-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, QN57kQmozuWqhG8jdYB7A6NqDIgwKyRxSdiJOmiOagrwAH941BlEM7XYo53VRw3M rpXpr169asSk2JCgP6OZkg== 0001010192-05-000007.txt : 20050128 0001010192-05-000007.hdr.sgml : 20050128 20050128103151 ACCESSION NUMBER: 0001010192-05-000007 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 2 CONFORMED PERIOD OF REPORT: 20041207 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20050128 DATE AS OF CHANGE: 20050128 FILER: COMPANY DATA: COMPANY CONFORMED NAME: COX RADIO INC CENTRAL INDEX KEY: 0001018522 STANDARD INDUSTRIAL CLASSIFICATION: RADIO BROADCASTING STATIONS [4832] IRS NUMBER: 581620022 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-12187 FILM NUMBER: 05556207 BUSINESS ADDRESS: STREET 1: C/O COX ENTERPRISES INC STREET 2: 6205 PEACHTREE DUNWOODY ROAD CITY: ATLANTA STATE: GA ZIP: 30328 BUSINESS PHONE: 678-645-0000 MAIL ADDRESS: STREET 1: C/O COX ENTERPRISES INC STREET 2: 6205 PEACHTREE DUNWOODY ROAD CITY: ATLANTA STATE: GA ZIP: 30328 8-K 1 cri_8k.txt COX RADIO, INC. 8-K =============================================================================== UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ----------------------------------- FORM 8-K ----------------------------------- Current Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of Report (Date of earliest event reported): December 7, 2004 ----------------------------------- Cox Radio, Inc. (Exact name of registrant as specified in its charter) Delaware 1-12187 58-1620022 (State or Other (Commission File Number) (I.R.S. Employer Jurisdiction of Incorporation) Identification Number) 6205 Peachtree Dunwoody Road Atlanta, Georgia 30328 (Address of principal executive offices) (Zip Code) (678) 645-0000 (Registrant's telephone number, including area code) ----------------------------------- Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below): [ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) [ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) [ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) [ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR240.13e-4(c)) =============================================================================== Item 1.01. Entry Into a Material Definitive Agreement. On December 7, 2004, the Compensation Committee of the Board of Directors of Cox Radio, Inc. adopted the Cox Radio, Inc. Savings Plus Restoration Plan to be effective January 1, 2005. The Restoration Plan is a nonqualified deferred compensation plan that allows a select group of management-level employees and certain highly compensated employees of Cox Radio and its affiliates to defer through salary reduction arrangements a designated portion of their compensation, generally up to nine percent. In addition, Cox Radio will credit supplemental matching contributions on an annual basis up to certain limits. Contributions under the Restoration Plan will be credited with a rate of return determined annually by Cox Radio, which shall not be less than five percent for any plan year. Generally, amounts deferred under the Restoration Plan are distributed to participants in connection with retirement, death or other termination of employment. The Restoration Plan provides for payment in a lump sum or, in certain circumstances, in annual installments. The obligations of Cox Radio under the Restoration Plan are unsecured general obligations to pay in the future the balance of deferred compensation accounts pursuant to the terms of the Restoration Plan. The foregoing is a summary of the material terms of the Restoration Plan. As a summary of the material terms of the Restoration Plan, it does not purport to be complete and is subject to, and qualified in its entirety by, the terms of the Restoration Plan which is attached hereto as Exhibit 10.1 and incorporated herein by reference. Item 9.01. Financial Statements and Exhibits. (a) Not Applicable. (b) Not Applicable. (c) Exhibit: 10.1 Cox Radio, Inc. Savings Plus Restoration Plan SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. Dated: January 28, 2005 COX RADIO, INC. By: /s/Neil O. Johnston -------------------------- Name: Neil O. Johnston Title: Vice President and Chief Financial Officer EX-10 2 cri_8kex10.txt COX RADIO, INC. SAVINGS PLUS RESTORATION PLAN Exhibit 10.1 COX RADIO, INC. SAVINGS PLUS RESTORATION PLAN Cox Radio, Inc. (the "Plan Sponsor") hereby adopts the Cox Radio, Inc. Savings Plus Restoration Plan (the "Plan"), effective as of January 1, 2005, for the benefit of a select group of its employees and the employees of certain of its affiliates that participate herein in accordance with the following terms and conditions. The list of affiliates that participate in the Plan is attached hereto as Exhibit A, and shall be modified from time to time by the Plan Sponsor. The Plan Sponsor and the affiliates listed on Exhibit A hereafter shall be referred to as the Employer. ARTICLE I PURPOSE OF PLAN The purpose of the Plan shall be to provide supplemental tax-deferred savings to eligible employees of the Employer and to their beneficiaries by allowing a select group of management-level employees to elect to defer through salary reduction arrangements a designated percentage of their compensation. In addition, the Plan Sponsor may in its discretion credit supplemental matching contributions up to certain maximum limits. The Plan is designed to allow participants to defer compensation through combination with the Cox Enterprises, Inc. Savings and Investment Plan (the "401(k) Plan"). The Plan shall be administered at all times to ensure that it does not in operation violate the contingent benefits rule in Code Section 401(k)(4)(A). For purposes of this Plan, all capitalized terms used herein shall have the same meaning as set forth in the 401(k) Plan, except as otherwise expressly indicated. ARTICLE II ELIGIBILITY AND PARTICIPATION 2.1 General Rule Each Employee of the Employer who is a Participant in the 401(k) Plan shall become an Eligible Employee for purposes of the Plan with respect to any Plan Year during which he or she satisfies one of the following requirements: (a) the Employee's Employee Contributions to the 401(k) Plan with respect to the Plan Year equals the dollar limit for employee pre-tax contributions thereto under Code Section 402(g) for such Plan Year, as adjusted by the Secretary of the Treasury for cost of living increases; or (b) the Employee is limited under the terms of the 401(k) Plan to a maximum Employee Contribution of six percent (6%) of Compensation, and such Eligible Employee is contributing to the 401(k) Plan at this maximum limit. An Eligible Employee shall be eligible to participate in the Plan as soon as practicable after satisfying the above requirements. Notwithstanding the foregoing, an Eligible Employee who satisfies the requirements of subsection (b) only shall be eligible to participate in the Plan as of any July 1 next following the end of a calendar year in which he or she satisfies those requirements and for the next twelve months thereafter, and such an Eligible Employee shall remain eligible as of each successive July 1 only so long as the Eligible Employee satisfies those requirements in subsequent years. Eligible Employees first shall be eligible to participate in the Plan as of the Plan's effective date. 2.2 Notice of Eligibility The Committee shall notify each Employee of his or her status as an Eligible Employee and potential right to participate in the Plan. Employees who become eligible to participate in the Plan by reason of section 2.1(b) shall be notified by the Committee in a reasonably practicable period of time prior to the appropriate July 1 with respect thereto. 2.3 Election not to Participate Each Eligible Employee who wishes to waive the right to participate in the Plan shall be required, after receipt of notification from the Committee in accordance with Section 2.2 hereof, to file a waiver election in a manner prescribed by the Committee. Such election must be made on or before the first date upon which the Eligible Employee is eligible to participate in the Plan. If such election is not made on or before such date, the Employee shall be deemed to have elected to participate in the Plan in accordance with the terms of this Article II. 2.4 Participation by Committee Approval The Committee may, from time to time, approve certain individuals who are not Participants in the 401(k) Plan, to become Eligible Employees for purposes of the Plan. ARTICLE III EMPLOYEE SUPPLEMENTAL CONTRIBUTIONS 3.1 Employee Supplemental Contribution Each Eligible Employee may become a Participant under the Plan by electing to make contributions through payroll deductions to the Plan ("Employee Supplemental Contributions") commencing in accordance with the provisions of Article II in an amount equal to a percentage of his or her Compensation not to exceed fifteen percent (15%), reduced by the percentage contributed thereby to the 401(k) Plan. A Participant shall be eligible to participate in this Plan only to the extent that he or she has (i) made the maximum pre-tax contributions to the 401(k) Plan, as determined by Code Section 402(g), or (ii) made the maximum pre-tax contributions to the 401(k) Plan as permitted under the terms of such plan (including, for this purpose, provisions in the 401(k) Plan to assure compliance with the actual deferral percentage test under Code Section 401(k)(3)). For the purpose of this Plan, and notwithstanding any provisions in the 401(k) Plan to the contrary, the dollar limitation applied to the term Compensation in the 401(k) Plan shall not be applicable hereunder. Except for Employee Supplemental Contributions made pursuant to Section 3.5, Employee Supplemental Contributions shall continue to be made for each Participant at the rate elected until the Participant elects to change the rate of contribution or to end such contributions pursuant to Section 3.3, subject to the power of the Committee to distribute elected Employee Supplemental Contributions to any Participant to the extent such Participant's Employee Supplemental Contributions exceed the maximum limit for Employee Supplemental Contributions set forth in this Section 3.1 or the limits specified in Article IV. 3.2 Allocation and Investment Return of Employee and Employer Supplemental Contributions (a) Allocation The Employee Supplemental Contributions and Employer Supplemental Contributions, as defined below, of each Participant shall be credited to the Participant's Plan Accounts, as defined in Article VI. (b) Rate of Return Each Participant shall be credited with a rate of return not less than 5 percent for any Plan Year on Employee Supplemental Contributions and Employer Supplemental Contributions. The rate of return will be determined annually by the Plan Sponsor; provided, that the minimum rate of return for any Plan Year will be 5 percent. 3.3 Participant Elections The elections described in Section 3.1 shall be made under procedures and on forms established by the Committee. The following elections may be made at least 30 days prior to the beginning of any payroll period to take effect with respect to that payroll period: (a) an election to contribute to the Plan if the Eligible Employee is not already contributing, and (b) an election to change the percentage of Compensation which shall be contributed to the Plan by the Participant. A Participant who elects to stop making Employee Contributions to the 401(k) Plan shall be deemed to have elected to stop making Employee Supplemental Contributions to this Plan. A Participant cannot elect to stop contributing to the Plan during a Plan Year unless he or she also elects to stop contributing to the 401(k) Plan. 3.4 Employee Supplemental Contributions for Participants Eligible by Committee Approval Notwithstanding any provisions of the Plan to the contrary, each Employee who becomes an Eligible Employee by Committee approval in accordance with Section 2.4 may elect to become a Participant under the Plan by electing to make Employee Supplemental Contributions in an amount equal to a percentage of his or her Compensation not to exceed fifteen percent (15%), reduced by the percentage that would be contributed to the 401(k) Plan on his or her behalf as if such Employee were participating in the 401(k) Plan. 3.5 Bonus Deferral Program Notwithstanding the 15% Compensation limit contained in Section 3.1 and 3.4, each Participant who is eligible to participate in the Bonus Deferral Program may elect to defer up to an additional 75% (in 5% increments) of his or her annual bonus under the Plan as an Employee Supplemental Contribution. The election described in this Section 3.5 must be made by March 31st of each year the bonus is earned. Once made, such election may not be revoked under any circumstances. A Participant who has waived participation in the Plan or has stopped contributing to the Plan and the 401(k) Plan must rescind their waiver or resume participation to take advantage of the additional contribution provided in this Section 3.5. ARTICLE IV EMPLOYER SUPPLEMENTAL CONTRIBUTIONS 4.1 Employer Supplemental Contribution In each Plan Year, the Employer will provide a credit with respect to each Participant in an amount equal to 50 percent of such Participant's Employee Supplemental Contributions for such Plan Year up to a maximum credit equal to the lesser of (a) an amount equal to 50 percent of 6 percent of his or her Compensation, or (b) six thousand dollars ($6,000) (the "Employer Supplemental Contributions"). Notwithstanding the foregoing, the maximum Employer Supplemental Contribution that otherwise may be credited to a Participant under this Plan shall be reduced by the Employer Contributions allocated to such Participant in the same Plan Year under the 401(k) Plan. 4.2 Participant Need Be Employed The Employer Supplemental Contributions credited by the Employer with respect to a Plan Year shall not be credited to a Participant if the Participant Terminates Employment prior to the end of such Plan Year, except where the termination was due to retirement, death or disability. 4.3 Employer Supplemental Contributions for Participants Eligible by Committee Approval Notwithstanding any provisions of the Plan to the contrary, the Employer may in its discretion provide a credit in accordance with Section 4.1 with respect to each Employee who becomes an Eligible Employee by Committee approval in accordance with Section 2.4, reduced by the Employer Contribution which would be allocated to such Employee as if such Employee were participating in the 401(k) Plan. ARTICLE V ACCOUNTS AND CONTRIBUTIONS The Employer shall establish and maintain the following separate bookkeeping accounts for each Participant to reflect all amounts deferred or credited under this Plan: (a) An Employee Supplemental Contribution Account for each Participant to which shall be credited Employee Supplemental Contributions under Sections 3.1, 3.4 and 3.5. (b) An Employer Supplemental Contribution Account for each Participant to which shall be credited Employer Supplemental Contributions credited to such Participant under Sections 4.1 and 4.3. For all purposes under the Plan, the Employee Supplemental Contributions Account and the Employer Supplemental Contributions Account collectively shall be referred to as the Plan Accounts. All Employee Supplemental Contributions shall be credited to the Employee Supplemental Contribution Account as soon as administratively practicable. All Employer Supplemental Contributions shall be credited to the Employer Supplemental Contribution Account only once a year, and on or before the last day of the first calendar quarter of the Plan Year next following the Plan Year for which such Employer Supplemental Contributions are to be credited. ARTICLE VI BENEFICIARIES Upon becoming a Participant in the Plan, each Employee shall designate a primary Beneficiary and one or more secondary Beneficiaries. The procedure and administrative forms used to designate Beneficiaries shall be determined by the Committee. The Beneficiary of any unmarried Participant who does not designate a Beneficiary under this Article VI shall be the same Beneficiary designated thereby under the 401(k) Plan. For purposes of this Article VI, in the case of a Participant (including a Former Participant) who is married on the date of death, the Participant's Beneficiary automatically shall be the Participant's surviving spouse unless the Participant has elected under the Plan to have such benefit distributed to a Beneficiary other than the Participant's spouse. Such an election shall be effective only if the Participant's spouse as of the date of death has consented in writing to the election, such consent is witnessed by a notary public and acknowledges the effect of the election. Such spousal consent is not required if the Committee is satisfied that the Participant's spouse cannot be located. ARTICLE VII RETIREMENT BENEFITS 7.1 Benefit Determination Upon the retirement of the Participant on or after his or her Early Retirement Date or Normal Retirement Date, the Participant shall be entitled to receive a benefit equal in value to the sum of the amounts credited to the Participant's Plan Accounts as of the date such benefits are distributed. Such benefit shall be paid in accordance with the provisions of Article X. 7.2 Request for Alternative Benefit Distribution (a) A Participant may request that Plan benefits be paid thereto on account of retirement on or after such Participant's Normal Retirement Date or Early Retirement Date may be paid in any alternative form described in subparagraph (b) below, subject to approval of any such election by the Committee acting in its sole discretion. (b) A Participant may request that the benefit payable under the Plan to him or her be payable in the form of a lump sum payment payable immediately or in the form of annual installments for a maximum period of five (5), ten (10) or fifteen (15) years commencing on the first day of any month designated by the Committee. 7.3 Committee Approval The Committee retains the absolute right, in its sole discretion, to approve or reject any request for an alternative benefit distribution within the provisions of this Article VII. The Committee shall determine the procedures and may designate administrative forms to be used by Participants when making a request permitted under this Article VII. ARTICLE VIII DEATH BENEFITS 8.1 Benefit Determination Upon the death of a Participant prior to retirement or Termination of Employment, the designated Beneficiary of the deceased Participant shall be entitled to receive a benefit equal in value to the sum of the amount then credited to the Participant's Plan Accounts as of the date such benefits are distributed. Such benefit shall be paid to the Beneficiary in a lump sum payment. Upon the death of a Former Participant to whom payment of benefits has not been completed, the Designated Beneficiary shall be entitled to receive the remainder of the benefit payments due to the Former Participant in the form and in the amount selected by the Former Participant prior to death; if no such form had been selected by the Former Participant prior to death, any benefit amount payable shall be made in a lump sum payment. 8.2 Request for Alternative Death Benefit Distribution. (a) A Beneficiary may request that Plan benefits be paid thereto on account of the death of a Participant or Former Participant may be paid in any alternative form described in subparagraph (b) below, subject to approval of any such election by the Committee acting in its sole discretion. (b) A Beneficiary of a Participant actually employed at death may request that the benefit payable under the Plan to him or her be payable in the form of a payment of annual installments for a maximum period of five (5), ten (10) or fifteen (15) years commencing on the first day of any month designated by the Committee. The Beneficiary of a Former Participant who prior to death had elected a form of benefit payment may request that the benefit payable under the Plan to him or her be payable in the form of a lump sum payment. 8.3 Proof of Death The Committee may require such proof of death and such evidence of the right of any person to receive death benefit payments under the Plan as it may deem appropriate, and its determination shall be conclusive and binding. ARTICLE IX EMPLOYMENT TERMINATION BENEFITS 9.1 Benefit Determination Upon terminating employment, a Participant shall be entitled to receive a benefit equal in value to the sum of the amount credited to the Participant's Plan Accounts as of the date such benefits are distributed. Such benefit shall be paid in accordance with the provisions of Article X. 9.2 Request for Alternative Benefit Distribution A Participant may request that Plan benefits be paid thereto on account of termination of employment before his or her Early Retirement Date be paid in any alternative form described below, subject to approval of any such election by the Committee acting in its sole discretion. A Participant may request that the benefit payable under the Plan to him or her be payable in the form of a lump sum payment payable immediately or the form of the payment of annual installments for a maximum period of five (5), ten (10) years or fifteen (15) years commencing on the first day of any month designated by the Committee. 9.3 Committee Approval The Committee retains the absolute right, in its sole discretion, to approve or reject any request for an alternative benefit distribution within the provisions of this Article X. The Committee shall determine the procedures and may designate administrative forms to be used by Participants when making a request permitted under this Article IX. ARTICLE X PAYMENT OF BENEFITS 10.1 Timing of Payment As soon as practicable after the Participant retires or attains age 65, whichever is later, the Committee shall cause the total balance credited to such Participant's Plan Accounts to be paid to the Participant or to his or her Beneficiary, as appropriate, in the form of a lump sum payment. Notwithstanding any provisions of the Plan to the contrary, if the total balance in a Participant's Plan Accounts at the time the Participant Terminates Employment or retires is $3,500 or less, including any distributions previously made to such Participant, then such balance shall be paid to the Participant in a lump sum payment as soon as practicable after the date the Participant Terminates Employment or retires. 10.2 Mode of Benefit Payment The distribution of all benefits under the Plan whenever paid, shall be made in cash. 10.3 Inability to Locate Benefit Recipient If, after a reasonable effort has been made, the Committee is unable to locate a Participant or Beneficiary entitled to receive a benefit provided for in the Plan, the Plan Sponsor shall follow procedures determined by the Committee, in its sole discretion. 10.4 Claims Procedure All claims shall be processed in accordance with the claims procedure described in the Summary Plan Description for the Plan. ARTICLE XI IN-SERVICE WITHDRAWALS In the event that a Participant suffers an unforeseeable, immediate and heavy financial need which cannot reasonably be met from other sources, the Participant may request a withdrawal from his or her Plan Accounts in an amount not to exceed that amount needed to meet the immediate and heavy financial need. The Participant must first submit a written withdrawal request to the Employer explaining the nature of the hardship and the amount required to meet the financial need. The Participant will be required to certify that the need cannot be reasonably met from other sources. The determination of financial need and lack of availability of funds from other sources will be made by the Committee, in its sole discretion. No withdrawal may be made under this Article XI for an amount less than $10,000 and no withdrawal can be made less than 12 months after the last previous withdrawal. ARTICLE XII INALIENABILITY OF BENEFITS The right of any Participant or Beneficiary to any benefit provided under the Plan or to the property contained in any separate Plan Account shall not be subject to voluntary or involuntary transfer, alienation or assignment, and (to the fullest extent permitted by law) shall not be subject to attachment, execution, garnishment, sequestration or other legal or equitable process. In the event a Participant or Beneficiary who is receiving or is entitled to receive a benefit provided under the Plan attempts to assign, transfer or dispose of such right, or if an attempt is made to subject said right to such process, such assignment, transfer or disposition shall be null and void. ARTICLE XIII ADMINISTRATION AND FIDUCIARIES 13.1 General The Employer shall have the sole responsibility for crediting the contributions required under Articles IV and V. The Plan Sponsor shall have the sole responsibility for appointing the Committee. It is intended that the Plan Sponsor and the Committee shall be responsible only for the proper exercise of their own powers, duties, responsibilities and obligations under the Plan and shall not be responsible for any act or failure to act of another. 13.2 Named Fiduciaries. (a) General The following fiduciaries (referred to hereinafter individually as a "Named Fiduciary" and collectively as "Named Fiduciaries") shall be responsible for the control, management and administration of the Plan and the control: (1) the Plan Sponsor; (2) the Board of Directors of the Plan Sponsor; (3) the Employer; and (4) the Committee. Each Named Fiduciary shall have only such powers and responsibilities as are expressed in the Plan, and any power or responsibility for the control, management or administration of the Plan which is not expressly allocated to any Named Fiduciary, or with respect to which an allocation is in doubt, shall be deemed allocated to the Plan Sponsor. Each Named Fiduciary shall have no responsibility to inquire into the acts and omissions of any other Named Fiduciary in the exercise of powers or the discharge of responsibilities assigned to such other Named Fiduciary under the Plan. (b) Allocation of Responsibility Any Named Fiduciaries may, by agreement among themselves, allocate any responsibility or duty assigned to a Named Fiduciary under this Plan, to one or more other Named Fiduciaries, provided, that any agreement respecting such allocation shall be in writing and shall be filed by the Committee with the records of the Plan. No such agreement shall be effective as to any Named Fiduciary which is not a party to such agreement until such Named Fiduciary has so consented in writing filed with the Committee. Any Named Fiduciary may, by written instrument filed by the Committee with the records of the Plan, designate a person who is not a Named Fiduciary to carry out any of its responsibilities under the Plan, provided, that no such designation shall be effective as to any other Named Fiduciary until such other Named Fiduciary has received written notice of such designation. (c) Employees of Fiduciaries Any Named Fiduciary, or a person designated by a Named Fiduciary to perform any responsibility of a Named Fiduciary pursuant to the procedure described in the preceding paragraph, may employ one or more persons to render advice with respect to any responsibility such Named Fiduciary has under the Plan or such person has by virtue of such designation. (d) Multiple Roles Any person may serve in more than one fiduciary capacity with respect to the Plan, and any person who is a fiduciary may be a Participant if he or she otherwise satisfies the applicable Plan requirements to be a Participant. 13.3 The Committee (a) Administration of the Plan. The Plan Sponsor shall administer the Plan through the Committee, which shall have all powers necessary to administer the Plan; to construe and interpret the Plan documents; to decide all questions relating to an individual's eligibility to participate in the Plan; to determine the amount, manner and time of any distribution of benefits or withdrawal under the Plan; to resolve any claim for benefits; and to appoint or employ advisors, including legal counsel, to render advice with respect to any of the Committee's responsibilities under the Plan. Any construction, interpretation or application of the Plan by the Committee shall be final, conclusive and binding. (b) Records and Reports The Committee shall be responsible for maintaining sufficient records deemed necessary to allow it to administer the Plan. (c) Allocation of Duties and Responsibilities The Committee may by written instrument designate other persons to carry out any of its duties and responsibilities under the Plan. Any such duties or responsibilities thus allocated must be described in the written instrument. If a person other than an Employee of the Employer is so designated, such person must acknowledge in writing his or her acceptance of the duties and responsibilities allocated to him or her. The Employer shall pay all expenses authorized and incurred by the Committee in the administration of the Plan. (d) Liabilities The Committee shall be indemnified and held harmless by the Plan Sponsor with respect to any liability, assessment, loss, expense or other cost, of any kind or description whatsoever, including legal fees and expenses, actually incurred by a member of the Committee on account of any alleged breach of responsibilities performed or to be performed hereunder or any action or proceeding, actual or threatened, which arises as a result of being a member of the Committee, provided such action or allegation does not arise as a result of the member's own gross negligence, willful misconduct or lack of good faith. ARTICLE XIV FUNDING The Employer's obligations under this Plan shall be general obligations of the Employer and shall not be secured in any manner. No asset of the Employer shall be placed in trust or in escrow or otherwise physically or legally segregated for the benefit of any Participant or his or her spouse or beneficiaries and the eventual payment of benefits under this Plan shall not be secured by the issuance of any negotiable instrument or other evidence of indebtedness of the Employer. No Participant, beneficiary or other person shall be deemed to have any property interest, legal or equitable, in any specific assets of the Employer as a result of the benefits provided by this Plan. To the extent that any person acquires any right to receive payments under this Plan, that right shall be no greater than, nor shall it have any preference or priority over, the rights of any unsecured general creditor of the Employer. In no event shall any of the directors, officers or employees of the Employer or an Affiliate be liable in their individual capacities to any person whomsoever for the payment of benefits under the Plan. ARTICLE XV AMENDMENT OF THE PLAN The Plan Sponsor shall have the right at any time, and from time to time, to amend, in whole or in part, any or all of the provisions of this Plan by formal action of the Board, or a committee thereof, in accordance with state law either at a regularly scheduled meeting of the Board, or a committee thereof, or by written consent. Any written amendment to the Plan under this Article XV shall be executed by the Plan Sponsor on behalf of the Employer. ARTICLE XVI TERMINATION OF PLAN AND DISCONTINUANCE OF CONTRIBUTIONS The Plan Sponsor shall have the right, at any time, to terminate or partially terminate the Plan by formal action of the Board, or a committee thereof, in accordance with state law either at a regularly scheduled meeting of the Board, or a committee thereof, or by written consent. The Plan Sponsor shall distribute amounts in the Employee Supplemental Contribution Account and the Employer Supplemental Contribution Account to all affected Participants in accordance with the Plan Accounts of each participant at the time of distribution in such manner as the Plan Sponsor shall determine in accordance with all applicable law. ARTICLE XVII MISCELLANEOUS 17.1 Participants' Rights Except as may be otherwise specifically provided by law, neither the establishment of the Plan nor any modification thereof, nor the creation of any Plan Account, nor the payment of any benefit, shall be construed to give to any Participant or to any other person a legal or equitable right against the Plan Sponsor, the Employer, any director, officer or employee thereof or the Committee. Under no circumstances shall the terms of employment of any Employee be deemed to have been modified or in any way affected by the establishment of the Plan, and nothing contained in this Plan document or any related document shall require the Employer to retain any Employee in its service. 17.2 Claims Any payment to a Participant or Beneficiary or to their legal representative, or heirs-at-law, made in accordance with the provisions of this Plan shall to the extent thereof be in full satisfaction of all claims hereunder against the Plan Sponsor, the Committee and the Employer, any of whom may require such person, his or her legal representative or heirs-at-law, as a condition precedent to such payment, to execute a receipt and release therefor in such form as shall be determined by the Plan Sponsor, the Committee or the Employer as the case may be. 17.3 Agent for Service of Process The agent for service of process for the Plan shall be the person currently listed in the records of the Secretary of State of Georgia as the agent for service of process for the Plan Sponsor. 17.4 Construction of Agreement To the extent not preempted by federal law, the Plan shall be construed in accordance with the laws of the State of Georgia. 17.5 Savings Clause In the event that any one or more of the terms, conditions, or provisions, or any part thereof, contained in this Plan, or the application thereof to any person or circumstance, shall for any reason, in any respect, or to any extent be held to be invalid, illegal, or unenforceable by any court or governmental agency of competent jurisdiction, such invalidity, illegality, or unenforceability shall not affect the remainder of such term, condition, or provision, nor any other provision of this Plan, nor the application of such term, condition, or provision to persons or circumstances other than those as to which it is held invalid, illegal, or unenforceable, and this Plan shall be construed as if such invalid, illegal, or unenforceable term, condition, or provision had never been contained herein, and each term, condition, or provision hereof shall be valid and enforced to the fullest extent permitted by law. 17.6 Headings Headings of articles, sections and paragraphs of the Plan have been inserted for convenience of reference and constitute no part of the Plan. 17.7 Tax Consequences The Plan is intended to postpone the application of income taxes on amounts credited to the Plan Accounts. However, notwithstanding anything to the contrary, the Employer makes no representation regarding the tax consequences of participation in this Plan. Amounts contributed to or paid from the Plan may be subject to income, payroll or other taxes and the Employer may withhold taxes from any payment, as required under federal, state and local laws. 17.8 Entire Plan This Plan contains the entire understanding and undertaking of the Plan Sponsor and its Affiliates with respect to the subject matter hereof, and supersedes any and all prior and contemporaneous undertakings, agreements, understandings, inducements or conditions, whether express or implied, oral or written, except as herein contained. This Plan may not be modified or amended other than by a written document adopted or executed pursuant to the terms hereof. 17.9 Plan Binding on All Parties This Plan shall be binding upon the parties hereto, their successors and assigns, and upon all Participants and their Beneficiaries, heirs, executors, administrators and assigns. 17.10 Effective Date It is the intention of the Employer that the Plan shall comply with any requirements of Title I of ERISA applicable to the Plan, and the terms of the Plan shall be interpreted and administered so as to accomplish that result. The Plan shall be placed into effect as of January 1, 2005 -----END PRIVACY-ENHANCED MESSAGE-----