\n Less than 1 year 0%
\n 1 year 20%
\n 2 years 40%
\n 3 years 60%
\n 4 years 80%
\n 5 years or more 100%
\n<\/c><\/s><\/caption>\n<\/table>\n (b) Notwithstanding Subsection (a) above, a Participant shall have
\n a 100% Vested Interest in his Company Credits Account upon the
\n earliest to occur of (i) the attainment of such Participant’s
\n Retirement Date while employed by the Company, (ii) the death
\n of such Participant while employed by the Company, (iii) the
\n date such Participant becomes Disabled, or (iv) any earlier
\n date designated by the Committee in its sole discretion.<\/p>\n
6.3 FORFEITURES. A Participant who terminates employment with the Company
\n and its Affiliates with a Vested Interest in his Company Credits
\n Account that is less than 100% shall forfeit to the Company the
\n nonvested portion of such Account as of the date of such termination.<\/p>\n
ARTICLE VII.
\n IN-SERVICE WITHDRAWALS AND LOANS<\/p>\n
7.1 IN-SERVICE WITHDRAWALS.<\/p>\n
(a) Except as provided in Subsections (b) through (d) below, no
\n in-service withdrawals shall be permitted under the Plan, and
\n Participants shall not be permitted to make withdrawals from
\n the Plan prior to a termination of employment with the Company
\n and its Affiliates.<\/p>\n
(b) In the event that the Committee, upon written petition of the
\n Participant, determines in its sole discretion that the
\n Participant has suffered an Unforeseeable Financial Emergency,
\n the Participant shall be entitled to withdrawal from his
\n Compensation Deferrals Account an amount not to exceed the
\n lesser of (i) the amount determined by the Committee as
\n necessary to meet the Participant’s needs created by the
\n Unforeseeable Financial Emergency or (ii) the Vested Interest
\n in the Participant’s Accounts. Such benefit shall be paid in a
\n single lump sum payment as soon as administratively
\n practicable after the Committee has made its determination
\n with respect to the availability and amount of such
\n withdrawal. If the Participant’s Accounts are deemed to be
\n invested in more than one Investment Fund, such withdrawal
\n shall be made pro rata from each Investment Fund in which such
\n Accounts are deemed to be invested. This Subsection shall not
\n be applicable to the Participant following his termination of
\n employment with the Company and its Affiliates, and in the
\n event of such termination the amounts credited to the
\n Participant’s Accounts shall be payable to him only in
\n accordance with Article VIII.<\/p>\n
-13-
\n 20<\/p>\n
(c) A Participant may at any time make an irrevocable election,
\n effective as of the first day of the next Plan Year, to have
\n all or a portion of the Vested Interest in his Accounts,
\n determined as of the date his election is made, paid to him on
\n a fixed date specified in such election, which shall be at
\n least two (2) years following the date that such election is
\n submitted to the Committee in writing. The amount of the
\n payment pursuant to this irrevocable election shall be stated
\n in the election and shall be a fixed dollar amount, and shall
\n not be adjusted for earnings or losses following such election
\n date. Once an in-service distribution election has been filed
\n with the Committee, it may be extended to provide that the
\n distribution shall be made on a date which is subsequent to
\n the original distribution date; provided, however, that a
\n Participant may not elect to extend his distribution date
\n during the two (2) year period immediately preceding the
\n designated distribution date. A Participant may have only one
\n election hereunder outstanding at any time. Notwithstanding
\n the preceding, if the Participant terminates employment prior
\n to the designated payment date, his election shall be
\n terminated and his Accounts shall be distributed as provided
\n in Section 8.4 below.<\/p>\n
(d) In the event that the Committee, upon written petition of the
\n Participant, determines in its sole discretion that the
\n Participant has a Disability, the Participant shall be
\n entitled to a distribution in accordance with Article VIII.<\/p>\n
7.2 INVOLUNTARY DISTRIBUTIONS. Notwithstanding anything contained in the
\n Plan to the contrary, if at any time any Participant is finally
\n determined by the Internal Revenue Service or the U.S. Department of
\n Labor not to qualify as a member of a select group of “management or
\n highly compensated employees” as such term is used in ERISA Section
\n 401(a)(1), the Committee may, in its sole discretion, immediately
\n distribute in one lump sum to such Participant his vested account under
\n the Plan. A final determination of the Internal Revenue Service or the
\n U.S. Department of Labor shall be a decision rendered by the Internal
\n Revenue Service or the U.S. Department of Labor which is no longer
\n subject to administrative appeal within such agency. In addition, the
\n Committee may, in its exclusive and sole discretion, cause the Plan to
\n make a distribution to a Participant during a Plan Year in order to
\n cause the Participant to have sufficient taxable compensation to
\n satisfy the annual addition requirements of Code Section 415 with
\n respect to any qualified retirement plans maintained by the Company
\n during such Plan Year.<\/p>\n
7.3 NO LOANS. Participants shall not, at any time, be permitted to borrow
\n from the Plan or Trust Fund.<\/p>\n
ARTICLE VIII.
\n PLAN BENEFITS<\/p>\n
8.1 PLAN BENEFIT. A Participant’s Plan benefit shall be the value of his
\n Accounts determined as of the Valuation Date immediately preceding the
\n time of payment of such Accounts in accordance with Section 8.3.<\/p>\n
8.2 EVENTS ENTITLING PAYMENT OF BENEFIT. A Participant’s benefit shall
\n become payable upon the earliest to occur of the following events:<\/p>\n
(a) A termination of the Participant’s employment with the Company
\n and its Affiliates for any reason;<\/p>\n
-14-
\n 21<\/p>\n
(b) The death of the Participant;<\/p>\n
(c) A determination by the Committee that the Participant has a
\n Disability; or<\/p>\n
(d) A Change of Control.<\/p>\n
A Participant’s benefit shall equal the Participant’s Vested Interest
\n in his Accounts as of the Valuation Date next preceding the date the
\n payment of such benefit is to be paid or commence pursuant to Section
\n 8.3.<\/p>\n
8.3 PAYEE AND TIME OF PAYMENT. Payment of a Participant’s benefit shall be
\n paid or commence as soon as administratively practicable following the
\n Section 8.2 event triggering payment. The Participant’s benefit shall
\n be paid to the Participant, unless the Section 8.2 triggering event is
\n the death of the Participant, in which case the Participant’s benefit
\n shall be paid to the Participant’s designated beneficiary as provided
\n in Section 8.5.<\/p>\n
8.4 ALTERNATIVE FORMS OF BENEFIT PAYMENTS.<\/p>\n
(a) A Participant’s benefit under the Plan shall be paid in cash
\n in one of the following forms:<\/p>\n
(1) A single lump sum payment; or<\/p>\n
(2) Monthly, quarterly or annual installment payments for
\n a term certain not to exceed ten years payable to
\n such Participant or, in the event of such
\n Participant’s death prior to the end of such term
\n certain, to his designated beneficiary as provided in
\n Section 8.5.<\/p>\n
(b) A Participant must elect one of the forms of payment listed in
\n Subsection 8.4(a) above on or before the date he first becomes
\n a Participant of the Plan pursuant to Article II. Except as
\n provided in Subsection 8.4(c) below, such election shall be
\n irrevocable by the Participant and shall remain in effect for
\n all periods of a Participant’s participation in the Plan. In
\n the event a Participant fails to elect timely the form in
\n which his benefit payments are to be made, such benefit
\n payments shall be deemed to have been elected by such
\n Participant to be in the form of a single lump sum payment.<\/p>\n
(c) A Participant may shall be entitled to change his elected form
\n of benefit payment under Subsection 8.4(a) above with respect
\n to all amounts allocated to his Accounts (i.e., both existing
\n and future allocations) as of each January 1st. Such change
\n shall be made prior to each such January 1st and shall be
\n effective as of the subsequent January 1st. If a triggering
\n event described in Section 8.2 occurs during the Plan Year
\n following the Committee’s receipt of an election to change
\n distribution forms, such election shall be deemed to be null
\n and void and the immediately preceding election shall apply to
\n the Participant’s distribution. A Participant who does not
\n elect to change his current elected (or deemed elected) form
\n of benefit payment with respect to future allocations to such
\n Participant’s Accounts as of any such January 1 shall not be
\n entitled to change his elected form of benefit until the
\n subsequent January 1st. If a Participant elected to receive
\n his benefit payment in one or more <\/p>\n
-15-
\n 22<\/p>\n
different forms of payment prior to January 1, 2000, such
\n Participant shall receive his distribution pursuant to the
\n most recent form of distribution elected by the Participant;
\n provided, however, if no such election is on file with the
\n Committee, his distribution shall be made in the form elected
\n of a single lump sum payment, unless such Participant elects
\n to file a new election under Subsection (a) above.<\/p>\n
(d) If a Participant dies prior to the date the payment of his
\n benefit begins or is completed, such benefit shall be paid to
\n such Participant’s beneficiary designated in accordance with
\n Section 8.5 in a single lump payment, notwithstanding any
\n other form of payment elected by such Participant.<\/p>\n
(e) The preceding Subsections notwithstanding, if the Section 8.2
\n event triggering payment of a Participant’s benefit is a
\n Change of Control, such benefit shall be paid to such
\n Participant in a single lump sum cash payment as soon as
\n administratively practicable after such Change of Control.<\/p>\n
(f) Notwithstanding any provision of the Plan to the contrary, the
\n Committee may, in its sole and absolute discretion, distribute
\n a Participant’s benefit in the form of a single lump sum
\n payment notwithstanding any other form of distribution elected
\n by the Participant.<\/p>\n
8.5 DESIGNATION OF BENEFICIARIES.<\/p>\n
(a) Each Participant shall have the right to designate the
\n beneficiary or beneficiaries to receive payment of his benefit
\n in the event of his death. Each such designation shall be made
\n by executing the beneficiary designation form prescribed by
\n the Committee and filing such form with the Committee during
\n the life of such Participant. Any such beneficiary designation
\n may be changed at any time by execution and filing of a new
\n designation in accordance with this Subsection. The preceding
\n notwithstanding, (i) if a Participant has designated his
\n spouse as his beneficiary, such designation shall be void and
\n of no effect upon the divorce of the Participant and such
\n spouse, unless the Participant notifies the Committee to the
\n contrary in writing after the date of such divorce, and (ii)
\n if a Participant who is married on the date of his death has
\n designated an individual or entity other than his surviving
\n spouse as his beneficiary, such designation shall not be valid
\n unless (a) such surviving spouse has consented thereto in
\n writing, and such consent (1) acknowledges the effect of such
\n specific designation, (2) either consents to the specific
\n designated beneficiary (which designation may not subsequently
\n be changed by the Participant without spousal consent) or
\n expressly permits such designation by the Participant without
\n the requirement of further consent by such spouse, and (3) is
\n witnessed by a Plan representative (other than the
\n Participant) or a notary public or (b) the consent of such
\n spouse cannot be obtained because such spouse cannot be
\n located or because of other circumstances that the Committee
\n in its discretion determines warrants a waiver of such
\n consent. Any such consent by such surviving spouse shall be
\n irrevocable.<\/p>\n
(b) If at the time of the death of the Participant no designated
\n beneficiary is on file with the Committee, or such beneficiary
\n designation is not valid or effective for any <\/p>\n
-16-
\n 23<\/p>\n
reason as determined by the Committee, then the designated
\n beneficiary or beneficiaries to receive such benefit shall be
\n as follows:<\/p>\n
(1) If a Participant has a surviving spouse at the time
\n of such Participant’s death, his designated
\n beneficiary shall be such surviving spouse;<\/p>\n
(2) If a Participant has no surviving spouse at the time
\n of such Participant’s death, his designated
\n beneficiary shall be such Participant’s executor or
\n administrator or, if there is no administration of
\n such Participant’s estate, his heirs at law.<\/p>\n
8.6 PAYER OF BENEFITS. To the extent the Trust Fund has sufficient assets,
\n the Trustee shall pay benefits to Participants or their beneficiaries,
\n except to the extent the Company pays the benefits directly. To the
\n extent the Trustee does not or cannot pay benefits out of the Trust
\n Fund, the benefits shall be paid by the Company. Any benefit payments
\n made to a Participant or for his benefit pursuant to any provision of
\n the Plan shall be debited to such Participant’s Accounts. All benefit
\n payments shall be made in cash.<\/p>\n
8.7 UNCLAIMED BENEFITS. In the case of a benefit payable to or on behalf of
\n a Participant, if the Committee after a reasonable search is unable to
\n locate the Participant or beneficiary to whom such benefit is payable,
\n upon the Committee’s determination thereof, such benefit shall be
\n forfeited to the Company. The Committee shall adopt procedures
\n concerning the process that will be followed to locate a Participant or
\n beneficiary under this Section. Notwithstanding the foregoing, if
\n subsequent to any such forfeiture the Participant or beneficiary to
\n whom such benefit is payable makes a valid claim for such benefit
\n within a reasonable (as determined by and in the discretion of the
\n Committee) period of time following the date such benefit became
\n payable, such forfeited benefit shall be payable pursuant to the Plan
\n provisions.<\/p>\n
ARTICLE IX.
\n ADMINISTRATION OF PLAN<\/p>\n
9.1 APPOINTMENT OF COMMITTEE. The general administration of the Plan shall
\n be vested in the Committee, which shall be appointed by the Directors
\n and shall consist of one or more persons. Any individual, whether or
\n not an employee of the Company, is eligible to become a member of the
\n Committee.<\/p>\n
9.2 TERM, VACANCIES, RESIGNATION, AND REMOVAL. Each member of the Committee
\n shall serve until he resigns, dies, or is removed by the Directors. At
\n any time during his term of office, a member of the Committee may
\n resign by giving written notice to the Directors and the Committee,
\n such resignation to become effective upon the appointment of a
\n substitute member or, if earlier, the lapse of thirty days after such
\n notice is given as herein provided. At any time during his term of
\n office, and for any reason, a member of the Committee may be removed by
\n the Directors with or without cause, and the Directors may in their
\n discretion fill any vacancy that may result therefrom. Any member of
\n the Committee who is an employee of the Company shall automatically
\n cease to be a member of the Committee as of the date he ceases to be
\n employed by the Company and its Affiliates.<\/p>\n
-17-
\n 24<\/p>\n
9.3 SELF-INTEREST OF COMMITTEE MEMBERS. No member of the Committee shall
\n have any right to vote or decide upon any matter relating solely to
\n himself under the Plan (including, without limitation, Committee
\n decisions under Article II) or to vote in any case in which his
\n individual right to claim any benefit under the Plan is particularly
\n involved. In any case in which a Committee member is so disqualified to
\n act and the remaining members cannot agree, the Directors shall appoint
\n a temporary substitute member to exercise all the powers of the
\n disqualified member concerning the matter in which he is disqualified.<\/p>\n
9.4 COMMITTEE POWERS AND DUTIES. The Committee shall administer and enforce
\n the Plan according to the terms and provisions hereof and shall have
\n all powers necessary to accomplish these purposes, including, but not
\n by way of limitation, the complete and absolute discretion to construe
\n all provisions of the Plan and make all factual determinations and the
\n right, power, authority, and duty:<\/p>\n
(a) To make rules, regulations, and bylaws for the administration
\n of the Plan that are not inconsistent with the terms and
\n provisions hereof, and to enforce the terms of the Plan and
\n the rules and regulations promulgated thereunder by the
\n Committee;<\/p>\n
(b) To construe in its sole discretion all terms, provisions,
\n conditions, and limitations of the Plan;<\/p>\n
(c) To correct any defect or to supply any omission or to
\n reconcile any inconsistency that may appear in the Plan in
\n such manner and to such extent as it shall deem in its
\n discretion expedient to effectuate the purposes of the Plan;<\/p>\n
(d) To employ and compensate such accountants, attorneys,
\n investment advisors, and other agents, employees, and
\n independent contractors as the Committee may deem necessary or
\n advisable for the proper and efficient administration of the
\n Plan;<\/p>\n
(e) To determine in its sole discretion all questions relating to
\n eligibility;<\/p>\n
(f) To establish or designate Investment Funds as provided in
\n Article V;<\/p>\n
(g) To determine whether and when there has been a termination of
\n a Participant’s employment with the Company and its
\n Affiliates, and the reason for such termination;<\/p>\n
(h) To make a determination in its sole discretion as to the right
\n of any person to a benefit under the Plan and to prescribe
\n procedures to be followed by distributees in obtaining
\n benefits hereunder; and<\/p>\n
(i) To receive and review reports from the Trustee as to the
\n financial condition of the Trust Fund, including its receipts
\n and disbursements.<\/p>\n
9.5 CLAIMS REVIEW.<\/p>\n
(a) In any case in which a claim for Plan benefits of a
\n Participant or beneficiary is denied or modified, the
\n Committee shall furnish written notice to the claimant within
\n ninety days (or within 180 days if additional information
\n requested by the Committee <\/p>\n
-18-
\n 25<\/p>\n
necessitates an extension of the ninety-day period and, in
\n which case, the claimant shall be informed of such extension
\n prior to the end of the initial ninety-day period), which
\n notice shall:<\/p>\n
(1) State the specific reason or reasons for the denial
\n or modification;<\/p>\n
(2) Provide specific reference to pertinent Plan
\n provisions on which the denial or modification is
\n based;<\/p>\n
(3) Provide a description of any additional material or
\n information necessary for the Participant, his
\n beneficiary, or representative to perfect the claim
\n and an explanation of why such material or
\n information is necessary; and<\/p>\n
(4) Explain the Plan’s claim review procedure as
\n contained herein.<\/p>\n
(b) In the event a claim for Plan benefits is denied or modified,
\n if the Participant, his beneficiary, or a representative of
\n such Participant or beneficiary desires to have such denial or
\n modification reviewed, he must, within sixty days following
\n receipt of the notice of such denial or modification, submit a
\n written request for review by the Committee of its initial
\n decision. In connection with such request, the Participant,
\n his beneficiary, or the representative of such Participant or
\n beneficiary may review any pertinent documents upon which such
\n denial or modification was based and may submit issues and
\n comments in writing. Within sixty days following such request
\n for review the Committee shall, after providing a full and
\n fair review, render its final decision in writing to the
\n Participant, his beneficiary, or the representative of such
\n Participant or beneficiary stating specific reasons for such
\n decision and making specific references to pertinent Plan
\n provisions upon which the decision is based. If special
\n circumstances require an extension of such sixty-day period,
\n the Committee’s decision shall be rendered as soon as
\n possible, but not later than 120 days after receipt of the
\n request for review. If an extension of time for review is
\n required, written notice of the extension shall be furnished
\n to the Participant, beneficiary, or the representative of such
\n Participant or beneficiary prior to the commencement of the
\n extension period.<\/p>\n
(c) Compliance with the claims review procedures set forth in this
\n Section shall be a condition precedent to the filing of a
\n lawsuit by a Participant, his beneficiary, or any person
\n claiming through a participant or beneficiary in connection
\n with a Plan benefit, and a failure to timely exhaust the
\n administrative remedies set forth herein shall bar any such
\n proceeding in federal or state court. <\/p>\n
9.6 COMPANY TO SUPPLY INFORMATION. The Company shall supply full and timely
\n information to the Committee, including, but not limited to,
\n information relating to each Participant’s Compensation, age,
\n retirement, death, or other cause of termination of employment and such
\n other pertinent facts as the Committee may require. When making a
\n determination in connection with the Plan, the Committee shall be
\n entitled to rely upon the aforesaid information furnished by the
\n Company or any Affiliate.<\/p>\n
9.7 INDEMNITY. To the extent permitted by applicable law, the Company shall
\n indemnify and hold harmless each member of the Committee and other
\n employee of the Company or an <\/p>\n
-19-<\/p>\n
26<\/p>\n
Affiliate to whom Plan administrative functions have been delegated by
\n the Committee against any and all expenses and liabilities arising out
\n of such individual’s administrative functions or fiduciary
\n responsibilities under or incident to the Plan, including any expenses
\n and liabilities that are caused by or result from an act or omission
\n constituting the negligence of such individual in the performance of
\n such functions or responsibilities, but excluding expenses and
\n liabilities that are caused by or result from such individual’s own
\n gross negligence or willful misconduct. Expenses against which such
\n individual shall be indemnified hereunder shall include, without
\n limitation, the amounts of any settlement or judgment, costs, counsel
\n fees, and related charges reasonably incurred in connection with a
\n claim asserted or a proceeding brought or settlement thereof.<\/p>\n
ARTICLE X.
\n PURPOSE AND UNFUNDED NATURE OF THE PLAN<\/p>\n
10.1 PURPOSE OF PLAN. The Company intends and desires by the adoption and
\n maintenance of the Plan to recognize the value to the Company of the
\n past and present services of employees covered by the Plan and to
\n encourage and ensure their continued service with the Company by making
\n more adequate provision for their future retirement security.<\/p>\n
10.2 UNFUNDED NATURE OF PLAN. The Plan is intended to constitute an
\n unfunded, unsecured plan of deferred compensation for a select group of
\n management or highly compensated employees of the Company. Further, it
\n is the intention of the Company that the Plan be “unfunded” for
\n purposes of the Code and Title I of ERISA. The Plan constitutes a mere
\n promise by the Company to make benefit payments in the future. Plan
\n benefits herein provided are to be paid out of the Company’s general
\n assets, and Participants shall have the status of general unsecured
\n creditors of the Company.<\/p>\n
10.3 FUNDING OF OBLIGATION.<\/p>\n
(a) The adoption of this Plan and any setting aside of amounts by
\n the Employers with which to discharge their obligations
\n hereunder shall not be deemed to create a trust; legal and
\n equitable title to any funds so set aside shall remain with
\n the Employers, and any recipient of benefits hereunder shall
\n have no security or other interest in such funds. Any and all
\n funds so set aside shall remain subject to the claims of the
\n general creditors of the Employers, present and future. This
\n provision shall not require the Employers to set aside any
\n funds, but the Employers may set aside funds if they choose to
\n do so.<\/p>\n
(b) The Company, in its sole discretion, may establish the Trust
\n and enter into the Trust Agreement. Any such Trust, and any
\n assets held by such Trust, to assist the Employers in meeting
\n its obligations under the Plan shall be a “rabbi trust.” The
\n Employers may transfer money or other property to the Trustee,
\n and the Trustee shall pay Plan benefits to Participants and
\n their beneficiaries out of the Trust Fund unless otherwise
\n paid by the Company. In such event, the Company shall remain
\n the owner of all assets in the Trust Fund, and the assets held
\n in the Trust Fund shall be subject to the claims of Company
\n creditors if the Company becomes “insolvent” as described in
\n Subsection (c) below. No Participant or beneficiary shall have
\n any preferred claim to, or any beneficial ownership interest
\n in, any assets of the Trust Fund.<\/p>\n
-20-
\n 27<\/p>\n
(c) The Company shall be considered “insolvent” if (i) the Company
\n is unable to pay its debts as they become due or (ii) the
\n Company is subject to a pending proceeding as a debtor under
\n the United Sates Bankruptcy Code (or any successor federal
\n statute).<\/p>\n
(d) The chief executive officer of the Company and the Directors
\n shall each have the duty to inform the Trustee in writing if
\n the Company becomes insolvent. Such notice given under the
\n preceding sentence by any one party shall satisfy each party’s
\n duty to give notice. When so informed, the Trustee shall
\n suspend payments to the Participants and beneficiaries and
\n hold the assets for the benefit of the Company’s general
\n creditors. If the Trustee receives a written allegation that
\n the Company is insolvent, the Trustee shall suspend payments
\n to the Participants and beneficiaries and hold the Trust Fund
\n for the benefit of the Company’s general creditors and shall
\n determine within the period specified in the Trust Agreement,
\n or, in the absence of a specified period, within a reasonable
\n period of time, whether the Company is insolvent. If the
\n Trustee determines that the Company is not insolvent, the
\n Trustee shall resume payments to the Participants and
\n beneficiaries. In the case of insolvency of the Company or any
\n Affiliate designated to participate in the Plan pursuant to
\n Section 11.1, only the assets contributed to the Trust, if
\n any, by the Company or such Affiliate, whichever is insolvent,
\n shall be subject to the claims of such insolvent entity.<\/p>\n
(e) All expenses incident to the administration of the Plan and
\n Trust, including but not limited to, legal, accounting,
\n Trustee fees, and expenses of the Committee, may be paid by
\n the Company and, if not so paid, shall be paid by the Trustee
\n from the Trust Fund, if any.<\/p>\n
(f) All income, profits, recoveries, contributions, forfeitures
\n and any and all moneys, securities, and properties of any kind
\n at any time received or held by the Trustee, if any, shall be
\n held for investment purposes as a commingled Trust Fund
\n pursuant to the terms of the Trust Agreement. The Committee
\n shall maintain Accounts in the name of each Participant, but
\n the maintenance of Accounts designated as Accounts of a
\n Participant shall not mean that such Participant shall have a
\n greater or lesser interest than that due him under the terms
\n of the Plan and shall not be considered as segregating any
\n funds or property from any other funds or property contained
\n in the commingled fund.<\/p>\n
ARTICLE XI.
\n PARTICIPATING ENTITIES<\/p>\n
11.1 DESIGNATION OF PARTICIPATING ENTITIES.<\/p>\n
(a) The Committee may designate any Employer as eligible to
\n participate in the Plan by written instrument delivered to the
\n Company and the designated entity. Such written instrument
\n shall specify the effective date of such designated
\n participation, may incorporate specific provisions relating to
\n the operation of the Plan that apply to the designated entity
\n only, and shall become, as to such designated entity and its
\n employees, a part of the Plan. Each designated Employer shall
\n be conclusively presumed to have consented to its designation
\n and to have agreed to be bound by the <\/p>\n
-21-
\n 28<\/p>\n
terms of the Plan and any and all amendments thereto upon its
\n submission of information to the Committee required by the
\n terms of or with respect to the Plan; provided, however, that
\n the terms of the Plan may be amended so as to increase the
\n obligations of an entity only with the consent of such entity,
\n which consent shall be conclusively presumed to have been
\n given by such entity upon its submission, after receipt of
\n notice of any such amendment, of any information to the
\n Committee required by the terms of or with respect to the
\n Plan.<\/p>\n
(b) Except as modified by the Committee in the written instrument
\n described in Subsection (a) above, the provisions of this Plan
\n shall be applicable with respect to each participating entity
\n separately, and amounts payable hereunder for or on behalf of
\n a Participant shall be paid by the participating entity that
\n employs such Participant.<\/p>\n
(c) Any participating entity may, by appropriate action of its
\n officers without the need for approval of its board of
\n directors or noncorporate counterpart or the Committee, the
\n Company, or the Directors, terminate its participation in the
\n Plan. Moreover, the Committee may, in its discretion,
\n terminate a participating entity’s Plan participation at any
\n time by giving written notice to such participating entity and
\n the Company.<\/p>\n
ARTICLE XII.
\n MISCELLANEOUS<\/p>\n
12.1 NOT CONTRACT OF EMPLOYMENT. The adoption and maintenance of the Plan
\n shall not be deemed to be a contract between the Company and any person
\n or to be consideration for the employment of any person. Nothing herein
\n contained shall be deemed to give any person the right to be retained
\n in the employ of the Company or to restrict the right of the Company to
\n discharge any person at any time, nor shall the Plan be deemed to give
\n the Company the right to require any person to remain in the employ of
\n the Company or to restrict any person’s right to terminate his
\n employment at any time.<\/p>\n
12.2 ALIENATION OF INTEREST FORBIDDEN. The interest of a Participant or his
\n beneficiary or beneficiaries hereunder may not be sold, transferred,
\n assigned, or encumbered in any manner, either voluntarily or
\n involuntarily, and any attempt so to anticipate, alienate, sell,
\n transfer, assign, pledge, encumber, or charge the same shall be null
\n and void, nor shall the benefits hereunder be liable for or subject to
\n the debts, contracts, liabilities, engagements, or torts of any person
\n to whom such benefits or funds are payable, nor shall they be an asset
\n in bankruptcy or subject to garnishment, attachment, or other legal or
\n equitable proceedings. The preceding notwithstanding, the Committee
\n shall comply with the terms and provisions of a “qualified domestic
\n relations order” as defined in ERISA Section 206(d).<\/p>\n
12.3 WITHHOLDING. All Compensation Deferrals, Company Credits, and benefit
\n payments provided for hereunder shall be subject to applicable
\n withholding and other deductions as shall be required of the Company
\n under any applicable local, state, or federal law as such laws are
\n interpreted by the Company.<\/p>\n
12.4 AMENDMENT AND TERMINATION. The Directors have the absolute and
\n unconditional right to amend the Plan at any time and may from time to
\n time, in their discretion, amend, in whole or in part, any or all of
\n the provisions of the Plan; provided, however, that any <\/p>\n
-22-
\n 29<\/p>\n
amendments to the Plan that do not have a significant cost impact on
\n the Company, whether or not retroactive, may be made by the Committee;
\n and provided, further, that no amendment may be made that would reduce
\n a Participant’s Vested Interest in the amounts credited to his Accounts
\n as of the date of adoption of such amendment. The Directors have the
\n absolute and unconditional right to terminate the Plan at any time on
\n behalf of the Company and each participating entity. In the event that
\n the Plan is terminated, notwithstanding any other form of benefit
\n elected by the Participant, the balance of each Participant’s Accounts
\n shall be paid to such Participant or his designated beneficiary in the
\n manner selected by the Committee in its discretion (notwithstanding any
\n other form of benefit elected by such Participant), which may include
\n the payment of a single lump sum cash payment, in full satisfaction of
\n all of such Participant’s or beneficiary’s benefits hereunder.<\/p>\n
12.5 SEVERABILITY. If any provision of the Plan shall be held illegal or
\n invalid for any reason, said illegality or invalidity shall not affect
\n the remaining provisions hereof; instead, each provision shall be fully
\n severable, and the Plan shall be construed and enforced as if said
\n illegal or invalid provision had never been included herein.<\/p>\n
12.6 GOVERNING LAWS. All provisions of the Plan shall be construed in
\n accordance with the laws of the State of Texas except to the extent
\n preempted by federal law.<\/p>\n
Executed this 26th day of December, 2000.<\/p>\n
DELL COMPUTER CORPORATION<\/p>\n
By: \/s\/ KATHLEEN ANGEL
\n ——————————–
\n Name: Kathleen Angel
\n ——————————
\n Title: Director of Global Benefits
\n —————————–<\/p>\n
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