2.1
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Limitation
to Non-Employee Directors.
Only Directors who are not employed by the Company or a Majority-Owned
Related Company shall be eligible for the
Plan.
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2.2
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Date
of Eligibility.
Directors who are on the Board as of April 1, 2006 shall be eligible
to
participate as of April 1, 2006. Thereafter, a new Director shall
be
eligible as of the date he or she is appointed to the Board.
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3.1
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Eligible
Compensation.
A
Participant may elect to defer (i) all or a specified percentage
of the
annual retainer fee, if any, receivable by such Director for service
as a
Director of the Company and/or (ii) all or a specified percentage
of the
performance-based compensation paid under the Compensation Plan.
No other
compensation or expense reimbursement shall be eligible for
deferral.
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3.2
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Elections
to Defer.
Participants must elect to defer eligible compensation under the
following
provisions. Elections shall be in writing on forms provided by the
Secretary of the Company. The election shall specify: (i) the applicable
percentage to be deferred, (ii) whether the deferrals shall be into
the
“Cash Fund” or “Share Units” (as described in Article IV), and (iii) the
form of payment upon termination of service as a Director.
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(a)
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Performance-Based
Compensation Under the Compensation Plan.
If a Participant wishes to defer compensation under the Compensation
Plan
for the initial year of the Compensation Plan, he or she must elect
a
percentage to defer, from 1% - 100%, no later than June 30, 2006.
This
deferral election is irrevocable with respect to all compensation
earned
for the initial performance period set forth in the Compensation
Plan. For
all other years, if a Participant wishes to defer compensation under
the
Compensation Plan for a performance period, he or she must elect
a
percentage to defer, from 1% - 100%, no later than December 31 prior
to
the beginning of each performance period under the Compensation Plan.
All
such elections are irrevocable with respect to the compensation paid
for
the applicable performance period.
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(b)
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Annual
Retainer Amounts.
If a Participant wishes to defer his or her annual retainer amounts
(if
any), he or she must elect a percentage to defer, from 1% - 100%,
no later
than December 31 prior to the beginning of the year for which the
retainer
is paid. This election is irrevocable for all amounts paid for the
calendar year.
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(c)
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New
Directors.
If a new Director is appointed to the Board and wishes to defer any
compensation, an election must be made no later than 30 days from
the date
he or she is appointed.
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(d)
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Duration
of Elections.
If an election is made to defer annual compensation, the election
shall
continue in effect until the end of the participant’s service as a
Director or until the end of the calendar year during which the Director
gives the Company written notice of the discontinuance of the election.
Such a notice of discontinuance shall operate prospectively from
the first
day of the calendar year following the giving of notice. An election
for
annual compensation becomes irrevocable as of December 31 of the
year
prior to the year the compensation is earned. If an election is made
to
defer compensation under the Compensation Plan for a performance
period,
the election shall continue in effect for future performance periods
until
the end of the Participant’s service as a Director, unless the Participant
gives the Company written notice of the discontinuance of the election.
The discontinuance shall operate prospectively from the first day
of the
performance period that begins in the calendar year following the
giving
of notice. An election for deferral of compensation under the Compensation
Plan becomes irrevocable as of the day prior to the date the performance
period begins. The prior election shall continue in effect for all
performance periods already underway. A Participant may make different
elections for different performance periods, as
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long
as the election is made according to the timing set forth in Section
3.2(a).
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4.1
|
Establishment
of Accounts.
The Company shall establish Accounts for each Participant. The Account
shall have a sub-Account for amounts deferred to the Cash Fund and
a
separate sub-Account for Amounts deferred as Share
Units.
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4.2
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Cash
Fund.
For amounts deferred to the Cash Fund, the Account will be
credited:
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(a)
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at
the time such amount would otherwise be payable, with the amount
of any
compensation the receipt of which the Participant has elected to
defer,
and
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(b)
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at
the end of each calendar year or initial or terminal portion of a
year,
with Interest Equivalents, upon the average daily balance in the
sub-Account during such year or portion thereof.
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4.3
|
Share
Units.
For amounts deferred to Share Units, the Account will be
credited:
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(a)
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at
the time such amount would otherwise be payable, with the amount
of any
compensation the receipt of which the Participant has elected to
defer.
Such amount shall be converted on such date to a number of Share
Units
equal to the number of shares of Stock which theoretically could
have been
purchased on such date with such amount, using the average share
price on
the New York Stock Exchange on such date, or if such date is not
a trading
day, on the next trading day;
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(b)
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on
each date on which a dividend is paid on the Stock, with the number
of
Share Units theoretically which could have been purchased with the
amount
of dividends payable on the number of shares equal to the number
of Share
Units in the participant's Account immediately prior to the payment
of
such dividend; the number of additional Share Units shall be calculated
as
described in (a) above; and
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(c)
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on
the date of any stock split or stock dividend, with the number of
Share
Units necessary for an equitable adjustment.
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4.4
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Permitted
Payment Events.
Payment of Accounts shall not be made except following death, disability,
termination of service from the Board, or upon a change in control,
as
defined in Section 409A. Payments shall not be accelerated, except
as
permitted by Section 409A of the Internal Revenue Code and the regulations
thereunder.
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4.5
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Form
of Payments.
All payments under the Plan shall be in cash. A Participant may elect
to
receive payments in a single lump sum or in a series of annual
installments (not to exceed five).
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4.6
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Timing
of Payments and Valuation.
Except in the case of death, the value of the Participant’s Account shall
be paid on the later of i) January 15 of the year following the year
in
which service as a Director terminates or six months following the
date on
which service as a Director terminates. For Participants electing
installment payments, the first installment shall be paid on the
date
indicated above, with each subsequent installment paid one year following
this date.
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(a)
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The
Participant’s Account in the Cash Fund shall be paid as follows. If annual
installments are elected, the amount of the first payment shall be
a
fraction of the balance in the participant’s Account as of
December 31 of the year preceding such payment, the numerator of
which is one and the denominator of which is the total number of
installments elected. The amount of each subsequent payment shall
be a
fraction of the balance in the participant’s Account as of
December 31 of the year preceding each subsequent payment, the
numerator of which is one and the denominator of which is the total
number
of installments elected minus the number of installments previously
paid.
Each payment pursuant to this shall include Interest Equivalents,
but only
on the amount being paid, from the preceding December 31 to the date
of payment.
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(b)
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The
balance in a Participant’s Account in Share Units shall be valued in an
amount equal to the number of Share Units in the participant’s Account
multiplied by the average of the high and low market prices at which
a
share of common stock shall have been sold on the date of calculation,
or
on the next preceding trading day if such date was not a trading
date, as
reported on the New York Stock Exchange Composite Transactions listing
(the “Share Unit Account Balance”).
Upon calculation of the Share Unit Account Balance, such amount shall
be
paid in accordance with subsection (a) above.
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4.7
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Death.
In the event of a Participant’s death, the value of the Participant’s
Account shall be paid to the Participant’s Beneficiary 30 days following
the
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date
of death. The Accounts shall be valued as described in Section 4.6
above,
determined as of the date of death.
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5.1
|
Administration
of the Plan.
The Secretary of the Company shall oversee the administration of
the Plan.
The Secretary has the exclusive responsibility and complete discretionary
authority to control the operation and administration of the Plan,
with
all powers necessary to enable the Secretary to properly carry out
such responsibility, including but not limited to the power to construe
the terms of the Plan, to determine status, coverage and eligibility
for
benefits and to resolve all interpretive, equitable, and other questions,
including questions of fact, that shall arise in the operation and
administration of the Plan. All actions or determinations of the
Secretary
shall be final, conclusive and binding on all
persons.
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5.2
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Amendment
and Termination of the Plan.
The Board may amend, modify, suspend or terminate the Plan in whole
or in
part, except that no amendment, modification, suspension or termination
may retroactively adversely affect any Participant’s right to a benefit
which has been earned under the Plan before such date.
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5.3
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Controlling
Law.
This Plan shall be subject to the laws of the State of Georgia, and
the
parties agree all disputes arising from or related to this Plan shall
be
litigated in the state or federal courts located in Fulton County,
Georgia. The parties agree that such courts shall be the exclusive
forum
for such disputes and hereby submit to the jurisdiction and venue
of such
courts for the litigation of all such disputes. The parties hereby
waive
any claims of improper venue or lack of personal or subject matter
jurisdiction as to any such
disputes.
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5.4
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Limitation
of Responsibility.
Neither the establishment of this Plan nor any modification thereof,
nor
the creation of any Account, nor the payment of any benefits, shall
be
construed as giving to any Participant or other person any legal
or
equitable right against the Company, or its subsidiaries, or any
officer
or employee thereof; and in no event shall the terms of any Director’s
Board appointment be modified or in any way affected
thereby.
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5.5
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Unsecured
General Creditor.
Participants and their Beneficiaries, heirs, successors, and assigns
shall
have no legal or equitable rights, claims, or interest in any specific
property or assets of the Company. No assets of the Company shall
be held
in any way as collateral security for the
fulfilling
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of
the obligations of the Company under this Plan. The Company's obligation
under the Plan shall be merely that of an unfunded and unsecured
promise
of the Company to pay money in the future, and the rights of the
Participants and Beneficiaries shall be no greater than those of
unsecured
general creditors. Nothing contained in this Plan, and no actions
taken
pursuant to the provisions of this Plan shall create or be construed
to
create a trust or any kind of fiduciary relationship between the
Company
and any Participant, Beneficiary, or any other
person.
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5.6
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Taxes.
Federal, state, FICA/Medicare and all other taxes shall be solely
the
responsibility of the Participant. The Company will report all payments
as
required by the Internal Revenue Code or other tax regulations and
withhold any applicable taxes where
required.
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5.7
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Nonassignability.
The right of a Participant to receive any unpaid portion of the
Participant's Account shall not be assigned, transferred, pledged
or
encumbered or be subject in any manner to alienation or
anticipation.
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