions, all as provided in Article V. The Controlling Company may act in lieu of the Investment Committee as it deems appropriate or desirable.

 

1.30  Investment Fund or Funds shall generally mean the investment fund or funds established by the Trustee; except as otherwise determined by the Trustee, the “Investment Fund or Funds” shall mean the investment fund or funds established under the Retirement Savings Plus Plan, and any other investment funds established from time to time by the Trustee pursuant to §5.2 hereof.

 

1.31  Key Employee shall mean a key employee as defined in Code §416(i) without regard to paragraph (5) thereof, of any Affiliate, as determined under Code §409A and guidance issued thereunder. The identification date for determining Key Employees under the Plan shall be December 31.

 

1.32  Leave of Absence shall mean an excused leave of absence granted to an Employee by an Affiliate in accordance with applicable federal or state law or the Affiliate’s personnel policy. Among other things, Leave of Absence shall be granted to an Employee:

 

(a)  who leaves the service of an Affiliate, voluntarily or involuntarily, to enter the Armed Forces of the United States; provided, (i) the Employee is legally entitled to reemployment under the veteran’s reemployment rights provisions as codified at 38 USC §2021, et seq., its predecessors and successors; and (ii) the Employee applies for and reenters service with an Affiliate within the time, in the manner and under the conditions prescribed by law;

 

(b)  for any time such Employee is drawing workers’ compensation benefits or is sick, disabled or incapacitated, if he is thereby precluded from properly performing his assigned duties for a temporary period of time; and

 

(c)  under such other circumstances as the Administrative Committee shall determine are fair, reasonable and equitable as applied uniformly among Employees under similar circumstances.

 

1.33  Matching Account shall mean the separate subaccount(s) established and maintained on behalf of a Participant or his Beneficiary to reflect his interest in the Plan attributable to Matching Contributions.

 

1.34  Matching Contributions shall mean the amounts paid by each Participating Company to the Plan as a match to Participants’ Before-Tax Contributions, all as pursuant to the terms of §3.2.

 

1.35  Maternity or Paternity Leave shall mean any period, during which an Employee is absent from work as an employee of an Affiliate (i) because of the pregnancy of such Employee; (ii) because of the birth of a child of such Employee; (iii) because of the placement of a child with such Employee in connection with the adoption of such child by such Employee; or (iv) for purposes of such Employee caring for a child immediately after the birth or placement of such child.

 

1.36  Normal Retirement Age shall mean age 65.

 

1.37  Participant shall mean any person who has an Account under the Plan.

 

1.38  Participating Company shall mean the Controlling Company and all Affiliates which have adopted or hereafter may adopt the Plan for the benefit of their employees and which continue to participate in the Plan, all as provided in §9.3.

 

1.39  Payment Election shall mean a written or electronic election by an Active Participant directing the Participating Company regarding the time and form of payment of such Active Participant’s Account under the Plan upon Separation from Service, all as described in Article VII.

 

1.40  Plan shall mean the AGL Resources Inc. Nonqualified Savings Plan as contained herein and all amendments thereto. The Plan is intended to be an unfunded nonqualified deferred compensation plan for the benefit of a select group of management or highly compensated employees.

 

1.41  Plan Year shall mean each 12-month period beginning on January 1 and ending on December 31.

 

1.42  Retirement Savings Plus Plan or RSP shall mean the AGL Resources Inc. Retirement Savings Plus Plan, as it may be amended from time to time.

 

1.43  Separate from Service or Separation from Service shall mean that a Participant separates from service with all Affiliates, as determined under Code §409A and guidance thereunder.

 

1.44  Special Bonus Deferral Election shall mean a separate election made by a Participant to defer some or all of his Bonus Compensation received during a Plan Year.

 

1.45  Spouse or Surviving Spouse shall mean, with respect to a Participant, the person who is treated as married to such Participant under the laws of the state in which the Participant resides. The determination of a Participant’s Spouse or Surviving Spouse shall be made as of the earlier of the date as of which benefit payments from the Plan to such Participant are made or commence (as applicable) or the date of such Participant’s death.

 

1.46  Trust or Trust Agreement shall mean a separate agreement between the Controlling Company and the Trustee governing the creation of the Trust Fund, and all amendments thereto.

 

1.47  Trustee shall mean the party or parties so designated from time to time pursuant to the Trust Agreement.

 

1.48  Trust Fund shall mean the total amount of cash and other property held by the Trustee (or any nominee thereof) at any time under the Trust Agreement.

 

1.49  Valuation Date shall mean each business day on which the fair market value of the accounts under the Plan are determined.

 

1.50  Year of Vesting Service shall mean a Plan Year during which an Employee completes no less than 1,000 Hours of Service; provided:

 

(a)  Years of Vesting Service completed prior to a period in which the Participant incurred 5 or more consecutive Breaks in Service shall be disregarded under the Plan if the Participant had no vested interest in his Account at the time the first such Break in Service commenced and the number of such consecutive Breaks in Service equals or exceeds the number of his prior Years of Vesting Service;

 

(b)  Years of Vesting Service completed after a period in which the Participant had at least 5 consecutive Breaks in Service shall be disregarded for the purpose of determining his vested interest in that portion of his Account which accrued before such Breaks in Service; and

 

(c)  For purposes of this Section, employment with an Affiliate shall be considered employment with the Controlling Company, and in the case of a leased employee (within the meaning of Code §414(n)) of any Affiliate, such leased employee shall be considered as being a leased employee of the Controlling Company.

 

 

 

2.1  Initial Eligibility Requirements.

 

(a)  General Rule. Except as provided in subsection (b) hereof, each Covered Employee shall first become eligible to make contributions under the Plan as of the Entry Date coincident with or next following the date of (i) such Covered Employee’s attainment of age 21, and (ii) completion of thirty (30) days of employment as a Covered Employee, provided he is a Covered Employee on such date.

 

(b)  New Participating Companies. Each Covered Employee employed by a Participating Company on the date such Participating Company first becomes a Participating Company shall first become eligible to make contributions under the Plan as of the business day coincident with or next following the later of such Participating Company’s commencement of participation in the Plan, or such Covered Employee’s attainment of age 21 and completion of thirty (30) days of employment with such Participating Company.

 

2.2  Subsequent Eligibility Requirements.

 

Each Covered Employee shall be eligible to make contributions under the Plan for each Plan Year following the Plan Year in which the Covered Employee first became eligible to make contributions under the Plan if such Covered Employee satisfies the compensation requirements for Covered Employees as of the December 1 immediately preceding the first day of such subsequent Plan Year.

 

2.3  Treatment of Interruptions of Service.

 

(a)  Leave of Absence. If a Covered Employee satisfies the eligibility requirements set forth in §2.1 but is on a Leave of Absence on the Entry Date on which he otherwise would have become an Active Participant, he shall become an Active Participant as of the date he subsequently resumes the performance of duties as a Covered Employee in accordance with the terms of his Leave of Absence.

 

(b)  Reparticipation Upon Reemployment. If an Active Participant separates from service with a Participating Company (and all other Participating Companies), his active participation in the Plan shall cease immediately, and he again shall become an Active Participant as of the day he is reemployed as a Covered Employee, regardless of whether he has received a distribution of his Account balance under the Plan at the time of his reemployment. However, regardless of whether he again becomes an Active Participant, he shall continue to be a Participant until he no longer has an Account under the Plan.

 

2.4  Change in Status. If an Active Participant changes his status of employment (but remains employed) so that he is no longer a Covered Employee, he shall continue to be a Participant until he no longer has an Account under the Plan. If an Active Participant does not meet the compensation requirements for Covered Employees as of the December 1 immediately preceding the first day of any Plan Year, he shall continue to be a Participant until he no longer has an Account under the Plan and may again become an Active Participant in the Plan if, as of the December 1 immediately preceding the first day of a Plan Year, he meets the compensation requirements for Covered Employees.

 

 

 

3.1  Before-Tax Contributions.

 

(a)  Before-Tax Contributions. Each Participating Company shall contribute to the Plan, on behalf of each Active Participant employed by such Participating Company and for each payroll period for which such Active Participant has a Before-Tax Deferral Election in effect with such Participating Company, a Before-Tax Contribution in an amount equal to the amount by which such Active Participant’s Compensation has been reduced for such period pursuant to his Before-Tax Deferral Election. The amount of the Before-Tax Contribution shall be determined in percentage increments of such Active Participant’s Compensation for each payroll period.

 

(b)  Deferral Elections. Each Active Participant who desires that his Participating Company make a Before-Tax Contribution on his behalf shall complete and deliver to the Participating Company (or its designee) a Deferral Election. Such Deferral Election shall provide for the reduction of his Compensation for each Plan Year for which the Deferral Election is applicable, up to a maximum of 100 percent of his Compensation after all deductions required by law or otherwise elected by the Participant. In addition, the Deferral Election may contain a Special Bonus Deferral Election providing for the reduction of the Participant’s Bonus Compensation received during the Plan Year, up to a maximum of 100 percent of his Bonus Compensation after all deduction required by law or otherwise elected by the Participant. The Administrative Committee, in its sole discretion, shall prescribe the form of all Deferral Elections and may prescribe such nondiscriminatory terms and conditions governing the use of the Deferral Elections as it deems appropriate. Subject to any modifications, additions or exceptions which the Administrative Committee, in its sole discretion, deems necessary, appropriate or helpful, the following terms shall apply to Deferral Elections:

 

(1)  Effective Date.

 

(A)  Deferrals for New Participants. In the case of the first year in which a Participant becomes eligible to participate in the Plan and any Aggregated Arrangements, such Active Participant’s initial Deferral Election with a Participating Company must be made within 30 days after the date the Participant first becomes eligible to participate in any Aggregated Arrangement, and shall be effective for the first payroll period which ends after the Deferral Election is made and after the effective date specified for such Deferral Election. Such Active Participant’s Deferral Election with respect to Compensation payable with respect to services performed during the initial Plan Year of participation shall become irrevocable as of the earlier of the date the first Before-Tax Contribution is made on behalf of the Participant or the end of the 30-day period after the date the Participant first becomes eligible to participate in an Aggregated Arrangement. Except as provided in subsection (B) below, such Participant’s initial Deferral Election shall not apply to Compensation payable with respect to services performed prior to the effective date of the Deferral Election.

 

(B)  Bonus Deferrals.

 

(i)  New Participants. Except as provided in subsection (B)(ii) below, in the case of the first year in which a Participant becomes eligible to participate in the Plan and any Aggregated Arrangements, such Participant’s initial Special Bonus Deferral Election, with respect to any Bonus for which the performance period began prior to the date of the Special Bonus Deferral Election, must be made within 30 days after the date the Participant first becomes eligible to participate in any Aggregated Arrangement, and shall apply to the portion of the Participant’s Bonus equal to the total amount of the Participant’s Bonus, multiplied by the ratio of the number of days remaining in the performance period after the date the Special Bonus Deferral Election is made, over the total number of days in the performance period for the Bonus. Such Active Participant’s Special Bonus Deferral Election with respect to Bonus Compensation payable with respect to services performed during the initial Plan Year of participation shall become irrevocable as of the end of the 30-day period after the date the Participant first becomes eligible to participate in an Aggregated Arrangement.

 

(ii)  New and Continuing Participants. If a Participant was a Covered Employee continuously from the date on which the performance criteria of a Bonus was established, through the date such Participant makes an initial or modified Special Bonus Deferral Election under the Plan, such initial or modified Special Bonus Deferral Election may be made with respect to the entire amount of such Bonus on or before the date that is six (6) months before the end of the performance period of the Bonus, but only if the Bonus has not become both substantially certain to be paid and readily ascertainable at the time of such initial or modified Special Bonus Deferral Election. This provision shall apply to the first year in which a Participant becomes eligible to participate in the Plan and any Aggregated Arrangements, notwithstanding the provisions of subsection (B)(i) above, as well as to continuing Active Participants.

 

(iii)  Additional Requirements. To be eligible for the election timing rules of this subsection (B), the amount of, or entitlement to, the Bonus must satisfy the requirements to be considered “performance-based compensation” as defined in Code §409A and guidance issued thereunder. To the extent that a Bonus does not meet the requirements for “performance-based compensation,” the election timing rules under subsection (A) above apply.

 

(C)  All Other Deferral Elections. Except as provided in subsections (A) and (B) above, a Participant’s initial Deferral Election, or new Deferral Election following termination of a previously effective Deferral Election, shall be made on or before December 31 of the preceding calendar year with respect to Compensation payable with respect to services performed during the Plan Year. If an Active Participant fails to submit an initial Deferral Election in a timely manner, he shall be deemed to have elected a deferral of zero percent.

 

(2)  Term. Each Active Participant’s Deferral Election with a Participating Company for a Plan Year shall remain in effect in accordance with its original terms until the date the Active Participant ceases to be an Employee of all Participating Companies, subject to subsection (3) below. If a Participant is transferred from the employment of a Participating Company to the employment of another Participating Company, his Deferral Election with the first Participating Company will remain in effect and will apply to his Compensation from the second Participating Company.

 

(3)  Modification and Revocation. An Active Participant’s Deferral Election with a Participating Company shall automatically terminate upon either: (i) his ceasing to be an Employee of all Participating Companies, or (ii) his receipt of a hardship withdrawal as provided in §7.5 of the Plan. Otherwise, except as provided in subsections (b)(1)(A) and (B) above, an Active Participant’s Deferral Election with respect to a Plan Year becomes irrevocable as of the preceding December 31 with respect to Compensation payable with respect to services performed during the Plan Year, and may not be modified or revoked by the Active Participant during that Plan Year. An Active Participant may make a new Deferral Election prior to the beginning of a Plan Year for Before Tax Contributions attributable to services performed during that Plan Year. If an Active Participant does not make a new Deferral Election for any subsequent Plan Year, the most recent Deferral Election in place will remain in effect for that subsequent Plan Year.

 

3.2  Matching Contributions.

 

(a)  For each Active Participant (other than those described in subsection (b) hereof) on whose behalf a Participating Company has made any Before-Tax Contributions to the Plan for the Plan Year, such Participating Company shall make a Matching Contribution equal to 65 percent of the aggregate amount of such Before-Tax Contributions up to the first 8 percent of the Participant’s Compensation (or the difference between the amount of Before-Tax Contributions made by the Participant and matched by the Controlling Company (or another participating employer) under the Retirement Savings Plus Plan so that only a total of 8 percent of the Participant’s Compensation is matched under both the RSP and the Plan).

 

(b)  For each Active Participant who was then an Active Participant and had reached age 50 on or before July 1, 2000, on whose behalf a Participating Company has made any Before-Tax Contributions to the Plan for the Plan Year, such Participating Company shall make a Matching Contribution equal to 65 percent of the aggregate amount of such Before-Tax Contributions up to the first 6 percent of the Participant’s Compensation (or the difference between the amount of Before-Tax Contributions made by the Participant and matched by the Controlling Company (or another participating employer) under the Retirement Savings Plus Plan so that only a total of 6 percent of the Participant’s Compensation is matched under both the RSP and the Plan).

 

(c)  Matching Contributions shall be made to the Plan once each year within the period of two months following the last day of each Plan Year. Matching Contributions for a Plan Year shall be reduced by the amount of any Forfeitures available for reallocation during that Plan Year.

 

3.3  Form of Contributions.

 

All Contributions shall be paid to the Trustee in the form of cash or Company Stock or a combination thereof, as the Controlling Company or Administrative Committee may determine from time to time.

 

 

 

4.1  Establishment of Participants’ Accounts.

 

To the extent appropriate, the Administrative Committee shall establish and maintain, on behalf of each Participant and Beneficiary, an Account which shall be divided into segregated subaccounts. The subaccounts shall include Before-Tax and Matching Accounts, and such other subaccounts as the Administrative Committee shall deem appropriate or helpful. Each Account shall be credited with Contributions allocated to such Account and generally shall be credited with income on investments derived from the assets of such Accounts. Each Account of a Participant or Beneficiary shall be maintained until the value thereof has been distributed to or on behalf of such Participant or Beneficiary.

 

4.2  Allocation and Crediting of Before-Tax and Matching Contributions.

 

As of each Valuation Date coinciding with or immediately following the date on which Before-Tax and Matching Contributions are received on behalf of an Active Participant, such Contributions shall be allocated and credited directly to the appropriate Before-Tax and Matching Accounts, respectively, of such Active Participant.

 

4.3  Allocation and Crediting of Investment Experience.

 

As of each Valuation Date, the Administrative Committee or its designated recordkeeper shall determine the fair market value of the Trust Fund which shall be the sum of the fair market values of the Investment Funds. The Administrative Committee shall determine the amount of the Accounts as follows:

 

(a)  Determination of Earnings or Losses. As of each Valuation Date, the investment earnings (or losses) of each Investment Fund shall be the amount by which the sum determined in (1) exceeds (or is less than) the sum determined in (2), where (1) and (2) are as follows:

 

(1)  The sum of (A) the fair market value of such Investment Fund as of such Valuation Date, plus (B) the amount of any distributions, withdrawals and transfers to other Investment Funds made since the immediately preceding Valuation Date from amounts invested in the Investment Fund; and

 

(2)  The sum of (A) the fair market value of the Investment Fund as of the immediately preceding Valuation Date, plus (B) Contributions deposited in and amounts transferred to such Investment Fund since the immediately preceding Valuation Date.

 

(b)  Formula For Allocation. As of each Valuation Date and prior to the allocations described in §4.2, and 4.3, each Participant’s Account shall be allocated and shall be credited with a portion of such earnings or debited with a portion of such losses of each Investment Fund, as determined in accordance with subsection (a) hereof, in the proportion that (i)(A) the amount credited to such Account that was invested in such Investment Fund as of the immediately preceding Valuation Date, minus (B) any distributions, withdrawals or transfers to other Investment Funds that were made from such Account since such preceding Valuation Date and on or before such current Valuation Date, plus (C) any Contributions deposited in and amounts transferred to such Investment Fund from such Account since the preceding Valuation Date; bears to (ii)(A) the total amount invested in such Investment Fund by all Participants as of the immediately preceding Valuation Date, minus (B) any distributions, withdrawals or transfers to other Investment Funds which were made from such Accounts since such preceding Valuation Date and on or before such current Valuation Date, plus (C) any Contributions deposited in and amounts transferred to such Investment Fund since the preceding Valuation Date.

 

4.4  Notice to Participants of Account Balances.

 

At least once for each Plan Year, the Administrative Committee shall cause a written statement of a Participant’s Account balance to be distributed to the Participant.

 

4.5  Good Faith Valuation Binding.

 

In determining the value of the Accounts, the Administrative Committee and/or its designated recordkeeper shall exercise its best judgment, and all such determinations of value (in the absence of bad faith) shall be binding upon all Participants and Beneficiaries.

 

4.6  Errors and Omissions in Accounts.

 

If an error or omission is discovered in the Account of a Participant or Beneficiary, the Administrative Committee shall cause appropriate, equitable adjustments to be made as of the Valuation Date coinciding with or immediately following the discovery of such error or omission.

 

 

 

5.1  Establishment of Trust Fund.

 

(a)  Rabbi Trust. The Controlling Company has established a Trust Fund to hold assets to pay benefits under the Plan. All Contributions are to be paid over to the Trustee to be held in the Trust Fund and invested in accordance with the terms of the Plan and the Trust Agreement. The Trust Fund shall exist under an agreement constituting a “rabbi trust” agreement, under which all assets of the Trust Fund shall be considered to be subject to the general creditors of the Controlling Company, and all Plan participants shall be unsecured creditors under such Trust Agreement. In the event that no trust fund exists, benefits shall be payable from the general assets of the Controlling Company.

 

(b)  Trust Required Upon Change in Control. Upon a Change in Control of the Controlling Company, the Controlling Company must within ten (10) business days after such Change in Control, establish and fully fund a rabbi trust (if and to the extent such a fully funded rabbi trust does not already exist) to pay all benefits accrued by Participants through that date under the Plan. Further, upon a Change of Control, an entity other than the Controlling Company, a Participating Company, any Affiliate or any employee, officer or director of such companies shall be named by the Board as Trustee of the rabbi trust. This subsection 5.1(c) of the Plan shall be irrevocable and may not be amended by the Controlling Company or any other company after the effective date of the Plan (unless required by law).

 

5.2  Investment Funds. To the extent a Trust Fund is established, the following provisions shall apply:

 

(a)  Composition of Investment Committee. The Investment Committee shall consist of not less than one member who shall be appointed by and serve at the pleasure of the Board. The Board shall have the right to remove any member of the Investment Committee at any time. A member may resign at any time by written resignation to the Board. If a vacancy in the Investment Committee should occur, a successor may be appointed by the Board.

 

(b)  Investment Committee Procedures. The Investment Committee may elect a Chairman and a Secretary from among its members. The Investment Committee shall act by majority vote. Its members shall serve as such without compensation. All acts and determinations of the Investment Committee shall be duly recorded by its Secretary or under his supervision, and all such records, together with such other documents as may be necessary for the administration of the Plan, shall be preserved in the custody of such Secretary.

 

(c)  Investment Committee Powers and Duties. In addition to those powers set forth elsewhere in the Plan, the Investment Committee shall carry out the Controlling Company’s responsibility and authority:

 

(1)  To appoint one or more persons to serve as investment manager with respect to all or part of the Trust Fund assets;

 

(2)  To allocate the responsibility and authority being carried out by the Investment Committee among the members of the Investment Committee;

 

(3)  To employ one or more persons to render advice with respect to any responsibility or authority being carried out by the Investment Committee; and

 

(4)  To direct the Trustee regarding the investments and investment funds available under the Plan.

 

(d)  Investment of Plan Contributions. All Contributions to the Plan shall be invested in the following manner:

 

(1)  Named Investment Funds. In accordance with instructions from the Investment Committee and the terms of the Plan, the Trustee shall establish, for the investment of assets of the trust fund, one or more of the investment fund or funds established under the Retirement Savings Plus Plan.

 

(2)  Other Investment Funds. At the direction of the Investment Committee, the Trustee shall establish other Investment Funds, in addition to or in lieu of the Investment Funds described herein, which may include, for example, other income funds or equity funds. Such other Investment Funds shall be established without necessity of amendment to the Plan or the Trust and shall have the investment objectives prescribed by the Investment Committee and to which the Trustee consents. Such other Investment Funds also may be established and maintained for any limited purpose(s) the Investment Committee may direct.

 

(3)  Reinvestment of Cash Earnings. Any investment earnings received in the form of cash with respect to any Investment Fund (in excess of the amounts necessary to make cash distributions for fractional shares of Company Stock or to pay Plan or Trust expenses) shall be reinvested in such Investment Fund.

 

5.3  Investment Procedures.

 

Each Participant or Beneficiary generally may direct the manner in which his Account shall be invested in and among the Investment Funds; provided, however, that the Investment Committee shall have sole discretion as to investment of a Participant’s or Beneficiary’s Account and may refuse to follow a Participant’s or Beneficiary’s investment directions. A Participant’s or Beneficiary’s investment directions shall be made in accordance with the following terms:

 

(a)  Investment of Future Contributions. Except as otherwise provided in this Section [relating to special Investment Funds described in §5.2(d)(2)], each Participant may elect, on a form provided by or any other means specified by the Administrative Committee, the percentage of his future Before-Tax and Matching Contributions that will be invested in each Investment Fund. An initial election of a Participant shall be made as of the date the Participant commences or recommences participation in the Plan and shall apply to all Before-Tax and Matching Contributions attributable to payroll periods ending after such date. Such Participants may make subsequent elections on a daily basis as provided by the Administrative Committee. Any election made pursuant to this subsection with respect to future Before-Tax and Matching Contributions shall remain effective until changed by such Participant. In the event a Participant fails to make an investment election or a Participant’s election form is incomplete or insufficient in some manner, the Participant’s future Before Tax Contributions will be invested in the default investment provided for the RSP Plan.

 

(b)  Investment of Existing Account Balances. Except as otherwise provided in this Section, each Participant or Beneficiary may elect, on a form provided by the Administrative Committee, the percentage of his existing Accounts that will be invested in each Investment Fund. Such Participant or Beneficiary may make such elections on a daily basis as provided by the Administrative Committee. Each such election shall apply to such Participant’s or Beneficiary’s Account balance as of the date of such election, and shall remain in effect until changed by such Participant or Beneficiary. In the event a Participant fails to make an election for his existing Accounts pursuant to the terms of this subsection (2) which is separate from his election made for his future Before-Tax and Matching Contributions pursuant to the terms of subsection (1) hereof, or if a Participant’s investment election form is incomplete or insufficient in some manner, the Participant’s existing Accounts will continue to be invested in the same manner provided under the terms of the most recent election affecting that portion of his Accounts. The Administrative Committee may determine at its discretion to charge a reasonable surcharge for changes to investment of existing Account balances; payment of any such surcharges may be made outside the Plan though payroll deduction or other methods as may be determined by the Administrative Committee.

 

(c)  Conditions Applicable to Elections. Allocations of investments in the various Investment Funds, as described in subsections (a) and (b) hereof, shall be made in even multiples of 1 percent as directed by the Participant or Beneficiary. The Administrative Committee shall have complete discretion to adopt and revise procedures to be followed in making such investment elections. Such procedures may include, but are not limited to, the format of the election forms, the deadline for filing elections and the effective date of such elections; provided, elections must be permitted at least once every 3 months. Any procedures adopted by the Administrative Committee that are inconsistent with the deadlines specified in this Section shall supersede such provisions of this Section without the necessity of a Plan amendment.

 

(d)  Compliance with Securities Exchange Commission Rule 16b-3. Notwithstanding any other provisions of the Plan, the Administrative Committee shall take any and all actions as may be necessary with regard to investment directions made by Participants who are deemed to be “insiders” of the Controlling Company under the terms of the 1934 Act, in order to meet the requirements of Rule 16b-3 and regulations promulgated thereunder.

 

5.4  Acquisition of Company Stock.

 

(a)  In General. To the extent that Contributions and investment earnings on Company Stock are paid in cash, the Trustee shall effect purchases of Company Stock in compliance with all applicable securities laws, and in its sole discretion, may purchase Company Stock in the open market and/or in privately negotiated transactions with holders of Company Stock and/or the Controlling Company. All purchases of Company Stock by the Trust will be made at a price or prices which, in the judgment of the Trustee, do not exceed the fair market value of such Company Stock as of the date of the purchase.

 

(b)  Stock Rights, Warrants or Options. In the event any rights, warrants or options are issued on Company Stock, the Trustee may exercise them for the acquisition of additional Company Stock, to the extent that cash is then available and allocable to the Company Stock Fund. Any Company Stock acquired in this fashion will be treated as Company Stock bought by the Trustee for the net price paid. Any rights, warrants or options on Company Stock which cannot be exercised for lack of available cash may be sold by the Trustee (provided the sale thereof is reasonably practicable), and the proceeds of such a sale shall be treated as a current cash dividend received on Company Stock.

 

5.5  Value of Assets.

 

For purposes under the Plan for which the value of assets must be determined, the value of such assets shall be the fair market value. For purposes of purchasing or selling Company Stock through an exchange on any day, the fair market value per share of such stock on such day shall be the price of the stock on the New York Stock Exchange at the time of the purchase or sale. For all other purposes under the Plan, the fair market value per share of the Company Stock on any particular day shall be the closing price of such Company Stock as reported on the New York Stock Exchange Composite Transaction listing on the day preceding the particular day in question. If, for any reason, the fair market value per share of Company Stock cannot be ascertained or is unavailable for a particular day, the fair market value of such stock shall be determined as of the nearest preceding day on which such fair market value can be ascertained pursuant to the terms hereof.

 

 

 

 

6.1  General Vesting Rule.

 

All Participants shall at all times be fully vested in their Before-Tax Account. Except as provided in §6.2, the Matching Account of a Participant shall vest in accordance with the following vesting schedule, based on the total of the Participant’s Years of Vesting Service:

 

Years of Vesting Service Completed by Participant	Vested Percentage of Participant’s Matching Account
Less than 1 Years	None
1 Year, but less than 2	50%
2 Years, but less than 3	75%
3 Years or more	100%

 

6.2  Vesting Upon Other Occurrences.

 

Notwithstanding §6.1, a Participant’s Matching Account shall become 100 percent vested and nonforfeitable upon the occurrence of any of the following events:

 

(a)  The Participant’s attainment of Normal Retirement Age while still employed as an employee of any Affiliate;

 

(b)  The Participant’s death while still employed as an employee of any Affiliate; or

 

(c)  The Participant’s becoming Disabled while still employed as an employee of any Affiliate.

 

6.3  Timing of Forfeitures.

 

If a Participant who is not yet 100 percent vested in his Matching Account separates from service with all Affiliates, the nonvested amount in his Matching Account shall be immediately forfeited and shall become available as a Forfeiture as of the Valuation Date coincident with or immediately following the date on which such termination occurs; provided, if a Participant has no vested interest in his Account at the time he separates from service, he shall be deemed to have received a cash-out distribution at the time he separates from service, and the forfeiture provisions of this Section shall apply. If such a Participant resumes employment with an Affiliate, such forfeited amount shall not be restored.

 

6.4  Vesting of Matching Contribution Accounts for NUI Participants.

 

Past service credit for vesting purposes under the Plan shall be granted to Employees of NUI Corporation and its directly or indirectly wholly-owned subsidiaries who were employed on November 30, 2004, for service with NUI Corporation and any other individual, partnership, limited liability partnership, joint venture, corporation, limited liability company, trust, unincorporated organization, or group consolidated with NUI Corporation for financial reporting purposes.

 

 

 

 

 

7.1  Benefit Payments.

 

(a)  Generally. Except as provided in §7.2(d) and §9.2, a Participant shall not receive distribution of his or her benefits under the Plan earlier than the Participant’s Separation from Service, the date of the Participant’s death, or the occurrence of an “unforeseeable emergency” as defined in §7.5 below and Code §409A.

 

(b)  Death Benefits. If a Participant dies before full payment of his benefits from the Plan is made, the Beneficiary or Beneficiaries designated by such Participant in his latest beneficiary designation form filed with the Administrative Committee in accordance with the terms of §7.4 shall be entitled to receive a distribution of the entire vested amount credited to such Participant’s Account, determined as of the Valuation Date coincident with or immediately preceding the date payment of such distribution is to be made. Benefits payable to a Beneficiary or Beneficiaries under this Section shall be distributed in a single lump sum payment sixty days after the end of the Plan Year in which the Participant’s death occurs. Notwithstanding the foregoing, if the amount of payment required to be made on such date cannot be ascertained by such date, payment shall be made on the earliest date on which such payment can be ascertained under the Plan. The Administrative Committee may direct the Trustee to distribute a Participant’s Account to a Beneficiary without the written consent of such Beneficiary.

 

7.2  Election of Timing and Form of Benefit Payment.

 

(a)  Generally. Each Active Participant who makes a Deferral Election under the Plan shall complete and deliver to the Administrative Committee a Payment Election under the Plan. Such Payment Election shall specify a form of payment for the Participant’s Account under the Plan following Separation from Service. The Administrative Committee, in its sole discretion, shall prescribe the format of all Payment Elections and may prescribe such nondiscriminatory terms and conditions governing the Payment Elections, subject to the terms and conditions of the Plan, as it deems appropriate. The following terms shall apply to Payment Elections:

 

(1)  Payment Elections for New Participants. In the case of the first year in which a Participant becomes eligible to participate in the Plan and any Aggregated Arrangements, such Active Participant’s initial Payment Election with a Participating Company must be made within 30 days after the date the Participant first becomes eligible to participate in any Aggregated Arrangement. As of the end of the 30^th day after the date such Participant first becomes eligible to participate in an Aggregated Arrangement, the Participant’s Payment Election shall become irrevocable, except as provided in subsection (b) below.

 

(2)  Other Initial Payment Election. Except as provided in subsection (1) above or as may be permitted in transitional guidance issued under Code §409A, a Participant’s initial Payment Election shall be made on or before December 31 of the calendar year prior to the first Plan Year in which the Participant’s initial Deferral Election becomes effective. At the end of the calendar year prior to the first Plan Year in which a Participant’s initial Deferral Election becomes effective, the Participant’s Payment Election shall become irrevocable, except as provided in subsection (b) below or as may be permitted in transitional guidance issued under Code §409A.

 

(3)  Failure to Make Payment Election. If an Active Participant fails to submit an initial Payment Election in a timely manner, he or she shall be deemed to have elected a single lump sum payment as provided in §7.2(a).

 

(b)  Modification. A Participant may make one subsequent Payment Election to revoke the form of payment initially elected (or deemed elected) and select a new form of payment, provided that:

 

(1)  The modified Payment Election shall not take effect until at least twelve months after the date on which the modified Payment Election is made; and

 

(2)  Each separate payment that is modified under the modified Payment Election shall be deferred for a period of five years from the date such payment would have been made (or, in the case of installment payments, the date of commencement) under the previous Payment Election.

 

For purposes of this subsection and the Plan, an election to receive installment payments shall be treated as entitlement to a single payment, and an election to receive a lump sum and installments shall be treated as two separate payments (the lump sum being a single payment and all installments together being a single payment). In the case of a payment that does not have an objectively determinable specified date within a calendar year for payment, such payment date is deemed to be January 1 of such calendar year for purposes of applying the rules of this subsection. A Participant may make no more than one modified Payment Election under the Plan.

 

(c)  Overriding Provisions. Notwithstanding a Participant’s Payment Election, the following shall apply:

 

(1)  Cash-Out of Small Accounts. If a Participant’s vested Account balance is $10,000 or less at the time of the Participant’s Separation from Service, such Participant shall receive payment in the form of a single lump sum on the first day of the third month (except as provided in subsection (d)(2) below) following the Participant’s Separation from Service.

 

(2)  Delay in Payment for Key Employees. In the case of any Participant who is a Key Employee, distribution of such Participant’s benefits upon Separation from Service may not be made before the date that is six (6) months after the date of Separation from Service (or, if earlier, the date of death of the Participant). Payments to which the Participant would otherwise be entitled during the first six months following the date of Separation from Service shall be accumulated and paid on the first day of the seventh month following the date of Separation from Service.

 

(3)  Payment Upon Domestic Relations Order. Payment of vested benefits under the Plan may be made to an individual other than the Participant as may be necessary to fulfill a domestic relations order as defined in Code §414(p)(1)(B).

 

(4)  Payment Upon Income Inclusion Under Code §409A. Payment of vested benefits under the Plan may be made to a Participant at any time the Plan fails to meet the requirements of Code §409A and related regulations. Such payment shall not exceed the amount required to be included in income as a result of the failure to comply with the requirements of Code §409A and related regulations.

 

(5)  Payment Upon a Change in Control. Upon a Participant’s Separation from Service within the two-year period following a Change in Control, such Participant shall receive payment of his or her vested Account balance in the form of a single lump sum payment in the calendar year following the year in which the Participant Separates from Service.

 

(6)  Transitional Rule. Participants may make or change elections during the transitional period provided by the Internal Revenue Service in guidance issued under Code §409A. A Participant who would receive payment during 2007 under the provisions of the Plan as in effect before the Effective Date will receive payment as provided under such provisions.

 

7.3  Forms of Payment Upon Separation from Service.

 

Except as provided in §7.2(c), benefits payable to a Participant upon Separation from Service shall be distributed in one of the following forms as elected by the Participant in accordance with his or her Payment Election:

 

(a)  A single lump sum cash payment in the calendar year following the year in which the Participant Separates from Service;

 

(b)  A lump sum cash payment of an objectively determinable dollar amount or percentage of the Participant’s Account (as elected by the Participant), in the calendar year following the year in which the Participant Separates from Service, with the remainder of the Participant’s Account distributed in substantially equal annual cash installments over up to ten (10) (as elected by the Participant) consecutive subsequent calendar years;

 

(c)  Between one (1) and ten (10) (as elected by the Participant) consecutive annual installments, commencing in the calendar year following the year in which the Participant Separates from Service. Each annual installment payment shall be equal to the vested balance of the Participant’s Account on the payment date, divided by the number of installment payments remaining as of the payment date.

 

7.4  Beneficiary Designation.

 

(a)  General. Participants shall designate and from time to time may redesignate their Beneficiary or Beneficiaries in such form and manner as the Administrative Committee may determine. If any Participant dies prior to receiving his benefits under the Plan, his Account shall be changed to the name of such deceased Participant’s named or deemed Beneficiary or Beneficiaries.

 

(b)  No Designation or Designee Dead or Missing. In the event that:

 

(1)  a Participant dies without designating a Beneficiary;

 

(2)  the Beneficiary designated by a Participant is not surviving when a payment is to be made to such person under the Plan, and no contingent Beneficiary was designated by the Participant; or

 

(3)  the Beneficiary designated by a Participant cannot be located by the Administrative Committee within 1 year from the date benefits are to commence to such person;

 

then, in any of such events, the Beneficiary of such Participant with respect to any benefits that remain payable under the Plan shall be the Participant’s Surviving Spouse, if any, and if not, then the estate of the Participant.

 

7.5  Hardship Withdrawals.

 

(a)  Parameters of Hardship Withdrawals. A Participant may make a withdrawal on account of hardship from his vested Account. For purposes of this subsection, a withdrawal will be on account of “hardship” only if it is necessary to respond to an “unforeseeable emergency” resulting in a severe financial need of the Participant. A withdrawal based on financial hardship cannot exceed the amount reasonably necessary to satisfy the emergency need (which may include amounts necessary to pay any Federal, state, or local income taxes or penalties reasonably anticipated to result from the distribution). Determinations of amounts reasonably necessary to satisfy the emergency need shall take into account any additional compensation that would become available to the Participant upon cancellation of the Participant’s Deferral Election as provided in §3.1(b)(3)(ii). The Administrative Committee shall make its determination, as to whether a Participant has suffered a severe financial need as a result of an unforeseeable emergency and whether it is necessary to use a hardship withdrawal from the Plan to satisfy that need, on the basis of all relevant facts and circumstances.

 

(b)  Unforeseeable Emergency Definition. For purposes of this §7.5, an unforeseeable emergency is a severe financial hardship of the Participant resulting from an illness or accident of the Participant, the Participant’s Spouse, or the Participant’s dependent (as defined in Code §152(a)); loss of the Participant’s property due to casualty (including the need to rebuild a home following damage to a home not otherwise covered by insurance, for example, not as a result of a natural disaster); or other similar extraordinary and unforeseeable circumstances arising as a result of events beyond the control of the Participant. For example, the imminent foreclosure of or eviction from the Participant’s primary residence may constitute an unforeseeable emergency. In addition, the need to pay for medical expenses, including non-refundable deductibles, as well as for the costs of prescription drug medication, may constitute an unforeseeable emergency. Finally, the need to pay for the funeral expenses of a Spouse or a dependent (as defined in Code §152(a)) may also constitute an unforeseeable emergency. Except as otherwise provided in this paragraph, the purchase of a home and the payment of college tuition are not unforeseeable emergencies. Whether a Participant is faced with an unforeseeable emergency permitting a distribution under this Section is to be determined based on the relevant facts and circumstances of each case, but, in any case, a distribution on account of unforeseeable emergency may not be made to the extent that such emergency is or may be relieved through reimbursement or compensation from insurance or otherwise, by liquidation of the Participant’s assets, to the extent the liquidation of such assets would not cause severe financial hardship, or by cessation of deferrals under the Plan.

 

(c)  Application for Hardship Withdrawal. All applications for hardship withdrawals shall be in writing on a form provided by the Administrative Committee and shall contain such information as the Administrative Committee may reasonably request.

 

(d)  Payment of Withdrawal. The amount of a hardship withdrawal shall be paid to a Participant in a single sum in cash on the date the Administrative Committee approves the withdrawal application. This payment date is intended as good faith compliance with Code §409A, and shall be construed in all respects in accordance therewith. Neither the Participating Companies, Trustee nor the Administrative Committee shall be liable to a Participant or Beneficiary for any delay in such payment, provided that payment is made within the same calendar year as the payment date specified in this paragraph, or, if later, by the 15^th day of the third calendar month following the payment date specified in this paragraph.

 

7.6  Unclaimed Benefits.

 

In the event a Participant becomes entitled to benefits under the Plan other than death benefits and the Administrative Committee is unable to locate such Participant (after sending a letter, return receipt requested, to the Participant’s last known address, and after such further diligent efforts as the Administrative Committee in its sole discretion deems appropriate) within 1 year from the date upon which he becomes so entitled, the Administrative Committee shall direct that such benefits be paid to the Beneficiary of such Participant; provided, if the distribution is payable upon the termination of the Plan, the Administrative Committee shall not be required to wait until the end of such 1-year period. If the Participant and the Beneficiary cannot be located and fail to claim such benefits by the end of the 5th Plan Year following the Plan Year in which such Participant becomes entitled to such benefits, then the full Account of the Participant shall be deemed abandoned and shall be used to reduce the Matching Contributions of the Participating Company or Companies which employed such Participant; provided, in the event such Participant or Beneficiary is located or makes a claim subsequent to the allocation of the abandoned Account but prior to the expiration of the time within which any such person’s claim to the Account would expire under appropriate state law, then the amount of the abandoned Account (unadjusted for any investment gains or losses from the time of abandonment) shall be restored (from abandoned Accounts, Trust earnings or Contributions made by the Participating Company or Companies with whom the Participant formerly was employed) and paid to such Participant or Beneficiary, as appropriate; and, provided, further, the Administrative Committee, in its sole discretion, may delay the deemed date of abandonment of any such Account for a period longer than the prescribed 5 Plan Years if it believes that it is in the best interest of the Plan to do so.

 

7.7  Claims.

 

(a)  Authorized Representative. A Participant or Beneficiary may name an authorized representative to act on his behalf under the claims procedures of the Plan, by providing written documentation of such authorization in such form as is acceptable to the Administrative Committee.

 

(b)  Procedure for Making Initial Claims. Claims for benefits under the Plan may be made by submitting a written claim to the Administrative Committee clearly identified as a claim for benefits under the Plan.

 

(c)  Review of Initial Claims. The Administrative Committee shall furnish to the claimant written notice of the disposition of a claim within 90 days after the application therefor is filed; provided, if special circumstances require an extension of time for processing the claim, the Administrative Committee shall furnish written notice of the extension to the claimant prior to the termination of the initial 90-day period, and such extension shall not exceed one additional, consecutive 90-day period. In the event the claim is denied, the notice of the disposition of the claim shall contain (i) specific reasons for the denial, (ii) specific references to Plan provisions on which the Administrative Committee based its denial, (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) a description of the Plan’s review procedures and time limits applicable to such procedures, including a statement of the claimant’s right to bring a civil action under section 502(a) of ERISA following an adverse benefit determination on review. The notice will also contain a statement that the claimant may (i) request a review upon written application to the Administrative Committee within 60 days, (ii) submit written comments, documents, records and other information relating to the claim, and (iii) request copies of all documents, records, and other information relevant to the claim. If a claim is denied because of incomplete information, the notice will also indicate what additional information is required.

 

(d)  Review Procedure. Any Participant or Beneficiary who has been denied a benefit, or his duly authorized representative, shall be entitled, upon request to the Administrative Committee, to appeal the denial of his claim. To do so, the claimant must make a written request to the Administrative Committee for further consideration of his position. The form containing the request for review, together with a written statement of the claimant’s position, must be filed with the Administrative Committee no later than 60 days after receipt of the written notification of denial of a claim provided for in subsection (a). Pertinent documents may be reviewed in preparing an appeal, and issues and comments may be submitted in writing. The claimant will be provided, upon request and free of charge, reasonable access to, and copies of, all documents, records and other information relevant to the claim for benefits (as determined under applicable regulations). The Administrative Committee will completely review the appeal, taking into account all comments, documents, records and other information submitted by the claimant without regard to whether such information was submitted or considered in the initial benefit determination. The Administrative Committee’s decision shall be made in writing within 60 days following the claimant’s request for review, unless special circumstances require a further extension of time for processing, in which case a benefit determination shall be rendered no later than 120 days following the Administrative Committee’s receipt of the request for review. If such an extension of time for review is required because of special circumstances, the Administrative Committee will provide the claimant with written notice of the extension, describing the special circumstances and the date as of which the benefit determination will be made, prior to the commencement of the extension. If unfavorable, the notice of decision shall explain the reason or reasons for denial and indicate the provisions of the Plan or other documents used to arrive at the decision.

 

(e)  Satisfaction of Claims. Any payment to a Participant or Beneficiary or to their legal representative or heirs at law, all in accordance with the provisions of the Plan, shall to the extent thereof be in full satisfaction of all claims hereunder against the Trustee, the Administrative Committee and the Controlling Company, any of whom may require such Participant, Beneficiary, legal representative or heirs at law, as a condition to such payment, to execute a receipt and release therefor in such form as shall be determined by the Trustee, the Administrative Committee or the Controlling Company, as the case may be. If receipt and release shall be required but execution by such Participant, Beneficiary, legal representative or heirs at law shall not be accomplished so that the terms of §§7.1 and 7.2 may be fulfilled, such benefits may be distributed or paid into any appropriate court or to such other place as such court shall direct, for disposition in accordance with the order of such court, and such distribution shall be deemed to comply with the requirements of §§7.1 and 7.2.

 

 

 

8.1  Administrative Committee

 

(a)  Appointment and Term of Office. The Administrative Committee shall consist of not less than one member who shall be appointed by and serve at the pleasure of the Board. The Board shall have the right to remove any member of the Administrative Committee at any time. A member may resign at any time by written resignation to the Board. If a vacancy in the Administrative Committee should occur, a successor may be appointed by the Board. A written certification shall be given to the Trustee by the Board of all members of the Administrative Committee together with a specimen signature of each member. For all purposes hereunder, the Trustee shall be conclusively entitled to rely upon such certification until the Trustee is otherwise notified in writing.

 

(b)  Organization. The Administrative Committee may elect a Chairman and a Secretary from among its members. In addition to those powers set forth elsewhere in the Plan, the Administrative Committee may appoint such agents, who need not be members of such Administrative Committee, as it may deem necessary for the effective performance of its duties and may delegate to such agents such powers and duties, whether ministerial or discretionary, as the Administrative Committee may deem expedient or appropriate. The compensation of such agents who are not full-time Employees of a Participating Company shall be fixed by the Administrative Committee within limits set by the Board and shall be paid by the Controlling Company (to be divided equitably among the Participating Companies) or from the Trust Fund as determined by the Administrative Committee. The Administrative Committee shall act by majority vote. Its members shall serve as such without compensation.

 

(c)  Powers and Responsibility. The Administrative Committee shall have complete control of the administration of the Plan hereunder, with all powers necessary to enable it properly to carry out its duties as set forth in the Plan and the Trust Agreement. The Administrative Committee shall have the sole authority in its discretion to (i) construe the Plan and to determine all questions that shall arise thereunder; (ii) decide all questions relating to the eligibility of Employees to participate in the benefits of the Plan; (iii) determine the benefits of the Plan to which any Participant or Beneficiary may be entitled; (iv) maintain and retain records relating to Participants and Beneficiaries; (v) prepare and furnish to the Trustee sufficient employee data and the amount of Contributions received from all sources so that the Trustee may maintain separate accounts for Participants and Beneficiaries and make required payments of benefits; (vi) arrange for any required fiduciary bonding; and (vii) prepare and file or publish with the Secretary of Labor, the Secretary of the Treasury, their delegates and all other appropriate government officials all reports and other information required under law to be so filed or published.

 

(d)  Administrative Committee Records. Any notice, direction, order, request, certification or instruction of the Administrative Committee to the Trustee shall be in writing and shall be signed by a member of the Administrative Committee. The Trustee and every other person shall be entitled to rely conclusively upon any and all such notices, directions, orders, requests, certifications and instructions received from the Administrative Committee and reasonably believed to be properly executed, and shall act and be fully protected in acting in accordance therewith. All acts and determinations of the Administrative Committee shall be duly recorded by its Secretary or under his supervision, and all such records, together with such other documents as may be necessary for the administration of the Plan, shall be preserved in the custody of such Secretary.

 

(e)  Reporting and Disclosure. The Administrative Committee shall keep all individual and group records relating to Participants and Beneficiaries and all other records necessary for the proper operation of the Plan. Such records shall be made available to the Participating Companies and to each Participant and Beneficiary for examination during normal business hours except that a Participant or Beneficiary shall examine only such records as pertain exclusively to the examining Participant or Beneficiary and the Plan and Trust Agreement. The Administrative Committee shall prepare and shall file as required by law or regulation all reports, forms, documents and other items required by any relevant statute, each as amended, and all regulations thereunder. This provision shall not be construed as imposing upon the Administrative Committee the responsibility or authority for the preparation, preservation, publication or filing of any document required to be prepared, preserved or filed by the Trustee or by any other entity to whom such responsibilities are delegated by law or by the Plan.

 

(f)  Plan Construction. The Administrative Committee shall take such steps as are considered necessary and appropriate to remedy any inequity that results from incorrect information received or communicated in good faith or as the consequence of an administrative error. The Administrative Committee shall interpret the Plan and shall determine the questions arising in the administration, interpretation and application of the Plan. The Administrative Committee shall endeavor to act, whether by general rules or by particular decisions, so as not to discriminate in favor of or against any person and so as to treat all persons in similar circumstances uniformly. The Administrative Committee shall correct any defect, reconcile any inconsistency or supply any omission with respect to the Plan.

 

(g)  Assistants and Advisers. The Administrative Committee shall have the right to hire, at the expense of the Controlling Company (to be divided equitably among the Participating Companies), such professional assistants and consultants as it, in its sole discretion, deems necessary or advisable. To the extent that the costs for such assistants and advisers are not so paid by the Controlling Company, they shall be paid at the direction of the Administrative Committee from the Trust Fund as an expense of the Trust Fund. The Administrative Committee and the Participating Companies shall be entitled to rely upon all certificates and reports made by an actuary, accountant or attorney selected pursuant to this §8.1; the Administrative Committee, the Participating Companies, and the Trustee shall be fully protected in respect to any action taken or suffered by them in good faith in reliance upon the advice or opinion of any such actuary, accountant or attorney; and any action so taken or suffered shall be conclusive upon each of them and upon all other persons interested in the Plan.

 

(h)  Indemnification. The Administrative and Investment Committees and each member of those committees shall be indemnified by the Participating Companies against judgment amounts, settlement amounts (other than amounts paid in settlement to which the Participating Companies do not consent) and expenses reasonably incurred by the Administrative and Investment Committees or each member of the Administrative and Investment Committees in connection with any action to which the Administrative or Investment Committee or any member thereof may be a party (by reason of his service as a member of the Administrative or Investment Committee) except in relation to matters as to which the Administrative or Investment Committee or any member thereof shall be adjudged in such action to be personally guilty of gross negligence or willful misconduct in the performance of its or any member’s duties. The foregoing right to indemnification shall be in addition to such other rights as such Administrative and Investment Committees or each member may enjoy as a matter of law or by reason of insurance coverage of any kind. Rights granted hereunder shall be in addition to and not in lieu of any rights to indemnification to which such Administrative and Investment Committees or each member may be entitled pursuant to the by-laws of the Controlling Company. Service on the Administrative or Investment Committee shall be deemed in partial fulfillment of a committee member’s function, if any, as an Employee, officer and/or director of the Controlling Company or any Participating Company.

 

8.2  Controlling Company and Board.

 

(a)  General Responsibilities. The Controlling Company and the Board shall have the authority and responsibility to (i) appoint the Trustee, the Investment Committee and the Administrative Committee and to monitor each of their performances; (ii) communicate such information to the Trustee, the Investment Committee and the Administrative Committee as each needs for the proper performance of its duties; (iii) provide channels and mechanisms through which the Administrative Committee, the Investment Committee and/or the Trustee can communicate with Participants and Beneficiaries; and (iv) perform such duties as are imposed by law or by regulation and serve as Plan Administrator in the absence of an appointed Administrative Committee.

 

(b)  Allocation of Authority. In the event any of the areas of authority and responsibilities of the Controlling Company and the Board overlap with that of any other entity, the Controlling Company and the Board shall coordinate with such other entity the execution of such authority and responsibilities; provided, the decision of the Controlling Company and the Board with respect to such authority and responsibilities ultimately shall be controlling.

 

(c)  Authority of Participating Companies. Notwithstanding anything herein to the contrary, and in addition to the authority and responsibilities specifically given to the Participating Companies in the Plan, the Controlling Company, in its sole discretion, may grant the Participating Companies such authority and charge them with such responsibilities as the Controlling Company deems appropriate.

 

8.3  Trustee.

 

The Trustee shall have the powers and duties set forth in the Trust Agreement.

 

8.4  Delegation.

 

Entities described in this section shall have the power to delegate specific responsibilities (other than Trustee responsibilities) to persons whom shall serve at the pleasure of the entity making such delegation and, if full-time Employees of a Participating Company, without compensation. Any such person may resign by delivering a written resignation to the delegating entity. Vacancies created by any reason may be filled by the appropriate entity or the assigned responsibilities may be reabsorbed or redelegated by the entity.

 

 

 

9.1  Amendment.

 

The provisions of the Plan may be amended at any time and from time to time by the Board; provided:

 

(a)  No amendment shall increase the duties or liabilities of the Trustee without the consent of such party;

 

(b)  No amendment shall decrease the balance or vested percentage of an Account;

 

(c)  Each amendment shall be approved by the Board by resolution;

 

(d)  No amendment shall be made that violates the restrictions of Code §409A; and

 

(e)  No amendment shall be made to §5.1(c) of the Plan (unless required by law).

 

9.2  Termination.

 

(a)  Right to Terminate. The Controlling Company expects the Plan to be continued indefinitely, but, subject to subsection (c) below, it reserves the right to terminate the Plan or to completely discontinue Contributions to the Plan at any time by action of the Board. In either event, the Administrative Committee, each Participating Company and the Trustee shall be promptly advised of such decision in writing.

 

(b)  Dissolution of Trust. In the event that the Administrative Committee decides to dissolve the Trust, as soon as practicable following the termination of the Plan or the Administrative Committee’s decision, whichever is later, the assets under the Plan shall be converted to cash or other distributable assets, to the extent necessary to effect a complete distribution of the Trust assets to the Controlling Company.

 

(c)  Restrictions on Termination. No termination of this Plan shall decrease or eliminate the vested Account balance of any Participant hereunder as determined as of the date of such termination. Furthermore, the Plan may be terminated only as follows:

 

(1)  The Board may terminate the Plan within 12 months of a corporate dissolution taxed under Code §331, or with the approval of a bankruptcy court pursuant to 11 U.S.C. §503(b)(1)(A). In the event of termination pursuant to this subsection, the amounts deferred under the Plan shall be included in the Participants’ gross incomes in the latest of the calendar year in which the Plan termination occurs, the calendar year in which the amount is no longer subject to a substantial risk of forfeiture, or the first calendar year in which the payment of benefits is administratively practicable.

 

(2)  The Board may terminate the Plan within the 30 days preceding or the 12 months following a “change in control event”; provided that the Plan may not be terminated pursuant to this provision unless all substantially similar arrangements sponsored by the Controlling Company (and its related entities as determined under Code §409A and guidance issued thereunder) are terminated, so that the Participants and all participants under substantially similar arrangements are required to receive all amounts of compensation deferred under the Plan and any other terminated arrangements within 12 months of the date of termination of such arrangements. For purposes of this paragraph, “change in control event” shall have the meaning set forth in Proposed Treasury Regulations under Code §409A, or successor provisions, and substantially similar arrangements shall be determined pursuant to regulations under Code §409A.

 

(3)  The Board may terminate the Plan other than as provided in subsections (1) and (2) above only if:

 

(A)  All arrangements sponsored by the Controlling Company (and its related entities as determined under Code §409A and guidance issued thereunder) that would be aggregated with the Plan under Code §409A if the same service provider participated in all of the arrangements (the “Aggregated Arrangements”) are terminated; and

 

(B)  No payments other than payments that would be payable under the terms of the Plan and the Aggregated Arrangements if the termination had not occurred are made within 12 months of the termination of the Plan; and

 

(C)  All payments pursuant to the Plan and the Aggregated Arrangements are made within 24 months of the termination of the Plan; and

 

(D)  The Controlling Company (and its related entities as determined under Code §409A and guidance issued thereunder) does not adopt a new arrangement that would be aggregated with the Plan or any Aggregated Arrangement if the same service provider participated in both arrangements, at any time within five years following the date of termination of the Plan.

 

(d)  Payment Upon Termination. If the Plan is terminated, the value of the vested Account balances of Participants shall be paid to such Participants in a single lump sum cash payment on the earlier of the date of termination, or the earliest date permissible under subsection (c) above.

 

9.3  Adoption of the Plan by a Participating Company.

 

(a)  Procedures for Participation. The Controlling Company and each Affiliate shall be Participating Companies in the Plan; provided, however, the Controlling Company may determine that any Affiliate is not to be a Participating Company, and such Affiliate shall be recorded on Schedule A hereto which shall be appropriately modified from time to time without the necessity of a Plan amendment. Upon an Affiliate becoming a Participating Company as herein provided, the Employees of such company shall be eligible to participate in the Plan subject to the terms hereof and of the documentation designating the Participating Company as such.

 

(b)  Authority under Plan. Each Participating Company shall be bound by, and subject to, all provisions of the Plan and the Trust. The exclusive authority to amend the Plan and the Trust shall be vested in the Administrative Committee, and no Participating Company other than the Controlling Company shall have any right to amend the Plan or the Trust. Any amendment to the Plan or the Trust adopted by the Controlling Company shall be binding upon every Participating Company without further action by such Participating Company.

 

(c)  Contributions to Plan. Each Participating Company shall be required to make Contributions to the Plan at such times and in such amounts as specified in Article III. The Contributions made (or to be made) to the Plan by the Participating Companies shall be allocated between and among such companies in whatever equitable manner or amounts as the Administrative Committee shall determine.

 

(d)  Withdrawal from Plan. No Participating Company other than the Controlling Company shall have the right to terminate the Plan. However, any Participating Company may withdraw from the Plan, with the approval of the Administrative Committee, by action of its board of directors, provided such action is communicated in writing to the Administrative Committee. The withdrawal of a Participating Company shall be effective as of the last day of the Plan Year which follows receipt of the notice of withdrawal (unless the Controlling Company consents to a different effective date). In addition, the Administrative Committee may terminate the designation of a Participating Company to be effective on such date as the Administrative Committee specifies. Any such Participating Company which ceases to be a Participating Company shall be liable for all costs accrued through the effective date of its withdrawal or termination. In the event of the withdrawal or termination of a Participating Company as provided in this Section, such Participating Company shall have no right to direct that assets of the Plan be transferred to a successor plan for its employees, unless such transfer is approved by the Controlling Company or Administrative Committee in its sole discretion.

 

 

 

10.1  Nonalienation of Benefits and Spendthrift Clause.

 

None of the Accounts, benefits, payments, proceeds or distributions under the Plan shall be subject to the claim of any creditor of a Participant or Beneficiary or to any legal process by any creditor of such Participant or of such Beneficiary; and neither such Participant nor any such Beneficiary shall have any right to alienate, commute, anticipate or assign any of the Accounts, benefits, payments, proceeds or distributions under the Plan except to the extent expressly provided herein. If any Participant shall attempt to dispose of his Account or the benefits provided for him hereunder or to dispose of the right to receive such benefits, or, in the event there should be an effort to seize such Account or benefits by attachment, execution or other legal or equitable process, such right may pass and be transferred, at the discretion of the Administrative Committee, to such person or persons as may be selected by the Administrative Committee from among the Beneficiaries, if any, theretofore designated by the Participant, or from the Spouse, children or other dependents of the Participant, in such shares as the Administrative Committee may appoint. Any appointments so made by the Administrative Committee may be revoked by it at any time, and further appointments made by it may include the Participant.

 

10.2  Headings.

 

The headings and subheadings in the Plan have been inserted for convenience of reference only and are to be ignored in any construction of the provisions hereof.

 

10.3  Construction, Controlling Law.

 

In the construction of the Plan, the masculine shall include the feminine and the feminine the masculine, and the singular shall include the plural and the plural the singular, in all cases where such meanings would be appropriate. Unless otherwise specified, any reference to a section shall be interpreted as a reference to a section of the Plan. The Plan shall be construed in accordance with the laws of the State of Georgia and applicable federal laws.

 

10.4  No Contract of Employment.

 

Neither the establishment of the Plan, nor any modification thereof, nor the creation of any fund, trust or account, nor the payment of any benefits shall be construed as giving any Participant, Employee or any person whomsoever the right to be retained in the service of any Affiliate, and all Participants and other Employees shall remain subject to discharge to the same extent as if the Plan had never been adopted.

 

10.5  Legally Incompetent.

 

The Administrative Committee may in its discretion direct that payment be made and the Trustee shall make payment on such direction, directly to an incompetent or disabled person, whether incompetent or disabled because of minority or mental or physical disability, or to the guardian of such person or to the person having legal custody of such person, without further liability with respect to or in the amount of such payment either on the part of any Participating Company, the Administrative Committee or the Trustee.

 

10.6  Heirs, Assigns and Personal Representatives.

 

The Plan shall be binding upon the heirs, executors, administrators, successors and assigns of the parties, including each Participant and Beneficiary, present and future.

 

10.7  Unsecured Creditor Rights.

 

No Participant or Beneficiary shall have any right to, or interest in, any assets of the Trust Fund other than that of a general unsecured creditor of the Controlling Company.

 

10.8  Legal Action.

 

In any action or proceeding involving the assets held with respect to the Plan or Trust Fund or the administration thereof, the Participating Companies, the Administrative Committee and the Trustee shall be the only necessary parties and no Participants, Employees, or former Employees, their Beneficiaries or any other person having or claiming to have an interest in the Plan shall be entitled to any notice of process; provided, that such notice as is required by the IRS and the Department of Labor to be given in connection with Plan amendments, termination, curtailment or other activity shall be given in the manner and form and at the time so required. Any final judgment which is not appealed or appealable that may be entered in any such action or proceeding shall be binding and conclusive on the parties hereto, the Administrative Committee and all persons having or claiming to have an interest in the Plan.

 

10.9  Severability.

 

If any provisions of the Plan shall be held invalid or unenforceable, such invalidity or unenforceability shall not affect any other provisions hereof, and the Plan shall be construed and enforced as if such provisions had not been included.

 

10.10  Predecessor Service.

 

In the event a Participating Company maintains the Plan as successor to a predecessor employer who maintained the Plan, service for the predecessor employer shall be treated as service for the Participating Company.

 

10.11  Plan Expenses.

 

Expenses incurred with respect to administering the Plan and Trust shall be paid by the Trustee from the Trust Fund only to the extent such costs are not paid by the Participating Companies or to the extent the Controlling Company requests that the Trustee reimburse it for its payment of such expenses.

 

IN WITNESS WHEREOF, the Controlling Company has caused this Plan to be executed by its duly authorized officers and its corporate seal to be affixed hereto, as of the 11th day of December, 2006.

 

 

By: /s/ Melanie M. Platt

 

Title: Senior Vice President

 

 

 

NONE

 

 

 

 

PAYROLL CODE	DESCRIPTION
ADP	Adoption Aid Assistance
APD	Appliance discount
APR	Appliance Reimbursement
ATT	ATPI Bonus-Terminated Employee
AWD	Non-cash Awards
CAR	Car Allowance
CCD	Country Club Dues
CCR	Cntry Club Cash Reimbursement
DCC	Dependent Care Current Year
DCR	Dependent Care Reimbursement
DIS	State Dis Earnings (#05)
EAF	Executive Allowance Fund
EAG	EAF Gross Up Amount
EAP	Executive Allowance Payout
EFB	Employee Fitness Reimbursement
ESP	ESPP Taxable Earnings
EXE	Executive Pay
EXP	Expense Reporting Reimbursement
EXS	Executive Retirement Pay
FIM	Flex Imputed Life
FIT	Health Club
FLX	Flex Dollars
FRE	Flex Vacation Refund
GRP	GRIP Premium
GRU	Gross Up for Taxes
HCC	Health Care Current Year
HCR	Health Care Reimbursement
INS	Additional Insurance
ISO	Incentive Stock Option
LDV	Lump Sum Payment Deceased Employee
LSR	Lump Sum Retirement
LSS	Lump Sum Severance Pay
LTD	LTD Flex Credit Adjustment
LTF	Long Term Disability Flex Dollars
LTI	Long Term Incentive
MEA	Meals Overtime
MED	Medical Credit
MO2	Moving Expense / Taxable
MO3	Taxable Moving Third Party
MOA	Moving Expense
MOV	Moving Expense / Non Taxable
MPY	Mileage Pay - Propane
NQP	Non Qualified Savings Plan
NQR	Non Qualified Retirement Plan
NQS	Non Qualified Stock Options
NTU	Nontaxable Tuition Reimbursement
PAR	Restricted PAR Stock
PTY	3rd Party Tax Ben
QSK	Qualified Restricted Stock
RGP	Grip for Retiree
RGU	Retiree Grossup
RIM	Retiree Imputed Income
RTA	Retirement Adjustment
SAR	SAR Stock Option
SAV	Severance Salaried
SEP	Separation Pay
SET	Settlement - Union
SEV	Severance Pay
SIG	Sign on Bonus Less than 30 days
SLF	Supplemental Life Flex Dollars
SPB	Spouse Benefit
SUP	Supplemental Pay
TEL	Tele Reimbursement (#22 Share)
TPY	Third Party Sick Pay
TRA	Transportation Allowance
TUI	Tuition Reimbursement / Taxable
TX1	Taxable Dist. under Age 59 ½
TX2	Taxable Dist. over Age 59 ½
UNI	Uniform Reimbursement
VEH	VNG Car Allowance
WGL	Wages in Lieu of Notice