-----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, HL5GIzOYlOGUKCA/sSU4FX7YtdmK9DinBKcgFpaoITAcWAsQ2cAIaL+HgByPZwRN U7AfDMlVxwhpwv8Y/ayNEw== 0000700565-95-000005.txt : 19951109 0000700565-95-000005.hdr.sgml : 19951109 ACCESSION NUMBER: 0000700565-95-000005 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19951108 EFFECTIVENESS DATE: 19951127 SROS: NONE FILER: COMPANY DATA: COMPANY CONFORMED NAME: FIRST MID ILLINOIS BANCSHARES INC CENTRAL INDEX KEY: 0000700565 STANDARD INDUSTRIAL CLASSIFICATION: STATE COMMERCIAL BANKS [6022] IRS NUMBER: 371103704 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 033-64061 FILM NUMBER: 95588064 BUSINESS ADDRESS: STREET 1: 1515 CHARLESTON AVE STREET 2: PO BOX 499 CITY: MATTOON STATE: IL ZIP: 61938 BUSINESS PHONE: 2172347454 MAIL ADDRESS: STREET 1: 1515 CHARLESTON AVENUE STREET 2: PO BOX 499 CITY: MATTOON STATE: IL ZIP: 61938 S-8 1 As filed with the Securities and Exchange Commission on November 8, 1995 Registration No. 33-_______ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM S-8 REGISTRATION STATEMENT Under The Securities Act of 1933 __________________ FIRST MID-ILLINOIS BANCSHARES, INC. (Exact name of Registrant as specified in its charter) DELAWARE 37-1103704 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) __________________ 1515 CHARLESTON AVENUE MATTOON, ILLINOIS 61938 (Address of principal executive offices) __________________ FIRST MID-ILLINOIS BANCSHARES, INC.DEFERRED COMPENSATION PLAN (Full title of the plan) __________________ WILLIAM S. ROWLAND CHIEF FINANCIAL OFFICER FIRST MID-ILLINOIS BANCSHARES, INC. 1515 CHARLESTON AVENUE MATTOON, ILLINOIS 61938 (Name and address of agent for service) (217) 234-7454 (Telephone number, including area code, of agent for service) WITH COPIES TO: JOHN E. FREECHACK, ESQ. DOUGLAS J. TUCKER, ESQ. BARACK, FERRAZZANO, KIRSCHBAUM & PERLMAN 333 WEST WACKER DRIVE, SUITE 2700 CHICAGO, ILLINOIS 60606 (312) 984-3100 CALCULATION OF REGISTRATION FEE
Proposed Maximum Proposed Maximum Title of Securities Amount to be Offering Price Aggregate Amount of to be Registered Registered(1)(2) per Share(3) Offering Price(2)(3) Registration Fee(3) Common Stock, $4.00 Par Value 100,000 $34.03 $3,403,000.00 $1,174.00
(1)Pursuant to Rule 416(c) under the Securities Act of 1933, as amended (the "Securities Act"), this Registration Statement also covers an indeterminate amount of interests to be offered or sold pursuant to the First Mid-Illinois Bancshares, Inc. Deferred Compensation Plan (the "Plan"). (2)Pursuant to Rule 416(a) under the Securities Act, this Registration Statement also registers such indeterminate number of additional shares as may be issuable under the Plan in connection with share splits, share dividends or similar transactions. (3)Estimated pursuant to Rule 457 under the Securities Act solely for the purpose of calculating the registration fee. PART I INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS The document(s) containing the information specified in Part I of Form S- 8 will be sent or given to participants in the First Mid-Illinois Bancshares, Inc. Deferred Compensation Plan (the "Plan") as specified by Rule 428(b)(1) promulgated by the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended (the "Securities Act"). Such document(s) are not being filed with the Commission, but constitute (along with the documents incorporated by reference into the Registration Statement pursuant to Item 3 of Part II hereof) a prospectus that meets the requirements of Section 10(a) of the Securities Act. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE. The following documents previously or concurrently filed by First Mid- Illinois Bancshares, Inc. (the "Company") with the Commission are hereby incorporated by reference into this Registration Statement: (a) The Company's Annual Report on Form 10-K (the "Annual Report") filed by the Company (SEC File No. 0-13368) under the Securities Exchange Act of 1934, as amended (the "Exchange Act") with the Commission on March 30, 1995. (b) All other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the Annual Report referred to in (a) above. (c) The description of the Company's common stock, par value $4.00 per share, contained in the Company's Registration Statement on Form 8-A (File No. 0-13368), filed with the Commission on April 10, 1985, and all amendments or reports filed for the purpose of updating such description. All documents subsequently filed by the Company or the Plan with the Commission pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed incorporated by reference into this Registration Statement and to be a part thereof from the date of the filing of such documents. Any statement contained in the documents incorporated, or deemed to be incorporated, by reference herein or therein shall be deemed to be modified or superseded for purposes of this Registration Statement and the prospectus which is a part hereof (the "Prospectus") to the extent that a statement contained herein or therein or in any other subsequently filed document which also is, or is deemed to be, incorporated by reference herein or therein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement and the Prospectus. ITEM 4. DESCRIPTION OF SECURITIES. Not Applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not applicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. In accordance with the General Corporation Law of the State of Delaware found at Chapter 1 of Title 8 of the Delaware Code (the "DGCL"), Article 8 of the Company's Restated Certificate of Incorporation, as amended, (the "Certificate") provides as follows: "The Corporation shall, to the fullest extent permitted by Section 145 of the General Corporation Law of Delaware, as amended from time to time, indemnify all persons whom it may indemnify pursuant thereto." Under such provisions, any director or officer, who in his or her capacity as such, is made or threatened to be made, a party to any suit or proceeding, must be indemnified if such director or officer acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the Company. The DGCL further provides that such indemnification is not exclusive of any other rights to which such individuals may be entitled under a company's certificate of incorporation or any agreement, insurance policy, vote of stockholders or disinterested directors or otherwise. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling the Company pursuant to the foregoing provisions, the Company has been informed that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not Applicable. ITEM 8. EXHIBITS. See the Exhibit Index following the signature page in this Registration Statement, which Exhibit Index is incorporated herein by reference. ITEM 9. UNDERTAKINGS. (a) The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to the Registration Statement to include: (i) any prospectus required by Section 10(a)(3) of the Securities Act; (ii) to reflect in the prospectus any facts or events arising after the effective date of the Registration Statement which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement; and (iii) any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement, provided however, that provisions (i) and (ii) of this undertaking are inapplicable if the information to be filed thereunder is contained in periodic reports filed by the Company pursuant to Sections 13 or 15(d) of the Exchange Act and incorporated by reference into the Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provision, or otherwise, the registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant of expenses incurred or paid by a director, officer or controlling person in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. SIGNATURES THE REGISTRANT.Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Mattoon, State of Illinois, on October 17, 1995. FIRST MID-ILLINOIS BANCSHARES, INC. By: /S/DANIEL E. MARVIN, JR. Daniel E. Marvin, Jr. President and Chief Executive Officer By: /S/WILLIAM S. ROWLAND William S. Rowland Chief Financial Officer POWER OF ATTORNEY Know all men by these presents, that each person whose signature appears below constitutes and appoints Daniel E. Marvin, Jr. and William S. Rowland, and each of them, his true and lawful attorney-in-fact and agent, each with full power of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities to sign any or all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or any of them, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by each of the following persons in the capacities indicated on the dates indicated below. SIGNATURE TITLE DATE /S/DANIEL E. MARVIN, JR. President, Chief Executive October 17, 1995 Daniel E. Marvin, Jr. Officer and Chairman of the Board /S/ WILLIAM S. ROWLAND Chief Financial and October 17, 1995 William S. Rowland Accounting Officer and Director /S/ CHARLES A. ADAMS Director October 17, 1995 Charles A. Adams /S/ KENNETH R. DIEPHOLZ Director October 17, 1995 Kenneth R. Diepholz /S/ RICHARD A. LUMPKIN Director October 17, 1995 Richard A. Lumpkin /S/ GARY W. MELVIN Director October 17, 1995 Gary W. Melvin /S/ WILLIAM G. ROLEY Director October 17, 1995 William G. Roley /S/ RAY A. SPARKS Director October 17, 1995 Ray A. Sparks SIGNATURES THE PLAN. Pursuant to the requirements of the Securities Act of 1933, the trustees (or other persons who administrator the employee benefit plan) have duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Mattoon, State of Illinois, on October 17, 1995. FIRST MID-ILLINOIS BANCSHARES, INC. DEFERRED COMPENSATION PLAN By: FIRST MID-ILLINOIS BANCSHARES, INC. Plan Administrator By: /S/ DANIEL E. MARVIN, JR. Its: President and Chief Executive Officer FIRST MID-ILLINOIS BANCSHARES, INC. EXHIBIT INDEX TO FORM S-8 REGISTRATION STATEMENT
Incorporated Exhibit No. Description Herein by Filed Sequential Reference To Herewith Page No. 4.1 Article IV of the First Exhibit 3(a) to First Mid- Mid-Illinois Bancshares, Illinois Bancshares, Inc.'s Inc. Restated Certificate Annual Report on Form 10-K for of Incorporation and the year ended December 31, 1987 Amendment to Restated (File No. 0-13368) (incorporated Certificate of by reference) Incorporation 4.2 Articles II, VI and VIII of Exhibit 3(b) to First Mid- the First Mid-Illinois Illinois Bancshares, Inc.'s Bancshares, Inc. Restated Annual Report on Form 10-K for Bylaws the year ended December 31, 1987 (File No.0-13368) (incorporated by reference) 5.1 Opinion of Barack, X 8 Ferrazzano, Kirschbaum & Perlman 23.1 Consent of KPMG Peat X 10 Marwick LLP 23.2 Consent of Barack, Included in Exhibit Ferrazzano, Kirschbaum & 5.1 Perlman 24.1 Power of Attorney Included on Signature Page to this Registration Statement 99.1 First Mid-Illinois X 11 Bancshares, Inc. Deferred Compensation Plan
EX-5.1 2 BARACK, FERRAZZANO, KIRSCHBAUM & PERLMAN 333 WEST WACKER DRIVE, SUITE 2700 CHICAGO, ILLINOIS 60606 TELEPHONE: (312) 984-3100 FAX: (312) 984-3150 November 7, 1995 First Mid-Illinois Bancshares, Inc. 1515 Charleston Avenue Mattoon, Illinois 60507 Ladies and Gentlemen: We have acted as special counsel to First Mid-Illinois Bancshares, Inc., a Delaware corporation (the "Company"), in connection with the proposed offering of 100,000 shares of its common stock, $4.00 par value ("Common Shares"), pursuant to the Company's Deferred Compensation Plan (the "Offering") as described in the Form S-8 Registration Statement to be filed with the Securities and Exchange Commission (the "SEC") on November 8, 1995 (the "Registration Statement"). Capitalized terms used, but not defined, herein shall have the meanings given such terms in the Registration Statement. You have requested our opinion concerning certain matters in connection with the Offering. We have made such legal and factual investigation as we deemed necessary for purposes of this opinion. In our investigation, we have assumed the genuineness of all signatures, the proper execution of all documents submitted to us as originals, the conformity to the original documents of all documents submitted to us as copies and the authenticity of the originals of such copies. In arriving at the opinions expressed below, we have reviewed and examined the following documents: a. the Restated Certificate of Incorporation of the Company filed with the Secretary of State of the State of Delaware on May 21, 1986, as amended, and the Company's Restated Bylaws; b. the Registration Statement, including the prospectus constituting a part thereof (the "Prospectus"); c. Resolutions of the board of directors of the Company (the "Board") relating to the Offering; and d. a form of share certificate representing the Common Shares approved by the Board. BARACK, FERRAZZANO, KIRSCHBAUM & PERLMAN First Mid Illinois Bancshares, Inc. November 7, 1995 Page 2 We call your attention to the fact that our firm only requires lawyers to be qualified to practice law in the State of Illinois and, in rendering the foregoing opinions, we express no opinion with respect to any laws relevant to this opinion other than the Securities Act of 1933, as amended, and the rules and regulations thereunder, the laws and regulations of the State of Illinois, the General Corporation Law of the State of Delaware and United States federal law. Based upon the foregoing, but assuming no responsibility for the accuracy or the completeness of the data supplied by the Company and subject to the qualifications, assumptions and limitations set forth herein, it is our opinion that: 1. The Company has been duly organized and is validly existing in good standing under the laws of the State of Delaware and has due corporate authority to carry on its business as it is presently conducted. 2. The Company is authorized to issue up to 2,000,000 Common Shares, of which 892,991 Common Shares were issued and are presently outstanding prior to the Offering. 3. When the Registration Statement shall have been declared effective by order of the SEC and the Common Shares to be sold thereunder shall have been issued and sold upon the terms and conditions set forth in the Registration Statement, then such Common Shares will be legally issued, fully paid and non- assessable. We express no opinion with respect to any specific legal issues other than those explicitly addressed herein. We assume no obligation to advise you of any change in the foregoing subsequent to the date of this letter (even though the change may affect the legal conclusions stated in this letter). We hereby consent (i) to be named in the Registration Statement, and in the Prospectus, as attorneys who will pass upon the legality of the Common Shares to be sold thereunder and (ii) to the filing of this opinion as an Exhibit to the Registration Statement. Sincerely, BARACK, FERRAZZANO, KIRSCHBAUM & PERLMAN EX-23.1 3 EXHIBIT 23.1 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS We consent to incorporation by reference in this Registration Statement on Form S-8 of First Mid-Illinois Bancshares, Inc. of our report, dated January 20, 1995, relating to the consolidated balance sheets of First Mid- Illinois Bancshares, Inc. and subsidiaries as of December 31, 1994 and 1993, and the related consolidated statements of income, changes in stockholders' equity, and cash flows for each of the years in the three- year period ended December 31, 1994, which report is incorporated by reference in the December 31, 1994 annual report on Form 10-K of First Mid- Illinois Bancshares, Inc. /s/ KPMG Peat Marwick LLP Chicago, Illinois November 6, 1995 EX-99.1 4 EXHIBIT 99.1 FIRST MID-ILLINOIS BANCSHARES, INC. DEFERRED COMPENSATION PLAN FIRST MID-ILLINOIS BANCSHARES, INC. DEFERRED COMPENSATION PLAN 1. PURPOSE The purpose of the First Mid-Illinois Bancshares, Inc. Deferred Compensation Plan (the "Plan") is to enable First Mid-Illinois Bancshares, Inc. (the "Company") directors, advisory directors and key officers to elect to defer a portion of the fees and cash compensation payable by the Company and any affiliates on account of service as a director or employee. The Plan is intended as a means of maximizing the effectiveness and flexibility of the compensation arrangements to directors and a select group of management or highly compensated employees of the Company and affiliates, and as an aid in attracting and retaining individuals of outstanding abilities and specialized skills for service. 2. EFFECTIVE DATE The Plan was effective as of June 14, 1984. 3. PLAN ADMINISTRATION The Plan shall be administered by the First Mid-Illinois Bancshares, Inc. Deferred Compensation Plan Committee (hereinafter referred to as the "Committee") which shall be comprised of at least three (3) non-employee disinterested directors appointed by the Board of Directors of the Company (hereinafter referred to as the "Board"). A disinterested director is any member of the Board who within the prior year has not been, and is not being, granted any awards under the Plan or any other plan of the Company or any related corporation except for awards which: (i) are calculated in accordance with a formula; or (ii) arise from an election by a director to receive all or part of his Board fees in securities. All directors, advisory directors and employees who are also directors, in both capacities, shall be eligible to participate under the Plan. The Committee shall have sole authority to select the employees from among those eligible who may participate under the Plan and to prescribe the legend to be affixed to any certificate representing Plan benefits. The Committee is authorized, subject to Board approval, to interpret the Plan and may from time to time adopt such rules, regulations, forms and agreements, not inconsistent with the provisions of the Plan, as it may deem advisable to carry out the Plan. All decisions made by the Committee in administering the Plan shall be subject to Board review. 4. ELIGIBILITY Any director, advisory director or key officer of the Company or any affiliate designated by the Board is eligible to participate in the Plan; provided, however, that officers or employees so designated shall be limited to a select group of management or highly compensated employees within the meaning of Section 201(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"). Any such director, advisory director or key officer shall be a "Participant" as of the date designated by the Board, and his or her status as a Participant shall continue until the date of the first payment pursuant to Section 8 hereof. 5. SHARES SUBJECT TO THE PLAN Upon receipt of stockholder approval, the aggregate number of shares of common stock of the Company (hereafter referred to as "Shares") which may be distributed to directors and employees under the Plan shall be 100,000 Shares. Any Shares that remain unissued at the termination of the Plan shall cease to be subject to the Plan, but until termination of the Plan, the Company shall at all times make available sufficient Shares to meet the requirements of the Plan. The aggregate number of Shares which may be sold under the Plan shall be adjusted to reflect a change in capitalization of the Company, such as a stock dividend or stock split. 6. ELECTION TO DEFER PAY (a) IN GENERAL. Each Participant shall be entitled to make an annual irrevocable election to defer receipt of all or a part of the fees or compensation payable to him or her in cash ("Pay"). Such election shall continue in effect until the beginning of the subsequent calendar year. Pay with respect to which a deferral election has been made shall be referred to hereinafter as "Deferred Pay." (b) MANNER OF ELECTION. Elections to defer receipt of Pay shall be made in writing in accordance with such rules and procedures as the Board may prescribe, provided that: (i) each such election to defer cash compensation shall include the percentage to be deferred, either five (5), ten (10) or fifteen (15) percent of base salary or twenty-five percent (25%) increments of incentive compensation, of the Pay from the Company or affiliate which becomes payable; and (ii) each such election to defer fees shall include all fees receivable. Elections to defer receipt of base salary or fees must be made at least two (2) months before the beginning of the calendar year for which such amounts will be paid, elections to defer receipt of incentive compensation must be made at least two (2) months before the incentive compensation is determined. 7. RECORD AND CREDITING OF DEFERRED AMOUNTS (a) DEFERRED PAY. The Company shall credit the amount of any Deferred Pay to a memorandum account for the benefit of the Participant (the "Deferred Pay Account") no later than the last day of the calendar quarter in which such Pay would otherwise have been paid to the Participant. Upon receipt of stockholder approval, the amount of Deferred Pay credited each quarter will be deemed to be applied to purchase Shares, unless a director or advisory director has elected to direct investment under Section 7(c). The price at which any Shares will be deemed purchased with Deferred Pay shall be the actual purchase price or the price as determined by the Board in accordance with the other equity based stock purchase programs of the Company. (b) EARNINGS CREDIT. At the end of each calendar quarter, the Company shall credit earnings for the Participant's benefit to his or her Deferred Pay Account. Upon the receipt of stockholder approval, these earnings shall be based on the aggregate number of Shares deemed purchased under the Deferred Pay Account and the amount of dividends which would have been paid on such Shares for the quarter. The earnings credited each quarter will be deemed to be applied to purchase additional Shares, at the price determined under Section 7(a). Notwithstanding the foregoing, until Stockholder approval is obtained, or if a director or advisory director has elected to direct investment under Section 7(c), interest shall be accrued on the balance in the Deferred Pay Account as of the first day of the year at a rate equivalent to the prevailing rate offered by the Company or any affiliate at the beginning of such year on a one year certificate of deposit for cash accounts. Until complete distribution of the balance of the Deferred Pay Account has been made, the unpaid balance shall continue to be credited with earnings in accordance with this paragraph. (c) INVESTMENT DIRECTION. The Company may elect to allow a director or advisory director Participant to direct the investment of his or her Deferred Pay Account. In the event the Company so elects, the Company will be relieved of all investment responsibility and liability for such investment direction. (d) VALUE AND STATEMENT OF ACCOUNT. The Company shall provide each Participant with a statement of the value of his or her Deferred Pay Account, including the amount of Deferred Pay and income thereon, at least annually. 8. PAYMENT OF DEFERRED ACCOUNT (a) IN GENERAL. No withdrawals or payment shall be made from the Participant's Deferred Pay Account except as provided in this Section 8. (b) PAYMENT EVENT. The value of a Participant's Deferred Pay Account shall be payable in five (5) annual installments commencing on the March 15 following the date he or she terminates service with the Company. (c) SINGLE SUM PAYMENT. The Board in its sole discretion may elect to pay the value of a Participant's Deferred Pay Account in a single payment. (d) ACCELERATION FOR HARDSHIP. The Board, in its sole discretion, may accelerate payment of amounts credited to a Participant's Deferred Pay Account if requested to do so and if the requirements of this paragraph (d) are met. Such acceleration may occur only in the event of unforeseeable financial emergency or severe hardship from one or more recent events beyond the control of the Participant and is limited to the amount deemed reasonably necessary to satisfy the emergency or hardship. (e) DEATH OF PARTICIPANT. In the event that a Participant shall die at any time prior to complete distribution of all amounts payable to him or her under the provisions of the Plan, the unpaid balance of the Participant's Deferred Pay Account shall be determined as of the valuation date immediately following death, and such amount shall be paid in a single payment on the March 15 following such valuation date, or as soon as reasonably possible thereafter, to the Participant's beneficiary or beneficiaries. 9. DESIGNATION OF BENEFICIARY Participants shall designate in writing, in accordance with such rules and procedures as the Committee may prescribe, the beneficiary or beneficiaries who are to receive the Participant's Deferred Pay Account in the event of the Participant's death. 10. UNSECURED OBLIGATIONS The obligation of the Company to make payments under the Plan shall be a general obligation of the Company, and such payments shall be made from general assets and property of the Company. The Participant's relationship to the Company under the Plan shall be only that of a general unsecured creditor and neither this Plan nor any agreement entered into hereunder or action taken pursuant hereto shall create or be construed to create a trust or fiduciary relationship of any kind. The Company may establish an irrevocable grantor trust for purposes of holding and investing the Deferred Pay Account balances but such establishment shall not create any rights in or against any amount so held, except that the trustee of such trust may vote any Shares thereunder in accordance with the direction of the Participants. 11. AMENDMENT AND TERMINATION The Board may amend, suspend or terminate the Plan or any portion thereof at any time, but (except as provided in Section 5 hereof) no amendment shall be made without approval of the stockholders of the Company which shall: (i) materially increase the aggregate number of Shares with respect to which distributions may be made under the Plan; (ii) materially increase the benefits which may be provided to individuals under the Plan; or (iii) change the class of persons eligible to participate in the Plan; provided, however, that no such amendment, suspension or termination shall impair the rights of any individuals, without his consent, in any award theretofore made pursuant to the Plan. 12. EFFECT OF TRANSFER In the event that all or substantially all of the assets of the Company shall be transferred by way of a sale, merger, consolidation or other means, the entire unpaid balance of each Deferred Pay Account shall be paid in a lump sum to the Participant as of the effective date thereof. 13. NON-ASSIGNABILITY No right to receive payments under the provisions of this Plan shall be transferable or assignable by a Participant, except by will or by the laws of descent and distribution, and during his or her lifetime payment may only be received by the Participant or his or her legal representative or guardian. 14. DELIVERY AND REGISTRATION OF STOCK The Company's obligation to deliver Shares with respect to an award, if any, shall, if the Committee so requests, be conditioned upon the receipt of a representation as to the investment intention of the individual to whom such Shares are to be delivered, in such form as the Committee shall determine to be necessary or advisable to comply with the provisions of the Securities Act of 1933 or any other federal, state or local securities legislation or regulation. It may be provided that any representation requirement shall become inoperative upon a registration of the Shares or other action eliminating the necessity of such representation under securities legislation. The Company shall not be required to deliver any Shares under the Plan prior to (i) the admission of such Shares to listing on any stock exchange on which Shares may then be listed, and (ii) the completion of such registration or other qualification of such Shares under any state or federal law, rule or regulation, as the Committee shall determine to be necessary or advisable. This Plan is intended to comply with Rule 16b-3. Any provision of the Plan which is inconsistent with said rule shall, to the extent of such inconsistency, be inoperative and shall not affect the validity of the remaining provisions of the Plan. 15. BINDING PROVISIONS All of the provisions of this Plan shall be binding upon all persons who shall be entitled to any benefits hereunder and their heirs and personal representatives. 16. CLAIMS PROCEDURE The procedures applicable to claims for benefits and review thereof set forth in the Company sponsored qualified cash or deferred (401(k)) plan shall apply to any claims for benefits hereunder. For purposes of applying such procedures, the Board shall be deemed the plan administrator of this Plan. -----END PRIVACY-ENHANCED MESSAGE-----