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EXHIBIT 4.1
XO COMMUNICATIONS, INC.
CASH COMPENSATION DEFERRAL PLAN
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XO COMMUNICATIONS, INC.
CASH COMPENSATION DEFERRAL PLAN
TABLE OF CONTENTS
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ARTICLE I - INTRODUCTION................................................................1
1.1 Name of Plan.....................................................................1
1.2 Purposes of Plan.................................................................1
1.3 "Top Hat" Pension Benefit Plan...................................................1
1.4 Funding..........................................................................1
1.5 Effective Date...................................................................1
1.6 Administration...................................................................1
ARTICLE II - DEFINITIONS AND CONSTRUCTION...............................................1
2.1 Definitions......................................................................1
2.2 Number and Gender................................................................6
2.3 Headings.........................................................................6
ARTICLE III - PARTICIPATION AND ELIGIBILITY.............................................6
3.1 Participation....................................................................6
3.2 Commencement of Participation....................................................6
3.3 Cessation of Active Participation................................................6
ARTICLE IV - DEFERRALS & COMPANY CONTRIBUTIONS..........................................7
4.1 Deferrals by Participants........................................................7
4.2 Effective Date of Deferred Compensation Agreement................................8
4.3 Modification or Revocation of Election by Participant............................8
4.4 Company Contributions............................................................8
ARTICLE V - VESTING, DEFERRAL PERIODS AND EARNINGS ELECTION.............................9
5.1 Vesting..........................................................................9
5.2 Deferral Periods.................................................................9
5.3 Earnings Election................................................................9
ARTICLE VI - ACCOUNTS..................................................................10
6.1 Establishment of Bookkeeping Accounts...........................................10
6.2 Subaccounts.....................................................................10
6.3 Hypothetical Nature of Accounts.................................................11
ARTICLE VII - PAYMENT OF ACCOUNT.......................................................11
7.1 Timing of Distribution of Benefits..............................................11
7.2 Adjustment for Investment Gains and Losses Upon a Distribution..................12
7.3 Form of Payment or Payments.....................................................12
7.4 Small Accounts..................................................................12
7.5 Designation of Beneficiaries....................................................13
7.6 Unclaimed Benefits..............................................................13
7.7 Hardship Withdrawals............................................................13
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7.8 Other Withdrawals...............................................................13
ARTICLE VIII - ADMINISTRATION..........................................................14
8.1 Committee.......................................................................14
8.2 General Powers of Administration................................................14
8.3 Costs of Administration.........................................................15
8.4 Indemnification of Committee....................................................15
ARTICLE IX - DETERMINATION OF BENEFITS, CLAIMS PROCEDURE AND ADMINISTRATION............15
9.1 Claims..........................................................................15
9.2 Claim Decision..................................................................15
9.3 Request for Review..............................................................16
9.4 Review of Decision..............................................................16
ARTICLE X - MISCELLANEOUS..............................................................16
10.1 Not Contract of Employment......................................................16
10.2 Non-Assignability of Benefits...................................................16
10.3 Withholding.....................................................................17
10.4 Amendment and Termination.......................................................17
10.5 No Trust Created................................................................17
10.6 Unsecured General Creditor Status Of Employee...................................17
10.7 Severability....................................................................18
10.8 Governing Laws..................................................................19
10.9 Binding Effect..................................................................19
10.10 Entire Agreement................................................................19
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ARTICLE I - INTRODUCTION
1.1 NAME OF PLAN.
XO Communications, Inc. ("XO" or the "Company") hereby establishes, as
of February 14, 2000, the XO Communications, Inc. Cash Compensation Deferral
Plan (the "Plan").
1.2 PURPOSES OF PLAN.
The purposes of the Plan are to provide certain eligible employees and
directors of the Company and its Subsidiaries (as defined herein) the
opportunity to defer elements of their cash compensation which might not
otherwise be deferrable under other Company plans.
1.3 "TOP HAT" PENSION BENEFIT PLAN.
The Plan is an "employee pension benefit plan" within the meaning of
ERISA. However, the Plan is unfunded and maintained for a select group of
management or highly compensated employees and certain select directors of the
Company and its Subsidiaries and, therefore, it is intended that the Plan will
be exempt from Parts 2, 3 and 4 of Title I of ERISA. The Plan is not intended to
qualify under Code section 401 (a).
1.4 FUNDING.
The Plan is unfunded. All benefits will be paid from the general assets
of the Company.
1.5 EFFECTIVE DATE
The Plan is effective as of the Effective Date, but no cash compensation
of any Participant (as defined herein) may be deferred pursuant to this Plan
prior to January 1, 2001.
1.6 ADMINISTRATION.
The Plan shall be administered by the Compensation Committee (as defined
herein), subject to the express understanding that the Compensation Committee
may in turn, pursuant to general rules or procedures adopted by the Compensation
Committee or as to actions by the Compensation Committee directed at particular
or limited circumstances, delegate administration and administrative functions
of or relating to the Plan in such manner and to such groups, committees,
individuals or entities as the Compensation Committee deems appropriate.
ARTICLE II - DEFINITIONS AND CONSTRUCTION
2.1 DEFINITIONS.
For purposes of the Plan, the following words and phrases shall have the
respective meanings set forth below, unless their context clearly requires a
different meaning:
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"ACCOUNT" means the bookkeeping account maintained by the Company on
behalf of each Participant pursuant to Article VI that is credited with Base
Salary Deferrals, Bonus Deferrals, and Company Contributions made on behalf of
each Participant pursuant to Article IV, and the gains, losses and earnings on
such amounts as determined in accordance with Article V. As of any Valuation
Date, a Participant's benefit under the Plan shall be equal to the amount
credited to his or her Account as of such date.
"BASE SALARY" means the base rate of cash compensation (which, in the
case of Participants who are Eligible Directors (as defined herein), shall
include annual directors' fees or other similar amounts paid or payable in cash,
if any) paid by the Company and/or by any Subsidiary to or for the benefit of a
Participant for services rendered or labor performed while a Participant,
including base pay a Participant could have received in cash in lieu of (A)
deferrals pursuant to Section 4.1 and (B) contributions made on a Participant's
behalf to any qualified or non-qualified plan maintained by the Company and/or
by any Subsidiary.
"BASE SALARY DEFERRAL" means the amount of a Participant's Base Salary
which the Participant elects to have withheld on a pre-tax basis from his or her
Base Salary and credited to his or her Account pursuant to Section 4.1.
"BENEFICIARY" means the person or persons designated by the Participant
in accordance with Section 7.5.
"BONUS COMPENSATION" means the amount in cash awarded to a Participant
under any bonus plan maintained by the Company and, or by any Subsidiary, or
otherwise to the extent such amount awarded is paid or payable in cash.
"BONUS COMPENSATION DEFERRAL" means the amount of a Participant's Bonus
Compensation which the Participant elects to have withheld on a pre-tax basis
from his Bonus Compensation and credited to his account pursuant to Section 4.1.
"CHANGE OF CONTROL" shall mean the occurrence of any of the following
events:
(i) The Company is merged or consolidated or reorganized into or
with another company or other legal entity, and as a result of such
merger, consolidation or reorganization less than a majority of the
combined voting power of the then-outstanding securities of such company
or person immediately after such transaction is held directly or
indirectly in the aggregate by the holders of voting securities of the
Company immediately prior to such sale or transfer, including voting
securities issuable upon exercise or conversion of options, warrants or
other securities or rights, provided, however, that no Change of Control
shall result from a merger, consolidation or reorganization of the
Company with any entity in which Eagle River Investments, L.L.C. has
invested at least $10,000,000 in equity;
(ii) The Company sells or otherwise transfers all or substantially
all of its assets to any other company or other legal entity, and as a
result of such sale or other transfer of assets, less than a majority of
the combined voting power of the then-outstanding securities of such
company or person immediately after such sale or transfer is held
directly or indirectly in the aggregate by the holders of
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voting securities of the Company immediately prior to such sale or
transfer, including voting securities issuable upon exercise or
conversion of options, warrants or other securities or rights;
(iii) There is a report filed on Schedule 13D or Schedule 14D-1
(or any successor schedule, form or report), each as promulgated pursuant
to the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
disclosing that any person (as the term "person" is used in Section
13(d)(3) or Section 14(d)(2) of the Exchange Act) other than Craig O.
McCaw and his affiliates has become the beneficial owner (as the term
"beneficial owner" is defined under Rule 13d-3 or any successor rule or
regulation promulgated under the Exchange Act) of securities representing
50% or more of the voting securities of the Company, including voting
securities issuable upon exercise or conversion of options, warrants or
other securities or rights;
(iv) The Company files a report or proxy statement with the
Securities and Exchange Commission pursuant to the Exchange Act
disclosing in response to Form 8-K or Schedule 14A (or any successor
schedule, form or report or item therein) that a Change of Control of the
Company has occurred;
(v) Notwithstanding the foregoing provisions of subparagraphs
(iii) and (iv) hereof, a "Change of Control" shall not be deemed to have
occurred solely because (x) the Company, (y) an entity in which the
Company directly or indirectly beneficially owns 50% or more of the
voting securities, or (z) any Company-sponsored employee stock ownership
plan or other employee benefit plan of the Company, either files or
becomes obligated to file a report or proxy statement under or in
response to Schedule 13D, Schedule 14D-1, Form 8-K or Schedule 14A (or
any successor schedule, form or report or item therein) under the
Exchange Act, disclosing beneficial ownership by it of voting securities,
whether in excess of 50% or otherwise, or because the Company reports
that a Change of Control of the Company has or may have occurred or will
or may occur in the future by reason of such beneficial ownership.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMMITTEE" means the Compensation Committee and also shall mean or
include, to the extent relevant, any group, committee, individual or entity that
the Compensation Committee may appoint or constitute from time to time, as
contemplated in Section 1.6, to administer the Plan in accordance with Article
VIII.
"COMPANY" means XO Communications, Inc. and any successor thereto
including, without limitation, the surviving corporation resulting from any
merger or consolidation of XO Communications, Inc. with or into any other
corporation or corporations.
"COMPANY CONTRIBUTION" means a discretionary cash amount which may be
contributed to a Participant's Account on a pre-tax basis under Section 4.1 for
such business purposes and objectives as the Company shall deem appropriate. The
Company shall not be obligated to make any Company Contribution to any
Participant or Participants, unless such obligation is evidenced in a writing
(separate from this Plan
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document), signed by an authorized officer on behalf of the Company and, in the
case of an executive officer of the Company, approved by the Compensation
Committee. Subject to the foregoing, a Company Contribution may be made to any
eligible individual Participant or group of Participants based upon any set of
conditions or requirements as the Company shall deem appropriate.
"COMPENSATION COMMITTEE" means the Compensation Committee of the
Directors.
"DEFERRAL PERIOD" means the period of time for which a Participant elects
to defer receipt of the Base Salary Deferral, Bonus Compensation Deferral, and
Company Contributions (if any) credited to such Participant's Account and shall
be either (a) the period ending on the Retirement Date, or (b) the period of
years ending immediately prior to the first day of a Specific Future Year as
specified in Section 5.2. Deferral Periods shall be measured on the basis of
Plan Years, beginning with the Plan Year that commences immediately following
the Plan Year for which the applicable Base Salary Deferrals, Bonus Compensation
Deferrals, and/or Company Contributions (if any) are credited to the
Participant's Account.
"DEFERRED COMPENSATION AGREEMENT" means the written agreement (regardless
of how it may be titled) as prescribed by the Committee and signed by a
Participant pursuant to which the Participant elects the amount of his or her
Base Salary and/or his or her Bonus Compensation to be deferred into the Plan,
and the form of payment for such amounts, the Deferral Period and the deemed
investments.
"DIRECTORS" means the Board of Directors of the Company.
"EFFECTIVE DATE" means October 25, 2000.
"ELIGIBLE DIRECTOR" shall mean each person serving as a director of the
Company who is a Non-Affiliated Director, and also shall mean each person
serving as a director of any Subsidiary of the Company who meets the criteria
for a Non-Affiliated Director. Unless otherwise determined by the Committee, an
Eligible Director who is eligible to be a Participant shall continue as such
until the earlier of (i) the date on which such person fails to meet the
criteria for a Non-Affiliated Director (as so defined) and (ii) the date on
which such person ceases to serve as a director of the Company and any of its
Subsidiaries.
"ELIGIBLE EMPLOYEE" shall mean an Employee of the Company (or of a
Subsidiary) who is a resident of the United States, and occupies a position with
the Company or such Subsidiary that has a fixed annual Base Salary of at least
$100,000. Unless otherwise determined by the Committee, an Eligible Employee
shall continue as such so long as he or she meets the above residency and base
compensation rate criteria, but shall be entitled to defer Base Salary and Bonus
Compensation otherwise payable to him or her only until termination of
employment with the Company and each of its Subsidiaries.
"EMPLOYEE" means any common-law employee of the Company or of any of its
Subsidiaries.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
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"INSOLVENT" shall mean that the Company has become subject to a pending
voluntary or involuntary proceeding under the United States Bankruptcy Code
(and, if such proceeding is involuntary and is contested by the Company, such
proceeding has not been dismissed within 90 days of the filing thereof), or has
become unable to pay its debts as they mature.
"NON-AFFILIATED DIRECTOR" means a person who (i) is serving (or who has
been elected or appointed and has agreed to serve) as a member of the Directors,
(ii) is not an officer or employee of the Company or any of the related entities
or a beneficial owner of 10 percent or more of the outstanding common stock of
the Company and (iii) was not elected or appointed as a member of the Board of
Directors pursuant to or in connection with any contractual or other commitment
on the part of the Company to cause such person to be elected or appointed, or
to nominate or otherwise advance such person for election or appointment, as a
member of the Board.
"PARTICIPANT" means (a) each Employee who is an Eligible Employee and (b)
each Eligible Director, (and in either case only if such Eligible Employee or
Eligible Director, as the case may be, has been selected by the Committee for
participation in the Plan) who has become and remains a Participant in the Plan
pursuant to Article III.
"PLAN" means the XO Communications, Inc. Cash Compensation Deferral Plan,
as amended and in effect from time to time.
"PLAN YEAR" means the twelve consecutive month period commencing January
1 and ending December 31 of each year.
"RETIREMENT AGE" means, in the case of any Eligible Director, the latest
to occur of (a) his or her sixty-fifth birthday, (b) the date on which he or she
ceases to be an Eligible Director or (c) such other date as is specified by the
Eligible Director as his or her Retirement Age in the relevant Deferred
Compensation Agreement(s).
"RETIREMENT DATE" means the date the Participant is eligible for and
retires under any qualified retirement plan maintained by the Company or, in the
case of any Eligible Director, such Participant's Retirement Age.
"SPECIFIC FUTURE YEAR" means a calendar year in the future voluntarily
elected by a Participant to begin distribution of Base Salary Deferrals, Bonus
Compensation Deferrals, and Company Contributions (if any), limited only by the
minimum and maximum Deferral Periods.
"SPECIFIED ALTERNATIVES" shall mean each of the hypothetical investment
vehicles authorized and approved from time to time by the Committee to which
Base Salary Deferrals and/or Bonus Compensation Deferrals and/or Company
Contributions (if any) credited to a Participant's Account or deferred by a
Participant may be allocated pursuant to an effective Deferred Compensation
Agreement submitted by such Participant.
"SUBSIDIARY" shall mean any corporation, joint venture, partnership
unincorporated association or other entity in which the Company has a direct or
indirect ownership or other equity interest and directly or indirectly owns or
controls more than 50 percent of the total combined voting or other
decision-making power unless the Compensation Committee or the Directors
determine, in their sole and absolute
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discretion, to waive such criteria, and such other affiliated entities as the
Compensation Committee or the Directors shall prescribe from time to time.
"VALUATION DATE" means each business day of each calendar month.
2.2 NUMBER AND GENDER.
Wherever appropriate herein, words used in the singular shall be
considered to include the plural and words used in the plural shall be
considered to include the singular. The masculine gender where appearing in the
Plan shall be deemed to include the feminine gender.
2.3 HEADINGS.
The headings of Articles and Sections herein are included solely for
convenience, and if there is any conflict between such headings and the text of
the Plan, the text shall control.
ARTICLE III - PARTICIPATION AND ELIGIBILITY
3.1 PARTICIPATION.
Each Eligible Employee and Eligible Director, unless otherwise determined
by the Committee, shall be deemed selected to be a Participant. The Committee
shall notify each Participant of his or her selection as a Participant. Subject
to the provisions of Section 3.3, a Participant shall remain eligible to
continue participation in the Plan for each Plan Year following his or her
initial year of participation in the Plan, provided that if such Participant
would not be an Eligible Employee or an Eligible Director, as the case may be,
with respect to such succeeding Plan Year, then such Participant shall remain
eligible only to continue the deferral of prior Base Salary Deferrals, Bonus
Compensation Deferrals and/or Company Contributions deferred pursuant to such
Participant's prior Deferred Compensation Agreement for periods in which such
Participant was an Eligible Employee or an Eligible Director, as the case may
be, as and to the extent permitted under the Plan, but shall not be eligible
(unless the Committee otherwise determines), to make or have made Base Salary
Deferrals, Bonus Compensation Deferrals and/or Company Contributions into the
Plan for such Plan Year.
3.2 COMMENCEMENT OF PARTICIPATION.
Each Eligible Employee or Eligible Director, as the case may be, shall
become a Participant effective as of the date his or her initial Deferred
Compensation Agreement becomes effective, unless otherwise determined by the
Committee.
3.3 CESSATION OF ACTIVE PARTICIPATION.
Notwithstanding any provision herein to the contrary, no Participant
shall have any right or entitlement to continue as a Participant in the Plan
except as, to the extent and for the purposes specifically provided in this Plan
or determined from time to time by the Committee in the administration of this
Plan. The Committee shall be specifically empowered to terminate the Participant
status of any Eligible Employee(s) and/or Eligible Director(s) if the Committee
determines, in its sole and absolute discretion, that such termination is
necessary, appropriate or desirable, including without limitation any
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such termination premised on the Committee's determination or belief that
continuation of such Participant status is would or might be contrary to or
inconsistent with the terms of the Plan or of applicable law, or that such
continuation does, could or might jeopardize the Plan's classification as a "Top
Hat" pension benefit plan or does, could or might endanger the benefits
available under or through the Plan to other Participants. Accordingly, an
individual who has become a Participant in the Plan shall cease to be a
Participant hereunder effective as of any date designated by the Committee. In
connection with any such Committee action, the Committee may require that all
Base Salary Deferrals, Bonus Compensation Deferrals and vested Company
Contributions (if any) of any Participant whose status as an Eligible Employee
or an Eligible Director is so terminated be distributed in a lump sum to such
former Participant. Any such Committee action shall be communicated to such
Participant prior to the effective date of such action.
ARTICLE IV - DEFERRALS & COMPANY CONTRIBUTIONS
4.1 DEFERRALS BY PARTICIPANTS.
Before the first day of each Plan Year (or within 31 days of the
commencement of service for an Eligible Employee or Eligible Director, as the
case may be, whose eligibility to participate in the Plan commences other than
on the first day of a Plan Year), or on or before such other date(s) in any Plan
Year that the Committee may, in its sole discretion, establish or designate for
such purpose, a Participant may file with the Committee a Deferred Compensation
Agreement pursuant to which such Participant elects to make Base Salary
Deferrals and/or Bonus Compensation Deferrals for or with respect to such Plan
Year, provided that elections to defer Bonus Compensation payable in 2001 may be
made on or prior to November 15, 2000. Any such Participant election shall be
subject to any maximum or minimum percentage or dollar amount limitations
(which, as of the Effective Date, shall include a maximum Base Salary Deferral
limit of 90% of a Participant's Base Salary and a minimum aggregate annual
deferral limitation of $1,000, which limitations may be changed by the Committee
in its sole discretion), and to any other rules prescribed by the Committee in
its sole discretion.
(a) Base Salary Deferrals will be credited to the Account of
each Participant as of the business day of each calendar month on which
the Participant would have received the cash, provided that such
Participant is an Eligible Employee or Eligible Director, as the case may
be, on the last day of such calendar month. A Participant whose
employment or Eligible Director status, as the case may be, terminates
during the calendar month shall be paid the amount of his or her Base
Salary Deferrals for such month in cash.
(b) Bonus Compensation Deferrals will be credited to the
Account of each Participant as of the business day of the month on which
such Bonus Compensation otherwise would have been paid to the Participant
in cash, provided that the Participant is an Eligible Employee or
Eligible Director, as the case may be on the last day of such month. A
Participant whose employment or Eligible Director status, as the case may
be, terminates before the last day in the
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calendar month in which his or her Bonus Compensation would have been
paid to him or her in cash will be paid his or her Bonus Deferral in
cash.
4.2 EFFECTIVE DATE OF DEFERRED COMPENSATION AGREEMENT.
A Participant's initial Deferred Compensation Agreement shall be
effective as of the first regular Company payroll period (or, in the case of
Eligible Directors, for the first regular payment date for Base Salary paid to
such Eligible Director) beginning after the date the Participant commences
participation in the Plan. Each subsequent Deferred Compensation Agreement shall
become effective on the first day of the Plan Year to which it relates. A
Deferred Compensation Agreement that is timely delivered shall be effective for
the relevant Plan Year (or remaining portion thereof), and, except as otherwise
specified by an Eligible Employee or an Eligible Director, as the case may be,
in his or her then effective Deferred Compensation Agreement, shall continue to
be effective for each subsequent Plan Year until revoked or modified by written
notice to and, if relevant, approval by the Committee as provided in Section 4.3
or until terminated automatically upon either the termination of the Plan, the
termination of such Participant's participation in the Plan in any capacity, or
the Company becoming Insolvent.
4.3 MODIFICATION OR REVOCATION OF ELECTION BY PARTICIPANT.
A Participant may not change the amount of his Base Salary or Bonus
Compensation Deferrals during a Plan Year. However, a Participant may
discontinue a Base Salary Deferral election at any time by filing, on such forms
and subject to such limitations and restrictions as the Committee may prescribe
in its discretion, a revised Deferred Compensation Agreement with the Committee.
If approved by the Committee, revocation shall take effect as of and for the
first payroll period next following its approval. If a Participant discontinues
a Base Salary Deferral election during a Plan Year, he or she will not be
permitted to elect to make Base Salary Deferrals again until the next Plan Year.
A Participant may only discontinue or reduce a Bonus Compensation Deferral
election by a showing of a severe financial hardship in accordance with Section
7.7. Under no circumstances may a Participant's Deferred Compensation Agreement
be made, modified or revoked retroactively.
4.4 COMPANY CONTRIBUTIONS.
Subject to the definition of Company Contributions set forth in Section
2.1, each Participant shall be eligible to receive a Company Contribution.
Company Contributions may be in any amount and subject to such conditions,
limitation or qualifications, and determined in any manner the Company shall
deem appropriate in its sole and absolute discretion. Company Contributions will
be credited to the Participant's Account as of the business day of a calendar
month selected by the Company. Company Contributions may be made for, but are
not limited to, any of the following reasons:
(a) funding for the loss of Company contributions and related
earnings on those contributions that a Participant may incur as a
consequence of legislated eligible compensation or contributions
limitations imposed on the Company 401(k) Plan.
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(b) funding for the loss of any Company qualified plan
contributions and related earnings on those contributions that a
Participant may incur as a result of transferring to another business
unit within the Company's family of companies, including Subsidiaries and
joint venture operations; and
(c) any other purpose which the Company, in its sole and absolute
discretion, shall deem appropriate.
A Participant shall be notified as soon as reasonably practical after
the end of a calendar quarter of any Company Contribution made on his or her
behalf during the quarter under this Section.
ARTICLE V - VESTING, DEFERRAL PERIODS AND
EARNINGS ELECTION
5.1 VESTING.
A Participant shall be 100% vested in that portion of his or her Account
due to Base Salary Deferrals and/or Bonus Compensation Deferrals, including any
gains, losses or earnings thereon, at all times. A Participant shall be 100%
vested in that portion of his or her Account consisting of Company
Contributions, including any gains, losses or earnings thereon, on the first day
of the Plan Year next following the fifth calendar anniversary of the date the
Company Contribution was credited to his or her Account. A Participant shall be
deemed proportionately vested in that portion of his or her Account consisting
of Company Contributions, including any gains, losses or earnings thereon, on
the date such Participant ceases to be an Employee (i) after a Change of Control
has occurred or (ii) upon the occurrence of his Retirement Date or (iii) by
reason of termination of his or her employment by the Company other than for
cause. In the event of death or disability, a Participant shall be 100% vested
in his or her entire Account.
5.2 DEFERRAL PERIODS.
A Deferral Period shall, at the Participant's election, be until (i)
Retirement Date, or (ii) a Specific Future Year. In the case of an election to
defer until a Specific Future Year, the Deferral Period must be for any period
of at least five (5) years or more, but may not end later than the year in which
the Participant attains age 70. A Participant must specify on the Deferred
Compensation Agreement the Deferral Period for the Base Salary Deferrals, Bonus
Compensation Deferrals, and Company Contributions (if any) to be made to the
Plan for the Plan Year (or the remaining portion thereof for a Participant who
enters the Plan other than on the first day of a Plan Year) to which the
Deferred Compensation Agreement relates, subject to certain rules as determined
by the Committee from time to time. In the event a Participant does not elect a
Deferral Period for any such Base Salary Deferrals, Bonus Compensation Deferrals
and Company Contributions (if any) for a Plan Year, such Participant shall be
deemed to have elected a Deferral Period that ends on such Participant's
Retirement Date.
5.3 EARNINGS ELECTION.
A Participant's Account shall be credited with gains, losses and earnings
based on hypothetical investment directions made by the Participant, in
accordance with
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investment deferral crediting options (including the Specified Alternatives) and
procedures adopted by the Committee from time to time. A Participant may change
such hypothetical investment directions pursuant to such procedures which shall,
unless otherwise permitted by the Committee, limit the number of such changes to
one (1) in each calendar month. The Company specifically retains the right in
its sole discretion to change the investment deferral crediting options
(including the Specified Alternatives) and procedures. By electing to defer any
amount pursuant to the Plan, each Participant shall thereby acknowledge and
agree that the Company is not and shall not be required to make any investment
in connection with the Plan, nor is it required to follow the Participant's
hypothetical investment directions in any actual investment it may make or
acquire in connection with the Plan or in determining the amount of any actual
or contingent liability or obligation of the Company thereunder or relating
thereto. Any amounts credited to a Participant's Account with respect to which a
Participant does not provide investment direction shall be credited with
earnings in an amount determined by the Committee in its sole discretion or, if
an amount is not so determined, such amounts shall bear interest at the rate
applicable to U.S. Treasury Bills having a maturity of thirty (30) days as in
effect from time to time during the relevant period. A Participant's Account
shall be adjusted as of each Valuation Date to reflect investment gains, losses
and earnings. Company Contributions (if any) shall be deemed invested in the
same manner as the relevant Participant's Base Salary Deferral hypothetical
investment elections in his Deferred Compensation Agreement for the Plan Year.
If there is no Base Salary Deferral election, Company Contributions (if any)
shall be deemed invested in the same manner as the relevant Participant's Bonus
Compensation Deferral hypothetical investment elections; and if none, then shall
be credited with earnings in an amount determined by the Committee in its sole
discretion or, if an amount is not so determined, such amounts shall bear
interest at the rate applicable to U.S. Treasury Bills having a maturity of
thirty (30) days as in effect from time to time during the relevant period.
ARTICLE VI - ACCOUNTS
6.1 ESTABLISHMENT OF BOOKKEEPING ACCOUNTS.
A separate bookkeeping account shall be maintained for each Participant.
Such account shall be credited with the Base Salary Deferrals and Bonus
Compensation Deferrals made by the Participant pursuant to Section 4.1, and
Company Contributions (if any) made pursuant to Section 4.4 and credited (or
charged, as the case may be) with the hypothetical investment results determined
pursuant to Section 5.3.
6.2 SUBACCOUNTS.
Within each Participant's bookkeeping account, separate subaccounts shall
be maintained to the extent the Committee determines it to be necessary or
desirable for the administration of the Plan. For example, it may be necessary
or desirable to maintain separate subaccounts where the Participant has
specified different Deferral Periods, methods of payment or hypothetical
investment directions with respect to his Base Salary Deferrals, Bonus
Compensation Deferrals, and Company Contributions (if any) for different Plan
Years
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6.3 HYPOTHETICAL NATURE OF ACCOUNTS.
The account established under this Article VI shall be hypothetical in
nature and shall be maintained for bookkeeping purposes only so that earnings
and losses relating to the hypothetical investment of the Base Salary Deferrals,
Bonus Compensation Deferrals and Company Contributions (if any) made pursuant to
the Plan can be credited (or charged, as the case may be). Neither the Plan nor
any of the accounts (or subaccounts) established hereunder shall hold any actual
funds or assets. The right of any person to receive one or more payments under
the Plan shall be an unsecured claim against the general assets of the Company
and no Participant, former Participant or Beneficiary shall have an interest in,
or a lien or prior claim upon, any property of the Company by reason of any
rights of such party, or obligations owed to such party, under this Plan. Any
liability of the Company to any Participant, former Participant, or Beneficiary
with respect to a right to payment shall be based solely upon contractual
obligations created by the Plan and no Subsidiary of the Company shall have any
obligations or liability to any such person, nor shall any such person have any
claim whatsoever against any Subsidiary, by reason of any Account of such person
or amount or obligation owed to such person under this Plan. Neither the
Company, any Subsidiary, the Directors, the Committee nor any other person shall
be deemed to be a trustee of any amounts to be paid under the Plan. Nothing
contained in the Plan, and no action taken pursuant to its provisions, shall
create or be construed to create a trust of any kind, or a fiduciary
relationship, between the Company or any of its Subsidiaries and a Participant
or any other person.
ARTICLE VII - PAYMENT OF ACCOUNT
7.1 TIMING OF DISTRIBUTION OF BENEFITS.
Distribution of Base Salary Deferrals, Bonus Compensation Deferrals and
Company Contributions to a Participant shall be made as soon as practicable
following the date the Deferral Period for such amounts ends.
(a) If a Participant ceases to be an Employee at a time other
than his or her Retirement Date (for reasons other than such
Participant's death or disability), or ceases to be a Non-Affiliated
Director, then such Participant's entire Account balance shall be
distributed to him or her in a lump sum as soon as administratively
practical following the date on which the relevant event occurs, but no
later than 60 days following such date unless (i) the Participant makes a
written request to the Committee in the calendar year prior to the
calendar year in which such date occurs (but no less than 180 days prior
to such date in all events) for an extended distribution period not to
exceed five calendar years; provided that the Committee, in its sole
discretion, may grant or refuse such a request, or (ii) the Committee, in
its sole discretion, elects to defer such distribution and/or make such
distribution in annual installments, in either case resulting in payment
of such Participant's entire Account balance within five years of such
date; provided that the Committee shall not make or continue such
election after a Change of Control.
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(b) Notwithstanding the foregoing, upon the earlier to occur
of (i) the Participant's death, or (ii) the Participant's permanent
disability (as defined for purposes of the Company's long-term disability
program), the Participant's entire Account balance shall be distributed
to him or her (or to his or her Beneficiary in the event of his or her
death) in a lump sum as soon as administratively practical following the
date of such event, but no later than 60 days following such date, unless
the Participant specifies a different payment schedule with respect to
such events in his then effective Deferred Compensation Agreement. If the
Participant has elected to receive such distribution other than in a lump
sum, such distribution may be accelerated, including to lump sum, based
upon a showing of severe financial hardship in accordance with Section
7.7 by the Participant or his or her Beneficiary.
7.2 ADJUSTMENT FOR INVESTMENT GAINS AND LOSSES UPON A DISTRIBUTION.
Upon a distribution pursuant to this Article VII, the balance of a
Participant's Account shall be determined as of the Valuation Date immediately
preceding the date of the distribution to be made and shall be adjusted for
investment gains, losses and earnings which have accrued to the date of
distribution but which have not been credited to his or her Account.
7.3 FORM OF PAYMENT OR PAYMENTS.
Base Salary Deferrals, Bonus Compensation Deferrals and Company
Contributions (if any) shall be distributed in accordance with the form of
payment elected by the Participant on the Deferred Compensation Agreement to
which such amounts relate. The form of payment with respect to amounts and the
earnings credited thereon may be in any of the following forms:
(a) A lump sum; or
(b) Installment payments for a period not to exceed fifteen
years.
Installment payments shall be paid annually as of the first business day
of January of each Plan Year or quarterly as of the first business day of each
calendar quarter as elected by the Participant. Each installment payment shall
be determined by multiplying the amounts to be distributed by a fraction, the
numerator of which is one and the denominator of which is the number of
remaining installment payments to be made to Participant. Anything contained
herein to the contrary notwithstanding, total distribution of a Participant's
Account must be made by the later of the date such Participant attains age 85 or
the Participant's termination of employment. In the calendar year prior to the
calendar year in which a distribution of a Participant's Account is scheduled to
begin distribution (but no less than 180 days prior to the distribution date in
all events), a Participant may request a change in the amount and/or schedule of
payment of such distribution which may be approved or disapproved by the
Committee in its sole discretion.
7.4 SMALL ACCOUNTS.
The Committee, in its sole discretion, may establish minimum amounts for
distributions to be made in installments, and also may distribute a
Participant's Account in one lump sum, if it is less than $25,000 on the date
distribution is scheduled to begin.
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7.5 DESIGNATION OF BENEFICIARIES.
Each Participant shall have the right to designate the Beneficiary or
Beneficiaries to receive payment of his or her Account in the event of his or
her death. A Beneficiary designation shall be made by executing the Beneficiary
designation form prescribed by the Committee and filing the same with the
Committee. Any such designation may be changed at any time by execution of a new
designation in accordance with this Section. If no such designation is on file
with the Committee at the time of the death of the Participant or such
designation is not effective for any reason as determined by the Committee, then
the designated Beneficiary or Beneficiaries to receive such benefit shall be the
Participant's surviving spouse, if any, or if none, the Participant's executor
or administrator, or his or her heirs at law if there is no administration of
such Participant's estate, or otherwise as may be directed by law, or by order
or judgment of a court of competent jurisdiction.
7.6 UNCLAIMED BENEFITS.
In the case of an amount payable pursuant to the Plan on behalf of a
Participant, if the Committee is unable to locate the Participant or Beneficiary
to whom such amount is payable, such amount may be forfeited to the Company,
upon the Committee's determination, and subject to applicable escheat and
similar laws. Notwithstanding the foregoing, if subsequent to any such
forfeiture that is received and retained by the Company, the Participant or
Beneficiary to whom such amount is payable makes a valid claim for such amount,
such forfeited amount shall be paid by the Company or restored to the Plan by
the Company.
7.7 HARDSHIP WITHDRAWALS.
A Participant may apply in writing to the Committee for, and the
Committee may permit, a hardship withdrawal of all or any part of a
Participant's Account if the Committee, in its sole discretion, determines that
the Participant has incurred (a) a severe financial hardship resulting from a
sudden and unexpected illness or accident of the Participant or of a dependent
(as defined in section 152(a) of the Code) of the Participant, or (b) a loss of
property due to casualty, or other similar extraordinary, and unforeseeable
circumstances arising as a result of events beyond the control of the
Participant, as determined by the Committee, in its sole and absolute
discretion. The amount that may be withdrawn shall be limited to the amount
reasonably necessary to relieve the hardship or financial emergency upon which
the request is based, plus the federal and state taxes due on the withdrawal, as
determined by the Committee. The Committee may require a Participant who
requests a hardship withdrawal to submit such evidence as the Committee, in its
sole discretion, deems necessary or appropriate to substantiate the
circumstances upon which the request is based.
7.8 OTHER WITHDRAWALS
At any time, a Participant may request that 90% of (or a designated
portion of) his or her Account balance be paid to him or her provided, that in
anticipation of or following a Change of Control, a Participant may request that
up to 100% of his or her Account balance be paid to him or her. Except as
provided below in connection with a Change of Control, the Committee in its sole
discretion may approve or disapprove such
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a request. If (a) the Committee approves the request or (b) in connection with a
Change of Control, the Company has established a Funded Rabbi Trust (as defined
below), and in either such case the requesting Participant receives a payment
under this Section, he or she shall (1) permanently forfeit the remaining 10% of
the entire account balance (or designated portion of it) which shall not be paid
to, or in respect of, the Participant; and (2) the Participant shall lose the
right to make additional deferrals into the Plan until the Plan Year that
immediately follows the first anniversary of the date on which such Participant
receives a distribution under this Section. If a Participant has filed a request
under this Section in anticipation of or after a Change of Control, then the
Committee may not disapprove such request, but shall notify the Participant, by
appropriate written certification delivered to such Participant within 10 days
of his request, whether or not the Company has established, as contemplated in
Section 10.6, an irrevocable trust, controlled by an independent trustee, which
has been funded with cash or other liquid assets having a value of at least 110%
of the aggregate Account balances deferred pursuant to the Plan as of such date
(a "Funded Rabbi Trust"). If the Committee so notifies the Participant of the
establishment of a Funded Rabbi Trust, then the Participant's previously filed
request under this Section shall be deemed revoked, unless the Participant
resubmits such request following the Change of Control and in any such
resubmitted request, the Participant may only request that 90% of (or a
designated portion of) his or her Account balance be paid to him or her (which
request shall not be subject to Committee approval). If the Committee does not
so notify the Participant of the establishment of a Funded Rabbi Trust, (1) the
amount of the distribution requested by such Participant (up to the entire
Account balance of such Participant) shall be paid to him or her not later than
the fourteenth (14th) day after the date of his request and (2) the Participant
shall lose the right to make additional deferrals into the Plan until the Plan
Year that immediately follows the first anniversary of the date on which such
Participant receives such distribution.
ARTICLE VIII - ADMINISTRATION
8.1 COMMITTEE.
The Plan shall be administered by the Committee as contemplated in
Section 1.6. or by such other person, entity or body as may be retained,
constituted or appointed for such purpose from time to time by the Compensation
Committee. The Committee shall be responsible for the general operation and
administration of the Plan and for carrying out the provisions thereof. The
Committee may delegate to others certain aspects of the management and
operational responsibilities of the Plan, including the employment of advisors
and the delegation of ministerial duties to qualified individuals, provided that
such delegation is in writing.
8.2 GENERAL POWERS OF ADMINISTRATION.
The Committee shall have all powers necessary or appropriate to enable it
to carry out its administrative duties. Not in limitation, but in application of
the foregoing, the Committee shall have the duty and power to interpret the
Plan, to make findings of fact and to determine all questions that may arise
hereunder as to the status and rights of Employees, Participants, and
Beneficiaries. The Committee may exercise the powers
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hereby granted in its sole and absolute discretion. No member of the committee
shall be personally liable for any actions taken by the Committee unless the
member's action involves willful misconduct.
8.3 COSTS OF ADMINISTRATION.
The costs of administering the Plan shall be borne by the Company unless
and until the Participant receives written notice of the imposition of such
administrative costs, with such costs to begin with the next Plan Year and no
costs may be assessed retroactively for prior Plan Years. Such costs shall be
charged against the Participant's Account and shall be uniform for all Plan
Participants.
8.4 INDEMNIFICATION OF COMMITTEE.
The Company shall indemnify the members of the Committee against any and
all claims, losses, damages, costs and expenses, including attorney's fees,
incurred by them, and any liability, including any amounts paid in settlement
with their approval, arising from their action or failure to act, except when
the same is judicially determined to be attributable to their gross negligence
or willful misconduct.
ARTICLE IX - DETERMINATION OF BENEFITS, CLAIMS
PROCEDURE AND ADMINISTRATION
9.1 CLAIMS.
A person who believes that he or she is being denied a benefit to which
he or she is entitled under the Plan (hereinafter referred to as a "Claimant")
may file a written request for such benefit with the Committee, setting forth
his or her claim. The request must be addressed to the Committee at the
Company's then principal place of business.
9.2 CLAIM DECISION.
Upon receipt of a claim, the Committee shall advise the Claimant that a
reply will be forthcoming within ninety (90) days and shall, in fact, deliver
such reply within such period. The Committee, however, may extend the reply
period for an additional ninety (90) days for reasonable cause.
If the claim is denied in whole or in part, the Committee shall adopt a
written opinion, using language calculated to be understood by the Claimant,
setting forth:
(1) The specific reason or reasons for such denial;
(2) The specific reference to pertinent provisions of the
Plan on which such denial is based;
(3) A description of any additional material or information
necessary for the Claimant to perfect his claim and an explanation why
such material or such information is necessary;
(4) Appropriate information as to the steps to be taken if the
Claimant wishes to submit the claim for review; and
(5) The time limits for requesting a review under Section 9.3
and Section 9.4 hereof.
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9.3 REQUEST FOR REVIEW.
Within sixty (60) days after the receipt by the Claimant of the written
opinion described above, the Claimant may request in writing that the Company
review the determination of the Committee. Such request must be addressed to the
Secretary of the Company, at its then principal place of business. The Claimant
or his or her duly authorized representative may, but need not, review the
pertinent documents and submit issues and comments in writing for consideration
by the Company. If the Claimant does not request a review of the Committee's
determination by the Secretary of the Company within such sixty (60) day period,
he or she shall be barred and estopped from challenging the Committee's
determination.
9.4 REVIEW OF DECISION.
Within sixty (60) days after the Secretary's receipt of a request for
review, he or she will review the Committee's determination. After considering
all materials presented by the Claimant, the Secretary will render a written
opinion, written in a manner calculated to be understood by the Claimant,
setting forth the specific reasons for the decision and containing specific
references to the pertinent provisions of this Plan on which the decision is
based. If special circumstances require that the sixty (60) day time period be
extended, the Secretary will so notify the Claimant and will render the decision
as soon as possible, but no later than one hundred twenty (120) days after
receipt of the request for review.
ARTICLE X - MISCELLANEOUS
10.1 NOT CONTRACT OF EMPLOYMENT.
The adoption and maintenance of the Plan shall not be deemed to be a
contract between the Company or any of its Subsidiaries and any person or to be
consideration for the employment of, or service as a director by, any person.
Nothing herein contained shall be deemed to give any person the right to be
retained in the employ of the Company or any of its Subsidiaries or to be
nominated, elected or not removed as a director of the Company or any of its
Subsidiaries or to restrict the right of the Company or any of its Subsidiaries
to discharge any person at any time nor shall the Plan be deemed to give the
Company or any of its Subsidiaries the right to require any person to remain in
the employ or to continue as a director of the Company or any of its
Subsidiaries or to restrict any person's right to terminate his or her
employment or service as a director at any time.
10.2 NON-ASSIGNABILITY OF BENEFITS.
No Participant, Beneficiary or distributees of benefits under the Plan
shall have any power or right to transfer, assign, anticipate, hypothecate or
otherwise encumber any part or all of the amounts payable hereunder, which are
expressly declared to be unassignable and nontransferable. Any such attempted
assignment or transfer shall be void. No amount payable hereunder shall, prior
to actual payment thereof, be subject to seizure by any creditor of any such
Participant, Beneficiary or other distributees for the payment of any debt
judgment or other obligation, by a proceeding at law or in equity, nor
transferable by operation of law in the event of the bankruptcy, insolvency or
death of such Participant, Beneficiary or other distributees hereunder.
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10.3 WITHHOLDING.
All deferrals and payments provided for hereunder shall be subject to
applicable withholding and other deductions as shall be required of the Company
under any applicable local, state or federal law. The Company shall not be
deemed to have made any representation or warranty to any Participant,
Beneficiary or any other person concerning the appropriate income or other tax
treatment of amounts deferred and/or distributed pursuant to this Plan under the
Code (as now or hereafter in effect) or under any other federal, state, local or
foreign tax or similar law, rule or regulation. All of such matters, and the
responsibility of any Participant, Beneficiary, Eligible Employee and/or
Eligible Director to satisfy, such person's tax and similar reporting and
payment obligations in accordance with applicable law in respect of any amounts
deferred or distributed under this Plan, shall be and remain the sole and
exclusive responsibility and obligation of such individual, and each individual
Participant, in consideration of his participation in the Plan, shall agree to
indemnify and hold the Company, its Subsidiaries and their respective directors,
officers, employees, agents and advisors harmless from and against such
responsibilities and liabilities and any failure on the part of such individual
Participant and/or his Beneficiaries to perform and discharge them fully and in
a timely manner. This indemnity shall survive any such Participant's
participation in the Plan, any termination of the Plan and any termination of
such Participant's employment with or by, or service as a director of, the
Company or any of its Subsidiaries for any reason whatsoever.
10.4 AMENDMENT AND TERMINATION.
The Compensation Committee and/or the Directors may from time to time, in
their respective discretion, amend, in whole or in part, any or all of the
provisions of the Plan; provided, however, that no amendment may be made that
would impair the rights of a Participant with respect to amounts already
allocated to his or her Account. The Compensation Committee and/or the Directors
may terminate the Plan at any time. In the event that the Plan is terminated,
the balance in a Participant's Account shall be paid to such Participant or his
or her Beneficiary in a single cash lump sum in full satisfaction of all such
Participant's or Beneficiary's benefits hereunder, Any such amendment to or
termination of the Plan shall be in writing and signed by the Secretary of the
Company.
10.5 NO TRUST CREATED.
Nothing contained in this Plan, and no action taken pursuant to its
provisions by any party, shall create, nor be construed to create, a trust of
any kind or a fiduciary relationship between the Company or any of its
Subsidiaries and any Participant, his or her Beneficiaries, or any other person.
10.6 UNSECURED GENERAL CREDITOR STATUS OF EMPLOYEE.
(a) The payments to a Participant, his or her Beneficiary or
any other distributees hereunder shall be made from assets which shall
continue, for all purposes, to be a part of the general, unrestricted
assets of the Company; no person shall have nor acquire any interest in
any such assets by virtue of the provisions of this Plan. The Company's
obligation hereunder shall be an unfunded and unsecured promise to pay
money in the future. To the extent that the
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Participant Beneficiary or other distributees acquires a right to receive
payments from the Company under the provisions hereof, such right shall
be no greater than the right of any unsecured general creditor of the
Company; no such person shall have nor acquire any legal or equitable
right, interest or claim in or to any property or assets of the Company,
(b) In the event that, in its discretion, the Company
purchases an insurance policy or policies insuring the life of any
Eligible Employee or Eligible Director (or any other property) to allow
the Company to recover the cost of providing the benefits, in whole, or
in part, hereunder, none of the Participant, their respective
Beneficiaries or other distributees shall have nor acquire any rights
whatsoever therein or in the proceeds therefrom. The Company shall be
the sole owner and beneficiary of any such policy or policies and, as
such, shall possess and. may exercise all incidents of ownership
therein. No such policy, policies or other property shall be held in
any trust for a Participant, Beneficiary or other distributees or held
as collateral security for any obligation of the Company hereunder. An
Eligible Employee's or Eligible Director's participation in the
underwriting or other steps necessary to acquire such policy or
policies may be required by the Company and, if required, shall not be
a suggestion of any beneficial interest in such policy or policies to
such Participant or any other person.
(c) To meet its obligations under the Plan, the Company may
(but shall not be obligated to) establish a trust or trusts, or such
other funding devices as the Committee shall deem appropriate, advisable
or desirable, which may take the form of grantor trusts, may be revocable
or irrevocable, and may have independent trustees (such trusts or other
funding devices collectively "Trusts"). If any such Trusts are
established, then so long as they are maintained, the assets of such
Trusts will be used only to pay benefits and administrative expenses of
the Plan; provided, however, that the assets of such Trusts will be
subject to the claims of creditors of the Company in the event the
Company becomes Insolvent. To the extent that the assets of such Trusts
are insufficient to pay benefits due under the Plan, such benefits shall
be paid by the Company from its general assets, which assets shall, at
all times, remain subject to the claims of the Company's creditors.
Neither Participants, their Beneficiaries nor their legal representatives
shall have any right, actual or beneficial, other than the right of an
unsecured general creditor, against the Company or against any of such
Trusts in respect of any portion of a Participant's Account. The Company
has no obligation to make or to continue to make any contributions to any
Trusts that may be established in connection with the Plan and any such
contributions, if made, shall be made (and may be discontinued) in the
sole discretion of the Company.
10.7 SEVERABILITY.
If any provision of this Plan shall be held illegal or invalid for any
reason, said illegality or invalidity shall not affect the remaining provisions
hereof. Instead, each provision shall be fully severable and the Plan shall be
construed and enforced as if said illegal or invalid provision had never been
included herein.
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10.8 GOVERNING LAWS.
All provisions of the Plan shall be construed in accordance with the laws
of Virginia except to the extent preempted by federal law.
10.9 BINDING EFFECT.
This Plan shall be binding on each Participant and his heirs and legal
representatives and Beneficiaries and on the Company and its successors and
assigns.
10.10 ENTIRE AGREEMENT.
This document and any amendments contain all the terms and provisions of
the Plan and shall constitute the entire Plan, any other alleged terms or
provisions being of no effect.
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