Exhibit 10.1


 


PREMIER COMMERCIAL BANK, N.A.


 


EMPLOYEES RETIRMENT PLAN AND TRUST


 


[TIERED PROFIT SHARING/ 401(k) PLAN]


 


[IN COMPLIANCE WITH GUST]


 

















 


TABLE OF CONTENTS


 


	
  ARTICLE
  1

  	
  2

  
	
  DEFINITIONS

  	
  2

  
	
   

  	
  1.1

  	
  ACP
  or ACP TEST

  	
  2

  
	
   

  	
  1.2

  	
  ACTUAL
  DEFERRAL PERCENTAGE TEST

  	
  2

  
	
   

  	
  1.3

  	
  ADP
  or ADP TEST

  	
  4

  
	
   

  	
  1.4

  	
  ADMINISTRATOR

  	
  4

  
	
   

  	
  1.5

  	
  ADOPTING
  EMPLOYER

  	
  4

  
	
   

  	
  1.6

  	
  AFFILIATED
  EMPLOYER

  	
  6

  
	
   

  	
  1.7

  	
  AGE

  	
  6

  
	
   

  	
  1.8

  	
  ANNIVERSARY
  DATE

  	
  6

  
	
   

  	
  1.9

  	
  ANNUITY
  STARTING DATE

  	
  6

  
	
   

  	
  1.10

  	
  AVERAGE
  CONTRIBUTION PERCENTAGE TEST

  	
  6

  
	
   

  	
  1.11

  	
  BENEFICIARY

  	
  9

  
	
   

  	
  1.12

  	
  BREAK
  IN SERVICE

  	
  10

  
	
   

  	
  1.13

  	
  CODE

  	
  10

  
	
   

  	
  1.14

  	
  CODE
  §3401 COMPENSATION

  	
  10

  
	
   

  	
  1.15

  	
  CODE
  §415 COMPENSATION

  	
  10

  
	
   

  	
  1.16

  	
  COMPENSATION

  	
  11

  
	
   

  	
  1.17

  	
  DISABILITY

  	
  14

  
	
   

  	
  1.18

  	
  EARLY
  RETIREMENT AGE

  	
  14

  
	
   

  	
  1.19

  	
  EARNED
  INCOME

  	
  14

  
	
   

  	
  1.20

  	
  ELECTIVE
  DEFERRAL

  	
  14

  
	
   

  	
  1.21

  	
  ELECTIVE
  DEFERRAL ACCOUNT

  	
  15

  
	
   

  	
  1.22

  	
  ELIGIBLE
  PARTICIPANT

  	
  15

  
	
   

  	
  1.23

  	
  EMPLOYEE

  	
  16

  
	
   

  	
  1.24

  	
  EMPLOYER

  	
  17

  
	
   

  	
  1.25

  	
  ERISA

  	
  17

  
	
   

  	
  1.26

  	
  EXCESS
  AGGREGATE CONTRIBUTIONS

  	
  17

  
	
   

  	
  1.27

  	
  EXCESS
  CONTRIBUTIONS

  	
  17

  
	
   

  	
  1.28

  	
  EXCESS
  ELECTIVE DEFERRALS

  	
  17

  
	
   

  	
  1.29

  	
  FIDUCIARY

  	
  17

  
	
   

  	
  1.30

  	
  FISCAL
  YEAR

  	
  18

  
	
   

  	
  1.31

  	
  FORFEITURE

  	
  18

  
	
   

  	
  1.32

  	
  FORM
  W-2 COMPENSATION

  	
  18

  
	
   

  	
  1.33

  	
  HCE

  	
  18

  
	
   

  	
  1.34

  	
  HIGHLY
  COMPENSATED EMPLOYEE

  	
  18

  
	
   

  	
  1.35

  	
  HOUR
  OF SERVICE

  	
  19

  
	
   

  	
  1.36

  	
  KEY
  EMPLOYEE

  	
  20

  
	
   

  	
  1.37

  	
  LEASED
  EMPLOYEE

  	
  20

  
	
   

  	
  1.38

  	
  LIMITATION
  YEAR

  	
  21

  
	
   

  	
  1.39

  	
  MATCHING
  CONTRIBUTION

  	
  21

  
	
   

  	
  1.40

  	
  MATCHING
  CONTRIBUTION ACCOUNT

  	
  21

  
	
   

  	
  1.41

  	
  MATERNITY
  OR PATERNITY LEAVE

  	
  21

  
	
   

  	
  1.42

  	
  NHCE

  	
  21

  
	
   

  	
  1.43

  	
  NON-ELECTIVE
  CONTRIBUTIONS

  	
  21

  
	
   

  	
  1.44

  	
  NON-ELECTIVE
  CONTRIBUTION ACCOUNT

  	
  21

  
	
   

  	
  1.45

  	
  NON-HIGHLY
  COMPENSATED EMPLOYEE

  	
  21

  
	
   

  	
  1.46

  	
  NON-KEY
  EMPLOYEE

  	
  21

  
	
   

  	
  1.47

  	
  NORMAL
  RETIREMENT AGE

  	
  21

  
	
   

  	
  1.48

  	
  NORMAL
  RETIREMENT DATE

  	
  22

  
	
   

  	
  1.49

  	
  OWNER-EMPLOYEE

  	
  22

  
	
   

  	
  1.50

  	
  PARTICIPANT

  	
  22

  



 

















 


	
   

  	
  1.51

  	
  PARTICIPANT’S ACCOUNT

  	
  22

  
	
   

  	
  1.52

  	
  PERMISSIVE AGGREGATION GROUP

  	
  22

  
	
   

  	
  1.53

  	
  PLAN

  	
  22

  
	
   

  	
  1.54

  	
  PLAN YEAR

  	
  22

  
	
   

  	
  1.55

  	
  POLICY

  	
  23

  
	
   

  	
  1.56

  	
  QMAC

  	
  23

  
	
   

  	
  1.57

  	
  QNEC

  	
  23

  
	
   

  	
  1.58

  	
  QUALIFIED JOINT AND SURVIVOR ANNUITY

  	
  23

  
	
   

  	
  1.59

  	
  QUALIFIED MATCHING CONTRIBUTION

  	
  23

  
	
   

  	
  1.60

  	
  QUALIFIED NON-ELECTIVE CONTRIBUTION

  	
  23

  
	
   

  	
  1.61

  	
  QUALIFIED PRERETIREMENT SURVIVOR ANNUITY

  	
  23

  
	
   

  	
  1.62

  	
  REQUIRED AGGREGATION GROUP

  	
  24

  
	
   

  	
  1.63

  	
  REQUIRED BEGINNING DATE

  	
  24

  
	
   

  	
  1.64

  	
  ROLLOVER ACCOUNT

  	
  25

  
	
   

  	
  1.65

  	
  ROLLOVER CONTRIBUTION

  	
  25

  
	
   

  	
  1.66

  	
  SAFE HARBOR CONTRIBUTION ACCOUNT

  	
  25

  
	
   

  	
  1.67

  	
  SELF-EMPLOYED INDIVIDUAL

  	
  25

  
	
   

  	
  1.68

  	
  SHAREHOLDER-EMPLOYEE

  	
  25

  
	
   

  	
  1.69

  	
  SPONSOR

  	
  25

  
	
   

  	
  1.70

  	
  SPOUSE

  	
  26

  
	
   

  	
  1.71

  	
  TERMINATION OF EMPLOYMENT

  	
  26

  
	
   

  	
  1.72

  	
  TERMINATED PARTICIPANT

  	
  26

  
	
   

  	
  1.73

  	
  TOP HEAVY

  	
  26

  
	
   

  	
  1.74

  	
  TOP HEAVY MINIMUM ALLOCATION

  	
  26

  
	
   

  	
  1.75

  	
  TOP HEAVY RATIO

  	
  26

  
	
   

  	
  1.76

  	
  TRUSTEE

  	
  27

  
	
   

  	
  1.77

  	
  TRUST FUND

  	
  28

  
	
   

  	
  1.78

  	
  VALUATION DATE

  	
  28

  
	
   

  	
  1.79

  	
  VESTED AGGREGATE ACCOUNT

  	
  28

  
	
   

  	
  1.80

  	
  VESTED, VESTED INTEREST or VESTING

  	
  28

  
	
   

  	
  1.81

  	
  VOLUNTARY EMPLOYEE CONTRIBUTION

  	
  28

  
	
   

  	
  1.82

  	
  VOLUNTARY EMPLOYEE CONTRIBUTION ACCOUNT

  	
  28

  
	
   

  	
  1.83

  	
  YEAR OF SERVICE

  	
  28

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 2

  	
  31

  
	
  PLAN PARTICIPATION

  	
  31

  
	
   

  	
  2.1

  	
  ELIGIBILITY REQUIREMENTS

  	
  31

  
	
   

  	
  2.2

  	
  ENTRY DATE

  	
  32

  
	
   

  	
  2.3

  	
  WAIVER OF PARTICIPATION

  	
  32

  
	
   

  	
  2.4

  	
  PARTICIPATION UPON REEMPLOYMENT

  	
  32

  
	
   

  	
  2.5

  	
  EXCLUSION OF ELIGIBLE EMPLOYEE

  	
  32

  
	
   

  	
  2.6

  	
  INCLUSION OF INELIGIBLE EMPLOYEE

  	
  33

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 3

  	
  34

  
	
  CONTRIBUTIONS AND ALLOCATIONS

  	
  34

  
	
   

  	
  3.1

  	
  EMPLOYER CONTRIBUTIONS

  	
  34

  
	
   

  	
  3.2

  	
  ALLOCATION OF EMPLOYER CONTRIBUTIONS

  	
  38

  
	
   

  	
  3.3

  	
  ALLOCATION OF EARNINGS AND LOSSES

  	
  47

  
	
   

  	
  3.4

  	
  ALLOCATION OF FORFEITURES

  	
  48

  
	
   

  	
  3.5

  	
  TOP HEAVY MINIMUM ALLOCATION

  	
  48

  
	
   

  	
  3.6

  	
  SAFE HARBOR CONTRIBUTIONS

  	
  50

  
	
   

  	
  3.7

  	
  ROLLOVER CONTRIBUTIONS

  	
  54

  
	
   

  	
  3.8

  	
  VOLUNTARY EMPLOYEE CONTRIBUTIONS

  	
  55

  



 

















 


	
  ARTICLE 4

  	
  56

  
	
  PLAN BENEFITS

  	
  56

  
	
   

  	
  4.1

  	
  BENEFIT UPON NORMAL RETIREMENT

  	
  56

  
	
   

  	
  4.2

  	
  BENEFIT UPON LATE RETIREMENT

  	
  56

  
	
   

  	
  4.3

  	
  BENEFIT UPON DEATH

  	
  56

  
	
   

  	
  4.4

  	
  BENEFIT UPON DISABILITY

  	
  56

  
	
   

  	
  4.5

  	
  BENEFIT UPON TERMINATION

  	
  57

  
	
   

  	
  4.6

  	
  DETERMINATION OF VESTED INTEREST

  	
  57

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 5

  	
  59

  
	
  DISTRIBUTION OF BENEFITS

  	
  59

  
	
   

  	
  5.1

  	
  BENEFIT UPON RETIREMENT

  	
  59

  
	
   

  	
  5.2

  	
  BENEFIT UPON DEATH

  	
  59

  
	
   

  	
  5.3

  	
  DISABILITY BENEFITS

  	
  62

  
	
   

  	
  5.4

  	
  BENEFIT UPON TERMINATION

  	
  62

  
	
   

  	
  5.5

  	
  CASH-OUT OF BENEFITS

  	
  63

  
	
   

  	
  5.6

  	
  RESTRICTIONS ON IMMEDIATE DISTRIBUTIONS

  	
  64

  
	
   

  	
  5.7

  	
  RESTORATION OF FORFEITED ACCOUNT BALANCE

  	
  65

  
	
   

  	
  5.8

  	
  SPOUSAL CONSENT REQUIREMENTS

  	
  66

  
	
   

  	
  5.9

  	
  APPLICATION OF CODE §40l(a)(9) REQUIREMENTS

  	
  68

  
	
   

  	
  5.10

  	
  STATUTORY COMMENCEMENT OF BENEFITS

  	
  68

  
	
   

  	
  5.11

  	
  SEGREGATION OF BENEFIT BEFORE DISTRIBUTION

  	
  69

  
	
   

  	
  5.12

  	
  DISTRIBUTION IN EVENT OF INCAPACITY

  	
  69

  
	
   

  	
  5.13

  	
  MISSING PARTICIPANTS AND UNCLAIMED BENEFITS

  	
  69

  
	
   

  	
  5.14

  	
  DIRECT ROLLOVERS

  	
  71

  
	
   

  	
  5.15

  	
  DISTRIBUTION OF PROPERTY

  	
  71

  
	
   

  	
  5.16

  	
  FINANCIAL HARDSHIP DISTRIBUTIONS

  	
  72

  
	
   

  	
  5.17

  	
  IN-SERVICE DISTRIBUTIONS

  	
  74

  
	
   

  	
  5.18

  	
  DISTRIBUTION OF EXCESS ELECTIVE DEFERRALS

  	
  74

  
	
   

  	
  5.19

  	
  DISTRIBUTION OF EXCESS CONTRIBUTIONS

  	
  75

  
	
   

  	
  5.20

  	
  DISTRIBUTION OF EXCESS AGGREGATE CONTRIBUTIONS

  	
  77

  
	
   

  	
  5.21

  	
  ELIMINATION OF CERTAIN FORMS OF PAYMENT

  	
  79

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 6

  	
  80

  
	
  CODE §415 LIMITATIONS

  	
  80

  
	
   

  	
  6.1

  	
  MAXIMUM ANNUAL ADDITION

  	
  80

  
	
   

  	
  6.2

  	
  ADJUSTMENTS TO MAXIMUM ANNUAL ADDITION

  	
  80

  
	
   

  	
  6.3

  	
  MULTIPLE PLANS AND MULTIPLE EMPLOYERS

  	
  81

  
	
   

  	
  6.4

  	
  ADJUSTMENT FOR EXCESSIVE ANNUAL ADDITIONS

  	
  81

  
	
   

  	
  6.5

  	
  MULTIPLE PLAN REDUCTION

  	
  82

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 7

  	
  85

  
	
  DUTIES OF THE TRUSTEE

  	
  85

  
	
   

  	
  7.1

  	
  APPOINTMENT, RESIGNATION, REMOVAL AND SUCCESSION

  	
  85

  
	
   

  	
  7.2

  	
  INVESTMENT ALTERNATIVES OF THE TRUSTEE

  	
  85

  
	
   

  	
  7.3

  	
  VALUATION OF THE TRUST FUND

  	
  88

  
	
   

  	
  7.4

  	
  COMPENSATION AND EXPENSES

  	
  88

  
	
   

  	
  7.5

  	
  PAYMENTS FROM THE TRUST FUND

  	
  89

  
	
   

  	
  7.6

  	
  PAYMENT OF TAXES

  	
  89

  
	
   

  	
  7.7

  	
  ACCOUNTS, RECORDS AND REPORTS

  	
  89

  
	
   

  	
  7.8

  	
  EMPLOYMENT OF AGENTS AND COUNSEL

  	
  89

  
	
   

  	
  7.9

  	
  DIVISION OF DUTIES AND INDEMNIFICATION

  	
  90

  
	
   

  	
  7.10

  	
  APPOINTMENT OF INVESTMENT MANAGER

  	
  91

  
	
   

  	
  7.11

  	
  ASSIGNMENT AND ALIENATION OF BENEFITS

  	
  91

  
	
   

  	
  7.12

  	
  EXCLUSIVE BENEFIT RULE

  	
  91

  



 

















 


	
   

  	
  7.13

  	
  PURCHASE OF INSURANCE

  	
  91

  
	
   

  	
  7.14

  	
  LOANS TO PARTICIPANTS

  	
  93

  
	
   

  	
  7.15

  	
  DIRECTED INVESTMENT ACCOUNTS

  	
  93

  
	
   

  	
  7.16

  	
  SUPERSEDING TRUST OR CUSTODIAL AGREEMENT

  	
  95

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 8

  	
  97

  
	
  DUTIES OF THE ADMINISTRATOR

  	
  97

  
	
   

  	
  8.1

  	
  APPOINTMENT, RESIGNATION, REMOVAL AND SUCCESSION

  	
  97

  
	
   

  	
  8.2

  	
  POWERS AND DUTIES OF THE ADMINISTRATOR

  	
  97

  
	
   

  	
  8.3

  	
  APPOINTMENT OF ADMINISTRATIVE COMMITTEE

  	
  97

  
	
   

  	
  8.4

  	
  FINALITY OF ADMINISTRATIVE DECISIONS

  	
  97

  
	
   

  	
  8.5

  	
  MULTIPLE ADMINISTRATORS

  	
  98

  
	
   

  	
  8.6

  	
  COMPENSATION AND EXPENSES

  	
  98

  
	
   

  	
  8.7

  	
  APPOINTMENT OF AGENTS AND COUNSEL

  	
  98

  
	
   

  	
  8.8

  	
  CORRECTING ADMINISTRATIVE ERRORS

  	
  98

  
	
   

  	
  8.9

  	
  PROMULGATING NOTICES AND PROCEDURES

  	
  98

  
	
   

  	
  8.10

  	
  CLAIMS PROCEDURES

  	
  99

  
	
   

  	
  8.11

  	
  QUALIFIED DOMESTIC RELATIONS ORDERS

  	
  102

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 9

  	
  104

  
	
  AMENDMENT, TERMINATION AND MERGER

  	
  104

  
	
   

  	
  9.1

  	
  AMENDMENT OF THE PLAN

  	
  104

  
	
   

  	
  9.2

  	
  TERMINATION OF PLAN BY SPONSOR

  	
  105

  
	
   

  	
  9.3

  	
  TERMINATION OF PARTICIPATION BY ADOPTING EMPLOYER

  	
  106

  
	
   

  	
  9.4

  	
  MERGER OR CONSOLIDATION

  	
  106

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 10

  	
  107

  
	
  MISCELLANEOUS PROVISIONS

  	
  107

  
	
   

  	
  10.1

  	
  NO CONTRACT OF EMPLOYMENT

  	
  107

  
	
   

  	
  10.2

  	
  TITLE TO ASSETS

  	
  107

  
	
   

  	
  10.3

  	
  QUALIFIED
  MILITARY SERVICE

  	
  107

  
	
   

  	
  10.4

  	
  BONDING OF FIDUCIARIES

  	
  107

  
	
   

  	
  10.5

  	
  SEVERABILITY OF PROVISIONS

  	
  107

  
	
   

  	
  10.6

  	
  GENDER AND NUMBER

  	
  107

  
	
   

  	
  10.7

  	
  HEADINGS AND SUBHEADINGS

  	
  107

  
	
   

  	
  10.8

  	
  LEGAL ACTION

  	
  108

  
	
   

  	
  10.9

  	
  QUALIFIED PLAN STATUS

  	
  108

  
	
   

  	
  10.10

  	
  MAILING
  OF NOTICES TO ADMINISTRATOR, EMPLOYER OR TRUSTEE

  	
  108

  
	
   

  	
  10.11

  	
  PARTICIPANT NOTICES AND WAIVERS OF NOTICES TO PARTICIPANTS

  	
  108

  
	
   

  	
  10.12

  	
  NO
  DUPLICATION OF BENEFITS

  	
  108

  
	
   

  	
  10.13

  	
  EVIDENCE FURNISHED CONCLUSIVE

  	
  108

  
	
   

  	
  10.14

  	
  RELEASE
  OF CLAIMS

  	
  108

  
	
   

  	
  10.15

  	
  MULTIPLE COPIES OF PLAN AND/OR TRUST

  	
  109

  
	
   

  	
  10.16

  	
  LIMITATION OF LIABILITY AND INDEMNIFICATION

  	
  109

  



 

















 


PREMIER COMMERCIAL BANK, N.A.


 


EMPLOYEES’ RETIREMENT PLAN AND TRUST


 


THIS AGREEMENT is made and entered into as of the 27th
day of November, 2002, between PREMIER COMMERCIAL BANK (hereafter called the
Employer) and KENNETH J. COSGROVE AND ASHOK R. PATEL (hereafter collectively
referred to as the Trustee).


 


WITNESSETH:


 


NOW,
THEREFORE, effective January 1, 2002,
the Sponsor establishes a Plan in accordance
with Code §401(a) and Code §401(k) (hereafter referred to as the “Plan”),
effective January 1, 2002, in order to provide retirement and other incidental
benefits to Employees who are eligible to participate therein; and to comply
with the requirements of the Employee Retirement Income Security Act of 1974
and the Internal Revenue Code of 1986, as amended by the Uruguay Round
Agreements Act, the Small Business Job Protection Act of 1996, the Taxpayer
Relief Act of 1997, the Uniformed Services Employment and Reemployment Rights
Act of 1994, the Internal Revenue Service Restructuring and Reform Act of 1998,
the Community Renewal Tax Relief Act of 2000, and all applicable rulings and regulations
issued thereunder, and the Trustee accepts the Plan under the following terms
and conditions:


 


WHEREAS,
in accordance with the terms of the Plan, the Sponsor has the ability at any
time, and from time to time, to amend the Plan;


 


1

















 


ARTICLE 1

DEFINITIONS


 


1.1           ACP or ACP TEST


The
term ACP means the Average Contribution Percentage as defined in Section
1.10(c). The term ACP Test means the Average Contribution Percentage Test.


 


1.2           ACTUAL
DEFERRAL PERCENTAGE TEST


The
term Actual Deferral Percentage Test (or ADP Test) means either of the
following nondiscrimination tests for Elective Deferrals: (1) the ADP for
Participants who are HCEs will not exceed the ADP for Participants who are
NHCEs multiplied by 1.25; or (2) the ADP for Participants who are HCEs will not
exceed the ADP for Participants who are NHCEs multiplied by 2.0, provided that
the ADP for Participants who are HCEs does not exceed the ADP for Participants
who are NHCEs by more than 2 percentage points. The ADP Test for any Plan Year
will be determined in accordance with the following provisions:


 


(a)           Testing Method: The ADP Test will he determined each Plan Year by
either Current Year Testing or Prior Year Testing (as described in paragraph
(b) below) as follows: Current Year Testing is used for the 2000 Plan Year;
Current Year Testing is used for the 2001 Plan Year; and Current Year Testing
is used for the 2002 Plan Year and for each Plan Year thereafter until
otherwise elected by the Employer by means of a Plan amendment.


 


(b)           Definition Of Current And Prior Year Testing: The term Current Year Testing
means the ADP Test will be determined for a Plan Year by comparing the ADP of
Participants who are Highly Compensated Employees for that Plan Year to the ADP
of Participants who were Non-Highly Compensated Employees for that Plan Year.
The term Prior Year Testing means the ADP Test will be determined for a Plan
Year by comparing the ADP of Participants who are Highly Compensated Employees
for that Plan Year to the ADP of Participants who were Non-Highly Compensated
Employees for the prior Plan Year. If Prior Year Testing is specified in
paragraph (a), then in the case of the first Plan Year in which the Plan
permits any Participant to make Elective Deferrals (unless this is a successor
Plan), the ADP used for Participants who were Non-Highly Compensated Employees
in the prior Plan Year will be the greater of 3% or their actual ADP for the
first Plan Year in which Elective Deferrals were permitted. Prior Year Testing
cannot be used in any Plan Year in which a supplemental Safe Harbor Notice is
issued that reduces or eliminates a Safe Harbor Matching Contribution for that
Plan Year.


 


(c)           Definition Of Actual Deferral Percentage: The term Actual Deferral
Percentage (ADP) means, for a specified group of Participants for a Plan Year,
the average of the ratios calculated separately for each Participant in such
group of (1) the amount of Employer


 


2

















 


contributions
actually paid on behalf of such Participant for the Plan Year to (2) the
Compensation of such Participant for such Plan Year.


 


(d)           Contributions Used To Determine ADP Test: Employer contributions used
to determine the ADP Test include Elective Deferrals, including Excess Elective
Deferrals as defined in Section 1.28, but excluding Excess Elective Deferrals
of NHCEs that arise solely from Elective Deferrals made to this Plan or any
other plans maintained by this Employer and Elective Deferrals that are taken
into account in the ACP Test if the ADP Test is satisfied both with and without
exclusion of these Elective Deferrals. The Employer may also elect each Plan
Year to include QMACs and/or QNECs, and in any Plan Year in which Current Year
Testing is used, may further elect to include such QNECs and/or QMACs only to
the extent necessary to pass the ADP Test. In computing ADPs, an Employee who
would be a Participant but for the failure to make Elective Deferrals will be
treated as a Participant on whose behalf no Elective Deferrals are made.


 


(e)           Highly Compensated Employees: A Participant is a Highly Compensated
Employee for a particular Plan Year if he or she meets the definition of a
Highly Compensated Employee in effect for that Plan Year. A Participant is a
Non-Highly Compensated Employee for a particular Plan Year if he or she does
not meet the definition of a Highly Compensated Employee in effect for that
Plan Year. The ADP for any Participant who is a HCE for the Plan Year and who
is eligible to have Elective Deferrals (and QNECs or QMACs, or both, if treated
as Elective Deferrals for purposes of the ADP Test) allocated to his or her
accounts under two or more arrangements described in Code

§401(k) that are maintained by this Employer will be determined as if such
Elective Deferrals (and, if applicable, QNECs or QMACs, or both) were made
under a single arrangement. If a HCE participates in two or more cash or
deferred arrangements that have different Plan Years, all cash or deferred
arrangements ending with or within the same calendar year will be treated as a
single arrangement; except that certain plans will be treated as separate if
mandatorily disaggregated under regulations under Code §401(k).


 


(f)            Other Rules: In determining the ADP Test, (1)
if this Plan satisfies the requirements of Code §401(k), §401(a)(4), or §410(b)
only if aggregated with one or more other plans, or if one or more other plans
satisfy such requirements only if aggregated with this Plan, then this section
will be applied by determining the ADP of Employees as if all such plans were a
single plan. For any Plan Year in which the Employer elects prior year testing
under this Section, adjustments to the ADP of Non-Highly Compensated Employees
for the prior Plan Year will be made in accordance with Notice 98-1 and any
superseding guidance. Plans may be aggregated to satisfy Code §401(k) only if
they have the same Plan Year and use the same ADP testing method; (2) Elective
Deferrals, QNECs and QMACs must be made before the last day of the 12-month
period immediately following the Plan Year to which contributions relate; (3)
the Employer will maintain records sufficient to demonstrate satisfaction of
the ADP test and the amount of QNECs or QMACs, or both, used in


 


3

















 


such
test; and (4) the determination and treatment of the ADP amounts of any
Participant will satisfy such other requirements as may be prescribed by the
Secretary of the Treasury.


 


(g)           Change To Prior Year Testing: If the Employer elects Current Year
Testing for any Plan Year, the Employer can only elect to change to Prior Year
Testing in accordance with the requirements in Notice 98-1 (or superseding
guidance). If the Employer elects to change to Prior Year Testing, the ADP for
NHCEs for the prior year will be determined by counting only (1) Elective
Deferrals for those NHCEs that were counted for purposes of the ADP Test (and
not the ACP Test) under the Current Year Testing method for the prior year, and
(2) QNECs that were allocated to the accounts of those NHCEs for the prior year
but that were not used to satisfy the ADP Test or the ACP Test under the
Current Year Testing method for the prior year. Thus, if the Employer elects to
change to Prior Year Testing, the following contributions made for the prior
year will be disregarded: QNECs used to satisfy either the ADP Test or ACP Test
under the Current Year Testing method for the prior testing year, Elective
Deferrals taken into account for purposes of the ACP Test, and all QMACs. The
limitations on double counting do not apply for testing years beginning before
January 1, 2001, and if the Plan changes to Prior Year Testing for the first time
for any Plan Year after 1997, the ADP for NHCEs will be the same as for the
Plan Year immediately preceding the Plan Year for which the change to Prior
Year Testing was effective.


 


1.3           ADP or ADP TEST


The
term ADP means the Actual Deferral Percentage as defined in Section 1.2(c). The
term ADP Test means the Actual Deferral Percentage Test.


 


1.4           ADMINISTRATOR


The
term Administrator means the Employer unless another Administrator is appointed
by the Employer pursuant to the provisions of Section 8.1 of the Plan.


 


1.5           ADOPTING EMPLOYER


The
term Adopting Employer means any entity that adopts this Plan with the consent
of the Sponsor. An Employee’s transfer to or from any Employer or Adopting
Employer will not affect his or her Participant’s Account balance, total Years
of Service (or Periods of Service) and total Years of Service as a Participant
(or Periods of Service as a Participant). All Adopting Employers will be
subject to the following provisions:


 


(a)           Multiple Employer Plan Provisions Under Code §413(c): Notwithstanding
any other provision in the Plan to the contrary, unless the Plan is a collectively
bargained plan described in Regulation §1.413-1(a), the following provisions
will apply with respect to any Adopting Employer that is not an Affiliated
Employer of the Sponsor:


 


(1)           Instances Of Separate Employer Testing: Employees of any such Adopting
Employer will be treated separately for purposes


 


4

















 


of
testing under the provisions of Code §401(a)(4), Code §401(k), Code §401(m)
and, if the Sponsor and the Adopting Employer do not share Employees, Code
§416. Furthermore, the terms of Code §410(b) will be applied separately on an
employer-by-employer basis by the Sponsor (and the Adopting Employers which are
part of the Affiliated Group which includes the Sponsor) and each Adopting
Employer that is not an Affiliated Employer of the Sponsor, taking into account
the generally applicable rules described in Code §401(a)(5), §414(b) and
§414(c).


 


(2)           Instances Of Single Employer Testing: Employees of the Adopting
Employer will be treated as part of a single employer plan for purposes of
eligibility to participate under Article 2 and under the provisions of Code
§410(a). Furthermore, the terms of Code §411 relating to Vesting will be
applied as if all Employees of all such Adopting Employers and the Sponsor were
employed by a single employer, except that the rules regarding Breaks in
Service will be applied under such regulations as may be prescribed by the
Secretary of Labor.


 


(3)           Common Trust: Contributions made by any such Adopting Employer will be
held in a common Trust Fund with contributions made by the Sponsor, and all
such contributions will be available to pay the benefits of any Participant or
Beneficiary who is an Employee of the Sponsor or any such Adopting Employer.


 


(4)           Common Disqualification Provision: The failure of either the Sponsor or
any such Adopting Employer to satisfy the qualification requirements under Code
§401(a), as modified by the provisions of Code §413(c), will result in the
disqualification of the Plan for all such Employers maintaining the Plan.


 


(b)           Termination of Adoption: An Adopting Employer may terminate
participation in the Plan by delivering written notice to the Sponsor, the
Administrator and the Trustee; but in accordance with Article 9, only the
Sponsor can terminate the Plan. If a request for and approval of a transfer of
assets from this Plan to any successor qualified retirement plan maintained by
the Adopting Employer or its successor is not made in accordance with Section
9.3, Participants who are no longer Employees because the Adopting Employer
terminates Plan participation will only be entitled to the commencement of
their benefits (1) in the case of Participants who are no longer Employees of
an Adopting Employer that is an Affiliated Employer of the Sponsor, in
accordance with Article 5 after their death, retirement, Disability or
Termination of Employment from the Adopting Employer or former Adopting
Employer; and (2) in the case of Participants who are no longer Employees of an
Adopting Employer that is not an Affiliated Employer of the Sponsor, within a
reasonable time thereafter as if the Plan had been terminated under Section
9.2.


 


5

















 


1.6           AFFILIATED
EMPLOYER


The
term Affiliated Employer means any of the following of which the Employer is a
part: (1) a controlled group of corporations as defined in Code §414(b); (2) a trade or business (whether or
not incorporated) under common control under Code §414(c); (3) any organization
(whether or not incorporated) which is a member of an affiliated service group
under Code §414(m); and (4) any other entity required to be aggregated under
Code §414(o).


 


1.7           AGE


The
term Age means an Employee’s actual attained age.


 


1.8           ANNIVERSARY
DATE


The
term Anniversary Date means December 31st.


 


1.9           ANNUITY
STARTING DATE


The
term Annuity Starting Date means the first day of the first period for which an
amount is paid as an annuity, or, in the case of a benefit not payable as an
annuity, the first day all events have occurred which entitle the Participant
to such benefit. The first day of the first period for which a benefit is to be
received by reason of Disability will be treated as the Annuity Starting Date
only if such benefit is not an auxiliary benefit.


 


1.10         AVERAGE
CONTRIBUTION PERCENTAGE TEST


The
term Average Contribution Percentage (or ACP) Test means the greater of one of
the following nondiscrimination tests for Matching Contributions and Employee
contributions: (1) the ACP for Participants who are HCEs will not exceed the
ACP for Participants who are NHCEs multiplied by 1.25; or (b) the ACP for
Participants who are HCEs will not exceed the ACP for Participants who are
NHCEs multiplied by 2.0, provided that the ACP for Participants who are HCEs
does not exceed the ACP for Participants who are NHCEs by more than 2
percentage points. The ACP Test for any Plan Year will be determined in
accordance with the following:


 


(a)           Testing Method: The ACP Test will be determined each Plan Year by the
Current Year Testing method as described in paragraph (b) below.


 


(b)           Definition Of Current And Prior Year Testing: The term Current Year
Testing means the ACP Test will be determined for a Plan Year by comparing the
ACP of Participants who are Highly Compensated Employees for that Plan Year to
the ACP of Participants who were Non-Highly Compensated Employees for that Plan
Year. The term Prior Year Testing means the ACP Test will be determined for a
Plan Year by comparing the ACP of Participants who are Highly Compensated
Employees for that Plan Year to the ACP of Participants who were Non-Highly
Compensated Employees for the prior Plan Year. If Prior Year Testing is
specified in paragraph (a), then for the first Plan Year in which the Plan
permits any Participant to make Voluntary Employee Contributions, provides for
Matching Contributions, or both (unless this Plan is a successor Plan), the ACP
used for Participants who were Non-Highly Compensated Employees in the prior
Plan Year will be the greater of 3% or their actual ACP for


 


6

















 


the
first Plan Year. Prior Year Testing cannot be used in any Plan Year in which a
supplemental Safe Harbor Notice is issued that reduces or eliminates a Safe
Harbor Matching Contribution for that Plan Year.


 


(c)           Definition Of Average Contribution Percentage: For purposes of this
Section, the term Average Contribution Percentage (or ACP) means the average of
the Contribution Percentages of the “eligible” Participants in a group.


 


(d)           Definition Of Contribution Percentage: For purposes of this Section,
the term Contribution Percentage means the ratio (expressed as a percentage) of
the Participant’s Contribution Percentage Amounts to the Participant’s
Compensation for the Plan Year.


 


(e)           Definition Of Contribution Percentage Amounts: For purposes of this
Section, the term Contribution Percentage Amounts means the sum of the Employee
Contributions, Matching Contributions and Qualified Non-Elective Contributions
(to the extent not used in the ADP Test) made under the plan on behalf of the
participant for the Plan Year.


 


(f)            Contributions Used In Determining
Contribution Percentage Amounts: Contribution Percentage Amounts will not
include Matching Contributions that are forfeited either to correct Excess
Aggregate Contributions or because the contributions to which they relate are
Excess Deferrals, Excess Contributions, or Excess Aggregate Contributions. The
Employer may elect each Plan Year to include as Contribution Percentage Amounts
QNECs and/or Elective Deferrals so long as the ADP Test is met before the
Elective Deferrals are used in the ACP Test and continues to be met following
the exclusion of those Elective Deferrals that are used to meet the ACP Test.
For any Plan Year in which Current Year Testing is specified in paragraph (a)
above, the Employer may further elect to include such QNECs and/or Elective
Deferrals as Contribution Percentage Amounts only to the extent necessary to
satisfy the ACP (and Multiple Use) Test.


 


(g)           Multiple Use: If one or more HCEs participate in both a cash or
deferred arrangement and in a plan subject to the ACP Test maintained by the
Employer, and if the sum of the ADP and ACP of those HCEs subject to either or
both tests exceeds the Aggregate Limit, then the ACP of those HCEs who also
participate in a cash or deferred arrangement will be reduced as described in
Section 5.20 so that the limit is not exceeded. The amount by which each HCE’s
Contribution Percentage Amount is reduced will be treated as an Excess
Aggregate Contribution. The ADP and ACP of HCEs are determined after any
corrections required to meet the ADP Test and the ACP Test and are deemed to be
the maximum permitted under such tests for the Plan Year. Multiple use does not
occur if either the ADP or the ACP of the HCEs does not exceed 1.25 multiplied
by the ADP and the ACP of the NHCEs.


 


(h)           Highly Compensated Employees: A Participant is a HCE for a particular
Plan Year if he or she meets the definition of a HCE in


 


7

















 


effect
for that Plan Year; and a Participant is a NHCE for a particular Plan Year if
he or she does not meet the definition of a HCE in effect for that Plan Year.
The Contribution Percentage for any Participant who is a HCE and who is
eligible to have Contribution Percentage Amounts allocated to his or her
account under two or more plans described in Code §401(a), or arrangements
described in Code §401(k) that are maintained by the Employer, will be
determined as if the total of such Contribution Percentage Amounts was made under
each plan. If a HCE participates in two or more cash or deferred arrangements
that have different plan years, all cash or deferred arrangements ending with
or within the same calendar year will be treated as a single arrangement.
Notwithstanding the foregoing, certain plans will be treated as separate if mandatorily disaggregated under
regulations under Code §401(m).


 


(i)            Other Rules: In determining the ACP Test, if
this Plan satisfies the requirements of Code §401(m), §401(a)(4) or §410(b)
only if aggregated with one or more other plans, or if one or more other plans
satisfy such requirements only if aggregated with this Plan, then this section
will be applied by determining the Contribution Percentage of Employees as if
all such plans were a single plan. For any Plan Year in which the Employer
elects Prior Year Testing under this Section, adjustments to the ACP of
Non-Highly Compensated Employees for the prior Plan Year will be made in
accordance with Notice 98-1 and any superseding guidance. Plans with the same
Plan Year may be aggregated to satisfy Code §401(m). In determining the
Contribution Percentage test, Employee contributions are considered to have
been made in the Plan Year in which contributed to the Plan, and Matching
Contributions and QNECs will be considered made for a Plan Year if made no
later than the end of the twelve-month period beginning on the day after the
close of the Plan Year. The Employer will maintain records sufficient to
demonstrate satisfaction of the ACP Test and the amount of QNECs or QMACs, or
both, used in such test. The determination and treatment of the Contribution
Percentage of any Participant will satisfy such other requirements as may be
prescribed by the Secretary of the Treasury.


 


(j)            Aggregate Limit: The term Aggregate Limit
means the sum of (1) 125% of the greater of the ADP of Participants who are
NHCEs for the current Plan Year (or for the prior Plan Year for any Plan Year
for which prior year testing has been elected) or the ACP of Participants who
are NHCEs subject to Code §401(m) for the Plan Year beginning with or within
the current Plan Year (or for the prior Plan Year for any Plan Year for which
prior year testing has been elected) of the cash or deferred arrangement (2)
the lesser of 200% or two plus the lesser of such ADP or ACP. The word “lesser”
will be substituted for “greater” in (1) above, and the word “greater” will be
substituted for “lesser” after “two plus the” in (2) above if that would result
in a larger Aggregate Limit.


 


(k)           “Eligible” Participant: For purposes of this Section, an “eligible”
Participant is any Employee who is eligible to make an Employee Contribution,
or an Elective Deferral (if the Employer takes such


 


8

















 


contributions
into account in the calculation of the Contribution Percentage), or to receive
a Matching Contribution (including forfeitures) or a QMAC. If an Employee
Contribution is required as a condition of Plan participation, any Employee who
would be a Participant if such Participant made such a contribution will be
treated as an “eligible” Participant on behalf of whom no Employee
Contributions are made. An Employee Contribution means any contribution made by
or on behalf of a Participant that is included in the Participant’s gross
income in the year in which made and that is maintained under a separate
account to which earnings and losses are allocated.


 


(l)           Change To Prior Year Testing: If the Employer
elects Current Year Testing for any Plan Year, the Employer can only elect to
change to prior year testing in accordance with the requirements in Notice 98-1
(or superseding guidance). If the Employer amends the Plan to elect prior year
testing, the ACP for NHCEs for the prior year will be determined by taking into
account only (1) Voluntary Employee Contributions for those NHCEs for the prior
year, and (2) Matching Contributions for those NHCEs that were taken into
account in the ACP Test (and not the ADP Test) under the current year testing
method for the prior year, and (3) QNECs that were allocated to the accounts of
those NHCEs for the prior year but that were not used to satisfy the ACP Test
or the ADP Test under the current year testing method for the prior year. Thus,
if the Employer elects to change to prior year testing, the following
contributions made for the prior year will be disregarded: QNECs used to
satisfy either the ADP or ACP Test under the current year testing method for
the prior testing year, QMACs taken into account in the ADP Test, and all
Elective Deferrals. These limitations on double counting do not apply for
testing years beginning before January 1, 1999, and if the Plan changes to
prior year testing for the first time for the 1998 Plan Year, the ACP for NHCEs
will be the same as for the 1997 Plan Year.


 


1.11         BENEFICIARY


The
term Beneficiary means the recipient designated by the Participant to receive
the Plan benefits payable upon the death of the Participant, or the recipient
designated by a Beneficiary to receive any benefits which may be payable in the
event of the Beneficiary’s death prior to receiving the entire death benefit to
which the Beneficiary is entitled. All such Beneficiary designations will be
made in accordance with the following provisions:


 


(a)           Beneficiary Designations By A Participant: Subject to the provisions of
Section 5.8 regarding the rights of a Participant’s Spouse, each Participant
may designate a Beneficiary on a form supplied by the Administrator, and may
change or revoke that designation by filing written notice with the Administrator.
If a Participant completes or has completed a Beneficiary designation form in
which the Participant designates his or her Spouse as the Beneficiary, and the
Participant and the Participant’s Spouse are legally divorced subsequent to the
date of such designation, then the designation of such Spouse as a Beneficiary
hereunder will be deemed null and void unless the Participant, subsequent to
the legal divorce, reaffirms the


 


9

















 


designation
by completing a new Beneficiary designation form. In the absence of a written
Beneficiary designation form, the Participant will be deemed to have designated
the following Beneficiaries in the following order: (1) the Participant’s
Spouse, if then living; (2) the Participant’s issue, per stirpes; and (3) the
Participant’s estate.


 


(b)           Beneficiary Designations By A Beneficiary: In the absence of a
Beneficiary designation or other directive from the deceased Participant to the
contrary, any Beneficiary may name his or her own Beneficiary in accordance
with Section 5.2(e) to receive any benefits which may be payable in the event
of the Beneficiary’s death prior to the receipt of all the Participant’s death
benefits to which the Beneficiary was entitled.


 


(c)           Beneficiaries Considered Contingent Until Death Of Participant:
Notwithstanding any provision in this Section, any Beneficiary named hereunder
will be considered a contingent Beneficiary until the death of the Participant
(or Beneficiary, as the case may be), and until such time will have no rights
granted to Beneficiaries under the Plan.


 


1.12         BREAK IN SERVICE


The
term Break in Service means a Plan Year during which an Employee does not
complete more than 500 Hours of Service. If a Plan Year is less than 12 months,
the 500 Hours of Service requirement will be proportionately reduced.


 


1.13         CODE


The
term Code means the Internal Revenue Code of 1986, as amended, and the
regulations and rulings promulgated thereunder by the Internal Revenue Service.


 


1.14         CODE §3401 COMPENSATION


The
term Code §3401 Compensation means wages within the meaning of Code §3401(a)
that are actually paid or made available in gross income for the purposes of
income tax withholding at the source but determined without regard to any rules
under Code §3401 that limit the remuneration included in wages based on the
nature or location of the employment or the services performed (such as the
exception for agricultural labor in Code §3401(a)(2)).


 


1.15         CODE §415 COMPENSATION


The
term Code §415 Compensation means Earned Income, wages, salaries, fees for
professional services and other amounts received (without regard to whether or
not an amount is paid in cash) for personal services actually rendered in the
course of employment with the Employer maintaining the Plan, including, but not
limited to, commissions paid salespersons, compensation for services based on a
percentage of profits, commissions on insurance premiums, tips, bonuses, fringe
benefits, and reimbursements, or other expense allowances under a
non-accountable plan as described in IRS regulation §1.62-2(c). A Participant’s
Code §415 Compensation will be determined subject to the following provisions:


 


10

















 


(a)           Amounts Excluded From Code §415 Compensation: Code §415 Compensation
does not include (1) Employer contributions to a plan of deferred compensation which are
not includible in gross income for the taxable year in which contributed, or
Employer contributions to a simplified employee pension plan to the extent such
contributions are deductible by the Employee, or any distributions from a plan
of deferred compensation; (2) amounts realized from a non-qualified stock
option, or when restricted stock or property held by the Employee either
becomes freely transferable or is no longer subject to a substantial risk of
forfeiture; (3) amounts realized from the sale, exchange or other disposition
of stock acquired under a qualified stock option; and (4) other amounts which
receive special tax benefits, or contributions made by an Employer (whether or
not under a salary reduction agreement) towards the purchase of an annuity
described in Code §403(b) (whether or not the amounts are excludible from an
Employee’s gross income).


 


(b)           Treatment Of Elective Deferrals And Other Amounts; For Limitation Years
beginning on or after January 1, 1998, Code §415 Compensation will include any
elective deferrals as defined in Code §402(g)(3), and any amounts contributed
or deferred at the election of the Employee that were not includible in the
gross income by reason of Code §125 or §457. Code §415 Compensation will also
include elective amounts that are not includible in the gross income of the
Employee by reason of Code §132(f)(4) for Limitation Years beginning on or after
January 1, 2001 (or if elected by the Administrator on a non-discriminatory
basis, any earlier Limitation Year beginning on or after January 1, 1998).


 


1.16         COMPENSATION


The
term Compensation means amounts received by a Participant from the Employer
during a Compensation Determination Period, determined subject to the following
provisions:


 


(a)           Compensation Used To Determine Elective Deferrals: In determining the
amount of a Participant’s Elective Deferrals for a Plan Year, the term
Compensation means a Participant’s Form W-2 Compensation actually paid during a
Compensation Determination Period, determined subject to
the following provisions:


 


(1)           Compensation Determination Period: Under this paragraph (a), the
Compensation Determination Period is the Plan Year.


 


(2)           Treatment Of Elective Deferrals: For purposes of this paragraph (a),
Employer contribution amounts made pursuant to a salary reduction agreement
which are not currently includible in the gross income of an Employee by reason
of Code §125, §402(e)(3), §402(h)(1)(B), or §403(b) will be included in
determining Compensation. In addition, if elected by the Administrator on a
non-discriminatory basis, Compensation will also include elective amounts that
are not includible in the gross income of the Employee by reason of Code
§132(f)(4), beginning with the Plan Year elected by the


 


11

















 


Administrator
but not earlier than the Plan Year beginning on or after January 1, 1998.


 


(3)           Certain Amounts Excluded From Compensation: For purposes of this
paragraph (a), any amount which would otherwise be considered Compensation
under this paragraph but which is received by a Participant under the following
circumstances will not be considered Compensation for purposes of this
paragraph: (1) any amount intended as reimbursement for moving expenses; (2)
any amount intended as reimbursement for car expenses; and (3) any amount paid
after termination of employment which is attributable to severance pay and
unused sick days and vacation days.


 


(4)           Amounts Received Prior To Becoming A Participant: All amounts which
would be considered Compensation under this paragraph but which are received by
an Employee prior to the date the Employee becomes a Participant in the Plan
will be considered Compensation for purposes of this paragraph (a). However,
the Administrator may elect to limit Compensation under this paragraph to
Compensation received during the period during which the cash or deferred
arrangement was in effect under the Plan.


 


(5)           Compensation Received While In An Ineligible Class Of Employees:
Compensation for purposes of this paragraph (a) will include any amount
received while an Employee is a
member of an ineligible class of Employees as described in Section 2.1(a)(2).


 


(b)           Compensation Used to Determine Matching Contributions: Matching
Contributions are not currently permitted under the terms of the Plan.


 


(c)           Compensation Used To Determine Non-Elective Contributions: In
determining the amount of the Employer’s Non-Elective Contribution for any Plan
Year, the term Compensation means the Form W-2 Compensation actually paid
during a Compensation Determination Period, determined subject to the following
provisions:


 


(1)           Compensation Determination Period: Under this paragraph (c), the
Compensation Determination Period is the Plan Year.


 


(2)           Treatment Of Elective Deferrals: For purposes of this paragraph (c),
Employer contribution amounts made pursuant to a salary reduction agreement,
which are not currently includible in the gross income of an Employee by reason
of Code §125, §402(e)(3), §402(h)(1)(B), or §403(b) will be included in
determining Compensation. In addition, if elected by the Administrator on a
non-discriminatory basis, Compensation will also include elective amounts that
are not includible in the gross income of the Employee by reason of Code
§132(f)(4), beginning with the Plan Year elected by the


 


12

















 


Administrator
but not earlier than the Plan Year beginning on or after January 1, 1998.


 


(3)           Certain Amounts Excluded From Compensation: For purposes of this
paragraph (c), any amount which would otherwise be considered Compensation
under this paragraph but which is received by a Participant under the following
circumstances will not be considered Compensation for purposes of this
paragraph: (1) any amount intended as reimbursement for moving expenses; (2)
any amount intended as reimbursement for car expenses; and (3) any amount paid
after termination of employment which is attributable to severance pay and
unused sick days and vacation days.


 


(4)           Amounts Received Prior To Becoming A Participant: All amounts, which
would be considered Compensation under this paragraph but which are received by
an Employee prior to the date the Employee becomes a Participant in the Plan
will be considered Compensation for purposes of this paragraph (c).


 


(5)           Compensation Received While In An Ineligible Class Of Employees:
Compensation for purposes of this paragraph (c) will include any amount
received while an Employee is a member of an ineligible class of Employees as
described in Section 2.1(a)(2).


 


(d)           Compensation Used In Determining The ACP Test And ADP Test: In
determining the ACP Test, the term Compensation means a Participant’s Form W-2
Compensation. In determining the ADP Test, the term Compensation means a
Participant’s Form W-2 Compensation. However, in determining a Participant’s
ADP or ACP, the Administrator may elect (1) to include or exclude Elective
Deferrals; (2) to include or exclude any items of compensation includible or
excludible under Code §414(s) and the regulations thereunder, provided such
adjusted definition conforms to the nondiscrimination requirements of those
regulations; and/or (3) to limit Compensation taken into account in computing a
Participant’s ADP or ACP to Compensation received only for the portion of the
Plan Year in which the Participant was a Participant and only for the portion
of the Plan Year during which the Plan contained a cash or deferred arrangement.
The Plan Administrator’s election as described above must be consistent and
uniform with respect to all Participants and all plans of the Employer for any
particular Plan Year.


 


(e)           Compensation Used For Top Heavy Purposes: Notwithstanding anything in
this Section to the contrary, in determining Top Heavy allocations under
Section 3.5, the term Compensation means the Form W-2 Compensation received by
an Employee during an entire Compensation Determination Period.


 


(f)            Compensation of Owner-Employees and
Shareholder-Employees: For purposes of this Plan, the Compensation of an
Owner-Employee or a


 


13

















 


Self-Employed
Individual will equal his or
her Earned Income up to the dollar limit described in the next paragraph.


 


(g)           Dollar Limitation On Compensation: Notwithstanding anything in this
Section to the contrary, a Participant’s Compensation for any Compensation
Determination Period will not exceed the limitation set forth in Code
§401(a)(17) as in effect for that determination period. If a Compensation
Determination Period consists of fewer than 12 months, the Code §401(a)(17)
limitation will be multiplied by a fraction, the numerator of which is the
number of months in that determination period, and the denominator of which is
12.


 


(h)           Compensation Limitation Election Available To Certain Participants:
Except for purposes of determining Top Heavy allocation requirements under
Section 3.5 or the Code §415 limitations under Article 6, any Participant who
is a Key Employee, an Owner-Employee, a Self-Employed Individual, or a Highly
Compensated Employee may elect for any Plan Year, on a form prescribed by the
Administrator to limit Compensation for all purposes under this Plan.


 


1.17         DISABILITY


The
term Disability means a physical or mental condition arising after an Employee
has become a Participant that qualifies the Participant for disability benefits
under the Social Security Act in effect on the date the Participant suffers the
Disability. Notwithstanding the foregoing, the term Disability for purposes of
this Plan will not include any disability arising (1) from chronic or excessive
use of intoxicants or other substances; (2) from an intentionally
self-inflicted injury or sickness; (3) from an unlawful act or enterprise by
the Participant; or (4) from military service if the Participant is eligible to
receive a government sponsored military disability pension.


 


1.18         EARLY
RETIREMENT AGE


There
is no Early Retirement Age under the Plan.


 


1.19         EARNED
INCOME


The
term Earned Income means net earnings from self-employment in the trade or
business with respect to which the Plan is established and for which personal
services of the individual are a material income-producing factor. Net earnings
(1) will be determined without regard to items not included in gross income and
the deductions allocable thereto, and for taxable years beginning after
December 31, 1989, with regard to the deduction allowed by Code §164(f); and
(2) will be reduced by deductible Employer contributions to a qualified
retirement plan for taxable years beginning after December 31, 1989.


 


1.20         ELECTIVE
DEFERRAL


The
term Elective Deferrals means Employer contributions made to the Plan at the
election of the Participant in lieu of cash compensation, and will include
contributions made pursuant to a salary reduction agreement or other deferral
mechanism, as follows:


 


(a)           Determination Of Amount: In any taxable year, a Participant’s Elective
Deferral is the sum of all Employer contributions made on


 


14

















 


behalf
of such Participant pursuant to an election to defer under any qualified cash
or deferred arrangement under Code §401(k), any simplified employee pension
cash or deferred arrangement under Code §402(h)(1)(B), any SIMPLE individual
retirement plan under Code §408(p), any eligible deferred compensation plan
under Code §457, any plan under Code §501(c)(18), and any Employer
contributions made on the behalf of a Participant for the purchase of an
annuity contract under Code §403(b) pursuant to a salary reduction agreement.
Elective Deferrals will not include any deferrals properly distributed as
excess Annual Additions.


 


(b)           Restrictions On Withdrawal: Elective Deferrals (exclusive of earnings
thereon) can only be withdrawn upon the earlier of the date (1) a Participant
incurs a Termination of Employment; (2) a Participant dies; (3) a Participant
suffers a Disability; (4) an event described in Code §401(k)(10) occurs; (5) a
Participant receives a hardship distribution if hardship distributions are
permitted by the Employer under Section 5.16; and (6) a Participant reaches Age
591⁄2 if on or after such date a
pre-retirement in-service withdrawal of Elective Deferrals is permitted by the
Employer under Section 5.17.


 


1.21         ELECTIVE DEFERRAL ACCOUNT


The
term Elective Deferral Account means the sub-account of a Participant’s Account
to which the Participant’s Elective Deferrals are credited.


 


1.22         ELIGIBLE PARTICIPANT


The
term Eligible Participant means a Participant eligible in accordance with the
following provisions to receive an allocation of any Matching Contributions,
Non-Elective Contributions and Forfeitures that are allocable for the Plan
Year:


 


(a)           Matching Contributions and Related Forfeitures: Matching Contributions
are not currently permitted under the terms of the Plan.


 


(b)           Non-Elective Contributions And Related Forfeitures: Any Participant who
is an Employee on the last day of the Plan Year will be an Eligible Participant
for that Plan Year for the purpose of receiving an allocation of Non-Elective
Contributions (and any Forfeitures attributable thereto that are allocable to
Participants under Section 3.4(b)) provided the Participant also completes at
least 1,000 Hours of Service during the Plan Year. Any Participant who
terminates employment with the Employer before the last day of the Plan Year
will only be an Eligible Participant for that Plan Year for the purpose of
receiving an allocation of Non-Elective Contributions and any Forfeitures
attributable thereto that are allocable to Participants under Section 3.4(b) in
accordance with the following provisions:


 


15

















 


(1)           Retiring Participants: A Participant who terminates employment with the
Employer before the last day of the Plan Year because of retirement on or after
Normal Retirement Age will be an Eligible Participant for that Plan Year for
receiving an allocation of Non-Elective Contributions if he or she completes at least 501 Hours of
Service during that Plan Year and is in an eligible class of Employees as
described in

Section 2.1(a)(2).


 


(2)           Deceased Participants: A Participant who terminates employment with the
Employer before the last day of the Plan Year because of death will be an
Eligible Participant for that Plan Year for receiving an allocation of
Non-Elective Contributions if he or she completes at least 1 Hour of Service
during that Plan Year and is in an eligible class of Employees as described in
Section 2.1(a)(2).


 


(3)           Disabled Participants: A Participant who terminates employment with the
Employer before the last day of the Plan Year because of Disability will be an
Eligible Participant for that Plan Year for receiving an allocation of
Non-Elective Contributions if he or she completes at least 1 Hour of Service
during that Plan Year and is in an eligible class of Employees as described in
Section 2.1(a)(2).


 


(4)           Terminated Participants: A Participant who terminates employment with
the Employer before the last day of the Plan Year for reasons other than
retirement, death or Disability will not be an Eligible Participant for that
Plan Year for receiving an allocation of Non-Elective Contributions.


 


1.23         EMPLOYEE


The
term Employee means (a) any person reported on the payroll records of the
Employer as an employee who is deemed by the Employer to be a common law
employee; (b) except for determining eligibility to participate in this Plan,
any person reported on the payroll records of an Affiliated Employer of the
Sponsor or an Adopting Employer as an employee who is deemed by the Affiliated
Employer to be a common law employee, even if the Affiliated Employer is not an
Adopting Employer; (c) any Self-Employed Individual who derives Earned Income
from the Employer; (d) any Owner-Employee; and (e) any person who is considered
a Leased Employee but who (1) is not covered by a plan described in Code
§414(n)(5), or (2) is covered by a plan described in Code §414(n)(5), but
Leased Employees constitute more than 20% of the Employer’s non-highly
compensated workforce. However, the term Employee will not include any
individual who is not reported on the payroll records of the Employer or an
Affiliated Employer as a common law employee. If such person is later
determined by the Sponsor or by a court or governmental agency to be or to have
been an Employee, he or she will only be eligible for participation
prospectively and may participate in the Plan as of the next entry date in
Section 2.2 following such determination and after the satisfaction of all
other eligibility requirements.


 


16

















 


1.24         EMPLOYER


The
term Employer means the Sponsor, any Adopting Employer, and any direct
predecessor business entity of the Sponsor or an Adopting Employer that was or
would have been considered an Affiliated Employer of the Sponsor or an Adopting
Employer. Where applicable, such as determining Hours
of Service, Periods of Service and Years of Service, the term Employer or
Adopting Employer will also mean any business entity that was an Adopting
Employer. As to any Employee, the term Employer at the time of reference means
the employer of such Employee.


 


1.25         ERISA


The
term ERISA means the Employee Retirement Income Security Act of 1974, as
amended, and the regulations and rulings promulgated thereunder.


 


1.26         EXCESS AGGREGATE CONTRIBUTIONS


The
term Excess Aggregate Contributions means, with respect to any Plan Year, the
excess of (1) the aggregate Contribution Percentage Amounts used in computing
the numerator of the Contribution Percentage actually made on behalf of
Participants who are Highly Compensated Employees for such Plan Year, over (2)
the maximum Contribution Percentage Amounts permitted by the ACP Test
(determined by hypothetically reducing contributions made on behalf of Participants
who are Highly Compensated Employees in order of their Contribution Percentages
beginning with the highest of such percentages). Such determination will be
made after first determining Excess Elective Deferrals and then determining
Excess Contributions. The terms Average Contribution Percentage, Contribution
Percentage and Contribution Percentage Amount are defined in Sections 1.10(c),
1.10(d) and 1.10(e).


 


1.27         EXCESS CONTRIBUTIONS


The
term Excess Contributions means, with respect to any Plan Year, the excess of
the aggregate amount of Employer contributions actually taken into account in
computing the ADP of Participants who are Highly Compensated Employees for such
Plan Year, over the maximum amount of such contributions permitted by the ADP
Test (determined by hypothetically reducing contributions made for Participants
who are Highly Compensated Employees in order of their ADPs, beginning with the
highest of such percentages).


 


1.28         EXCESS ELECTIVE DEFERRALS


The term Excess Elective Deferrals means
Elective Deferrals that are includible in a Participant’s gross income under
Code §402(g) to the extent such Participant’s Elective Deferrals for a taxable
year exceed the dollar limit under such Code Section.


 


1.29         FIDUCIARY


The
term Fiduciary means any individual or entity which exercises any discretionary
authority or control over the management of the Plan or over the disposition of
the assets of the Plan; renders investment advice for a fee or other
compensation (direct or indirect); has any discretionary authority or
responsibility over Plan administration; or acts to carry out a fiduciary
responsibility, when designated by a named Fiduciary pursuant to authority
granted by the Plan; subject, however, to any exception granted directly or


 


17

















 


indirectly by the provisions of ERISA or any applicable
regulations. The Sponsor is the “named Fiduciary” for purposes of ERISA §402(a)(2).


 


1.30         FISCAL YEAR


The
term Fiscal Year means the Employer’s accounting year beginning January 1st and
ending the following December 31st.


 


1.31         FORFEITURE


The
term Forfeiture means the amount by which a Participant’s Account balance
exceeds his or Her Vested Interest upon the earlier to occur of (1) the date the Participant receives a distribution of
his or her Vested Interest under Article 5; or (2) the date the Participant
incurs 5 consecutive Breaks in Service after Termination of Employment. No
Forfeitures will occur solely as a result of the withdrawal of a Participant’s
own contributions to the Plan or a Participant’s transfer to an Affiliated
Employer or Adopting Employer. All Forfeitures will be placed in the Forfeiture
Account pending allocation pursuant to Section 3.4.


 


1.32         FORM W-2 COMPENSATION


The
term Form W-2 Compensation means wages within the meaning of Code §3401(a) and
all other payments of compensation actually paid or made available in gross
income to an Employee by the Employer in the course of the Employer’s trade or
business for which the Employer is required to furnish the Employee a Form W-2
under Code §6041(d), §6051(a)(3) and §6052. Compensation must be determined
without regard to any rules under Code §3401(a) limiting remuneration included
in wages based on the nature or location of the employment or services
performed (such as the exception for agricultural labor in Code §3401(a)(2)).


 


1.33         HCE


The
term HCE means a Highly Compensated Employee.


 


1.34         HIGHLY COMPENSATED EMPLOYEE


The
term Highly Compensated Employee means, for Plan
Years beginning after December 31, 1996, any Employee who during the Plan Year
or during the look-back year was a 5% owner as defined in Code §416(i)(1), or
who for the look-back year had Code §415 Compensation in excess of $80,000 as
adjusted in accordance with Code §415(d) (except that the base year will be the
calendar quarter ending September 30, 1996). In determining who is a highly
compensated former Employee, the rules for determining Highly Compensated
Employee status as in effect for the Plan Year or look-back year for which the
determination is being made (in accordance with temporary regulation 1.414(q)-1T,
A-4 and Notice 97-45) will be applied. In determining if an Employee is a
Highly Compensated Employee for Plan Years beginning in 1997, the amendments to
Code §414(q) are deemed to have been in effect for years beginning in 1996. If
the Employer maintains more than one qualified retirement plan, the definition
of Highly Compensated Employee must be consistently applied to all such plans.


 


(a)           Determination Of Look-Back Year: The look-back year will be the 12
month period immediately preceding the Plan Year for which the determination is
being made.


 


18

















 


(b)           Top Paid Group Election: In determining if an Employee is a Highly Compensated Employee
based on Code §415 Compensation, the top paid group election set forth in Code
§414(q)(3) is not being applied for any Plan Year beginning on or after January
1, 1997.


 


1.35         HOUR OF SERVICE


The
term Hour of Service means, with respect to any provision of the Plan in which
service is determined by reference to an Employee’s Periods of
Service, each hour for which an Employee is paid, or is entitled to payment, by
the Employer or an Affiliated Employer for the performance of duties. With respect
to any provision of the Plan in which service is determined by reference to an
Employee’s Years of Service, the term Hour of Service means the following:


 


(a)           Determination Of Hours: The term Hour of Service means (1) each hour an
Employee is paid, or entitled to payment, for the performance of duties for the
Employer or an Affiliated Employer, which will be credited to the Employee for
the computation period in which the duties are performed; (2) each hour for
which an Employee is paid, or entitled to payment, by the Employer or an
Affiliated Employer on account of a period of time during which no duties are
performed (irrespective of whether the employment relationship has terminated)
due to vacation, holiday, illness, incapacity (including disability), layoff,
jury duty, military duty or leave of absence, except that no more than 501
hours will be credited under this clause (2) for any single continuous period
(whether or not such period occurs in a single computation period); and (3)
each hour for which back pay, irrespective of mitigation of damages, is either
awarded or agreed to by the Employer or an Affiliated Employer, except that the
same hours will not be credited both under clause (1) or clause (2) and under
this clause (3), and these hours will be credited for the computation period or
periods to which the award or agreement pertains rather than the computation
period in which the award, agreement or payment is made. Hours of Service will
be calculated and credited pursuant to DOL regulation 2530.200b-2(b) and (c),
which are incorporated herein by reference.


 


(b)           Maternity Or Paternity Leave: In determining if a Break in Service for
participation and vesting has occurred in a computation period, an individual
on Maternity or Paternity Leave will receive credit for up to 501 Hours of
Service which would otherwise have been credited but for such absence, or in
any case in which such Hours of Service cannot be determined, 8 Hours of
Service per day of such absence. Hours of Service credited for Maternity or
Paternity Leave will be credited in the computation period in which the absence
begins if the crediting is necessary to prevent a Break in Service in that
period, or in all other cases, in the following computation period.


 


(c)           Use Of Equivalencies: Notwithstanding paragraph (a), the Administrator
may elect for all Employees or for one or more different classifications of
Employees (provided such classifications are reasonable and are consistently
applied) to apply one or more of the following equivalency methods in
determining the Hours of


 


19

















 


Service
of an Employee paid on an hourly or salaried basis. Under such equivalency
methods, an Employee will be credited with either (1) 190 Hours of Service for
each month in which he or she is paid or entitled to payment for at least one
Hour of Service; or (2) 95 Hours of Service for each semi-monthly period in
which he or she is paid or entitled to payment for at least one Hour of
Service; or (3) 45 Hours of Service for each week in which he or she is paid or
entitled to payment for at least one Hour of Service; or (4) 10 Hours of
Service for each day in which he or she is paid or entitled to payment for at
least one Hour of Service.


 


1.36         KEY EMPLOYEE


The
term Key Employee means any Employee, Former Employee, deceased Employee, or
Beneficiary who at any time during the Plan Year containing the Determination
Date for the Plan Year in question or any of the prior 4 Plan Years was one of
the following:


 


(a)           Officers: An officer of the Employer whose Code §415 Compensation
exceeds 50% of the amount in effect under Code §415(b)(1)(A), except that no
more than fifty Employees (or, if lesser, the greater of three or 10% of the
Employees) will be treated as officers.


 


(b)           Owners: An owner (or was considered an owner under Code §318) of one of
the ten largest interests in the Employer whose Code §415 Compensation exceeds
100% of the dollar limitation in effect under Code §415(c)(1)(A), but if two
Employees own the same interest in the Employer, the Employee with the greater
annual Code §415 Compensation will be treated as owning a larger interest; or a
5% owner of the Employer as defined in

Code §416(i)(1)(B)(i); or a 1% owner of the
Employer as defined in Code §416(i)(1)(B)(ii) whose annual Code §415
Compensation is more than $150,000.


 


1.37         LEASED EMPLOYEE


The
term Leased Employee means, for Plan Years beginning on or after January 1,
1997, any person within the meaning of Code §414(n)(2) and §414(o) who is not
reported on the payroll records of the Employer as a common law employee and
who provides services to the Employer if (a) the services are provided under an
agreement between the Employer and a leasing organization; (b) the person has
performed services for the Employer or for the Employer and related persons as
determined under Code §414(n)(6) on a substantially full time basis for a
period of at least one year; and (c) the services are performed under the
primary direction and control of the Employer. Contributions or benefits
provided to a Leased Employee by the leasing organization attributable to
services performed for the Employer will be treated as provided by the
Employer. A Leased Employee will not be considered an Employee of the recipient
if he is covered by a money purchase plan providing (a) a non-integrated
Employer contribution rate of at least 10% of Code §415 Compensation, including
amounts contributed by the Employer pursuant to a salary reduction agreement
which are excludible from the Leased Employee’s gross income under a cafeteria
plan covered by Code §125, a cash or deferred plan under Code §401(k), a SEP
under Code §408(k) or a tax-deferred annuity under Code §403(b), and also
including, for Plan Years beginning on or after


 


20

















 


January
1, 2001, any elective amounts that are not includible in the gross income of
the Leased Employee because of Code §132(f)(4); (b) immediate participation;
and (c) full and immediate vesting. This exclusion is only available if Leased Employees do not constitute more than 20% of the recipient’s non-highly
compensated work force.


 


1.38         LIMITATION
YEAR


The
term Limitation Year means the Plan Year.


 


1.39         MATCHING
CONTRIBUTION


The
term Matching Contribution means an Employer contribution made to this or any
other defined contribution plan on behalf of a Participant on account of
Voluntary Employee Contributions made by such Participant, or on account of a
Participant’s Elective Deferral, under a Plan maintained by the Employer.


 


1.40         MATCHlNG
CONTRIBUTION ACCOUNT


The
term Matching Contribution Account means the sub-account of a Participant’s
Account to which Matching Contributions are credited.


 


1.41         MATERNITY
OR PATERNITY LEAVE


The
term Maternity or Paternity Leave means that an
Employee is absent from work
because of the Employee’s pregnancy; because of the birth of the Employee’s
child; because of the placement of a child with the Employee in connection with
the adoption of such child by the Employee; or because of the need to care for
such child for a period beginning immediately following the child’s birth or
placement as set forth above.


 


1.42         NHCE


The
term NHCE means a Non-Highly Compensated Employee.


 


1.43         NON-ELECTIVE
CONTRIBUTIONS


The term Non-Elective Contribution means
an Employer contribution other than a Matching Contributions or a QMAC that the
Participant may not elect to receive in cash until such contributions are
distributed from the Plan.


 


1.44         NON-ELECTIVE
CONTRIBUTION ACCOUNT


The
term Non-Elective Contribution Account means the sub-account of a Participant’s
Account to which Non-Elective Contributions are credited.


 


1.45         NON-HIGHLY COMPENSATED EMPLOYEE


The term Non-Highly Compensated Employee means
any Employee who is not a
Highly Compensated Employee.


 


1.46         NON-KEY EMPLOYEE


The
term Non-Key Employee means any Employee who is not a Key Employee.


 


1.47         NORMAL RETIREMENT AGE


The
term Normal Retirement Age means the later of the date a Participant reaches
Age 65 or the date the Participant completes at least five
Years of Service. There is no mandatory retirement age.


 


21

















 


1.48         NORMAL RETIREMENT DATE


The
term Normal Retirement Date means the date a
Participant reaches Normal Retirement Age.


 


1.49         OWNER-EMPLOYEE


The
term Owner-Employee means (1) in the case of an Employer or Affiliated Employer
which is an unincorporated trade or business, an individual who owns the entire
interest in such Employer or Affiliated Employer; and (2) in the case of an Employer or Affiliated Employer which is a partnership, an individual who owns
more than 10% of either the capital interest or the profit interest in such
Employer or Affiliated Employer.


 


1.50         PARTICIPANT


The
term Participant means any Employee who has met the eligibility and
participation requirements of the Plan. However, an individual who is no longer
an Employee will not be deemed a Participant if his or her entire Plan benefit
(a) is fully guaranteed by an insurance company and is legally
enforceable at the sole choice of such individual against such insurance
company, provided that a contract, Policy, or certificate describing the
benefits to which such individual is entitled under the Plan has been issued to
such individual; or (b) is paid in a lump sum distribution which represents
such individual’s entire interest in the Plan; or (c) is paid in some other
form of distribution and the final payment thereunder has been made.


 


1.51         PARTICIPANT’S ACCOUNT


The
term Participant’s Account means the account to which is credited a Participant’s
share of Employer contributions, Forfeitures (if any) that are allocated under
Section 3.4, investment earnings or losses allocated under Section 3.3, and the
proceeds of insurance Policies (if any) that are purchased on a Participant’s
life under Section 7.13. Each Participant’s Account will be divided into the
following Employer contribution sub-accounts for accounting purposes: the
Elective Deferral Account, and if applicable, the Matching Contribution
Account, the Qualified Matching Contribution Account, the Non-Elective
Contribution Account, the Qualified Non-Elective Contribution Account, the Safe
Harbor Contribution Account, and any other sub-accounts as the Administrator
may determine necessary from time to time.


 


1.52         PERMISSIVE AGGREGATION GROUP


The
term Permissive Aggregation Group means a Required Aggregation Group plus any
Employer plan(s) which when considered as a group with the Required Aggregation
Group would continue to satisfy Code §401(a)(4) and $410.


 


1.53         PLAN


The
term Plan means this plan and trust agreement, which is named the Premier
Commercial Bank, N.A. Employees’ Retirement Plan and
Trust.


 


1.54         PLAN YEAR


The
term Plan Year means the Plan’s accounting year beginning January 1st and
ending the following December 31st.


 


22

















 


1.55         POLICY


The
term Policy means a life insurance policy or annuity contract purchased
pursuant to the provisions of Section 7.13 of the Plan.


 


1.56         QMAC


The
term QMAC means a Qualified Matching Contribution.


 


1.57         QNEC


The
term QNEC means a Qualified Non-Elective Contribution.


 


1.58         QUALIFIED
JOINT AND SURVIVOR ANNUITY


The
term Qualified Joint and Survivor Annuity means an immediate annuity for the
life of the Participant with a survivor benefit for the life of the Participant’s
Spouse that is not less than 50% or more than 100% of the annuity payable
during the joint lives of the Participant and his or her Spouse and is the
benefit that can be purchased with the Participant’s Vested Aggregate Account.
The survivor benefit will be 50% unless a higher percentage is elected by the
Participant.


 


1.59         QUALIFIED MATCHING CONTRIBUTION


The
term Qualified Matching Contribution means a Matching Contribution that (a) is
used for the purpose of satisfying the ADP Test or the ACP Test; (b) a
Participant may not elect to receive in cash until distributed from the Plan;
and (c) is subject to the distribution and nonforfeitability requirements of
Code §401(k) when made to the Plan.


 


1.60         QUALIFIED NON-ELECTIVE CONTRIBUTION


The
term Qualified Non-Elective Contribution means a contribution (other than a
Matching Contribution or a Qualified Matching Contribution) that is made by the
Employer that (a) is used for the purpose of satisfying the ADP Test or the ACP
Test; (b) a Participant may not elect to receive in cash until distributed from
the Plan; and (c) is subject to the distribution and nonforfeitability
requirements of Code §401(k) when made to the Plan. Qualified Non-Elective
Contributions may be considered in determining the Top Heavy Minimum
Contribution under Section 3.5. For any Plan Year in which the Employer elects
Current Year Testing under Sections 1.2 and/or 1.10, in lieu of distributing
Excess Contributions under Section 5.19 or Excess Aggregate Contributions under
Section 5.20, the Employer may make a Qualified Non-Elective Contribution on
behalf of Participants in an amount sufficient to satisfy the ADP Test and/or
the ACP Test, to the extent permitted in Sections 1.2 and 1.10.


 


1.61         QUALIFIED
PRERETIREMENT SURVIVOR ANNUITY


The
term Qualified Preretirement Survivor Annuity means a survivor annuity for the
life of a deceased Participant’s surviving Spouse that is equal to the amount
of benefit that can be purchased by 50% of the deceased Participant’s Vested
Aggregate Account balance determined at the date of death. In determining a
Participant’s Vested Aggregate Account balance for purposes of this Section,
any security interest held by the Plan because of a loan outstanding to the
Participant will be taken into consideration.


 


23

















 


1.62         REQUIRED
AGGREGATION GROUP


The
term Required Aggregation Group means (a) each qualified deferred compensation
Plan of the Employer in which at least one Key Employee participates or
participated at any time during the determination period (regardless of whether
the plan has terminated), and (b) any other qualified deferred compensation
plan of the Employer which enables a plan described in (a) to meet the
requirements of Code §401(a)(4) or §410.


 


1.63         REQUIRED
BEGINNING DATE


The
term Required Beginning Date means, for Plan Years beginning on or after
January 1, 1997, for a Participant who is not a 5% owner, April 1st of the
calendar year following the later of the calendar year in which the Participant
reaches Age 701⁄2 or the calendar
year in which the Participant actually retires. For a Participant who is a 5%
owner, the term Required Beginning Date means April 1st of the calendar year
following the calendar year in which the Participant reaches Age 701⁄2. A
Participant will be treated as a 5% owner if he or she is a 5% owner as defined in Code §416 at
any time during the Plan Year ending with or within the calendar year in which
such Participant reaches Age 701⁄2. Once distributions have begun to a 5% owner, they must continue even if
the Participant ceases to be a 5% owner in a subsequent year. Notwithstanding
the foregoing to the contrary, however, a Participant may have a later Required
Beginning Date determined as follows:


 


(a)           Elimination Of Pre-Retirement Age 701⁄2 Distribution Option: The
pre-retirement Age 701⁄2 distribution option will only be eliminated for
Employees who reach Age 701⁄2 in or after a calendar year that begins after the
later of December 31, 1998, or the adoption date of this amended Plan. The
pre-retirement Age 701⁄2 distribution option is an optional form of benefit under
which benefits payable in a particular distribution form (including any
modifications that may be elected after benefit commencement) begin at a time
during the period that begins on or after January 1st of the calendar year in
which an Employee reaches Age 701⁄2 and ends April 1 of the immediately following
calendar year.


 


(b)           Election To Defer: If the Administrator offered an election to defer
distributions, a Participant who is not a 5% owner who reaches Age 701⁄2 in years
after 1995 and who made the election by April 1st of the calendar year
following the year in which he or she reached Age 701⁄2 (or by December 31, 1997
in the case of a Participant who reached Age 701⁄2 in 1996) may defer
distribution until the calendar year following the calendar year in which his
or her retirement occurs. If the Administrator does not offer such an election,
or if the election is offered but not made, the Participant will begin
receiving distributions by April 1st of the calendar year following the year in
which he or she reaches age 701⁄2 (or by December 31, 1997 in the case of a
Participant who reached Age 701⁄2 in 1996).


 


(c)           Election To Suspend: If the Administrator offered an election to
suspend distributions, a Participant who is not a 5% owner who reaches Age 701⁄2
prior to 1997 and who made the election may stop distributions and recommence
by April 1st of the calendar year


 


24

















 


following
the year in which the Participant actually retires. In such an event, the
Administrator may, on a uniform non-discriminatory basis, elect that a new
Annuity Starting Date will begin upon the distribution recommencement date.


 


1.64         ROLLOVER
ACCOUNT


The
term Rollover Account means the account to which a Participant’s Rollover Contributions
(if permitted under

Section 3.4) are allocated. A Participant will at all times have a 100% Vested
Interest in all amounts credited to his or her Rollover Account.


 


1.65         ROLLOVER
CONTRIBUTION


The
term Rollover Contribution means an amount transferred to this Plan (a) in a
trustee to trustee transfer from another qualified plan; (b) from another
qualified plan as a distribution eligible for tax free rollover treatment and
which is transferred by the Participant to this Plan within 60 days following
his receipt thereof; (c) from a conduit individual retirement account if the
only assets therein were previously distributed to the Participant by another
qualified plan as a distribution eligible for a tax free rollover within 60
days of receipt thereof and earnings on the assets; or (d) from a conduit
individual retirement account meeting the requirements of (a) and transferred
to this Plan within 60 days of receipt thereof. Any amount that is transferred
to this Plan under clause (b) above from another qualified retirement plan
which at the time of transfer was not subject to the Qualified Joint and
Survivor Annuity and Qualified Pre-retirement Survivor Annuity requirements of
Code §401(a)(11), or which is transferred to this Plan under clauses (c) or (d)
above from a conduit individual retirement account, will not at any time be
subject to the spousal consent requirements as set forth in Section 5.8.


 


1.66         SAFE
HARBOR CONTRIBUTION ACCOUNT


The
term Safe Harbor Contribution Account means the sub-account of a Participant’s
Account to which is credited any Employer “safe harbor” contributions that are
made to the Plan pursuant to the provisions of Section 3.6.


 


1.67         SELF-EMPLOYED INDIVIDUAL


The
term Self-Employed Individual means anyone who owns an interest (other than
stock) in the Employer and has Earned Income for the Plan Year or who would
have had Earned Income but for the fact the Employer had no net profits for the
Plan Year.


 


1.68         SHAREHOLDER-EMPLOYEE


The
term Shareholder-Employee means, in the case of an Employer or Affiliated
Employer which is an electing small business corporation, an individual who is
an employee or officer of such electing small business corporation and owns, or
is considered as owning within the meaning of Code §318(a)(1), on any day
during the taxable year of such corporation, more than 5% of the outstanding
stock of the corporation.


 


1.69         SPONSOR


The
term Sponsor means the Premier Commercial Bank, N.A. (and any successor thereto
that elects to assume sponsorship of this Plan).


 


25

















 


1.70         SPOUSE


The
term Spouse means the person to whom a Participant is legally married.


 


1.71         TERMINATION OF EMPLOYMENT


The
term Termination of Employment means that a Participant has ceased to be an
Employee for reasons other than retirement, death, or Disability.


 


1.72         TERMINATED PARTICIPANT


The
term Terminated Participant means a Participant who has ceased to be an
Employee for reasons other than retirement, death or Disability.


 


1.73         TOP HEAVY


The
term Top Heavy means for any Plan Year beginning after December 31, 1983 (a)
that the Top Heavy Ratio exceeds 60% and the Plan is not part of a Required
Aggregation Group or Permissive Aggregation Group; or (b) that the Plan is a part of a Required Aggregation
Group but not a Permissive Aggregation Group and the Top Heavy Ratio for the
group exceeds 60%; or (c) that the Plan is a part of a Required Aggregation
Group and a Permissive Aggregation Group and the Top Heavy Ratio for the
Permissive Aggregation Group exceeds 60%.


 


1.74         TOP HEAVY MINIMUM ALLOCATION


The
term Top Heavy Minimum Allocation means an amount of Employer contributions and
Forfeitures equal to 3% of an Employee’s Compensation (or such higher or lesser
percentage of Compensation as may otherwise be indicated in Section 3.5).


 


1.75         TOP HEAVY RATIO


In
determining if this Plan is Top Heavy or Super Top Heavy, the Top Heavy Ratio
will be determined in accordance with the following provisions:


 


(a)           Rule 1: If the Employer maintains one or more defined contribution
plans (including any simplified employee pension plans) and has not maintained
any defined benefit plan which during the 5-year period ending on the Determination
Date had accrued benefits, the Top Heavy Ratio for this Plan alone or for the
Required or Permissive Aggregation Group is a fraction, the numerator of which
is the sum of the account balances of all Key Employees as of the Determination
Date (including any part of any account balance distributed during the 5-year
period ending on the Determination Date), and the denominator of which is the
sum of the account balances (including any part of any account balance
distributed during the 5-year period ending on the Determination Date)
determined under Code §416 and the regulations thereunder. Both the numerator
and the denominator of the Top Heavy Ratio will be increased to reflect any
contribution that are not actually made as of the Determination Date but that
are required to be taken into account under Code §416 and the regulations
thereunder.


 


(b)           Rule 2: If the Employer maintains one or more defined contribution
plans (including a simplified employee pension plan) and maintains or has
maintained one or more defined benefit plans which during


 


26

















 


the
5-year period ending on the Determination Date has had any accrued benefits,
the Top Heavy Ratio for any Required or Permissive Aggregation Group is a fraction,
the numerator of which is the sum of account balances under the aggregated
defined contribution plans for all Key Employees determined in accordance with
paragraph (a) above, and the present value of accrued benefits under the
aggregated defined benefit plans for all Key Employees as of the Determination
Date, and the denominator of which is the sum of the account balances under the
aggregated defined contribution plans for all Participants, determined in
accordance with paragraph (a), and the present value of accrued benefits under
the aggregated defined benefit plans for all Participants as of the
Determination Date, all determined under Code §416 and the regulations
thereunder. The accrued benefits under a defined benefit plan in both the
numerator and denominator of the Top Heavy Ratio are increased for any
distribution made in the 5-year period ending on the Determination Date.


 


(c)           Rule 3: For purposes of paragraphs (a) and (b), the value of account
balances and the present value of accrued benefits will be determined as of the
most recent Valuation Date that falls within or ends with the 12-month period
ending on the Determination Date, except as provided in Code §416 and the
regulations thereunder for the first and second Plan Years of a defined benefit
plan. The account balances and accrued benefits will be disregarded for a
Participant who (1) is not a Key Employee but who was a Key Employee in a prior
year or (2) has not been credited with at least 1 Hour of Service with any
Employer maintaining the Plan at any time during the 5-year period ending on
the Determination Date. The calculation of the Top Heavy Ratio and the extent
to which distributions, rollovers, and transfers are taken into account will be
made in accordance with Code §416 and the regulations thereunder. When
aggregating plans, the value of accounts and accrued benefits will be
calculated with reference to the Determination Date that falls within the same
calendar year. The accrued benefit of a Participant other than a Key Employee
will be determined under (1) the method, if any, that uniformly applies for
accrual purposes under all defined benefit plans maintained by the Employer, or
(2) effective as of the first Plan Year beginning after December 31, 1986, if
there is no such method, as if such benefit accrued not more rapidly than the
slowest accrual rate permitted under the fractional rule of Code §411(b)(1)(C).
Deductible employee contributions will not be taken into account in determining
the Top Heavy Ratio.


 


(d)           Definition Of Determination Date: In determining the Top Heavy Ratio,
the term Determination Date means the last day of the preceding Plan Year
except for the first Plan Year when the Determination Date means the last day
of such first Plan Year.


 


1.76         TRUSTEE


The
term Trustee means the person(s) or entity named as trustee or trustees in this
Plan, or in any superceding trust under Section 7.16, and any successor to such
Trustee or Trustees.


 


27

















 


1.77                           TRUST FUND


The term Trust Fund or Trust means the assets of the Plan.


 


1.78                           VALUATION DATE


Except as otherwise provided in paragraph (c) of the definition of
Top Heavy Ratio, the term Valuation Date means the date on which the Trustee
determines the value of the Trust Fund. The Trust Fund must be valued at least annually as of the last day
of the Plan Year, but the Administrator can elect to have all or any portion of
the assets of the Trust Fund valued more frequently, including, but not limited
to, semi-annually, quarterly, monthly, or daily.


 


1.79                           VESTED AGGREGATE ACCOUNT


The term Vested Aggregate Account means the aggregate amount in a
Participant’s Account, Rollover Account (if any), Voluntary Employee
Contribution Account (if any), and any other accounts as the Administrator may determine
necessary from time to time, in which the Participant has a Vested Interest.


 


1.80                           VESTED, VESTED INTEREST or VESTING


The terms Vested, Vested Interest, and Vesting mean a Participant’s
nonforfeitable percentage in an account maintained on his or her behalf under
the terms of the Plan. A Participant’s Vested Interest in his or her
Participant’s Account will be determined under the provisions of Section 4.6.


 


1.81                           VOLUNTARY EMPLOYEE CONTRIBUTION


The term Voluntary Employee Contribution means a non-deductible
contribution made to the Plan by a Participant.


 


1.82                           VOLUNTARY EMPLOYEE CONTRIBUTION ACCOUNT


The term Voluntary Employee Contribution Account means the account to
which a Participant’s Voluntary Employee Contributions are allocated. A
Participant will at all times have a 100% Vested Interest in all amounts
credited to his or her Voluntary Employee Contribution Account.


 


1.83                           YEAR OF SERVICE


The term Year of Service means a 12-consecutive month computation
period during which an Employee (or Participant) completes a specified number
of Hours of Service for either the Employer or an Affiliated Employer (or any
business entity which was an Adopting Employer), determined in accordance with
the following provisions:


 


(a)                                  Employment Commencement Date: As used in this
Section, the term Employment Commencement Date means the first day on which an
Employee performs an Hour of Service for the Employer or an Affiliated
Employer; and the term Reemployment Commencement Date means the first day
following a Break in Service on which an Employee performs an Hour of Service
for the Employer or an Affiliated Employer.


 


28

















 


(b)                                 Year Of Service For Eligibility: In any Plan
Year in which the eligibility requirements under Section 2.1 are based on
Years of Service, (1) a Year of Service is a l2-consecutive month period
during which an Employee is credited
with at least 1,000 Hours of Service; and (2) an Employee’s initial
eligibility computation period will begin on the date he or she is first
credited with an Hour of Service (the Employment Commencement Date). The second
eligibility computation period will begin on the first day of the Plan Year
that begins prior to the first anniversary of the Employee’s Employment Commencement
Date regardless of whether the Employee is credited with at least 1,000 Hours
of Service during the initial computation period. If the Employee is credited
with at least 1,000 Hours of Service in both the initial eligibility
computation period and in the second eligibility computation period, the
Employee will be credited with two Years of Service for eligibility purposes.
If any such Plan Year is less than 12 months, the 1,000 Hours of Service
requirement set forth herein will be proportionately reduced.


 


(c)                                  Year Of Service For Vesting: In any Plan Year
in which a Participant’s Vested Interest under Section 4.6 is based on
Years of Service, (1) a Year of Service is a 12-consecutive month period
during which an Employee is credited with at least 1,000 Hours of Service; and (2) the
Vesting computation period will be the Plan Year. If any such Plan Year is less
than 12 consecutive months and the Hours of Service requirement set forth
herein is greater than one, such requirement will be proportionately reduced.


 


(d)                                 Prior Service Credit: An Employee will not
receive credit for Years of Service with any other entity for any purpose under
the terms of this Plan except as otherwise set forth herein with respect to an
Affiliated Employer or an Adopting Employer.


 


(e)                                  Reemployment Before A Break In Service: If an
Employee terminates employment but is re-employed by the Employer before
incurring a Break in Service, his or her Years of Service and his or her employment
will not be deemed to have been interrupted during such Plan Year and, if he or
she was a Participant in the Plan (or otherwise satisfied the requirements for
participation specified in Section 2.1), such Employee will remain (or
become) a Participant immediately upon his or her re-employment by the
Employer. If an Employee was not a Participant in the Plan but otherwise
satisfied the requirements for participation specified in the Plan, he or she
will become a Participant on the later of the date the Employee would have
entered the Plan had he or she not terminated employment with the Employer, or
upon the Employee’s Reemployment Commencement Date.


 


(f)                                    Reemployment After A Break In Service: If an
Employee terminates employment and is re-employed by the Employer or an
Affiliated Employer after incurring a Break in Service, Years of Service completed
prior to the Break in Service will be counted, subject to the following
provisions:


 


29

















 


(1)                                  Years Of Service For Eligibility: For
eligibility purposes, if such Employee did not have a Vested Interest in his or
her Participant’s Account before the Break in Service and the number of the
Employee’s consecutive Breaks in Service equals or exceeds the greater of five
or the aggregate number of Years of Service, Years of Service that were
completed prior to the Break in Service will not be counted. The aggregate
number of Years of Service will not include any Years of Service previously
disregarded hereunder by reason of prior Breaks in Service. If such former
Employee’s Years of Service are disregarded under this paragraph, he or she
will be treated as a new Employee for eligibility purposes.


 


(2)                                  Years Of Service For Purposes Other Than
Eligibility: For all purposes other than eligibility, if the Employee has
incurred 5 consecutive Breaks in Service, Years of Service completed prior to
such 5 consecutive Breaks in
Service will not be counted if the Employee did not have a Vested Interest in
his or her Participant’s Account and the number of consecutive Breaks in Service
equals or exceeds the aggregate number of Years of Service before such period.


 


(3)                                  Entry Or Reentry Into The Plan: If such
Employee was a Participant before incurring the Break in Service, such Employee
will be reinstated as a Participant upon his or her Reemployment Commencement
Date. If the Employee was not a Participant before incurring the Break in
Service but (A) had satisfied the eligibility requirements set forth in Section 2.1,
such Employee will enter the Plan as a Participant on the later of his or her
Reemployment Commencement Date or the date the Employee would have entered the
Plan had he or she not terminated employment with the Employer; or (B) had
not satisfied the eligibility requirements set forth in Section 2.1, such
Employee will be eligible to enter the Plan as a Participant after satisfaction
of any such eligibility requirements, in which event the Employee will enter
the Plan as a Participant on the applicable entry date set forth in Section 2.2.
In all events, the Employee will receive credit for all Years of Service that
were completed prior to the Break in Service.


 


(4)                                  Re-Entry For Purposes Of Making Deferrals:
Notwithstanding the preceding subparagraph, such Employee, solely for the purpose
of making Elective Deferrals, will re-enter the Plan immediately upon
re-employment.


 


(g)                                 Ignoring Service For Eligibility If More Than
One Year Is Required: If this Plan at any time provides in Section 2.1
that an Employee must complete more than either one Year of Service or 12
months of service for eligibility purposes and provides in Section 4.6
that an Employee will have a 100% Vested Participant’s Account upon entering
the Plan as a Participant, then the Years of Service of an Employee who incurs
a Break in Service before satisfying such eligibility requirement will not be
counted for eligibility purposes.


 


30

















 


ARTICLE 2


PLAN PARTICIPATION


 


2.1                                 ELIGIBILITY REQUIREMENTS


Any Employee who is in an eligible class of Employees as described
in paragraphs (a), (b) and (c) below, and who for purposes of this Article 2 is hereafter referred to as an
Eligible Employee, will become eligible to enter the Plan as a Participant on
the applicable entry date described in Section 2.2 in accordance with the
following provisions:


 


(a)                                  Eligibility For Elective Deferrals: The
eligibility requirements for the purpose of making Elective Deferrals to the
Plan are as follows:


 


(1)                                  General Eligibility Requirements: For the
purpose of making Elective Deferrals only, an Eligible Employee described in
subparagraph (2) will enter the Plan as a Participant on the applicable
entry date in Section 2.2 upon reaching Age 21 and completing 1 Year of
Service. An Employee will be deemed to have completed a Year of Service on the
last day of the applicable eligibility computation period during which the
Employee is credited with 1,000 Hours of Service.


 


(2)                                  Eligible Classes Of Employees: For the
purpose of making Elective Deferrals, all Employees are eligible to participate
in the Plan upon satisfying the eligibility requirements in subparagraph (1) except
for the following ineligible
classes of Employees: (1) Employees whose employment is governed by the
terms of a collective bargaining agreement between Employee representatives and
the Employer in which retirement benefits were the subject of good faith
bargaining, unless such agreement expressly provides for the inclusion of such
Employees as Participants in the Plan; and (2) Employees who are non-resident
aliens who do not receive any earned income from the Employer which constitutes
income from sources within the United States.


 


(b)                                 Eligibility For Matching Contributions:
Matching Contributions are not currently permitted under the terms of the Plan.


 


(c)                                  Eligibility For Non-Elective Contributions: The
eligibility requirements for the purpose of receiving an allocation of Non-Elective
Contributions are the same eligibility requirements in paragraph (a) above
for the purpose of making Elective Deferrals.


 


(d)                                 Participation By Employees Whose Status
Changes: If an Employee who is not an Eligible Employee under paragraphs (a), (b) or
(c) above becomes an Eligible Employee thereunder, such Employee will participate
in the Plan immediately solely for the purpose set forth therein if he or she
satisfies the eligibility requirements set forth in such paragraph and would
have previously become a Participant for the purpose set forth in such
paragraph had he or she been an Eligible Employee under such paragraph. The
participation of a Participant who becomes a member of an ineligible class will
be suspended, and


 


31

















 


such Participant will be entitled to an allocation of Employer
contributions and Forfeitures for the Plan Year only to the extent of Hours of
Service completed while an Eligible Employee. Upon returning to an eligible class of
Employees, a suspended Participant will immediately participate again in the
Plan. The Vested Interest of an Employee who ceases to be an Eligible Employee
will continue to increase in accordance with Section 4.6.


 


(e)                                  Participation By Former Participants: A
Participant who terminates employment with the Employer for any reason but who
is reemployed as an Eligible
Employee will again become a Participant in the Plan as provided in the
definition of Year of Service.


 


2.2                                 ENTRY DATE


An Eligible Employee who has satisfied the eligibility requirements set
forth in Section 2.1 will enter the Plan as a Participant in accordance
with the following provisions:


 


(a)                                  Entry Date For Elective Deferrals: In order to
make Elective Deferrals, an Eligible Employee described in Section 2.1(a)(2) who
satisfies the eligibility requirements in Section 2.1(a)(1) will
enter the Plan as a Participant on the January 1st, April 1st, July 1st
or October 1st that coincides with or next follows the date on which the
Employee first satisfies such eligibility requirements.


 


(b)                                 Entry Date For Matching Contributions:
Matching Contributions are not currently permitted under the terms of this Plan


 


(c)                                  Entry Date For Non-Elective Contributions: For
the purpose of receiving an allocation of Non-Elective Contributions, an
Eligible Employee who satisfies the eligibility requirements set forth in Section 2.1(c) will
enter the Plan as a Participant on the applicable entry date set forth in
paragraph (a) above.


 


2.3                                 WAIVER OF PARTICIPATION


Employees who have satisfied the eligibility requirements set forth in Section 2.1
are not permitted to waive participation in the Plan.


 


2.4                                 PARTICIPATION UPON REEMPLOYMENT


If an Employee terminates employment and is re-employed by the Employer
or an Affiliated Employer, his or her Years of Service for purposes of
eligibility (as well as the time such Employee enters or re-enters the Plan as
a Participant) will be determined in accordance with the rules described
in the definition of Years of Service.


 


2.5                                 EXCLUSION OF ELIGIBLE EMPLOYEE


If any Employee who should have been included as a Participant is
erroneously excluded from the Plan in any Plan Year and discovery of such
omission is not made until after a contribution for that Plan Year has been
allocated, the Employer will correct the omission so that the omitted Employee
receives the same amount which the Employee would have received had he or she
not been omitted. Such omission can be corrected by one or more of the
following methods: (a) by making an additional


 


32

















 


contribution to the Plan on behalf of the omitted Employee; (b) by
allocating any available Forfeitures on behalf of the omitted Employee; and/or (c) by
any other method of correction permitted under Revenue Procedure 2000-16 or any
subsequent Revenue Procedure or guidance issued by the Internal Revenue
Service.


 


2.6                                 INCLUSION OF INELIGIBLE EMPLOYEE


If any person who should not have been included as a Participant is erroneously
included in any Plan Year and discovery of that incorrect inclusion is not made
until after a contribution for that Plan Year has been allocated, and such
ineligible Employee has not received a distribution of the amount erroneously
allocated to him or her, then the amount erroneously contributed with respect
to the ineligible Employee cannot be refunded to the Employer and will be
applied as a Forfeiture (other than Elective Deferrals, which will be
distributed to the ineligible Employee) for the Plan Year in which the error is
discovered.


 


33

















 


ARTICLE 3


CONTRIBUTIONS AND ALLOCATIONS


 


3.1                                 EMPLOYER CONTRIBUTIONS


Each Plan Year the Employer will make a contribution to the Plan, the
amount of which will be determined in accordance with the following provisions:


 


(a)                                  Elective Deferrals: Effective January 1,
2002, each Participant may enter into a Salary Deferral Agreement
authorizing the Employer to withhold a percentage of the Participant’s
Compensation as an Elective Deferral. The amount of each Participant’s Elective
Deferral for any Plan Year will be determined in accordance with the following
provisions, subject to any limitations thereon that may be imposed by the
Administrator:


 


(1)                                  Deferral Percentage: For each contribution period,
a Participant may elect that up to 100% of his or her Compensation
received during the contribution period be withheld as an Elective Deferral.
Elective Deferrals may be made in whole percentages of Compensation or in
specific dollar amounts as designated by the Participant. The Administrator will
have the right to direct that such percentages of Compensation be rounded to
the next highest or lowest dollar. Furthermore, on a uniform nondiscriminatory
basis, the Administrator may permit a Participant to identify separate
components of the Participant’s Compensation (such as base salary, bonuses,
etc.) and to specify that a different percentage (or dollar amount) apply to
each such component.


 


(2)                                  Annual Dollar Limitation: The actual dollar
amount withheld during the course of a Plan Year under subparagraph (1) cannot
exceed the lesser of (A) the maximum dollar amount permitted for that Plan
Year under Code §402(g)(5), or (B) the maximum amount permitted for that Plan
Year under subparagraph (1).


 


(3)                                  Deferral Election With Respect To Bonuses And
Severance: On a uniform nondiscriminatory basis, and subject to the limits
set forth in subparagraph (2) above, the Administrator may permit a
Participant to make an election to defer up to 100% of (A) Compensation
received as a bonus that is paid after the end of the Plan Year for which the
bonus is payable, but which is not paid more than two and one-half months after
the last day of the Plan Year; and (B) Compensation received as severance
pay provided such Compensation is received in a single lump sum payment. Severance
pay that is received in the form of installment payments is not eligible
for Elective Deferrals under this Plan.


 


(4)                                  Salary Reduction Agreement: In accordance with
such procedures as may be specified by the Administrator, each Participant
will complete a Salary Deferral Agreement on a


 


34

















 


form made available by, and filed with, the Administrator. A
Participant may, in accordance with those procedures, (A) amend the
agreement to increase or decrease the percentage being withheld; and (B) suspend
or cancel the agreement. If a Participant cancels or suspends the agreement,
the Participant will not be permitted to put a new agreement into effect until
such time as set forth in the procedures established by the Administrator. If
necessary to insure that the Plan satisfies the ADP Test, the Administrator may also
amend or terminate a Participant’s agreement on written notice to the
Participant.


 


(5)                                  Participant Election To Defer Up To 100% Of Compensation: On a uniform nondiscriminatory
basis, the Administrator may permit a Participant whose Salary Deferral
Agreement has not authorized the Employer to withhold at the maximum rate permitted
under subparagraph (1) to increase the total amount withheld for a Plan
Year to the maximum rate permitted under subparagraph (1), in which event the
Participant may authorize the Employer to withhold a supplemental amount
up to 100% of his or her eligible Compensation for one or more pay periods. In
no event can the sum of the amount withheld under the Salary Deferral Agreement
plus the supplemental withholding exceed the lesser of (A) the maximum
amount permitted under subparagraph (1) above; or (B) the maximum
dollar amount permitted for that Plan Year under Code §402(g)(5); or (C) 25% of the Participant’s Code §415 Compensation for that Plan Year.


 


(6)                                  Elective Deferrals Must Satisfy
ADP Test: All Elective Deferrals made for a Plan Year must satisfy the ADP
Test. Elective Deferrals that exceed the Code §402(g)(5) dollar limitation
will be deemed Excess Elective Deferrals and will be returned under Section 5.18.
Elective Deferrals that do not satisfy the ADP Test will be deemed Excess
Contributions and will be returned under Section 5.19.


 


(7)                                  Elective Deferrals Made By Ineligible
Participants: Elective Deferrals made by a Participant who has incurred a Break
in Service but has not terminated employment will be
returned to the Participant.


 


(8)                                  Payroll Deduction Authorization:
An Elective Deferral will constitute a payroll deduction authorization for
purposes of applicable state law.


 


(b)                                 Matching Contributions: Matching
Contributions are not currently permitted.


 


(c)                                  Non-Elective Contributions: Each Plan Year,
the Employer in its sole discretion may make a Non-Elective Contribution
on behalf of each Allocation Group set forth in Section 3.2(c) and will
notify the Trustee in writing of the amount contributed. The amount of the
Non-Elective Contribution will be determined by the Employer, and the Employer will
notify the Trustee in writing of the amount contributed. Non-


 


35

















 


Elective Contributions will be made to the Plan subject to the
following provisions:


 


(1)                                  Employer’s Determination Is Final: The
Employer’s determination of the amount of its Non-Elective Contribution will be
binding on the Trustee, the Administrator and all Participants and may not
be reviewed in any manner.


 


(2)                                  Limitations on Amount Of Contribution: No
Non-Elective Contribution will be made for any Participant who is not an Eligible
Participant unless otherwise required under subparagraph (3) below or
under Section 3.5.


 


(3)                                  Contribution for Mistakenly Excluded Employee:
If an Employee should have been included as a Participant in the Plan but is mistakenly excluded for any reason,
the omission will be corrected as specified in Section 2.5.


 


(4)                                  Cash or Deferred Option: The Employer may in
any Plan Year elect to treat up to 100% of the Non-Elective Contribution made for
that Plan Year as a “cash or deferred contribution”. In such event, each
Eligible Participant can elect to receive in cash up to such maximum percentage
of the Participant’s proportionate share of the cash or deferred contribution
as the Employer determines for that Plan Year. An Eligible Participant’s proportionate
share of the cash or deferred contribution is the percentage of the total cash
or deferred contribution which bears the same ratio that such Participant’s
Compensation as defined in Section 1.16(c) bears to the same
Compensation of all such Participants. Any amount a Participant elects not to receive
in cash will be treated as an Elective Deferral and will be allocated to the
Participant’s Elective Deferral Account. Each Plan Year in which the Employer
elects to treat a portion of the Non-Elective Contribution as a cash or
deferred contribution, the Administrator will notify all Participants of the
maximum percentage they can elect to take in cash.


 


(5)                                  Interaction With “Safe Harbor” Provisions:
For any Plan Year in which the Sponsor elects to make a “safe harbor”
Non-Elective Contribution that satisfies the requirements of Section 3.6,
all or a portion of any Non-Elective Contribution made by the Employer under
this Section may be applied for such purposes.


 


(d)                                 Qualified Matching Contributions: The Employer
may make a Qualified Matching Contribution each Plan Year in such amount
as the Employer, in its sole discretion, may determine. The Employer may also
elect to treat all or any portion of a Matching Contribution as a Qualified
Matching Contribution.


 


(e)                                  Qualified Non-Elective Contributions: The
Employer may elect to make a Qualified Non-Elective Contribution each Plan
Year in such amount as the Employer determines. The Employer may also
elect to


 


36

















 


treat as a Qualified Non-Elective Contribution all or any portion of a
Non-Elective Contribution not yet allocated under Section 3.2(c).


 


(f)                                    Contribution Period: Each Plan Year, any
contribution that is made under the terms of the Plan may, at the election of
the Administrator, be contributed to the Plan each payroll period; each month;
each Plan quarter; on an annual basis; or on any other less than annual contribution
period basis as determined by the Employer, provided such contribution period
does not discriminate in favor of Highly Compensated Employees. The Employer may elect
a different contribution period for each type of contribution.


 


(g)                                 Contribution Limitations: Notwithstanding
paragraphs (a), (b) and (c), (1) the sum of all Employer
contributions will not exceed the maximum amount deductible under Code §404 and
will not exceed the limitations set forth in Code §415; and (2) for Plan
Years beginning on or after January 1, 1997, if this Plan provides contributions
or benefits for Employees some or all of whom are Owner-Employees, such contributions
or benefits can only be provided with respect to the Earned Income of such
Owner-Employee which is derived from the trade or business with respect to
which the Plan is established.


 


(h)                                 Refund Of Contributions: Contributions made
to the Plan by the Employer can only be returned to the Employer in accordance
with the following provisions:


 


(1)                                  Failure To Initially Qualify: If the Plan
fails to initially satisfy the requirements of Code §401(a) and the
Employer declines to amend the Plan to satisfy such requirements, contributions
made prior to the date such qualification is denied must be returned to the
Employer within 1 year of the date of such denial, but only if the application
for the qualification is made
by the time prescribed by law for filing the Employer’s tax return for the
taxable year in which the Plan is adopted, or by such later date as the
Secretary of the Treasury may prescribe.


 


(2)                                  Contributions Made Under A Mistake Of Fact:
If a contribution is attributable in whole or in part to a good faith
mistake of fact, including a good faith mistake in determining the deductibility
of the contribution under Code §404, then an amount may be returned to the
Employer which is equal to the excess of the amount contributed over the amount
which would have been contributed had the mistake not occurred. Earnings
attributable to any such excess contribution will not be returned, but losses
attributable to the excess contribution will reduce the amount so returned.
Such amount will be returned within one year of the date the contribution was
made or the deduction disallowed, as the case may be.


 


(3)                                  Nondeductible Contributions: Except to the
extent an Employer may intentionally make a nondeductible contribution,
for example to correct an administrative error or restore a


 


37

















 


Forfeiture, any contribution by the Employer is conditioned on its
deductibility and will otherwise be returned to the Employer.


 


(i)                                     Form Of Contribution: The Employer’s
contribution (if any) may consist of (1) cash; (2) qualifying
employer securities or qualifying employer real property as defined in §407(d) of
ERISA, provided the acquisition of such qualifying employer securities or
qualifying real property securities satisfies the requirements of §408(e) of
ERISA; or (3) any other property that is permitted under Code §4975 and is
acceptable to the Trustee.


 


3.2                                 ALLOCATION OF EMPLOYER CONTRIBUTIONS


Subject to the Top Heavy allocation requirements under Section 3.5
and the Code §415 limitations of Article 6, each Eligible Participant’s
share of the various types of Employer contributions made under the Plan will
be allocated to his or her Participant’s Account in accordance with the
following provisions:


 


(a)                                  Elective Deferrals: Each Participant’s Elective
Deferrals contributed under Section 3.1(a) will be allocated to the
Participant’s Elective Deferral Account.


 


(b)                                 Matching Contributions: Matching
Contributions are not currently permitted.


 


(c)                                  Non-Elective Contributions: Non-Elective
Contributions contributed by the Employer under Section 3.1(c) on
behalf of each Allocation Group will be allocated on the last day of the Plan
Year (and on such other date or dates as
determined by the Administrator on a nondiscriminatory basis) to the Eligible Participants who are
members of those Allocation Groups. Any such allocation will be made subject to
the following provisions:


 


(d)


(1)                                  Allocation to Group 1: Group 1 consists of
the participant who is the President of the Sponsor. The contribution made for
Group 1 will be allocated by multiplying the Compensation of the Eligible
Participant by a specific percentage as selected by the Board of Directors for
each Plan Year and that is in compliance with the relevant Non-discrimination
Cross-Testing in relation to the benefit percentage provided for all other
tiered Groups.


 


(2)                                  Allocation To Group 2: Group 2 consists of
each Eligible Participant who is the Chief Executive Officer. The contribution
made for Group 2 will be allocated by multiplying it by the ratio that the
Compensation of each Eligible Participant who is a member of Group 2 bears to
the total Compensation of all Eligible Participants who are members of Group 2.


 


(3)                                  Allocation To Group 3: Group 3 consists of
each Eligible Participant who is an Office Manager. The contribution made for
Group 3 will be allocated by multiplying it by the ratio that the Compensation
of each Eligible Participant who is a member


 


38

















 


of Group 3 bears to the total Compensation of all Eligible Participants
who are members of Group 3.


 


(4)                                  Allocation To Group 4: Group 4 consists of each Eligible Participant who is the Chief
Financial Officer. The contribution made for Group 4 will be allocated by
multiplying it by the ratio that the Compensation of each Eligible Participant
who is a member of Group 4 bears to the total Compensation of all Eligible
Participants who are members of Group 4.


 


(5)                                  Allocation To Group 5: Group 5 consists of
each Eligible Participant who is on the Clerical Staff. The contribution made for
Group 5 will be allocated by multiplying it by the ratio that the Compensation
of each Eligible Participant who is a member of Group 5 bears to the total
Compensation of all Eligible Participants who are members of Group 5.


 


(6)                                  Allocation To Group 6: Group 6 consists of
all other Eligible Participants. The contribution made for Group 6 will be allocated
by multiplying it by the ratio that the Compensation of each Eligible
Participant who is a member of Group 6 bears to the total Compensation of all
Eligible Participants who are members of Group 6.


 


(7)                                  Failsafe Allocation: For each Plan Year
beginning on or after January 1, 2002 in which it is necessary for the
Plan to pass nondiscrimination testing on the basis of equivalent benefit rates
as provided under regulation §1.401(a)(4), the allocations made under this Section must
satisfy either the “broadly available test” described in subparagraph (A) or
one of the “gateway tests” described in subparagraph (B) or subparagraph (C) below.


 


(A)                              Broadly Available Test If Employer Does Not
Maintain A Defined Benefit Plan: To satisfy the “broadly available test”, each
Allocation Rate applicable to any Eligible Participant must be currently
available within the meaning of regulation §1.401(a)(4)-4(b)(2) to a group
of Employees and, were such group to be treated as a group of Employees covered
under a separate plan, such group of Employees must satisfy the requirements of
Code §410(b) without regard to the average benefit percentage test in
regulation §1.410(b)-5. For this purpose, if two allocation rates could be
permissively aggregated under regulation §1.401(a)(4)-4(d)(4), assuming the
allocation rates were treated as benefits, rights or features, then such
allocation rates may be aggregated and treated as a single allocation
rate. In addition, the disregard of age and service conditions described in
regulation §1.401(a)(4)-4(b)(2)(ii)(A) does not apply for purposes of this
subparagraph (A).


 


39

















 


(B)                                Gateway Test If The Employer Does Not
Maintain A Defined Benefit Plan: In order to satisfy the “gateway test” for any
Plan Year in which the Employer does not maintain a defined benefit plan that
also covers Participants covered in this Plan for any portion of the Plan Year,
the Allocation Rate for each Eligible Participant who is an NHCE for the Plan
Year must be equal to either (A) 5% of each such Eligible Participant’s
Code §415 Compensation; or (B) 33.33% of the highest Allocation Rate for
any Participant who is an HCE for the
Plan Year.


 


(C)                                If The Employer Does Maintain One Or More
Defined Benefit Plans: If the Employer maintains one or more defined benefit
plans that cover Participants in this Plan for any portion of a Plan Year, the
Administrator may elect to apply for such Plan Year either the procedure
set forth in subparagraph (i) or the procedure in subparagraph (ii), as
follows:


 


(i)                                     Election To Not Permissively Aggregate: The
Administrator may elect not to permissively aggregate this Plan and such
defined benefit plan or plans for purposes of satisfying the coverage tests of
Code §410(b) and the nondiscrimination tests of Code §401(a)(4), and
instead may elect to separately test each plan for such purposes. In such
event, either the “gateway test” in subparagraph (B) above or the “broadly
available test” of subparagraph (A) above will apply for this Plan.


 


(ii)                                  Election To Permissively Aggregate: The
Administrator may elect to permissively aggregate this Plan and such
defined benefit plan(s) for purposes of satisfying both the coverage tests of
Code §410(b) and the nondiscrimination tests of Code §401(a)(4),
in which event for such Plan Year such aggregated plans will be known as a “DB/DC
Plan” and will be subject to the requirements in subparagraphs (I) or (II)
below. Unless elected otherwise by the Administrator, this Plan and the defined
benefit plan(s) will not necessarily be considered a DB/DC Plan because the
plans are being aggregated solely to apply the average benefit ratio test in
regulation §1.410(b)-5. If a DB/DC Plan applies, nondiscrimination testing
under Code §401(a)(4) may be passed for this Plan and all defined
benefit plans of the Employer and Affiliated Employers either on the basis of
Aggregate Normal Allocation Rates, or at the option of the Administrator and
only if either of the exceptions in subparagraph (i) are satisfied or


 


40

















 


the “gateway test” conditions in subparagraph (ii) are satisfied,
on the basis of equivalent benefit rates under regulation §1.401(a)(4) (i.e.
normal accrual rates under the defined benefit plans and equivalent benefit
rates under the defined contribution plans):


 


(I)                                    “Broadly Available” Or “Primarily Defined Benefit”
Tests Are Satisfied: The requirements of this subparagraph (I) are deemed satisfied
if both the defined contribution plan components and the defined benefit plan components
of the DB/DC Plan are considered to be “broadly available” as defined in
subparagraph (A) above, or the DB/DC Plan is considered to be “primarily
defined benefit”. A DB/DC Plan is considered to be “primarily defined benefit”
if more than 50% of the Eligible Participants who are NHCEs for the Plan Year
have a normal accrual rate under the defined benefit plan or plans that exceeds
their equivalent benefit rates under the defined contribution plans.


 


(II)                                “Gateway Test” Is Satisfied: The requirements
of this subparagraph (II) are deemed satisfied if the “gateway test” for a DB/DC
Plan is satisfied, in which the Allocation Rate for each Eligible Participant who
is an NHCE for the Plan Year must be at least equal to the Aggregate Normal Allocation
Rate.


 


(8)                                  Definition Of Allocation Rate: The term
Allocation Rate means the percentage obtained by dividing (1) the total amount
of Employer contributions or reallocated Forfeitures that are allocated on the Participant’s
behalf under all defined contribution plans of the Employer or an Affiliated
Employer that are aggregated for nondiscrimination testing under Code §401(a)(4) (not
including any Matching Contributions if such plan or plans includes Elective Deferrals),
by (2) the Participant’s Compensation.


 


(9)                                  Aggregate Normal Allocation Rate:
The term Aggregate Normal Allocation Rate means the sum of the Allocation Rate
in the defined contribution plan(s) and the equivalent Allocation Rate in the
defined benefit plan(s) of the Employer or an Affiliated Employer that are
permissively aggregated to pass the coverage tests of Code §410(b) and the
nondiscrimination tests of Code §401(a)(4). Such Aggregate Normal Allocation
Rate for each Eligible Participant who is an NHCE for the Plan Year will equal the
percentage in subparagraphs (A), (B) or (C) below. At the


 


41

















 


discretion of the Administrator, the equivalent Allocation Rate for any
Plan Year under such defined benefit plan(s) for each Eligible Participant who
is an NHCE and who benefits
under the defined benefit plan(s) for the Plan Year may be deemed to be
equal to the average of the equivalent Allocation Rates under the defined
benefit plan(s) for all such Eligible Participants.


 


(A)                              33.33% Rate: If the highest Aggregate Normal
Allocation Rate of any Eligible Participant who is an HCE for the Plan Year is
less than 15%, then the Aggregate Normal Allocation Rate for each Eligible
Participant who was an NHCE for the Plan Year will be 33.33% of such highest Aggregate
Normal Allocation Rate; or


 


(B)                                5% Rate: If the highest
Aggregate Normal Allocation Rate of any Eligible Participant who is an HCE for the Plan Year is at
least 15% but is not greater than 25%,
then the Aggregate Normal Allocation Rate for each Eligible Participant
who was an NHCE during the Plan Year will be 5% of each such Eligible Participant’s Code §415 Compensation; or


 


(C)                                Rate Higher Than 5% To Maximum 7.5% Rate: If the highest Aggregate Normal
Allocation Rate of any Eligible Participant who is an HCE for the Plan Year is
greater than 25%, then the Aggregate Normal Allocation Rate for each Eligible
Participant who is an NHCE for the Plan Year will be equal to the sum of (A) 5%
of each such Eligible Participant’s Code §415 Compensation, plus (B) one
percentage point for each five percentage points (or portion thereof) that the
highest Aggregate Normal Allocation Rate of any Eligible Participant who is an
HCE for the Plan Year exceeds 25%. However, the maximum Aggregate Normal
Allocation Rate for each Eligible Participant who is an NHCE for the Plan Year
will not exceed 7.5% of each such Eligible Participant’s Code §415 Compensation.


 


(10)                            Determination Of Accrual And Allocation
Rates: The normal accrual rate and the equivalent normal allocation rate
attributable to defined benefit plans, the equivalent accrual rate attributable
to defined contribution plans, and the Aggregate Normal Allocation Rate are
determined under regulation §1.401(a)(4)(b)(2)(ii), but without taking into
account the imputation of permitted disparity under regulation §1.401(a)(4)-7,
except as otherwise permitted under regulation §1.401(a)(4)-9(b)(2)(v)(C).


 


(d)                                 Qualified Matching Contributions: Qualified
Matching Contributions contributed under Section 3.1(d) and any
Matching Contributions permitted and contributed under Section 3.1(b) that
are treated as QMACs will be allocated in accordance with the following
provisions to the Qualified Matching Contribution Account of each Participant


 


42

















 


for whom a Qualified Matching Contribution is made for the Plan Year:


 


(1)                                  Participants Eligible For Allocation: Qualified
Matching Contributions will be allocated on behalf of each Eligible Participant
who for the Plan Year is a Non-Highly Compensated Employee who made an Elective
Deferral for the Plan Year and is considered an Eligible Participant for the
purpose of receiving a Matching Contribution allocation, or if eligibility for
Matching Contributions is more restrictive than for Elective Deferrals, is
considered an Eligible Participant only for the purpose of making Elective
Deferrals.


 


(2)                                  Permissible Methods Of Allocation: Any
allocation of Qualified Matching Contributions to an Eligible Participant who
is described in subparagraph (1) above will be made using one of the
methods described in subparagraphs (2)(A) through (F) below. However,
the actual method used for a particular Plan Year will be the method set forth
in subparagraph (3) below.


 


(A)                              Pro-Rata Method: The allocation will be made
in the ratio that the Elective Deferral of each such Eligible Participant bears
to the total Elective Deferrals of all such Eligible Participants, except that any
Elective Deferrals that are not used to determine the basic Matching
Contribution allocated to a Participant under Section 3.1(b) or Section 3.2(b) will
not be counted.


 


(B)                                Pro-Rata Method Using Bottom-Up Based On Compensation:
The allocation will be made beginning with a group of one or more of such
Eligible Participants and who have the lowest Compensation for the Plan Year and
continuing with the next one or more such Eligible Participants who have the
next lowest Compensation until no further allocations are required to pass the
ADP or ACP Tests. The amount so allocated for the Plan Year to any such
Eligible Participant will be in the ratio that such Eligible Participant’s
Elective Deferral bears to the total Elective Deferrals of all such Eligible
Participants, except that any Elective Deferrals not used to determine basic
Matching Contributions allocated to a Participant under Section 3.1(b) or
3.2(b) will not be counted.


 


(C)                                Pro-Rata Method Using Bottom-Up Based On
Elective Deferrals: The allocation will be made beginning with a group of one
or more of such Eligible Participants for the Plan Year and who have the lowest
Elective Deferral amount for the Plan Year and continuing with the next one or
more Eligible Participants who have the next lowest Elective Deferral amount until
no further allocations are required for the Plan to pass the ADP or ACP Tests.
The amount so allocated for the Plan Year to any such Eligible Participant will
be in the ratio that such


 


43

















 


Eligible Participant’s Elective Deferral bears to the total Elective
Deferrals of all such Eligible Participants, except that any Elective Deferrals
not used to determine the basic Matching Contributions allocated to a
Participant under Section 3.1(b) or 3.2(b) will not be counted.


 


(D)                               Per Capita Method: The amount that is
allocated for the Plan Year to any such Eligible Participant for the Plan Year
will be on a per capita (equal
dollar amount) basis to each such Eligible Participant.


 


(E)                                 Per Capita Method Using Bottom-Up Based On Compensation:
The allocation will be made beginning with a group of one or more of such
Eligible Participants who have the lowest Compensation for the Plan Year and continuing
with the next one or more such Eligible Participants who have the next lowest
Compensation until no further allocations are required for the Plan to pass the
ADP or ACP Tests. The amount so allocated for the Plan Year to any such
Eligible Participant will be on a per capita (equal dollar amount) basis to
each such Eligible Participant.


 


(F)                                 Per Capita Method Using Bottom-Up Based On
Elective Deferrals: The allocation will be made beginning with a group of one
or more of such Eligible Participants who have the lowest Elective Deferral
amount for the Plan Year and continuing with the next one or more such Eligible
Participants who have the next lowest Elective Deferral amount until no further
allocations are required for the Plan to pass the ADP or ACP Tests. The amount
so allocated for the Plan Year to any such Eligible Participant will be on a
per capita (equal dollar) basis to each such Eligible Participant.


 


(3)                                  Actual Method Of QMAC Allocation: Until this
subparagraph (3) is amended by the Employer to specify a different method
of allocation, QMACs will be allocated using the method described in
subparagraph (2)(F) above.


 


(4)                                  Permissible Disaggregation: Permissible
disaggregation under Code §410(b)(4) or §401(k)(3)(F) will be used
for the ADP and/or ACP Test for the Plan Year to further limit the number of
Eligible Participants who receive such allocation to those Participants (i) who
also satisfy the maximum minimum age and service requirements of Code
§410(a)(l)(A) for the purpose of making Elective Deferrals or eligibility
to share in Matching Contributions, or (ii) to those Participants who do
not satisfy the maximum minimum age and service requirements of Code §410(a)(1)(A) for
the purpose of making Elective Deferrals or eligibility to share in Matching Contributions;
and if permissible disaggregation under Code §410(b)(4) is used for the
ADP and/or ACP Tests for the Plan Year, the Employer will


 


44

















 


separately determine the amount to be
allocated hereunder with respect to such Eligible Participants in clauses (i) and
(ii).


 


(5)                                  Allocation To
HCEs: If the Employer makes an additional Qualified Matching Contribution after
no further allocation of QMACs is required for the
Plan to pass the ADP and/or ACP Tests, any such contribution will be allocated
in the same manner described in subparagraph (3) above (provided however
that the ADP and/or ACP Tests continue to be satisfied) to all such Eligible
Participants who for the Plan Year are HCEs (or to all such Eligible
Participants who are HCEs or NHCEs) who made an Elective Deferral and are
considered Eligible Participants for the purpose of receiving a Matching
Contribution allocation.


 


(e)                                  Qualified
Non-Elective Contributions: Qualified Non-Elective Contributions contributed
under Section 3.1(e) and Non-Elective Contributions contributed under
Section 3.1(c) that are treated as QNECS will be allocated to the
Qualified Non-Elective Contribution Account of an
Eligible Participant in accordance with the following:


 


(1)                                  Participants
Eligible For Allocation: Subject to subparagraphs (2) and (3) below,
Qualified Non-Elective Contributions will be allocated on behalf of each
Eligible Participant who for the Plan Year is a Non-Highly Compensated Employee
and is considered an Eligible Participant for the purpose of receiving a
Non-Elective Contribution allocation for the Plan Year, or if Non-Elective
Contributions are not permitted or if eligibility for Non-Elective
Contributions is more restrictive than for Elective Deferrals, is considered an
Eligible Participant only for the purpose of making Elective Deferrals.


 


(2)                                  Permissible Methods Of Allocation: Any allocation of Qualified
Non-Elective Contributions under this Section to an Eligible Participant
who is described in subparagraph (1) above will be made using one of the
methods described in subparagraphs (2)(A) through (D) below. However,
the actual method used for a particular Plan Year will be the method set forth
in subparagraph (3) below.


 


(A)                              Pro-Rata Method:
The amount that is so allocated for any such Eligible Participant will be in
the ratio that his or her Compensation bears to the total Compensation of all
such Eligible Participants.


 


(B)                                Pro-Rata Method Using
Bottom-Up Based On Compensation: The allocation will be made beginning with a
group of one or more of such Eligible Participants who have the lowest
Compensation for the Plan Year and continuing with the next one or more such
Eligible Participants who have the next lowest Compensation until no further
allocations are required to pass the ADP or ACP Tests. The amount that is so
allocated for the Plan


 


45

















 


Year to any such Eligible Participant will
be in the ratio that the Compensation of each such Eligible Participant bears
to the total Compensation of all such Eligible Participants.


 


(C)                                Per Capita
Method: The amount that is so allocated for the Plan Year to any such Eligible
Participant will be on a per capita (equal dollar amount) basis to each
Eligible Participant.


 


(D)                               Per Capita Method
Using Bottom-Up Based On Compensation: The allocation will be made beginning with
a group of one or more of such Eligible Participants who have the lowest
Compensation for the Plan Year and continuing with the next one or more Eligible
Participants who have the next lowest Compensation until no further allocations
are required for the Plan to pass the ADP or ACP Tests. The amount so allocated
for the Plan Year to any such Eligible Participant will be on a per capita
(equal dollar amount) basis to each such Eligible Participant.


 


(3)                                  Actual Method Of
QNEC Allocation: Until this subparagraph (3) is amended by the Employer to
specify a different method of allocation, QNECs will be allocated using the
method described in subparagraph (2)(D) above.


 


(4)                                  Permissible
Disaggregation: Permissable disaggregation under Code §410(b)(4) or
§401(k)(3)(F) will be used for the ADP and/or ACP Test for the Plan Year
to further limit the number of Eligible Participants who receive such
allocation to those Participants (i) who also satisfy the maximum minimum
age and service requirements of Code §410(a)(1)(A) for the purpose of
making Elective Deferrals or eligibility to share in Matching Contributions, or
(ii) to those Participants who do not satisfy the maximum minimum age and
service requirements of Code §410(a)(1)(A) for the purpose of making
Elective Deferrals or eligibility to share in Matching Contributions; and if permissable
disaggregation under Code §410(b)(4) is used for the ADP and/or ACP Tests
for the Plan Year, the Employer will separately determine the amount to be
allocated hereunder with respect to such Eligible Participants in clauses (i) and
(ii).


 


(5)                                  Allocation To
HCEs: If the Employer makes an additional Qualified Non-Elective Contribution
after no further allocation of QNECs is required for the Plan to pass the ADP
and/or ACP Tests, any such contribution will be allocated in the same manner
described in subparagraph (3) (provided however that the ADP and/or ACP
Tests continue to be satisfied) to all such Eligible Participants who for the
Plan Year are HCEs (or to all such Eligible Participants who are HCEs or NHCEs)
and are considered Eligible Participants for the purpose of receiving a Non-Elective
Contribution allocation for the Plan Year.


 


46

















 


3.3                                 ALLOCATION OF
EARNINGS AND LOSSES


As of each Valuation Date, accounts which
have not been distributed since the prior Valuation Date will have the net
income of the Trust Fund earned since the prior Valuation Date allocated in
accordance with such rules and procedures as may be established by
the Administrator, and applied in a uniform and nondiscriminatory manner;
or accounts will be valued and adjusted as hereinafter set forth in this Section.
Net income is the net of any interest, dividends, unrealized appreciation and
depreciation, capital gains and losses, and investment expenses of the Trust
Fund determined on each Valuation Date.


 


(a)                                  Non-Segregated Elective
Deferral Accounts: Elective Deferral Accounts which have not been segregated
from the general Trust Fund for investment will have net income allocated
thereto in the ratio that the value of each such non-segregated account bears
to the total value of all such non-segregated accounts on the Valuation Date. For
purposes of this paragraph, the value of each such account on the Valuation
Date will be determined before taking into account the allocation of any
Employer contributions that have occurred (or are deemed to have occurred) since
the prior Valuation Date, and before taking into account any distributions and
withdrawals that have occurred since the prior Valuation Date.


 


(b)                                 Non-Segregated Matching
Contribution Accounts: Matching Contributions are not currently permitted under
the terms of this Plan.


 


(c)                                  Non-Segregated
Non-Elective Contribution Accounts: Non-Elective Contribution Accounts which
have not been segregated from the general Trust Fund for investment will have
net income allocated thereto in the ratio that the value of each such
non-segregated account bears to the total value of all such non-segregated
accounts on the Valuation Date. For purposes of this paragraph, the value of
each such account on the Valuation Date will be determined before taking into
account the allocation of any Employer contributions that have occurred (or are
deemed to have occurred) since the prior Valuation Date, and before taking into
account any distributions and withdrawals that have occurred since the prior
Valuation Date.


 


(d)                                 Forfeiture Account:
The Forfeiture Account will share in the allocation of the Plan’s earnings and
losses under this Section.


 


(e)                                  Segregated
Accounts And Policy Dividends: Any accounts which have been segregated for
investment purposes, including any Directed Investment Accounts that may be
established in accordance with Section 7.15 and any other accounts
(including Directed Investment Accounts) which are valued on a daily basis,
will only have the net income earned thereon allocated thereto. Any insurance
Policy dividends or credits will be allocated to the Participant’s Account for whose
benefit the Policy is held.


 


47

















 


3.4                                 ALLOCATION OF
FORFEITURES


The Administrator may elect
each Plan Year to first use all or any portion of the Forfeiture Account to pay
administration costs of the Plan, and/or to restore previously forfeited
Account balances as provided under Section 5.7 or Section 5.13.
Subject to the Top Heavy allocation requirements under Section 3.5 and the
Code §415 limitations of Article 6, any remaining Forfeitures will be used
by the Administrator in the following manner:


 


(a)                                  Forfeitures Of Matching
Contributions: Matching Contributions are not currently permitted under the
terms of the Plan.


 


(b)                                 Forfeitures Of
Non-Elective Contributions: Forfeitures attributable to Non-Elective
Contributions will be allocated to the Non-Elective Contribution Account of
each Eligible Participant for the Plan Year. The allocation will be made in the
ratio that each such Eligible Participant’s Compensation bears to the total Compensation of all such
Eligible Participants.


 


(c)                                  Excess Aggregate
Contributions: The Administrator may elect that all of any portion of the
Forfeitures, which are attributable to Excess Aggregate Contributions will (1) be
allocated (after all other Forfeitures) to the Matching Contribution Account of
each Participant who is a Non-Highly Compensated Employee who made Elective Deferrals
or Employee contributions. The allocation will be made in the ratio which each
such Participant’s Compensation for the Plan Year bears to the total
Compensation of all such Participants for such Plan Year; and/or (2) be
applied to reduce Employer contributions for the Plan Year in which the excess
arose to the extent it exceeds Employer contributions or the Employer has
already contributed for such Plan Year.


 


3.5                                 TOP HEAVY MINIMUM
ALLOCATION


In any Top Heavy Plan Year in which a Key
Employee receives an allocation of Employer contributions or Forfeitures, each
Employee who is described in paragraph (a) below will receive the Top
Heavy benefit required under the provisions of Code §416, such benefit to be
determined in accordance with the following provisions:


 


(a)                                  Participants Who
Must Receive Top Heavy Minimum Allocation: For each Plan Year in which a Top
Heavy contribution is required, the Top Heavy Minimum Allocation (or such
lesser amount as may be permitted under paragraph (b) below) will be made
for each Participant who is employed by an Employer on the last day of the Plan
Year in an eligible class of Employees, even if such Participant (1) fails
to complete any minimum Hours of Service or Period of Service required to
receive an allocation of Employer contributions or Forfeitures for the Plan
Year; (2) fails to make elective contributions to the Plan in the case of
a cash or deferred arrangement; (3) receives Compensation that is less
than a stated amount; or (4) declines to make a mandatory Employee
contribution.


 


(b)                                 Lesser Allocation
Allowed: If the amount of Employer contributions and Forfeitures allocated to
the Participant’s Account of each Key


 


48

















 


Employee for the Plan Year is less than 3%
of his or her Compensation, and if this Plan is not required to be included in
an Aggregation Group to enable a defined benefit plan to meet the requirements
of Code §401(a)(4) or §410, then the amount allocated under this Section for
each Participant who is described in paragraph (a) above will be equal to
the largest percentage of Employer contributions and Forfeitures allocated to
the Participant’s Account of a Key Employee for that Plan Year, determined
after taking into account elective contributions made by a Key Employee to a
cash or deferred arrangement maintained by the Employer.


 


(c)                                  Participation In
Multiple Defined Contribution Plans: If a Participant described in paragraph (a) above
participates in this Plan and in one or more defined contribution plans that
are included with this Plan in a Required Aggregation Group, and if the
allocation of Employer contributions and Forfeitures in this Plan or any other
such defined contribution plan is insufficient to satisfy the Top Heavy
requirement with respect to such Participant, such requirement will
nevertheless be deemed to be satisfied if the aggregate allocation of Employer contributions
and Forfeitures made under this Plan and all other such plans on behalf of such
Participant is sufficient to satisfy the Top Heavy requirement. If not, the
Employer will make an additional contribution to this Plan and/or to one or
more such plans on behalf of the Participant in order that the aggregate
allocation of Employer contributions and Forfeitures to this Plan and all such
plans satisfies the Top Heavy requirements with respect to such Participant.


 


(d)                                 Participation In
Defined Benefit Plan And Defined Contribution Plan: Any Participant described
in paragraph (a) above who participates in this Plan and in a defined
benefit plan which is included with this Plan in a Required Aggregation Group
will, in lieu of the allocation provided under paragraph (a) above,
receive an allocation under this Plan (or any other defined contribution plan
sponsored by the Employer) which is equal to 5% of Compensation.
Notwithstanding the foregoing to the contrary however, the Administrator may determine,
in a uniform non-discriminatory manner which is intended to satisfy the
requirements of Code §416(f) regarding the preclusion of required
duplication and inappropriate omission of Top Heavy minimum benefits or contributions,
that such Non-Key Employee will receive the minimum Top Heavy benefit required under
Code §416 under the defined benefit plan in lieu of any such benefit under the
terms of this Plan.


 


(e)                                  Contributions
That Can Be Used To Satisfy Top Heavy Minimum: The following contributions will
be taken into account in determining if the Employer has contributed an amount
necessary to satisfy the requirements of this Section: Non-Elective
Contributions; Qualified Non-Elective Contributions; Safe Harbor Non-Elective
Contributions under Section; and any other contributions as may be
permitted by law. However, Elective Deferrals cannot be used to satisfy the Top
Heavy requirements.


 


49

















 


3.6                                 SAFE HARBOR CONTRIBUTIONS


For Plan Years beginning on or after January 1,
1999, this Section will apply for any such Plan Year in which the Sponsor,
by the Sponsor’s written resolution and issuance of a Safe Harbor Notice (as
described in paragraph (d) below), elects to administer the Plan pursuant
to the “safe harbor” provisions of Code §401(k)(12) (pertaining to alternative
methods of satisfying the ADP Test) and/or Code §401(m)(11) (pertaining to
additional alternative methods of satisfying the ACP Test). The Sponsor’s written
resolution must specify the Plan Year for which the safe harbor is elected, the
method by which the safe harbor is to be satisfied, and whether “safe harbor”
contributions will be made to HCEs as well as NHCEs. The Sponsor’s written
resolution will be deemed to be an amendment to this Plan if made in accordance
with Notice 98-52, Notice 2000-3 and any subsequent guidance issued by the
Internal Revenue Service.


 


(a)                                  Definitions: For
any Plan Year in which the Sponsor elects to administer the Plan in, accordance
with this Section, the following definitions will apply:


 


(1)                                  ACP Test Safe
Harbor Matching Contribution: The term ACP Test Safe Harbor Matching
Contribution means a Matching Contribution described in paragraph (c) below.


 


(2)                                  ADP Test Safe
Harbor Contribution: The term ADP Test Safe Harbor Contribution means a “Basic
Matching Contribution” as described in paragraph (b)(1); an “Enhanced Matching
Contribution” as described in paragraph (b)(2); and a Non-Elective Contribution
as described in paragraph (b)(3).


 


(3)                                  Compensation: The
term Compensation is defined in
Section 1.16, except that for purposes of this Section: (1) no dollar
limitation other than the
Code §401(a)(17) limitation will apply under this paragraph to Non-Highly
Compensated Employees; and (2) Compensation may, at the discretion of the Administrator,
be excluded (i) for any period during which an Employee was not a
Participant in the Plan; and (ii) for any period during which a cash or
deferred election was not in effect under the terms of the Plan. However, solely
for purposes of determining Compensation subject to a Participant’s deferral election,
the Employer may use an alternative definition to the one described in the
preceding sentence, provided such alternative definition is a reasonable definition
within the meaning of regulation §1.414(s)-1(d)(2) and permits each Participant
to make sufficient Elective Deferrals to receive the maximum amount of Matching
Contributions (determined using the definition of Compensation described in the
preceding sentence) available under the Plan.


 


(4)                                  Matching Contribution:
The term Matching Contribution means a contribution made by the Employer
because of a Safe Harbor Participant’s Elective Deferrals.


 


50

















 


(5)                                  Safe Harbor
Participant: The term Safe Harbor Participant means each Participant who (i) is
a Non-Highly Compensated Employee (and if the Employer elects, one or more Highly
Compensated Employees) for the Plan Year; and (ii) was eligible to make an
Elective Deferral at any time during the Plan Year or who would have been
eligible to make Elective Deferrals but for a suspension due to a hardship
distribution or a statutory limitation (such as Code §402(g) and §415).
However, for Plan Years beginning on or after January 1, 1999, a Safe
Harbor Participant will only include those Participants described in the
preceding sentence who have reached Age 21 and completed 1 at least Year of
Service.


 


(b)                                 ADP Test Safe
Harbor Contributions: For a Plan Year in which the Employer wishes to utilize
the alternative method of satisfying the ADP Test, the Employer must make an
ADP Test Safe Harbor Contribution to the Plan in the form of a “Basic
Matching Contribution”, an “Enhanced Matching Contribution” and/or a “Safe
Harbor Non-Elective Contribution”, or a “Safe Harbor Alternative Contribution”.
The Employer must specify in the Safe Harbor Notice which ADP Test Safe Harbor
Contribution it intends to make for the Plan Year, and any such contribution
will be made in accordance with one of the following provisions:


 


(1)                                  Basic Matching
Contribution: If the Employer elects to make a Basic Matching Contribution, it
will be made on behalf of each Safe Harbor Participant in an amount equal to
the sum of (i) 100% of the amount such Participant’s Elective Deferrals
that do not exceed 3% of his or her Compensation; plus (ii) 50% of the
amount of such Participant’s Elective Deferrals that exceed 3% of his or her
Compensation but do not exceed 5% of Compensation (“Basic Matching Contributions”).
The maximum match that can be made under this Basic Matching Contribution
formula is 4% of Compensation, which would apply to any Safe Harbor Participant
who defers at least 5% of Compensation.


 


(2)                                  Enhanced Matching
Contribution: If the Employer elects to make an “Enhanced Matching Contribution”
on behalf of each Safe Harbor Participant, such contribution will be an amount
equal to the sum of (i) and (ii) as follows:


 


(A)                              The amount of
such Participant’s Elective Deferrals that do not exceed the percentage
specified in the Safe Harbor Notice (which percentage must be at least 3% but not
more than 6%) of Compensation; plus


 


(B)                                The percentage
specified in the Safe Harbor Notice of such Participant’s Elective Deferrals
that exceed the percentage specified in the Safe Harbor Notice (which percentage
must be at least 3% but not more than 6%) of the Participant’s Compensation for
the Plan Year and that do not exceed the percentage specified in the Safe


 


51

















 


Harbor Notice of the Employee’s
Compensation for the Plan Year. Notwithstanding the foregoing, Matching
Contributions contributed under this subparagraph must, at any rate of Elective
Deferrals, equal at least the Matching Contribution the Participant would have
received if the Employer were making Basic Matching Contributions, but the rate
of match cannot increase as deferrals increase.


 


(3)                                  Safe Harbor
Non-Elective Contribution: If the Employer elects to make a Safe Harbor
Non-Elective Contribution for each Safe Harbor Participant, it will be an
amount equal to at least 3% of each such Participant’s Compensation.


 


(4)                                  Allocation Of ADP
Test Safe Harbor Contributions: All ADP Test Safe Harbor Contributions (other
than Safe Harbor Alternative Contributions) will be allocated to a Participant’s
Safe Harbor Contribution Account; and under no circumstances will such
contributions be allocated with regard to permitted disparity under Code
§401(1).


 


(5)                                  Vesting And Distribution
Of ADP Test Safe Harbor Contributions: ADP Test Safe Harbor Contributions
allocated to a Participant’s Safe Harbor Contribution Account will be 100%
Vested at all times, and can only be distributed upon the earlier of the date a
Participant incurs a Termination of Employment; the date a Participant dies;
the date a Participant suffers a Disability; the date a Participant reaches Age
591⁄2 if on or after such date in-service withdrawals are permitted under Section 5.17;
or the date an event described in Code §40l(k)(10) occurs. ADP Test Safe
Harbor Contributions may not be distributed because of hardship.


 


(6)                                  True-Up Election:
If for any Plan Year “Basic Matching Contributions” or “Enhanced Matching
Contributions” are made to the Plan on a basis that is more frequent than
annual, and if on the last day of any such Plan Year the dollar amount of any
such contribution made on behalf of a Safe Harbor Participant is less than the
dollar amount that would have been made if such contribution for that Plan Year
had been contributed on an annual basis only, then the Employer may elect
for any such Plan Year to make an additional contribution in order to make the
amount contributed for a Safe Harbor Participant for the full Plan Year equal
to the amount that would have been made if the contribution for that Plan Year had
been contributed on an annual basis only. However, any such additional
contribution can only be made to the Plan on a uniform nondiscriminatory
basis.


 


(c)                                  ACP Test Safe
Harbor Matching Contributions: In order to use the alternative method of
satisfying the ACP Test, the Employer may, in addition to the ADP Test Safe
Harbor Contributions described in paragraph (b) above, elect in its Safe
Harbor Notice to make an ACP


 


52

















 


Test Safe Harbor Matching Contribution to
the Plan on behalf of each Safe Harbor Participant. Such contribution will be
made in accordance with the following provisions, and must be equal to one of
the following amounts:


 


(1)                                  Single Tier Fixed
Formula: The amount determined by multiplying the Safe Harbor Participant’s
Elective Deferrals for the Plan Year by the matching percentage specified in
the Safe Harbor Notice; provided, however, that such amount cannot exceed 6% of the Safe Harbor Participant’s
Compensation.


 


(2)                                  Two Tiered Fixed Formula:
The amount determined by multiplying the Safe Harbor Participant’s Elective
Deferrals that do not exceed the percentage specified in the Safe Harbor Notice
of such Participant’s Compensation for the Plan Year by the “first tier” matching
percentage specified in the Safe Harbor Notice, plus the amount determined by
multiplying the Safe Harbor Participant’s Elective Deferrals thereafter by the “second
tier percentage” specified in the Safe Harbor Notice, but no such contribution
will be made with respect to Elective Deferrals that exceed 6% of the
Participants Compensation. Notwithstanding the foregoing, the “second tier
percentage” cannot exceed the “first tier percentage”.


 


(3)                                  Single Tier
Discretionary Formula; An amount determined by multiplying the Safe Harbor
Participant’s Elective Deferrals for the Plan Year by a discretionary
percentage, excluding any such Elective Deferrals in excess of 6% of the Safe Harbor
Participant’s Compensation; provided, however, that such amount cannot exceed
4% of the Safe Harbor Participant’s Compensation.


 


(4)                                  Other Formulas:
An amount determined by any other formula in which (i) Matching
Contributions are not made on Elective Deferrals in excess of 6% of
Compensation, (ii) the amount of Matching Contributions subject to the
Employer’s discretion cannot exceed 4% of Compensation, (iii) no HCE can
receive a greater rate of Matching Contributions than an NHCE at the same rate
of Elective Deferrals, and (iv) the rate of Matching Contributions cannot increase
as a Participant’s Elective Deferrals increase.


 


(5)                                  Vesting And Distribution
Of ACP Test Safe Harbor Contributions: Unless otherwise indicated in the Safe
Harbor Notice to be nonforfeitable, ACP Test Safe Harbor Matching Contributions
will be Vested in accordance with the Vesting schedule in Section 4.6(c).
Forfeitures of non-Vested ACP Test Safe Harbor Matching Contributions will be
used to reduce Employer contributions.


 


(d)                                 Safe Harbor
Notice: The term Safe Harbor Notice means a written notice provided by the
Employer to all eligible Employees in accordance with Notice 98-52 and 2000-3,
and any subsequent


 


53

















 


guidance issued by the Internal Revenue
Service. In addition to any other election periods provided under the Plan,
each Participant may make or modify a deferral election during the 30-day
period immediately following receipt of the Notice.


 


3.7                                 ROLLOVER
CONTRIBUTIONS


Subject to any rules or procedures
that may be established by the Administrator under paragraph (f) below,
any Employee who has become a Participant in the Plan may, with the consent of
the Administrator, make Rollover Contributions to the Plan. Rollover
Contributions will be allocated to a Participant’s Rollover Account and, subject
to any rules or procedures established hereunder, will be administered in
accordance with the following provisions:


 


(a)                                  Investment Of
Rollover Accounts: Except for that portion which a Participant may be
permitted to self-direct under Section 7.15, the Administrator may choose
for investment purposes to either segregate Rollover Accounts into separate
interest bearing accounts or to invest Rollover Accounts as part of the
general Trust Fund, in which case such accounts will share in the allocation of
earnings and losses under Section 3.3(a).


 


(b)                                 Withdrawal Of
Rollovers: Subject to paragraph (c) below, an Employee may request a
withdrawal of all or any portion of his or her Rollover Account upon the
earlier of (1) the date the Employee is entitled to a distribution of his or her Participant’s
Account under the provisions of Article 5, or (2) within an
administratively reasonable time after the Employee’s Termination of
Employment. A Rollover withdrawal will not prevent an Employee from accruing
future benefits from Employer contributions. Any amount withdrawn cannot be
redeposited to the Participant’s Rollover Account.


 


(c)                                  Spousal Consent
Requirements Upon Withdrawal: Any Rollover Contribution that at the time it is
made to this Plan is no longer subject to the requirements of Code §401(a)(11) can be
withdrawn from the Plan without the consent of the Participant’s Spouse. However,
the withdrawal of any Rollover Contribution that was a direct or indirect
transfer as defined in Code §401(a)(11) from a defined benefit plan, a money
purchase plan, a target benefit plan, a stock bonus plan, or a profit sharing
plan that provided for a life annuity form of payment to the Participant
will be subject to the spousal consent requirements in Section 5.8.


 


(d)                                 Form Of Distribution:
Any Rollover Contribution a Participant withdraws from the Plan prior to the
time the Participant is entitled to a distribution of his or her Participant’s
Account will only be distributed in a lump sum. Any amount remaining in a
Participant’s Rollover Account at the time the Participant is entitled to a distribution
of his or her Participant’s Account that is not subject to the spousal consent
requirements in paragraph (c) above will be distributed, at the election
of the Participant, in a lump-sum or in the same manner as the Participant’s
Account under Article 5. Any
amount remaining in the Participant’s Rollover Account at the time


 


54

















 


the Participant is
entitled to a distribution of his or her Participant’s Account that is subject
to the spousal consent requirements will be distributed in the same manner as
the Participant’s Account under Article 5.


 


(e)                               Special Rule For
Withdrawal Of Elective Deferrals: Notwithstanding paragraph (b) to the contrary,
the limitations described in regulation 1.401(k)-1(d) will apply to the withdrawal
of any Rollover Contributions which are attributable to a Participant’s elective
contributions as defined in regulation 1.401(k)-1(g)(3) and which are transferred
to this Plan in a trustee to trustee transfer from another qualified plan.


 


(f)                                 Establishment Of
Administrative Procedures: The Administrator may, in a separate written
document, establish rules or procedures regarding the conditions under
which Rollover Contributions can be made to and/or withdrawn from the Plan by
an Employee. Such separate written document, when properly executed, will be
deemed incorporated in this Plan. The rules or procedures set forth
therein may be modified or amended by the Administrator without the necessity
of amending this Section of the Plan, but any such modifications must be
communicated to Participants in the manner described in Section 8.9.
Notwithstanding the foregoing, (1) a summary plan description or summary
of material modifications thereto in which the rules or procedures
regarding the making and/or withdrawal of Rollover Contributions are described will
be considered a separate written document sufficient to satisfy the requirements
(including the execution requirement) of this paragraph; and (2) any rules or
procedures established under this paragraph must be applied by the
Administrator in a uniform nondiscriminatory manner.


 


3.8                                 VOLUNTARY
EMPLOYEE CONTRIBUTIONS


Voluntary Employee Contributions are not
currently permitted.


 


55

















 


ARTICLE 4 


PLAN BENEFITS


 


4.1                                 BENEFIT UPON
NORMAL RETIREMENT


Every Participant who has reached Normal
Retirement Age will be entitled upon termination of employment to receive his
or her Vested Aggregate Account balance determined as of the most recent
Valuation Date coinciding with or immediately preceding the date of
distribution. Distribution will be made under Section 5.1.


 


4.2                                 BENEFIT UPON LATE
RETIREMENT


A Participant who has reached Normal Retirement
Age and who remains employed by the Employer will continue to participate in
the Plan and will continue to receive allocations under Article 3 until he
or she terminates employment with the Employer. However, notwithstanding Section 4.1
to the contrary, such Participant may at any time after reaching Normal
Retirement Age (1) choose to have distributed prior to actual retirement
all or part of his or her Vested Aggregate Account balance determined as
of the most recent Valuation Date coinciding with or immediately preceding the
date of distribution (but any portion thereof which is attributable to elective contributions, qualified matching
contributions and/or qualified non-elective contributions made to a cash or
deferred arrangement can only be distributed if the Participant has also
reached Age 591⁄2); or (2) choose to have such
Vested Aggregate Account balance transferred to another qualified retirement
plan maintained by the Employer. Upon actual retirement, the Participant will
be entitled to his or her undistributed Vested Aggregate Account balance
determined as of the most recent Valuation Date coinciding with or immediately
preceding the date of distribution. Distribution will be made under Section 5.1.


 


4.3                                 BENEFIT UPON
DEATH


Upon the death of a Participant prior to
Termination of Employment, or upon the death of a Terminated Participant prior
to distribution of his or her Vested Aggregate Account, his or her Beneficiary
will be entitled to the Participant’s Vested Aggregate Account balance determined
as of the most recent Valuation Date coinciding with or immediately preceding
the date of distribution. If any Beneficiary who is alive on the date of the
Participant’s death dies before receiving the entire death benefit to which he
or she is entitled, the balance of the death benefit will be distributed to the
Beneficiary’s beneficiary in accordance with Section 5.2. The
Administrator’s determination that a Participant has died and that a particular
person has a right to receive a death benefit will be final. Distribution will
be made in accordance with Section 5.2.


 


4.4                                BENEFIT UPON DISABILITY


If a Participant suffers a Disability prior
to Termination of Employment and terminates employment with the Employer as a
result of that Disability, or if a Terminated Participant suffers a Disability
prior to a distribution of his or her Vested Aggregate Account balance, he or
she will be entitled to his or her Vested Aggregate Account balance determined
as of the most recent Valuation Date coinciding with or immediately preceding
the date of distribution. Distribution will be made in accordance with Section 5.3.


 


56

















 


4.5                                 BENEFIT UPON
TERMINATION


A Participant who incurs
a Termination of Employment will be entitled to his or her Vested Aggregate
Account balance determined as of the most recent Valuation Date coinciding with
or immediately preceding the date of distribution. A Terminated Participant’s
Vested Aggregate Account will be distributed under Section 5.4 unless,
prior to the time of distribution set forth therein, the Participant (1) dies,
in which case distribution will be made under 5.2; or (2) suffers a
Disability, in which case distribution will be made under Section 5.3.


 


4.6                                 DETERMINATION OF
VESTED INTEREST


A Participant’s Vested Interest in his or
her Participant’s Account will be determined in accordance with the following
provisions:


 


(a)                                  Vesting Upon
Retirement, Death Or Disability: A Participant’s Account will be 100% Vested
upon reaching Normal Retirement Age prior to Termination of Employment, and
also upon death or Disability prior to Termination of Employment.


 


(b)                                 100% Vesting Of
Elective Deferrals, QMACs And QNECs: A Participant will at all times have a
100% Vested Interest in his or her Elective Deferral Account, Qualified
Matching Contribution Account and Qualified Non-Elective Contribution Account.


 


(c)                                  Vesting Of
Matching Contributions: Matching Contributions are not currently permitted
under the terms of the Plan.


 


(d)                                 Vesting Of
Non-Elective Contributions: A Participant’s Vested Interest in his or her
Non-Elective Contribution Account at any given tune will be determined in a
non-Top Heavy Plan Year by the vesting schedule which immediately follows
this paragraph based on the number of Years of Service the Participant has
completed. In determining a Participant’s Vested Interest under this paragraph,
all Years of Service will be counted.


 




	
  Years of Service

  	
   

  	
  Vested Interest

  	
   

  
	
  3

  	
   

  	
  20

  	
  %

  
	
  4

  	
   

  	
  40

  	
  %

  
	
  5

  	
   

  	
  60

  	
  %

  
	
  6

  	
   

  	
  80

  	
  %

  
	
  7

  	
   

  	
  100

  	
  %

  






 


(e)                                  Vesting Of Non-Elective
Contribution In A Top Heavy Plan Year: Notwithstanding the vesting schedule in
paragraph (d), the Vested portion of a Participant’s Non-Elective Contribution
Account will, in a Top Heavy Plan Year, be determined by the vesting schedule which
immediately follows this paragraph. If this Plan ceases to be Top Heavy and the
vesting schedule in paragraph (d) becomes effective, a Participant’s
Vested Interest as determined under this paragraph cannot be reduced; and a
reversion to the vesting schedule in paragraph (d) will be considered
an amendment to this Section and be treated in accordance with the
provisions of this Section pertaining to such amendments. Only those Years
of Service included in


 


57

















 


determining a Participant’s Vested Interest
under paragraph (d) will be used in determining a Participant’s Vested
Interest hereunder.


 




	
  Years of Service 

  	
   

  	
  Vested Interest

  	
   

  
	
  2

  	
   

  	
  20

  	
  %

  
	
  3

  	
   

  	
  40

  	
  %

  
	
  4

  	
   

  	
  60

  	
  %

  
	
  5

  	
   

  	
  80

  	
  %

  
	
  6

  	
   

  	
  100

  	
  %

  






 


(f)                                    Amendments To
Vesting Schedule: No amendment may directly or indirectly reduce a
Participant’s Vested Interest in his or her Participant’s Account. If the Plan
is amended in any way that directly or indirectly affects the computation of a
Participant’s Vested Interest in his or her Participant’s Account or the Plan is deemed
amended by an automatic change to or from a Top Heavy vesting schedule, the
following will apply:


 


(1)                                  Participant
Election: Any Participant with at least three Years of Service may, by filing a
written request with the Administrator, elect to have the Vested Interest in
his or her Participant’s Account computed by the vesting schedule in
effect prior to the amendment. A Participant who fails to make an election will
have his or her Vested Interest computed under the new schedule. The period in
which the election may be made will begin on the date the amendment is
adopted or is deemed to be made and will end on the latest of (1) 60 days
after the date the amendment is adopted; (2) 60 days after the date the
amendment becomes effective; or (3) 60 days after the date the Participant
is issued written notice of the amendment by the Employer or Administrator.


 


(2)                                  Preservation Of
Vested Interest: Notwithstanding the foregoing to the contrary, if the vesting schedule is
amended, then in the case of an Employee who is a Participant as of the later
of the date such amendment is adopted or the date it becomes effective, the
Vested Interest in his or her Participant’s Account determined as of such date
will not be less than his or her Vested Interest computed under the Plan
without regard to such amendment.


 


58

















 


ARTICLE 5


DISTRIBUTION
OF BENEFITS


 


5.1                                 BENEFIT UPON
RETIREMENT


Unless
a cash-out occurs under Section 5.5, the retirement benefit a Participant
is entitled to receive under Section 4.1 or Section 4.2 will be
distributed as follows;


 


(a)                                  Normal Form Of
Distribution: Unless otherwise elected under Section 5.8, a Participant’s
retirement benefit will be distributed as a Qualified Joint and Survivor
Annuity if the Participant is married on the Annuity Starting Date and has not
died before such date. If the Participant is unmarried on the Annuity Starting
Date and has not died before such date, the Participant’s retirement benefit
will be distributed as a life annuity.


 


(b)                                 Optional Forms Of
Distribution: If a Participant elects not to receive the annuity form of
payment described in paragraph (a) above, the Participant may elect
to have his or her benefit distributed (1) in one lump sum payment; or (2) in
substantially equal monthly, quarterly, semi-annual or annual cash installments
over a period certain that does not extend beyond the Participant’s life, or
beyond the lives of the Participant and his or her designated Beneficiary (or
beyond the life expectancy of the Participant or the joint and last survivor
expectancy of the Participant and his or her designated Beneficiary), which
will either be paid from the Plan or paid by a nontransferable immediate or
deferred annuity selected by the Trustee which provides for the installment
payments.


 


(c)                                  Time Of
Distribution: Distribution will begin within an administratively reasonable
time after the date (1) a Participant actually retires; or (2) a
Participant who elects late retirement under Section 4.2 requests payment
as permitted therein. However, distribution must begin under this Section no
later than the Required Beginning Date.


 


5.2                                 BENEFIT UPON DEATH


Unless
a cash-out occurs under Section 5.5, a deceased Participant’s death benefit
as determined under Section 4.3 will be distributed as follows:


 


(a)                                  Surviving Spouse:
If a Participant dies before the Annuity Starting Date and is married on the
date of his or her death, the surviving Spouse will receive a minimum death
benefit as a Qualified Preretirement Survivor Annuity unless such annuity has
been waived under Section 5.8. The benefit will be distributed in one lump
sum payment unless the Participant directed through a Beneficiary designation form that
the benefit be paid in another form of distribution permitted by the Plan
under Section 5.1(b) or that the surviving Spouse be permitted to choose another form of
distribution permitted by the Plan under Section 5.1(b). If installment
payments are made, the benefit will either be paid from the Plan or paid by a
nontransferable immediate or deferred annuity selected by the Trustee which
provides for the installment payments. Upon the death


 


60

















 


of
a Participant, distribution will be made to the surviving Spouse within an
administratively reasonable time after he or she requests payment, but
distribution must begin no later than December 31st of the calendar
year in which the Participant would have attained Age 701⁄2.


 


(b)                                 Death Of Surviving Spouse
Before Distribution Begins: If the surviving Spouse dies before distribution of
the benefit begins, distribution will be made as if the surviving Spouse were
the Participant. Distribution will be considered as having commenced when the
deceased Participant would have reached Age 701⁄2 even if payments have been made
to the surviving Spouse before that date. If distribution to the surviving
Spouse begins in the form of an irrevocable annuity over a period
permitted under paragraph (a) before the deceased Participant would have
reached Age 701⁄2, distribution will be considered as having begun on the actual
annuity commencement date.


 


(c)                                  Non-Spouse
Beneficiary: Any death benefit a non-Spouse Beneficiary is entitled to receive
will be distributed in one lump sum unless the Participant directed through a
Beneficiary designation form that the benefit be paid in installments as
permitted in Section 5.1(b) or that the non-Spouse Beneficiary be
permitted to choose installment payments as permitted in Section 5.1(b).
If installment payments are made, the benefit will either be paid from the Plan
or paid by a nontransferable immediate or deferred annuity selected by the Trustee
which provides for the installment payments. Upon the death of a Participant,
distribution will be made within an administratively reasonable time after a non-Spouse Beneficiary requests
payment; but distribution of the entire death benefit must be made by December 31st
of the calendar year which contains the 5th anniversary of the date
of the Participant’s death unless installment payments begin no later than December 31st
of the calendar year immediately following the calendar year in which the
Participant died.


 


(d)                                 Distribution If The
Participant Or Other Payee Is In Pay Status: If a Participant or Beneficiary
who has started receiving distribution of his or her benefit dies before the
entire benefit has been distributed, the balance of the benefit will be
distributed to the Participant’s Beneficiary (or Beneficiary’s beneficiary) at
least as rapidly as under the method of distribution being used on the date of
the Participant’s or Beneficiary’s death.


 


(e)                                  Payments To A
Beneficiary Of A Beneficiary: In the absence of a Beneficiary designation or other
directive from the deceased Participant to the contrary, any Beneficiary may name
his or her own Beneficiary to receive any benefits payable in the event of the Beneficiary’s
death prior to receiving the entire death benefit to which the Beneficiary is
entitled; and if a Beneficiary has not named his or her own Beneficiary, the
Beneficiary’s estate will be the Beneficiary. If any benefit is payable under
this paragraph to a Beneficiary of the deceased Participant’s Beneficiary or to
the estate of the deceased Participant’s Beneficiary, or to any other
Beneficiary


 


61

















 


or the estate thereof, subject to the
limitations regarding the latest dates for benefit payment in paragraphs (a) and
(c) above, the Administrator may (1) continue to pay the
remaining value of such benefits in the amount and form already commenced,
or pay such benefits in any other manner permitted under the Plan for a
Participant or Beneficiary, and (2) if payments have not already
commenced, pay such benefits in any other manner permitted under the Plan.
Distribution to the Beneficiary of a Beneficiary must begin no later than the
date distribution would have been made to the Participant’s Beneficiary. The
Administrator’s determination under this paragraph will be final and will be
applied in a non-discriminatory manner that does not discriminate in favor of
HCEs.


 


5.3                                 DISABILITY BENEFITS


Unless
a cash-out occurs under Section 5.5, the Disability benefit a  Participant is
entitled to receive under Section 4.4 will be distributed as follows:


 


(a)                                  Normal Form Of
Distribution: Unless otherwise elected under Section 5.8, a Participant’s
Disability benefit will be distributed as a Qualified Joint and Survivor
Annuity if the Participant is married on the Annuity Starting Date and has not
died before such date. If the Participant is unmarried on the Annuity Starting
Date and has not died before such date, the Participant’s Disability benefit
will be distributed as a life annuity.


 


(b)                                 Optional Forms Of
Distribution: If a Participant elects not to receive the annuity form of
payment described in paragraph (a) above, the Participant may elect
to have his or her benefit distributed (1) in one lump sum payment; or (2) in
substantially equal monthly, quarterly, semi-annual or annual cash installments
over a period certain that does not extend beyond the Participant’s life, or
beyond the lives of the Participant and his or her designated Beneficiary (or
beyond the life expectancy of the Participant or the joint and last survivor expectancy
of the Participant and his or her designated Beneficiary), which will either be
paid from the Plan or paid by a nontransferable immediate or deferred annuity
selected by the Trustee which provides for the installment payments.


 


(c)                                  Time Of Distribution:
Distribution will begin within an administratively reasonable time after the
date on which a Participant who suffers a Disability terminates employment with
the Employer on account of the Disability. However, distribution must begin
under this Section no later than the Participant’s Required Beginning
Date.


 


5.4                                 BENEFIT UPON TERMINATION


Unless
a cash-out occurs under Section 5.5, the benefit a Terminated Participant
is entitled to receive under Section 4.5 will be distributed as follows:


 


(a)                                  Normal Form Of
Distribution: Unless otherwise elected under Section 5.8, a Terminated
Participant’s benefit will be distributed as a Qualified Joint and Survivor
Annuity if the Participant is married on


 


62

















 


the
Annuity Starting Date and has not died before such date. If the Participant is
unmarried on the Annuity Starting Date and has not died before such date, the
Participant’s benefit will be distributed as a life annuity.


 


(b)                                 Optional Forms Of
Distribution: If a Participant elects not to receive the annuity form of
payment described in paragraph (a) above, the Participant may elect
to have his or her benefit distributed (1) in one lump sum payment; or (2) in
substantially equal monthly, quarterly, semi-annual or annual cash installments
over a period certain that does not extend beyond the Participant’s life, or
beyond the lives of the Participant and his or her designated Beneficiary (or
beyond the life expectancy of the Participant or the joint and last survivor expectancy
of the Participant and his or her designated Beneficiary), which will either be
paid from the Plan or paid by a nontransferable immediate or deferred annuity
selected by the Trustee which provides for the installment payments.


 


(c)                                  Time Of
Distribution: Distribution will begin under this Section within an
administratively reasonable time after Termination of Employment occurs, but in
no event later than the earlier to occur of (1) the date the Terminated
Participant reaches Normal Retirement Age, or (2) the Required Beginning
Date.


 


5.5                                 CASH-OUT OF
BENEFITS


The
Administrator, without the consent of the Participant, may distribute a
Participant’s Vested Aggregate Account balance in a lump sum any time after a
Participant terminates employment, subject to the following provisions:


 


(a)                                  General Rule: The
Administrator can only make distribution under this Section if a
Participant’s Vested Aggregate Account balance (determined before taking into
account the Participant’s Rollover Account and Voluntary Employee Contribution
Account) on the date he or she terminates employment with the Employer does not
exceed $5,000 (or such lesser amount as may be designated by the Administrator).
Any such distribution will be made as soon as administratively feasible after
the date the Participant terminates employment, and any portion of the
Participant’s Account which is not Vested will be treated as a Forfeiture.


 


(b)                                 Later Distribution
If Account Falls To $5,000: If a Participant would have received a distribution
under paragraph (a) but for the fact that the Participant’s Vested
Aggregate Account (determined before taking into account the Participant’s Rollover
Account and Voluntary Employee Contribution Account) exceeded $5,000 (or such
lesser amount as may be designated by the Administrator) when the Participant
terminated employment, and if at a later time the Participant’s Vested
Aggregate Account (determined before taking into account the Participant’s Rollover
Account and Voluntary Employee Contribution Account) is reduced to an amount
not greater than $5,000 (or such lesser amount as may be designated by the
Administrator), the Administrator may distribute such remaining


 


63

















 


amount in a lump sum
without the Participant’s consent as soon as administratively feasible after
the date the Participant terminates employment with the Employer, and any
portion of the Participant’s Account which is not Vested will be treated as a Forfeiture.


 


(c)                                  Deemed
Distribution: If a Participant’s Vested Interest in his or her Participant’s
Account is zero on the date the Participant terminates employment, the
Participant will be deemed to have received a distribution of such Vested Interest
on the date of termination.


 


(d)                                 Form Of
Distribution: If the whereabouts of a terminated Participant are known,
distribution under this Section will be made in the form of a lump
sum cash payment unless such Participant elects a direct rollover under Section 5.14.
If the whereabouts of a terminated Participant are not known, the provisions of
Section 5.13 will apply.


 


5.6                                 RESTRICTIONS ON IMMEDIATE
DISTRIBUTIONS


If
a Participant’s Vested Aggregate Account balance exceeds the amount set forth
in paragraph (a) of this Section and is immediately distributable,
such account can only be distributed in accordance with the following
provisions;


 


(a)                                  General Rule: If a Participant’s
Vested Aggregate Account (determined before taking into account the Participant’s
Rollover Account and Voluntary Employee Contribution Account) exceeds $5,000,
or if there are remaining payments to be made with respect to a particular
distribution option that previously commenced, and if such amount is
immediately distributable, the Participant and the Participant’s Spouse (or
where either the Participant or the Spouse has died, the survivor) must consent
to any distribution of such amount. Any portion of the Participant’s Account
which is not Vested will be treated as a Forfeiture. If less than the entire
Vested Aggregate Account balance is distributed, the part of the
non-Vested portion that will be treated as a Forfeiture is the total non-Vested
portion multiplied by a fraction, the numerator of which is the amount of the distribution
attributable to Employer contributions and the denominator of which is the
total value of the Vested Interest in the Participant’s Account.


 


(b)                                 Definition Of
Immediately Distributable: A Participant’s benefit is immediately distributable
if any part of the benefit could be distributed to the Participant (or the
Participant’s surviving Spouse) before the Participant reaches (or would have reached
if not deceased) the later of his or her Normal Retirement Age or Age 62.


 


(c)                                  General Consent
Requirement: The consent of the Participant and the Participant’s Spouse (or where
either the Participant or the Participant’s Spouse has died, the survivor) to
any benefit that is immediately distributable must be obtained in writing
within the 90-day period ending on the Annuity Starting Date. However, only the
Participant must consent to the distribution of a Qualified Joint and Survivor
Annuity while the benefit is immediately distributable; and neither the Participant
nor the Participant’s Spouse will be required


 


64

















 


to
consent to a distribution that is required by Code §401(a)(9) or §415.


 


(d)                                 Notification Requirements:
The Administrator must notify the Participant and the Participant’s Spouse of
the right to defer any distribution until the benefit is no longer immediately
distributable. Notification will include a general explanation of the material features
and relative values of the optional forms of benefit available under the Plan in
a manner that would satisfy the notice requirements of Code §417(a)(3); and
will be provided no less than 30 days or more than 90 days prior to the Annuity
Starting Date.


 


(e)                                  Waiver Of 30-Day
Requirement: For Plan Years beginning on or after January 1, 1997,
distribution of a Participant’s benefit may begin less than 30 days after
the notice in paragraph (d) is given, provided (1) the Administrator
clearly informs the Participant that the Participant has a right to a period of
at least 30 days after receiving notice to consider the decision of whether or
not to elect a distribution; (2) the Participant, after receiving the notice,
affirmatively elects a distribution or a particular distribution option; and (3) the
Participant does not revoke the election at any time prior to the expiration of
the 7-day period that begins on the date the notice is given.


 


(f)                                    Consent Not Needed On
Plan Termination: If this Plan upon termination docs not offer an annuity
option (purchased from a commercial provider) and if neither the Employer nor
an Affiliated Employer maintains another defined contribution plan other than
an employee stock ownership plan (ESOP) as defined in Code §4975(e)(7), the
Participant’s benefit will, without the Participant’s consent, be distributed
to the Participant. If the Employer or an Affiliated Employer maintains another
defined contribution plan other than an ESOP, the Participant’s benefit will,
without the Participant’s consent, be transferred to the other plan if the Participant
does not consent to an immediate distribution under this Section.


 


5.7                                 RESTORATION OF
FORFEITED ACCOUNT BALANCE


If
a Participant who does not have a 100% Vested Interest in his or her
Participant’s Account terminates employment with the Employer and receives (or
is deemed to have received) a distribution of such Vested Interest from the
Plan, and such Participant is subsequently rehired by the Employer, his or her
Participant’s Account upon such reemployment will be administered in accordance
with the following provisions:


 


(a)                                  Reemployment Before
Five Consecutive Breaks In Service: If a terminated Participant is reemployed
before incurring five consecutive Breaks in Service, such Participant’s Account
balance will be restored in accordance with the following:


 


(1)                                  Partially Vested
Participants: If upon termination of employment a Participant has at least a
partially Vested Participant’s Account, then upon reemployment by the


 


65

















 


Employer
prior to incurring five consecutive Breaks in Service, such Participant’s
Account balance will be restored to the amount on the date of distribution if
the Participant repays to the Plan the full amount of the distribution which
was attributable to Employer contributions. Repayment must be made before the
earlier of five years after the first date on which the Participant is
subsequently re-employed by the Employer or the date on which the Participant
incurs five consecutive Breaks in Service following the date of distribution.


 


(2)                                  Non-Vested
Participants; If upon termination of employment a Participant’s Vested Interest
in his or her Participant’s Account is zero, such Participant is deemed to have
received a distribution of such Vested Interest before the date he or she incurs
five consecutive Breaks in Service, and upon re-employment with the Employer prior
to incurring five consecutive Breaks in Service, such Participant’s Account balance
attributable to Employer contributions will be restored to the amount on the
date of the deemed distribution.


 


(3)                                  Source Of Funds:
The Administrator, on a case-by-case basis, may elect to restore a
Participant’s Account balance under this Section by the use of
Forfeitures, by the use of earnings from non-segregated Trust Fund accounts, by
the use of Employer contributions, or by the use of any combination thereof.


 


(b)                                 Reemployment After
Five Consecutive Breaks In Service: If a terminated Participant is reemployed
by the Employer after incurring five consecutive Breaks in Service, that
portion, if any, of his or her Participant’s Account which was (or was deemed
to be) a Forfeiture will be permanently forfeited under the terms of this Plan.


 


5.8                                 SPOUSAL CONSENT
REQUIREMENTS


A
married Participant’s election not to receive a Qualified Joint and Survivor
Annuity (QJSA) under Section 5.1 or a Qualified Preretirement Survivor
Annuity (QPSA) under Section 5.2, or an unmarried Participant’s election
not to receive a life annuity under Section 5.1, must be made in
accordance with the following provisions:


 


(a)                                  Election Not To
Receive A QJSA: A married Participant’s election not to receive a Qualified
Joint and Survivor Annuity, or an unmarried Participant’s election not to
receive a life annuity, must be in writing and must be made during the 90-day
period ending on the Annuity Starting Date. Such election may be revoked
in writing and a new election made at any time and any number of times during
the election period.


 


(b)                                 Election Not To
Receive A QPSA: A married Participant’s election not to receive a Qualified
Preretirement Survivor Annuity must be in writing and must be made during an
election period beginning on the first day of the Plan Year in which the
Participant reaches Age 35 and ending on the date of his or her death. The
election may be revoked in


 


66

















 


writing and a new election made at any time
and any number of times during the election period. A Terminated Participant’s
election period concerning his or her Vested Aggregate Account before his or
her termination will not begin later than such date. Notwithstanding the
foregoing, if the Participant has not completed a Beneficiary designation form specifying
the time or form of payment, the surviving Spouse may waive the
Qualified Preretirement Survivor Annuity.


 


(c)                                  Special Pre-Age 35
QPSA Election: A Participant who has not yet reached Age 35 as of the end of
any current Plan Year may make a special election not to receive a
Qualified Preretirement Survivor Annuity for the period beginning on the date
of such election and ending on the first day of the Plan Year in which such
Participant reaches Age 35. This election will not be valid unless the
Participant receives the same written explanation of the Qualified
Preretirement Survivor Annuity as described in paragraph (d) below.
Qualified Preretirement Survivor Annuity coverage will be automatically reinstated
as of the first day of the Plan Year in which the Participant reaches Age 35.
Any new election on or after such date will be subject to the full requirements
of this Section 5.8.


 


(d)                                 Required Written
Explanation Of QJSA Or QPSA: In connection with an election not to receive a
Qualified Joint and Survivor Annuity, the Administrator will, no less than 30
days and no more than 90 days prior
to the Annuity Starting Date, provide the Participant with a written
explanation of the terms and conditions of the Qualified Joint and Survivor
Annuity; the Participant’s right to make (and the effect of) an election to
waive the Qualified Joint and Survivor Annuity; the rights of the Participant’s
Spouse; and the right of the Participant to revoke such election (and the
effect thereof). In connection with an election not to receive a Qualified
Preretirement Survivor Annuity, the Administrator will provide each Participant
within the Applicable Period as defined in paragraph (c) with a written
explanation of the Qualified Preretirement Survivor Annuity in such terms and
in such manner as would be comparable to the written explanation applicable to
a Qualified Joint and Survivor Annuity as set forth in this paragraph.


 


(e)                                  Applicable Period: The
Applicable Period for a Participant is whichever of the following periods ends
last: (1) the period beginning with the first day of the Plan Year in
which the Participant attains Age 32 and ending with the close of the Plan Year
preceding the Plan Year in which the Participant attains Age 35; (2) a
reasonable period after the individual becomes a Participant; (3) a
reasonable period ending after Code §401(a)(11) applies to the Participant; or (4) a
reasonable period ending after Code §417(a)(5) ceases to apply to the
Participant. For purposes of this paragraph, a reasonable period is the end of
the two-year period beginning one year prior to the date the applicable event
occurs, and ending one year after that date.


 


(f)                                    Participants Who Terminate
Before Age 35: In the case of a
Participant who separates from service before the Plan Year in which


 


67

















 


the
Participant reaches Age 35, the notice required under paragraph (d) will
be provided within the two-year period beginning one year prior to separation
from service and ending one year after such separation. If such Participant
thereafter returns to employment with the Employer, the Applicable Period for
such Participant will be redetermined.


 


(g)                                 Elections Must Have
Spousal Consent: A Participant’s election not to receive a Qualified Joint and
Survivor Annuity or a Qualified Preretirement Survivor Annuity will not be
effective (1) unless the Participant’s Spouse consents in writing to the
election; (2) unless the election designates a specific Beneficiary (or form of
benefit) which may not be changed without spousal consent (or the consent
of the Spouse expressly permits designations by the Participant without any
requirement of further spousal consent); and (3) unless the Spouse’s
consent acknowledges the effect of the election and is witnessed by the
Administrator or a notary public.


 


(h)                                 Additional
Requirements For Spousal Consent: A Spouse’s consent will not be required if
there is no Spouse or if the Spouse cannot be located, or if there are other
circumstances (as set forth in the Code) present which preclude the necessity
of such Spouse’s consent. Any consent by a Participant’s Spouse (or
establishment that consent cannot be obtained) will be effective only with
respect to such Spouse. A consent that permits designations by the Participant
without any requirement of further spousal consent must acknowledge that the
Spouse has the right to limit consent to a specific Beneficiary, and a specific
form of benefit where applicable, and that the Spouse voluntarily elects
to relinquish either or both of such rights. A revocation of a prior election may be
made by a Participant without the Spouse’s consent at any time before benefits
begin. No consent obtained under paragraph (g) will be valid unless the
Participant has received notice as provided in paragraph (d).


 


5.9                                 APPLICATION OF CODE §401(a)(9) REQUIREMENTS


All
distributions made under the terms of the Plan will be determined and made in
accordance with the regulations issued under Code §401(a)(9), including the
minimum distribution incidental benefit requirement of regulation
§1.401(a)(9)-2, and any provisions in this Plan which reflect Code §401(a)(9) will
override any distribution options which are inconsistent with such Code section and
regulations. If Participant’s Vested Aggregate Account is paid in a form that
is based on life expectancies through other than the purchase of an immediate
annuity, the joint life expectancies of the Participant and his or her Spouse
will be recalculated annually unless the Participant elects the
non-recalculation method of determining life expectancy. In the case of any
other Beneficiary, life expectancy will be calculated at the time payment first
commences, and payments for any 12-consecutive month period will be based on
such life expectancy minus the number of whole years passed since distribution
first commenced.


 


5.10                           STATUTORY COMMENCEMENT OF BENEFITS


Unless
a Participant otherwise elects, distribution of his or her benefit must begin
no later than the 60th day after the latest of the close of the Plan Year


 


68

















 


in
which the Participant (1) reaches the earlier of Age 65 or Normal Retirement
Age; (2) reaches the 10th anniversary of the year the Participant
commenced Plan participation; or (3) terminates service with the Employer.
However, the failure of a Participant and the Participant’s Spouse to consent
to a distribution while a benefit is immediately distributable within the
meaning of Section 5.6 will be deemed to be an election to defer
commencement of payment of any benefit sufficient to satisfy this Section. If
this Plan provides for early retirement, a Participant who satisfies the
service requirement for early retirement prior to Termination of Employment
will be entitled to receive his or her Vested Aggregate Account, if any, upon
satisfaction of the age requirement for early retirement.


 


5.11                           SEGREGATION OF
BENEFIT BEFORE DISTRIBUTION


With
respect to that portion of a Participant’s Vested Aggregate Account which the
Participant is not permitted to self-direct under Section 7.15, as of the
Valuation Date coinciding with or next following the date a Participant
terminates employment with the Employer for any reason, the Administrator will,
until a distribution is made to the Participant or the Participant’s
Beneficiary under the Plan, direct the Trustee in a uniform nondiscriminatory
manner to either (1) invest such Vested Aggregate Account determined as of
such Valuation Date in a separate interest bearing account; or (2) leave
such Vested Aggregate Account as part of the general Trust Fund, in which
case such account will share in the allocation of earnings and losses under Section 3.3(a).


 


5.12                           DISTRIBUTION IN EVENT OF
INCAPACITY


If
any person who is entitled to receive a distribution of benefits (the “Payee”)
suffers from a Disability or is under a legal incapacity, payments may be
made in one or more of the following ways as directed by the Administrator: (a) to
the Payee directly; (b) to the guardian or legal representative of the
Payee’s person or estate; (c) to a relative of the Payee, to be expended
for the Payee’s benefit; or (d) to the custodian of the Payee under any
Uniform Transfers to Minors Act or under any Uniform Gifts To Minors
Act. The Administrator’s determination of the minority or incapacity of any
payee will be final.


 


5.13                           MISSING
PARTICIPANTS AND UNCLAIMED BENEFITS


Neither
the Trustee nor the Administrator will be required to search for or ascertain
the whereabouts of any Participant or Beneficiary. With respect to a
Participant or Beneficiary who has not claimed any benefit (the “missing payee”)
to which such missing payee is entitled, and with respect to any Participant or
Beneficiary who has not satisfied the administrative requirements for benefit
payment, the following provisions will apply:


 


(a)                                  Attempt To Contact
And Forfeiture Of Benefit: The Administrator will notify a missing payee that
he or she is entitled to a distribution under the Plan, by certified or
registered mail addressed to the missing payee’s last known address. The
Administrator, in its sole discretion, may also utilize other methods of
locating a missing payee, including letter forwarding programs offered by the
Internal Revenue Service or the Social Security Administration, or internet or
other search services offered by the Pension Benefit Guaranty Corporation
(PBGC) if such services are made available to defined contributions plans; or


 


69

















 


by
placing public notices in a local newspaper. If a missing payee fails to make
his or her whereabouts known in writing to the Trustee or Administrator or
otherwise fails to claim a benefit, or the administrative requirements for
benefit payment for any payee are not satisfied, upon the earlier to occur of (1) the
later of the date the Plan is terminated or discontinued or six months from the
date the notice was mailed or (2) the date which is two years from the date the notice was mailed, the
Administrator may, but will not be required to, treat the payee’s benefit as a
forfeiture, subject to paragraphs (b) and (c) below.


 


(b)                                 Alternative Methods
To Forfeiture: In lieu of Forfeiture under paragraph (a), the Administrator may elect
one the following alternatives described below:


 


(1)                                  Direct Rollover To
IRA: If a Participant’s Vested Aggregate Account balance (determined before
taking into account his or her Rollover Account and Voluntary Employee
Contribution Account) on the date he or she terminated employment with the
Employer does not exceed $5,000 (or such lesser amount as may be
designated by the Administrator), the Administrator may elect to make
distribution hereunder in the form of a direct rollover to an individual
retirement account (IRA) if the IRA can be established by the Administrator at
a qualified financial institution. In establishing the IRA on behalf of the
Participant or other payee, the Administrator will select an IRA trustee,
custodian or issuer unrelated to the Employer or the Administrator and will
make the initial investment choices for the IRA. The default direct rollover
will occur not less than 30 days and not more than 90 days after the Code §402(f) notice
with the explanation of the default direct rollover is provided to the
Participant or other payee.


 


(2)                                  Escheat To The
State: The Administrator may elect to escheat the payee’s benefit to the
state in which the Sponsor’s principal place of business is located.


 


(3)                                  Other Methods Of
Distribution: The Administrator may elect to distribute a payee’s benefit
by any other method approved by the United States Department of the Treasury
and/or by the United States Department of Labor.


 


(c)                                  Conditions For
Restoration Of Forfeited Benefit: If a payee whose benefit has been forfeited
under paragraph (a) is located, or if a payee whose benefit has been
forfeited under paragraph (a) for failure to satisfy the administrative
requirements for benefit payment subsequently satisfies the administrative
requirements for benefit payment and claims his or her benefit, and if the Plan
has not terminated (or if the Plan has, all benefits have not yet been paid),
then the benefit will be restored. The Administrator, on a case-by-case basis, may elect
to restore the benefit by the use of either earnings from non-segregated Trust
Fund assets, or Employer contributions, or any combination thereof. However, if
such missing payee has not


 


70

















 


been
located by the time the Plan terminates and all benefits are distributed, the
Forfeiture of such unpaid benefit will be irrevocable.


 


5.14                           DIRECT ROLLOVERS


A
distributee may elect to have all or any portion of an eligible rollover
distribution paid directly to an eligible retirement plan specified by the
distributee in a direct rollover, which is a payment by the Plan to the
eligible retirement plan specified by the distributee.


 


(a)                                  Eligible Rollover
Distribution: An eligible rollover distribution is any distribution of all or
any portion of the balance to the credit of the distributee, except that an
eligible rollover distribution does not include (1) any distribution that
is one of a series of substantially equal periodic payments (not less
frequently than annually) made for the life (or life expectancy) of the
distributee or for the joint lives (or joint life expectancies) of the distributee
and the distributee’s designated beneficiary, or for a specified period of ten
years or more; (2) any distribution to the extent such distribution is
required under Code §401(a)(9); (3) the portion of any distribution that
is not includible in gross income (determined without regard to the exclusion
for net unrealized appreciation on Employer securities); and (4) the
portion of any distribution made on or after January 1, 2000 which is
attributable to a hardship distribution described in Code §401(k)(2)(B)(i)(IV).


 


(b)                                 Eligible Retirement
Plan: An eligible retirement plan is an individual retirement account described
in Code §408(a), an individual retirement annuity described in Code §408(b), an
annuity plan described in Code §403(a), or a qualified trust described in Code §401(a),
that accepts the distributee’s eligible rollover distribution. However, in the
case of an eligible rollover distribution to the surviving Spouse, an eligible retirement
plan is an individual retirement account or individual retirement annuity.


 


(c)                                  Definition Of
Distributee: For purposes of this Section, a distributee includes an Employee or
former Employee. In addition, an Employee’s or former Employee’s surviving Spouse
and an Employee’s or former Employee’s Spouse or former Spouse who is the alternate
payee under a qualified domestic relations order as defined in Code §414(p),
are distributees with regard to the interest of the Spouse or former Spouse.


 


5.15                           DISTRIBUTION OF
PROPERTY


The
determination to pay all or a part of a lump sum in property will be made
by the Administrator in its sole discretion applied in a non-discriminatory
manner that does not discriminate in favor of Highly Compensated Employees;
except that if this is an amended or restated Plan, the payee will have the
right to elect a full or partial distribution in property within the period
described in Section 9.1(a)(2) if the Plan as in effect one day prior
to this amendment or restatement provided for a property distribution at the
payee’s option.


 


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5.16                           FINANCIAL HARDSHIP
DISTRIBUTIONS


Subject
to any rules or procedures that may be established by the
Administrator under paragraph (g) below, a Participant who is still an
Employee may withdraw up to 100% of his or her Elective Deferral Account
(excluding any earnings allocated thereto) because of financial hardship. If
permitted by the rules and procedures, such Participant may also
withdraw up to 100% of the Vested Interest in his or her Matching Contribution
Account and/or Non-Elective Contribution Account because of financial hardship.
Unless modified by the rules and procedures, hardship distributions will
be made in accordance with the following provisions:


 


(a)                                  Amount And Form Of
Distribution: The maximum amount distributable will be based on the Participant’s
Account balance as of the Valuation Date immediately preceding the date of the
request, and the amount actually distributed cannot exceed the amount required to relieve
the financial hardship, including amounts necessary to pay any federal, state
or local income taxes or penalties reasonably anticipated to result from the
distribution. Distribution will only be made to the Participant in one lump
sum, provided the Participant’s Spouse, if any, consents to the distribution
under Section 5.8. The Administrator, on a uniform nondiscriminatory
basis, will determine from which account any distribution hereunder will be
made.


 


(b)                                 Definition Of
Financial Hardship: Financial hardship means an immediate and heavy financial need
that the Participant lacks available resources to satisfy. Only the following
financial needs will be considered immediate and heavy: (1) payment of
medical expenses within the meaning of Code §213(d) that are incurred by
the Participant, his or her Spouse or his or her children; (2) the
purchase (excluding mortgage payments) of a principal residence for the Participant;
(3) payment of tuition and related educational fees for the next 12 months
of post-secondary education for the Participant, the Participant’s Spouse or
the Participant’s children; (4) the need to prevent the eviction of the
Participant from his or her principal residence or foreclosure on the mortgage of
the Participant’s principal residence; (5) payment of funeral expenses for
a member of the Participant’s family; or (6) any other immediate and heavy
financial need of the Participant that the Administrator determines on the
basis of all relevant facts and circumstances cannot be satisfied from other
resources reasonably available to the Participant.


 


(c)                                  Participant’s
Written Representations: Except as otherwise provided in paragraph (d) below,
a hardship distribution can only be made to the extent a Participant’s
financial hardship cannot be satisfied from other resources reasonably available
to the Participant, as determined by the Administrator on the basis of all
relevant facts and circumstances. However, the Administrator may treat a
distribution as necessary to satisfy a financial hardship if the Administrator,
in the absence of actual knowledge to the contrary, elects to rely upon the Participant’s
written representation that the financial hardship cannot be relieved (1) through
reimbursement or compensation by insurance or otherwise; (2) by
liquidation of the Participant’s assets, to the extent such liquidation would
not itself cause a financial


 


72

















 


hardship;
(3) by cessation of the Participant’s Elective Deferrals or Voluntary
Employee Contributions to the Plan; or (4) by other distributions or
nontaxable (at the time of the loan) loans from any other Employer-maintained
plans or from any other employer, or by borrowing from commercial sources on
reasonable commercial terms.


 


(d)                                 Safe Harbor Deemed
Distributions: With respect to a distribution made for one of the reasons in
paragraph (b)(1), (2), (3) or (4), if the Administrator does not elect to
rely upon a Participant’s written representation as set forth in paragraph (c),
or if the Administrator offers to rely upon a Participant written
representation and the Participant fails to provide such written
representation, then any such distribution will be deemed to be necessary to
satisfy a financial hardship if the Participant has obtained all distributions
(other than financial hardship distributions) and all nontaxable loans
currently available under all plans maintained by the Employer. Furthermore, if the Administrator offers to rely
on the written representation requirements of paragraph (c) but the
Participant elects not to comply with such
written requirements, and if any portion of the amount distributed is from
the Participant’s Elective Deferral Account, then the Participant cannot make
Elective Deferrals and Voluntary Employee Contributions to this Plan or any
other plan maintained by the Employer for at least 12 months after receipt of
the distribution; and for the Participant’s taxable year immediately following the
taxable year of the hardship distribution, the Participant cannot make Elective
Deferrals to this Plan or any other plan maintained by the Employer in excess
of the applicable limit under Code §402(g)(5) for such taxable year, minus
the amount of such Participant’s Elective Deferrals made for the taxable year
in which the financial hardship distribution was made.


 


(e)                                  Order Of
Distribution: If hardship distributions are permitted to be made from a
Participant’s Matching Contribution Account and/or Non-Elective Contribution
Account as well as from his or her Elective Deferral Account, the Administrator
will determine the portion (including zero) of the distribution that will be
made from each such account, provided that any such determination is made in a
uniform nondiscriminatory manner.


 


(f)                                    Restriction On
Certain Transferred Assets: Notwithstanding any provision in this Section, no
hardship distribution can be made with respect to benefits attributable to
assets (including post-transfer earnings thereon) and liabilities that are
transferred, within the meaning of Code §414(1), to this Plan from a money
purchase pension plan or target benefit pension plan qualified under Code §401(a) (other
than any portion of those assets and liabilities that are attributable to
Voluntary Employee Contributions).


 


(g)                                 Establishment Of
Administrative Procedures: The Administrator may, in a separate written
document, establish rules or procedures regarding hardship distributions
under this Section. Such separate written document, when properly executed, will
be deemed


 


73

















 


incorporated
in this Plan. The rules or procedures set forth therein may be
modified or amended by the Administrator without the necessity of amending this
Section of the Plan, but any such modifications must be communicated to
Participants in the manner described in Section 8.9. Notwithstanding the
foregoing, (1) a summary plan description or summary of material
modifications thereto in which the rules or procedures regarding the
making of hardship distributions are described will be considered a separate
written document sufficient to satisfy the requirements (including the
execution requirement) of this paragraph; and (2) any such rules or procedures
that are established under this paragraph must be applied in a uniform nondiscriminatory
manner.


 


5.17                           IN-SERVICE
DISTRIBUTIONS


Except
as may otherwise be permitted under Section 4.2, no distributions are
permitted before a Participant terminates employment with the Employer.


 


5.18                           DISTRIBUTION OF EXCESS ELECTIVE
DEFERRALS


Elective
Deferrals that exceed the Code §402(g)(5) dollar limitation will be deemed
Excess Elective Deferrals, and all Excess Elective Deferrals, plus any income
and minus any loss allocable thereto, will be distributed no later than April 15th
to any Participant to whose account Excess Elective Deferrals were allocated
for the preceding year and who claims Excess Elective Deferrals for such
taxable year. Distribution of Excess Elective Deferrals will be made in
accordance with the following provisions:


 


(a)                                  Assignment Of
Excess Elective Deferrals: A Participant may assign to this Plan any
Excess Elective Deferrals made during a taxable year of the Participant by
notifying the Administrator on or before April 15th of the amount of
the Excess Elective Deferrals to be assigned to the Plan. A Participant will be
deemed to notify the Administrator of any Excess Elective Deferrals that arise
by taking into account only those Elective Deferrals made to this Plan and any
other plans of the Employer.


 


(b)                                 Treatment As Annual
Additions: Excess Elective Deferrals will be treated as Annual Additions under Section 6.1
of the Plan unless such amounts are distributed no later than the first April 15th
following the close of the Participant’s taxable year. Excess Elective
Deferrals that are distributed after April 15th are includible in the
Participant’s gross income in the taxable year in which deferred and the
taxable year in which distributed.


 


(c)                                  Determination Of
Income Or Loss: Excess Elective Deferrals will be adjusted for any income or
loss up to the end of the Participant’s taxable year and, at the discretion of
the Administrator, may be adjusted for income or loss up to the date of
distribution. The period between the end of the Participant’s taxable year and
the date of distribution will be referred to as the gap period, and any income
earned therein will be allocated at the discretion of the Administrator applied
consistently to all Participants and to all corrective distributions for the
taxable year. The income or loss allocable to a


 


74

















 


Participant’s
Excess Elective Deferrals will be the amount determined by either the method in
subparagraph (1) or subparagraph (2) below plus, if applicable the
amount determined in subparagraph (3) below;


 


(1)                                  The amount
determined by multiplying the income or loss allocable to the Participant’s
Elective Deferrals for the taxable year (and the gap period) by a fraction, the
numerator of which is the Participant’s Excess Elective Deferrals for the year
and the denominator of which is (A) the Participant’s Elective Deferral
Account balance as of the beginning of the Participant’s taxable year plus any
Elective Deferrals allocated to the Participant’s Elective Deferral Account
during such taxable year and the gap period, or (B) solely with respect to
taxable years beginning before January 1, 1992, the Participant’s Elective
Deferral Account balance as of the end of the Participant’s taxable year,
reduced by any gain and increased by any loss allocable thereto during the
taxable year; or


 


(2)                                  The amount
determined by any reasonable method of allocating income or loss to Excess
Elective Deferrals for the taxable year and for the gap period provided the
method used is the same method used by this Plan for allocating income or
losses to Participant’s Accounts; and


 


(3)                                  10% of the amount
determined under (1) multiplied by the number of whole months between the
end of the Participant’s taxable year and the distribution date, counting the
month of distribution if it occurs after the 15th of such month.


 


(d)                                 Source Of
Distribution: Distribution of Excess Elective Deferrals will be taken from a
Participant’s investment options based on rules established by the
Administrator.


 


5.19                           DISTRIBUTION OF EXCESS
CONTRIBUTIONS


Excess
Contributions, plus any income and minus any loss allocable thereto, will be
distributed no later than the last day of each Plan Year to Participants to
whose accounts such Excess Contributions were allocated for the preceding Plan
Year. The amount of Excess Contributions to be distributed to a Participant
under this Section will be reduced by any Excess Elective Deferrals
previously distributed to the Participant under Section 5.18 for the
Participant’s taxable year ending with or within the Plan Year. Distribution of
Excess Contributions will be made in accordance with the following provisions:


 


(a)                                  Allocation To
Highly Compensated Employees: Excess Contributions will be allocated to the
Highly Compensated Employees with the largest amounts of Employer contributions
taken into account in calculating the ADP Test for the year in which the Excess Contributions
arose, beginning with the HCE with the largest amount of such Employer
contributions and continuing in descending order until all the Excess
Contributions have been allocated. For purposes of the preceding sentence, the “largest
amount” is determined after


 


75

















 


distribution
of any Excess Deferrals. If excess amounts are distributed more than 21/2
months after the last day of the Plan Year in which they arose, a 10% excise
tax will be imposed on the Employer. Excess Contributions will be treated as
Annual Additions pursuant to Section 6.1.


 


(b)                                 Determination Of
Income Or Loss: Excess Contributions will be adjusted for any income or loss up
to the end of the Plan Year and, at the discretion of the Administrator, may be
adjusted for income or loss up to the date of distribution. The period, if any,
between the end of the Plan Year and the date of distribution will be referred
to as gap period, and any income earned therein will be allocated at the
Administrator’s discretion applied consistently to all Participants and to all
corrective distributions made for the Plan Year. The income or loss allocable
to each Participant’s Excess Contributions will be the amount determined by
either the method in subparagraph (1) or subparagraph (2) plus, if
applicable, the amount determined under subparagraph (3), as follows:


 


(1)                                  The amount
determined by multiplying the income or loss allocable to the Participant’s
Elective Deferrals (and, if applicable, QNECs or QMACs, or both) for the Plan
Year (and the gap period, if applicable) by a fraction, the numerator of which
is the Participant’s Excess Contributions for the year and the denominator of
which is (A) the Participant’s Elective Deferral Account balance (and
QNECs or QMACs, or both, if any of such contributions are used in the ADP test)
as of the beginning of the Plan Year plus any Elective Deferrals (and QNECs or
QMACs, or both, if any of such contributions are included in the ADP test)
allocated to the Participant during such Plan Year and the gap period, if
applicable, or (B) solely with respect to Plan Years beginning before January 1,
1992, the Participant’s Elective Deferral Account balance (and QNECs or QMACs
or both, if any such contributions are included in the ADP Test) as of the end
of the Plan Year reduced by any gain and increased by any loss allocable
thereto during the Plan Year; or


 


(2)                                  The amount
determined by any reasonable method of allocating income or loss to the
Participant’s Elective Deferrals (and if applicable, QNECs or QMACS, or both)
for the Plan Year and for the gap period provided the method used is the same
method used for allocating income or losses to Participants’ Accounts; and


 


(3)                                  10% of the amount
determined under (1) multiplied by the number of whole months between the
end of the Plan Year and the distribution date, counting the month of
distribution if it occurs after the 15th of such month.


 


(c)                                  Accounting For
Excess Contributions: Excess Contributions will be distributed from the Participant’s
Elective Deferral Account and Qualified Matching Contribution Account in
proportion to the


 


76

















 


Participant’s
Elective Deferrals and Qualified Matching Contributions (to the extent used in
the ADP Test) for the Plan Year. Excess Contributions will be distributed from
the Participant’s Qualified Non-Elective Contribution Account only to the
extent the Excess Contributions exceed the balance in the Participant’s
Elective Deferral Account and Qualified Matching Contribution Account.


 


(d)                                 Source Of
Distribution: Distribution of Excess Contributions will be taken from a Participant’s
investment options based on rules established by the Administrator.


 


5.20                           DISTRIBUTION OF EXCESS
AGGREGATE CONTRIBUTIONS


All
Excess Aggregate Contributions (plus any income and minus any loss allocable
thereto) which are not Vested will be used to reduce Employer contributions for
the current Plan Year or a future Plan Year. All Excess Aggregate Contributions
(plus any income and minus any loss allocable thereto) which are Vested will be
distributed no later than the last day of each Plan Year to Participants to
whose Accounts Excess Aggregate Contributions were allocated for the preceding
Plan Year. Distribution of Excess Aggregate Contributions will be made in
accordance with the following provisions:


 


(a)                                  Allocation To
Highly Compensated Employees: Excess Aggregate Contributions will be allocated
to the HCEs with the largest Contribution Percentage Amounts taken into account
in calculating the ACP Test for the year in which the Excess Aggregate
Contributions arose, beginning with the HCE with the largest amount of such
Contribution Percentage Amounts and continuing in descending order until all
the Excess Aggregate Contributions have been allocated. For purposes of the
preceding sentence, the “largest amount” is determined after distribution of
any Excess Contributions.


 


(b)                                 Excise Tax On Certain
Distributions: If Excess Aggregate Contributions are distributed more than 21/2 months after the last day of the
Plan Year in which they arose, a 10% excise tax will be imposed on the Employer
with respect to those amounts.


 


(c)                                  Treatment As Annual
Additions: Excess Aggregate Contributions will be treated as Annual Additions
under Section 6.1.


 


(d)                                 Forfeiture Of Certain
Matching Contributions: Any Matching Contributions made on behalf of an
Employee which are attributable to Excess Aggregate Contributions will be
treated as Forfeitures and will be used in the manner described in Section 3.4(c).


 


(e)                                  Determination Of
Income: Excess Aggregate Contributions will be adjusted for any income or loss
up to the end of the Plan Year and, at the discretion of the Administrator, may be
adjusted for income or loss up to the date of distribution. The period between
the end of the Plan Year and the date of distribution will be referred to as
the gap period, and any income earned during the gap period will be allocated
at the discretion of the Administrator applied consistently to all Participants
and to all corrective distributions for the Plan Year. The


 


77

















 


income
or loss allocable to a Participant’s Excess Aggregate Contributions will be the
amount determined by either the method in subparagraph (1) or subparagraph
(2) plus, if applicable, the amount determined under subparagraph (3):


 


(1)                                  The amount
determined by multiplying the income or loss allocable to the Participant’s
Voluntary Employee Contributions, Matching Contributions (if not used in the
ADP Test), Qualified Non-Elective Contributions and, to the extent applicable,
Elective Deferrals for the Plan Year (and the gap period, if applicable) by a
fraction, the numerator of which is such Participant’s Excess Aggregate
Contributions for the year and the denominator of which is (A) the
Participant’s Account balance(s) attributable to Contribution Percentage
Amounts as of the beginning of the Plan Year, plus any additional amounts
attributable to Contribution Percentage Amounts allocated to the Participant
during such Plan Year and the gap period, if applicable, or (B) solely
with respect to Plan Years beginning before January 1, 1992, the
Participant’s Account balance attributable to Contribution Percentage Amounts
as of the end of the Plan Year, reduced by any gain and increased by any loss
allocable thereto during the Plan Year; or


 


(2)                                  The amount determined
by any reasonable method of allocating income or loss to the Participant’s Voluntary
Contributions, Matching Contributions and Qualified Non-Elective Contribution
for the Plan Year and for the gap period, if applicable, provided the method
used is the same one used for allocating income or losses to Participants’
Accounts; and


 


(3)                                  10% of the amount
determined under (1) multiplied by the number of whole months between the
end of the Plan Year and the distribution date, counting the month of
distribution if it occurs after the 15th of such month.


 


(f)                                    Accounting For
Excess Aggregate Contributions: Excess Aggregate Contributions will be
forfeited if forfeitable, or will be distributed on a pro-rata basis from the Participant’s
Voluntary Employee Contribution Account, Matching Contribution Account and Qualified
Matching Contribution Account, and if applicable, from the Qualified Non-Elective
Contribution Account or Elective Deferral Account, or from both.


 


(g)                                 Source Of Distribution:
Distribution of Excess Aggregate Contributions will be taken from a Participant’s
investment options based on rules established by the Administrator.


 


78

















 


5.21                           ELIMINATION OF CERTAIN FORMS
OF PAYMENT


The
form or forms of distribution described in Section 5.1, 5.3 and 5.4
are intended to satisfy the requirements of regulation §1.411(d)-4,
Q&A-2(e). Accordingly, the form or forms of distribution described
therein are intended to be the only form or forms of distribution
permitted under this Plan, and subject to the provisions of Section 9.1(a)(2),
any other form of distribution permitted by the Plan on December 31,
1999 is eliminated.


 


79

















 


ARTICLE 6


CODE
§415 LIMITATIONS


 


6.1                                 MAXIMUM ANNUAL
ADDITION


The
maximum Annual Addition as defined
in paragraph (c) below made to a Participant’s various accounts maintained
under the Plan for any Limitation Year beginning after December 31, 1986
will not exceed the lesser of the Dollar Limitation set forth in paragraph (a) or
the Compensation Limitation set forth in paragraph (b), as follows:


 


(a)                                  Dollar Limitation:
For Limitation Years beginning after December 31, 1994, the Dollar
Limitation is $30,000 as annually adjusted pursuant to Code §415(d).


 


(b)                                 Compensation
Limitation: The Compensation Limitation is equal to 25% of the Participant’s Section 415
Compensation for the Limitation Year. This limitation will not apply to any contribution made for medical benefits
within the meaning of Code §419A(f)(2) after separation from service which
is otherwise treated as an Annual Addition or to any amount treated as an
Annual Addition under Code §415(l)(1)


 


(c)                                  Annual Additions:
The term Annual Additions means the sum of the following amounts credited to a
Participant’s Account for the Limitation Year: (1) Employer contributions;
(2) Employee contributions; (3) Forfeitures; (4) amounts
allocated after March 31, 1984 to an individual medical account, as
defined in Code §415(l) (2), which is part of a pension or annuity plan
maintained by the Employer; and (5) amounts derived from contributions
paid or accrued after December 31, 1985, in taxable years ending after
such date, attributable to post-retirement medical benefits, allocated to the
separate account of a key employee, as defined in Code §419A(d)(3), under a
welfare fund, as defined in Code §419(e), maintained by the Employer. Annual
Additions do not include a Participant’s rollovers, loan repayments, repayments
of prior Plan distributions or prior distributions of mandatory contributions,
direct transfers of contributions from another plan to this Plan, deductible
contributions to a SEP, or voluntary deductible contributions.


 


6.2                                 ADJUSTMENTS TO
MAXIMUM ANNUAL ADDITION


In
applying the limitation on Annual Additions set forth in Section 6.1, the
following adjustments must be made to the limitation:


 


(a)                                  Short Limitation
Year: In a Limitation Year of less than 12 months, the Defined Contribution
Dollar Limitation in Section 6.1(a) will be adjusted by multiplying
it by the ratio that the number of months in the short limitation Year bears to
12.


 


(b)                                 Multiple Defined
Contribution Plans: If a Participant participates in multiple defined
contribution plans sponsored by the Employer which have different Anniversary
Dates, the maximum Annual Addition in this Plan for the Limitation Year will be
reduced by the Annual Additions credited to the Participant’s accounts in the
other


 


80

















 


defined
contribution plans in the Limitation Year. If a Participant participates in
multiple defined contribution plans sponsored by the Employer which have the
same Anniversary Date, (1) if only one of the plans is subject to Code §412,
Annual Additions will first be credited to the Participant’s account in the
plan subject to Code §412; and (2) if more than one of the plans is
subject to Code §412, the maximum Annual Addition in this Plan for a given
Limitation Year will be equal to the product of the maximum Annual Addition for
such Limitation Year minus any other Annual Additions previously credited to
the Participant’s account under clause (1), multiplied by the ratio the Annual
Additions which would be credited to a Participant’s accounts hereunder without
regard to the limitations in Section 6.1 bears to the Annual Additions for
all plans described in this clause (2).


 


6.3                                 MULTIPLE PLANS AND
MULTIPLE EMPLOYERS


All
defined benefit plans (whether terminated or not) of the Employer will be
treated as one defined benefit
plan, and all defined contribution plans (whether terminated or not) of the
Employer will be treated as one defined contribution plan. In addition, all
Affiliated Employers will be considered a single employer.


 


6.4                                 ADJUSTMENT FOR EXCESSIVE ANNUAL ADDITIONS


If
for any Limitation Year the Annual Additions allocated to a Participant’s
Account exceeds the maximum amount permitted under Section 6.1 above
because of an allocation of Forfeitures, a reasonable error in estimating a
Participant’s Compensation, a reasonable error in determining the amount of
elective contributions (within the meaning of Code §402(g)(3)), or because of
other limited facts and circumstances that the Commissioner finds justify the
availability of the rules set forth in this Section, then such Participant’s
Account will be adjusted in accordance with the following provisions in order
to reduce the excess Annual Additions:


 


(a)                                  Return Of Employee Contributions:
First, Voluntary Employee Contributions, if any, and second, the amount of
elective deferrals end corresponding Employer matching contributions, if any,
to the extent that they would reduce the excess amount, will be calculated. Such
elective deferrals and Voluntary Employee Contributions plus attributable earnings,
will be returned to the Participant. Any Employer matching contribution amount
will be applied as described in (b) or (c) below, depending on
whether the Participant is covered by the Plan at the end of the Limitation
Year.


 


(b)                                 Excess Used To
Reduce Employer Contributions If Participant Is Still Covered By The Plan: If,
after the application of paragraph (a), an excess amount still exists and the
Participant is covered by the Plan at the end of the Limitation Year, the
excess amount in the Participant’s Account plus applicable earnings thereon, if
any, will be used to reduce Employer contributions (including any allocation of
Forfeitures) for such Participant in the next Limitation Year, and in each
succeeding Limitation Year if necessary.


 


(c)                                  Excess Used To
Reduce Employer Contributions If Participant Is Not Covered By The Plan: If,
after the application of paragraph (a), an


 


81

















 


excess
amount still exists and the Participant is not covered by the Plan at the end
of a Limitation Year, the excess amount, plus applicable earnings thereon, if
any, will be held unallocated in a suspense account. The suspense account will
be applied to reduce future Employer contributions (including the allocation of
any Forfeitures) for all remaining Participants in the next Limitation Year,
and in each succeeding Limitation Year if necessary.


 


(d)                                 Suspense Account:
If a suspense account is in
existence at any time during a Limitation Year pursuant to this Section, such
suspense account will not participate in the allocation of the Trust’s
investment gains and losses. If a suspense account is in existence at any time
during a particular Limitation Year, all amounts in the suspense account must
be allocated and reallocated to Participants’ Accounts before any Employer
Contributions or any Employee contributions may be made to the Plan for
that Limitation Year. Excess amounts may not be distributed to
Participants or former Participants.


 


6.5                                 MULTIPLE PLAN
REDUCTION


For
Limitation Years beginning before January 1, 2000, if an Employee is, or
has been, a Participant in one or more Employer-sponsored defined benefit plans
and in one or more Employer-sponsored defined contribution plans, the sum of
the defined benefit plan fraction and the defined contribution plan fraction
for any Limitation Year may not exceed 1.0, determined in accordance with
the following provisions:


 


(a)                                  Defined Benefit
Fraction: The defined benefit fraction has as its numerator the Participant’s
Projected Annual Benefits determined as of the close of the Limitation Year and
has as its denominator the lesser of 125% of the dollar limitation for the
Limitation Year determined under Code §415(b) and §415(d), or 140% of the amount
which may be taken into account under Code §4l5(b)(1)(B) for such
Limitation Year. However, with respect to anyone who was a Participant as of
the first day of the first Limitation Year beginning after December 31,
1987, in one or more defined benefit plans maintained by the Employer which
were in existence on May 6, 1986, the denominator of the defined benefit
fraction will not be less than 125% of the Current Accrued Benefit.


 


(b)                                 Definitions: The
term Projected Annual Benefits means the annual benefits payable to a
Participant under all defined benefit plans (whether terminated or not) of the
Employer as determined under regulation §1.415-7(b)(3); and the term Current
Accrued Benefit means a Participant’s accrued benefit under a defined benefit plan,
determined as if the Participant had separated from service as of the close of
the last Limitation Year beginning before January 1, 1987, when expressed
as an annual benefit within the meaning of Code §415(b)(2). In determining a
Participant’s Current Accrued Benefit, the Administrator will disregard any
changes to the Plan after May 5, 1986, and any cost of living adjustment
after May 5, 1986. The Current Accrued Benefit will only be used as set
forth above if the defined benefit plans individually and in the aggregate satisfied
the


 


82

















 


requirements
of Code §415 for all Limitation Years beginning before January 1, 1987.


 


(c)                                  Defined
Contribution Fraction: The defined contribution fraction has as its numerator
the sum of the Annual Additions to the Participant’s Account under all the defined
contribution plans (whether terminated or not) maintained by the Employer for
the current Limitation Year and all prior Limitation Years (including the Annual
Additions attributable to the Participant’s non-deductible contributions to all
Employer maintained defined benefit plans, whether terminated or not, and the
Annual Additions attributable to all welfare benefit funds, as defined in Code §419(e),
and individual medical accounts, as defined in Code §415(I)(a) maintained
by the Employer), and has as its denominator the sum of the maximum aggregate
amounts for the current Limitation Year and all prior Limitation Years the
Employee was employed by the Employer (regardless of whether a defined
contribution plan was maintained by the Employer). The maximum permissible
aggregate amount in any Limitation Year is the lesser of (1) 125% of the
dollar limitation in effect in Code §415(c)(1)(A) for such Limitation Year
determined without regard to Code §415(c)(6) and adjusted per regulation
§1.415-7(d)(1) and Notice 83-10, or (2) 35% of the Participant’s Section 415
Compensation.


 


(d)                                 Transition Rule For
Denominator: For defined contribution plans in effect on or before July 1,
1982, the Administrator may elect for any Limitation Year ending after December 31,
1982 that the denominator be the product of the denominator for the Limitation
Year ending in1982 determined under the law in effect for such Limitation Year,
multiplied by the Transition Fraction, which is a fraction which has as its
numerator the lesser of $51,875 or 1.4 multiplied by 25% of the Participant’s Section 415
Compensation for the Plan Year ending in1981, and which has as its denominator
the lesser of $41,500 or 25% of the Participant’s Section 415 Compensation
for the Plan Year ending in 1981. In any Top Heavy Limitation Year, $41,500
will be substituted for $51,875 in determining the Transition Fraction unless
the Extra Minimum Allocation is being provided in Section 3.5. In a Super
Top Heavy Plan Year, $41,500 will always be substituted for $51,875.


 


(e)                                  Adjustment Of
Fraction: If an Employee was a Participant as of the end of the first day of
the first Limitation Year beginning after December 31, 1986 in one or more
defined contribution plans maintained by the Employer which were in existence
on May 6, 1986, the numerator of the defined contribution fraction will be
adjusted if the sum of such defined contribution fraction and the defined
benefit fraction would otherwise exceed 1.0 under the terms of this Plan. Under
the adjustment, an amount equal to the product of the excess of the sum of the
defined benefit fraction and the defined contribution fraction over 1.0
multiplied by the denominator of the defined contribution fraction will be
permanently subtracted from the numerator of the defined contribution fraction.
The adjustment will be calculated using the fractions as they would be computed
as of


 


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the end of the last Limitation Year beginning before January 1,
1987, disregarding any changes in the terms and conditions of the Plan made
after May 5, 1986, but using the Code §415 limitation applicable to the
first Limitation Year beginning on or after January 1, 1987.


 


(f)                                    Top Heavy Adjustments: In any Top Heavy
Limitation Year, 100% will be substituted for 125% in paragraphs (a) and (c) unless
an eligible Non-Key Employee (1) is being provided a 7.5% allocation under
Section 3.5(d); or (2) is being
provided a retirement benefit under a defined benefit plan equal to 3% of
average monthly Code §415 Compensation. However, in any Super Top Heavy
Limitation Year (which means the Top Heavy Ratio exceeds 90% for that Limitation Year), 100% will be substituted for 125% in
any event. If the 100% limitation is exceeded for any Participant in any
Limitation Year, then (1) the Participant’s accrued benefit in the defined
benefit plan will not be increased; (2) no Annual Additions may be
credited to the Participant’s accounts under this Plan; and (3) the
Participant may not make any contributions, whether voluntary or
mandatory, to this Plan or any other Employer-sponsored qualified plan.


 


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ARTICLE 7

DUTIES OF THE TRUSTEE


 


7.1                                 APPOINTMENT, RESIGNATION,
REMOVAL AND SUCCESSION


The
Plan will have one or more individual Trustees, a corporate Trustee or any
combination thereof appointed as follows:


 


(a)                                  Appointment Of
Trustee: Each Trustee will be appointed by the Sponsor and will serve until its
successor has been named or until such Trustee’s resignation, death,
incapacity, or removal, in which event the Employer will name a successor
Trustee. The term Trustee will include the original and any successor Trustees.


 


(b)                                 Resignation Of
Trustee: A Trustee may resign by giving 30 days written notice in advance
to the Sponsor, unless such notice is waived by the Sponsor. The Sponsor may remove
a Trustee any time, with or without cause, by giving written notice of the
removal to the Trustee. Unless waived in writing by the Sponsor, if any Trustee
who is an Employee, a Self-Employed Individual or an Owner-Employee resigns or
terminates employment with, or ownership of, the Sponsor or an Adopting
Employer for any reason, such termination will constitute an immediate
resignation as a Trustee of the Plan.


 


(c)                                  Successor Trustee;
Each successor Trustee will succeed to title to the Trust by filing a written
acceptance of appointment with the former Trustee and the Sponsor. The former Trustee,
upon receipt of such acceptance, will execute all documents and perform all
acts necessary to vest the Trust Fund’s title of record in any successor
Trustee. No successor Trustee will be personally liable for any act or failure
to act of any predecessor Trustee.


 


(d)                                 Merger Of Corporate
Trustee: If any corporate Trustee, before or after qualification, changes its
name, consolidates or merges with another corporation, or otherwise reorganizes,
any resulting corporation which succeeds to the fiduciary business of such Trustee
will become a Trustee hereunder in lieu of such corporate Trustee.


 


7.2                                 INVESTMENT ALTERNATIVES OF
THE TRUSTEE


The
Trustees will implement an investment program based on the Employer’s
investment objectives and the Employee Retirement Income Security Act. In
addition to powers given by law, the Trustees may engage in the following
investment activities on behalf of the Trust:


 


(a)                                  Property: The
Trustee may invest assets in any form of property, including common
and preferred stocks, exchange covered call options, bonds, money market
instruments, mutual funds, savings accounts, certificates of deposit, Treasury
bills, insurance policies and contracts, or in any other property, real or
personal, foreign or domestic, having a ready market including securities
issued by an institutional Trustee and/or affiliate of the institutional
Trustee. An institutional Trustee may invest in its own deposits if such
deposits bear a reasonable interest rate. The Trustee may retain, manage,
operate, repair, improve and mortgage or lease for any period on


 


85

















 


such
terms as it deems proper any real estate or personal property held by the
Trustee, including the power to demolish any building or other improvements in
whole or part. The Trustee may erect buildings or other improvements, make
leases that extend beyond the term of this Trust, and foreclose, extend, renew,
assign, release or partially release and discharge mortgages or other liens.


 


(b)                                 Pooled Funds And
Common Trusts: If the Sponsor maintains more than one qualified retirement plan, the assets of two or
more of such plans may be maintained by the Trustee in a single trust established
by the Sponsor. In addition, the Trustee may transfer any Trust assets to
a collective trust established to permit the pooling of funds of separate
pension and profit-sharing trusts provided the Internal Revenue Service has
ruled such collective trust to be qualified under Code §401(a) and exempt
under Code §501(a) (or under the applicable corresponding provision of any
other Revenue Act) or to any other common, collective, or commingled trust fund
which has been or may hereafter be established and maintained by the
Trustee and/or affiliates of an institutional Trustee. Such commingling of
assets of the Fund with assets of other qualified trusts is specifically
authorized, and to the extent of the investment of the Trust Fund in such a group
or collective trust, the terms of the instrument establishing the group or
collective trust will be a part hereof as though set forth herein.


 


(c)                                  Employer Stock: The
Trustee may invest assets in the common stock, debt obligations, or any other
security issued by the Employer within the limitations provided under ERISA
§406, §407 and §408 if such
investment does not constitute a prohibited transaction under Code §4975. Any
such investment will only be made upon written direction of the Employer, which
will be solely responsible for its propriety.


 


(d)                                 Cash Reserves: The
Trustee may retain in cash such Trust Fund assets as the Trustee may deem
advisable to satisfy the liquidity needs of the Plan and to deposit any cash
held in the Trust Fund in a bank account without liability for the highest rate
of interest available. If a bank is acting as Trustee, such Trustee is
specifically given authority to invest in deposits of such Trustee. The Trustee
may also hold cash uninvested at any time and from time to time and in
such amount or to such extent as the Trustee deems prudent, and the Trustee
will not be liable for any losses that may be incurred as the result of
the failure to invest same, except to the extent provided herein or in ERISA.


 


(e)                                  Reorganizations, Recapitalizations,
Consolidations, Sales Or Mergers: The Trustee may join in or oppose the reorganization,
recapitalization, consolidation, sale or merger of corporations or properties,
upon such terms as the Trustee deems wise.


 


(f)                                    Registration of
Securities: The Trustee may cause any securities or other property to be
registered in the Trustee’s own name or in the name of the Trustee’s nominee or
nominees, and may hold any investments in bearer form, but the records of
the Trustee will at all times show all such investments as part of the
Trust Fund.


 


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(g)                                 Proxies: The
Trustee may vote proxies and if appropriate pass them on to any investment
manager which may have directed the investment in the equity giving rise
to the proxy.


 


(h)                                 Ownership Rights:
The Trustee may exercise all ownership rights with respect to any assets
held in the Trust Fund.


 


(i)                                     Other Investments:
The Trustee may accept and retain for such time as the Trustee deems
advisable any securities or other property received or acquired as Trustee,
whether or not such securities or property would normally be purchased as
investments hereunder.


 


(j)                                     Key Man Insurance:
The Trustee, with the consent of the Administrator, may purchase insurance
Policies on the life of any Participant whose employment is deemed to be key to
the Employer’s financial success. Such key man Policies will be deemed to be an
investment of the Trust Fund and will be payable to the Trust Fund as the
beneficiary thereof. The Trustee may exercise any and all rights granted
under such Policies. Neither the Trustee, Employer, Administrator, nor any
Fiduciary will be responsible for the validity of any Policy or the failure of
any insurer to make payments thereunder, or for the action of any person which
delays payment or renders a Policy void in whole or in part. No insurer that
issues a Policy will be deemed a party to this Plan for any purpose or to be
responsible for its validity; nor will it be required to look into the terms of
the Plan nor to question any action of the Trustee. The obligations of the insurer
will be determined solely by the Policy’s terms and any other written
agreements between it and the Trustee. The insurer will act only at the written
direction of the Trustee, and will be discharged from all liability with
respect to any amount paid to the Trustee. The insurer will not be obligated to
see that any money paid by it to the Trustee or any other person is properly
distributed or applied.


 


(k)                                  Loans To The Trust:
The Trustee may borrow or raise money for purposes of the Plan in such
amounts, and upon such terms and conditions, as the Trustee deems advisable;
and for any sum so borrowed, the Trustee may issue a promissory note as
Trustee, and secure repayment of the loan by pledging all, or any part, of the
Trust Fund as collateral. No person lending money to the Trustee will be bound
to see to the application of the money lent or to inquire into the validity or
propriety of any borrowing.


 


(l)                                     Agreements With
Banks: The Trustee may with the consent of the Sponsor and upon such terms
as they deem necessary, enter into an agreement with a bank or trust company
providing for the deposit of all or part of the Trust assets with such
bank or trust company, and the appointment of such bank or trust company as the
agent or custodian of the Trustees for investment purposes, with such
discretion in investing and reinvesting the funds of the Trust as the Trustees
deem it necessary or desirable to delegate.


 


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(m)                               Litigation: The
Trustee may begin, maintain, or defend any litigation necessary in
connection with the administration of the Plan, except that the Trustee will
not be obliged or required to do so unless indemnified to its satisfaction.


 


(n)                                 Claims, Debts or
Damages: The Trustee may settle, compromise, or submit to arbitration any
claims, debts, or damages due or owing to or from the Plan.


 


(o)                                 Margin Accounts,
Options And Commodities Trading: The Trustee may engage in the following
activities: borrowing on margin, buying options, writing covered options,
options spreads/straddles, and future/commodities trading.


 


(p)                                 Miscellaneous: The
Trustee may do all such acts (including, but not limited to, margin
trading and futures and commodities trading) and exercise all such rights,
although not specifically mentioned herein, as the Trustee deems necessary. The
Trustee will not be restricted to securities or other property of the character
expressly authorized by applicable law for trust investments, provided the Trustee discharges its duties
with the care, skill, prudence, and diligence, under the circumstances then
prevailing, that a prudent person acting in a like capacity and familiar with
such matters would use in the conduct of an enterprise of similar character and
with similar aims by diversifying the investments to minimize the risks of
large losses unless under the circumstances it is clearly prudent not to do so.


 


7.3                                 VALUATION OF THE TRUST FUND


On
each Valuation Date, the Trustee will determine the net worth of the Trust
Fund. The fair market value of securities listed on a registered stock exchange
will be the prices at which they were last traded on such exchange preceding
the close of business on the Valuation Date. If the securities were not traded
on the Valuation Date, or if the exchange on which they are traded was not open
for business on the Valuation Date, then the securities will be valued at the
prices at which they were last traded prior to the Valuation Date. Any unlisted
security will be valued at its bid price next preceding the close of business
on the Valuation Date, which bid price will be obtained from a registered
broker or an investment banker. To determine the fair market value of assets
other than securities for which trading or bid prices can be obtained, the
Trustee may use any reasonable method to determine the value of such
assets, or may elect to employ one or more appraisers for that purpose and
rely on the values established by such appraiser or appraisers.


 


7.4                                 COMPENSATION AND EXPENSES


The
Trustee, either from the Trust Fund or from the Employer, will be reimbursed for all of its expenses and
will be paid reasonable compensation as agreed upon from time to time with the
Employer; but no person who receives full-time pay from the Employer will
receive any fees for services to the Plan as Trustee or in any other capacity.
Expenses will be paid by each Adopting Employer in the ratio that each Adopting
Employer’s Participants’ Accounts bears to the total of all the Participants’
Accounts maintained by this Plan.


 


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7.5                                 PAYMENTS FROM THE TRUST
FUND


The
Trustee will pay Plan benefits and other payments as the Administrator directs,
and except as provided by ERISA, the Trustee will not be responsible for the
propriety of such payments. Any payment made to a Participant, or a Participant’s
legal representative or Beneficiary in accordance with the terms of the Plan
will, to the extent of such payment, be in full satisfaction of all claims
arising against the Trust, the Trustee, the Employer, and the Administrator.
Any payment or distribution made from the Trust is contingent on the recipient
executing a receipt and release acceptable to the Trustee, Administrator, or
Employer.


 


7.6                                 PAYMENT OF TAXES


The
Trustee will pay all taxes of the Trust Fund, including property, income,
transfer and other taxes which may be levied or assessed upon or in
respect of the Trust Fund or any money, property or securities forming a part of
the Trust Fund. The Trustee may withhold from distributions to any payee
such sum as the Trustee may reasonably estimate as necessary to cover
federal and state taxes for which the Trustee may be liable, which are, or
may be, assessed with regard to the amount distributable to such payee.
Prior to making any payment, the Trustee may require such releases or
other documents from any lawful taxing authority and may require such
indemnity from any payee or distributee as the Trustee deems necessary.


 


7.7                                 ACCOUNTS, RECORDS AND REPORTS


The
Trustee will keep accurate records reflecting its administration of the Trust
Fund and will make them available to the Administrator for review and audit. At
the request of the Administrator, the Trustee will, within 90 days of such
request, file with the Administrator an accounting of its administration of the
Trust Fund during such period or periods as the Administrator determines. The
Administrator will review the accounting and notify the Trustee within 90 days
if the report is disapproved, providing the Trustee with a written description
of the items in question. The Trustee will have 60 days to provide the
Administrator with a written explanation of the items in question. If the
Administrator again disapproves of the report, the Trustee will file its
accounting in a court of competent jurisdiction for audit and adjudication.


 


7.8                                 EMPLOYMENT OF AGENTS AND
COUNSEL


The
Trustee may employ such agents, counsel, consultants, or service companies
as it deems necessary and may pay their reasonable expenses and
compensation. The Trustee will not be liable for any action taken or omitted by
the Trustee in good faith pursuant to the advice of such agents and counsel.
Any agent, counsel, consultant, service company and/or its successors will
exercise no discretionary authority over investments or the disposition of
Trust assets, and their services and duties will be ministerial only and will
be to provide the Plan with those things required by law or by the terms of the
Plan without in any way exercising any fiduciary authority or responsibility
under the Plan. The duties of a third party administrator will be to safe-keep
the individual records for all Participants and to prepare all required
actuarial services and disclosure forms under the supervision of the
Administrator and any Fiduciaries of the Plan. It is expressly stated that the
third party administrator’s services are only ministerial in nature


 


89

















 


and
that under no circumstances will such third party administrator exercise any
discretionary authority whatsoever over Plan Participants, Plan investments, or
Plan benefits.


 


7.9                                 DIVISION OF DUTIES
AND INDEMNIFICATION


The
division of duties and the indemnification of the Trustee of this Plan will be
governed by the following provisions:


 


(a)                                  No Guarantee
Against Loss: The Trustee will have the authority and discretion to manage and
control the Trust Fund to the extent provided in this instrument, but does not
guarantee the Fund in any manner against investment loss or depreciation in
asset value, or guarantee the adequacy of the Fund to meet and discharge all or
any liabilities of the Plan. Furthermore, the Trustee will not be liable for
the making, retention or sale of any investment or reinvestment made by it, as
herein provided, or for any loss to or diminution of the Fund, or for any other
loss or damage which may result from the discharge of its duties
hereunder, except to the extent it is judicially determined that the Trustee
failed to exercise the care, skill, prudence and diligence under the circumstances
then prevailing that a prudent person acting in a like capacity and familiar
with such matters would use in the conduct of an enterprise of like character
and like aims.


 


(b)                                 Representations Of
The Sponsor: The Sponsor warrants that all directions issued to the Trustee by
it or the Plan Administrator will be in accordance with the terms of the Plan
and not contrary to the provisions of the Employee Retirement Income Security
Act of 1974 and the regulations issued thereunder.


 


(c)                                  Directions By Others:
The Trustee will not be answerable for any action taken pursuant to any
direction, consent, certificate, or other paper or document on the belief that
the same is genuine and signed by the proper person. All directions by the
Employer, a Participant or the Plan Administrator will be in writing. The Plan
Administrator will deliver to the Trustee certificates evidencing the individual
or individuals authorized to act as the Administrator and will deliver to the
Trustee specimens of their signatures.


 


(d)                                 Duties And Obligations
Limited By The Plan: The duties and obligations of the Trustee will be limited
to those expressly imposed upon it by this Plan or subsequently agreed upon by
the parties. Responsibility for administrative duties required under the Plan or
applicable law not expressly imposed upon or agreed to by the Trustee, will
rest solely with the Sponsor and with the Administrator.


 


(e)                                  Indemnification Of
Trustee: The Trustee will be indemnified and saved harmless by the Employer
against any and all liability to which the Trustee may be subjected,
including all expenses reasonably incurred in its defense, for any action or
failure to act resulting from compliance with the Employer’s instructions, the
Employer’s employees or agents, the Administrator, or any other Plan Fiduciary,
and for any liability arising from the actions or non-actions of any
predecessor Trustees or Plan Fiduciary.


 


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(f)                                    Trustee Not
Responsible For Application Of Payments: The Trustee will not be responsible in
any way for the application of any payments it is directed to make or for the
adequacy of the Fund to meet and discharge any and all liabilities under the
Plan.


 


(g)                                 Multiple Trustees:
If more than one Trustee is appointed, any single Trustee may act
independently in undertaking any act and/or transaction on behalf of the Trust
unless the Trustees have agreed by a majority vote that a particular action,
including signing documents or checks, must be approved by a majority vote
before it can be undertaken.


 


(h)                                 Limitation Of
Liability: No Trustee will be liable for the act of any other Trustee or
Fiduciary unless the Trustee has knowledge of such act.


 


(i)                                     Trustee As
Participant Or Beneficiary: Trustee will not be prevented from receiving any
benefits to which it may be entitled as a Participant or Beneficiary in
the Plan, so long as the benefits are computed and paid on a basis that is
consistent with the terms of the Plan as applied to all other Participants and
Beneficiaries.


 


(j)                                     No Self-Dealing:
The Trustee will not (1) deal with the assets of the Trust Fund in its own
interest or for its own account; (2) in its individual or in any other
capacity, act in any transaction involving the Trust Fund on behalf of a party
(or represent a party) whose interests are adverse to the interests of the
Plan, or its Participants or Beneficiaries; or (3) receive any
consideration for its own personal accounts from any party dealing with the
Plan in connection with a transaction involving assets of the Trust Fund.


 


7.10                           APPOINTMENT OF INVESTMENT
MANAGER


The
Trustee, if so directed by the Sponsor, will appoint an Investment Manager to
manage and control the investment of all or any portion of the Trust Fund. Each
Investment Manager will be either (a) an investment advisor registered
under the Investment Advisors Act of 1940; (b) a bank as defined in that
Act; or (c) an insurance company qualified to manage, acquire or dispose
of any asset of the Trust under the laws of more than one state. An Investment
Manager must acknowledge in writing that it is a Fiduciary. The Sponsor will
enter into an agreement with an Investment Manager specifying the duties and
compensation of the Investment Manager and further specifying any other terms
and conditions under which the Investment Manager will be retained. The Trustee
will not be liable for any act or omission of an Investment Manager, and will
not be liable for following the advice of an Investment Manager with respect to
any duties delegated by the Sponsor to the Investment Manager. The Sponsor will
determine the portion of the Trust Fund to be invested by an Investment Manager
and will establish investment objectives and guidelines for the Investment
Manager to follow.


 


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7.11                           ASSIGNMENT AND
ALIENATION OF BENEFITS


Except
as may otherwise be permitted under Code §401(a)(13)(C) effective August 5,
1997, or as may otherwise be permitted under a Qualified Domestic
Relations Order as provided in Section 8.11, or as otherwise be permitted
under Section 7.14 if loans to Participants are permitted, no right or
claim to, or interest in, any part of the Trust Fund, or any payment
therefrom, will be assignable, transferable, or subject to sale, mortgage,
pledge, hypothecation, commutation, anticipation, garnishment, attachment,
execution, or levy of any kind,
and the Trustees will not recognize any attempt to assign, transfer, sell,
mortgage, pledge, hypothecate, commute, or anticipate the same, except to the
extent required by law.


 


7.12                           EXCLUSIVE BENEFIT
RULE


All
contributions made by an Employer (whether or not the Employer is an Affiliated
Employer with one or more other Adopting Employers) to the Trust Fund will be
used for the exclusive benefit of all Participants and their Beneficiaries and
will not be used for nor diverted to any other purpose except the payment of
the costs of maintaining the Plan.


 


7.13                           PURCHASE OF
INSURANCE


Subject
to any rules or procedures that may be established by the
Administrator under paragraph (k) below, the Trustee may purchase life
insurance Policies on the life of a Participant and/or the Participant’s Spouse
in accordance with the following provisions:


 


(a)                              Ownership Of
Policies: All life insurance Policies will be vested exclusively in the Trustee
and will be payable to the Trustee, subject to the rights of the Beneficiaries
hereunder unless the Trustee permits the designation of a named beneficiary
other than the Trustee. However, notwithstanding the foregoing, no Trustee who
is also a Participant may, except in a fiduciary capacity, exercise any ownership
rights with respect to any Policy insuring the life of such Trustee in his or
her capacity as a Participant.


 


(b)                             Primary Limit On
Premiums: At the direction of the Administrator or Participant, the Trustee
will purchase Policies on the life of the Participant, provided that the
aggregate premiums on ordinary life insurance Policies must be less than 50% of
the Participant’s Account balance; (2) the aggregate premiums on term life
insurance Policies, universal life insurance Policies and all other life
insurance Policies which are not ordinary life insurance Policies must be less
than 25% of the Participant’s Account balance; and (3) the sum of one-half
of the premiums on ordinary life insurance Policies and the total of all other
life insurance premiums cannot exceed 25% of the Participant’s Account balance.
For purposes of this Section, an ordinary life insurance Policy is an insurance
policy that has a non-decreasing death benefit and also has a non-increasing
premium.


 


(c)                              Alternate Limit On
Premiums: Notwithstanding paragraph (a), a Participant may elect that up
to 100% of his or her Rollover Account, and up to 100% of the portion of his or
her Vested Participant’s Account that has accumulated in the Plan for at least
2 years, be used


 


91

















 


to
purchase Policies on the life of the Participant’s life, the life of the
Participant’s Spouse, and/or the joint lives of the Participant and the
Participant’s Spouse. Likewise, a Participant who has participated in the Plan
for at least 5 years may elect that up to 100% of his or her Rollover
Account, and up to 100% of his or her Vested Participant’s Account balance, be
used to purchase Policies on the life of the Participant, the life of the
Participant’s Spouse, and/or the joint lives of the Participant and his or her
Spouse.


 


(d)                             Payment Of Premiums: If Employer
contributions are inadequate to pay all premiums on Policies, the Trustees may,
at the direction of the Plan Administrator, utilize other amounts remaining in
the Trust Fund to pay the premiums, allow the Policies to lapse, reduce the Policies
to a level at which they may be maintained, or borrow against the Policies
on a prorated basis if borrowing does not discriminate in favor of Policies
issued on the lives of officers, Shareholder-Employees and/or Highly
Compensated Employees.


 


(e)                              Payment Of Premiums
From Loans: The Trustees may pay premiums when due from the loan values of
the Policies themselves if (1) any such loan is made against all of the
Policies in proportion to their respective cash surrender values, and (2) all
such loans are repaid in proportion to the cash surrender value of such
Policies.


 


(f)                                Policy Dividends:
Any insurer payments that are paid to the Trustee on account of experience
credits, dividends, or surrender or cancellation credits, will be applied by
the Employer within the current or next succeeding Plan Year toward premiums due.


 


(g)                             Conflict With Plan:
Subject to the provisions of paragraph (j) below, if the provisions of any
insurance Policy purchased hereunder conflict with the terms of this Plan, the
provisions of the Plan will control.


 


(h)                             Disposition Of
Policies Upon Termination: If a Terminated Participant’s Vested Interest equals
or exceeds the cash surrender value of any Policies issued on his life, the
Trustee, with the consent of both the Administrator and the Terminated
Participant, will transfer such Policies to the Terminated Participant,
together with any restrictions the Administrator may impose concerning the
Terminated Participant’s right to surrender, assign, or otherwise realize cash
on such Policies prior to his Normal Retirement Date. If the Terminated
Participant’s Vested Interest in his Participant’s Account is less than the
cash surrender values of such Policies, the Administrator may permit him
to pay the Trustee the sum required to make distribution equal to the value of
the Policies being assigned or transferred, or the Trustee may borrow the
cash surrender values of the Policies from the insurer and then assign the
Policies to the Terminated Participant.


 


(i)                                 Disposition Of
Policies At Retirement: When a Participant retires, the Trustee, at the
direction of the Administrator, must, with respect to any Policies purchased on
the life of such Participant under paragraph (b), either (1) transfer them
to the Participant, (2) with the


 


92

















 


Participant’s
consent, borrow their cash surrender values and transfer them to the
Participant subject to the loan, or (3) surrender them for their cash
surrender values. If options (2) or (3) are elected, the cash
surrender values will be added to the Participant’s Account for distribution in
accordance with Section 5.1.


 


(j)                                  Fiduciaries And
Insurers Protected: Neither the Trustee, Employer, Administrator, nor any
Fiduciary will be responsible for the validity of any Policy or the failure of
any insurer to make payments thereunder, or for the action of any person which may delay
payment or render a Policy void in whole or in part. No insurer which issues a
Policy will be deemed a party to
this Plan for any purpose or to be responsible for its validity; nor will it be
required to look into the terms of the Plan nor to question any action of the
Trustee. The obligations of the insurer will be determined solely by the Policy’s
terms and any other written agreements between it and the Trustee. The insurer
will act only at the written direction of the Trustee, and will be discharged
from all liability with respect to any amount paid to the Trustee. The insurer
will not be obligated to see that any money paid by it to the Trustee or any
other person is properly distributed or applied.


 


(k)                              Establishment Of
Administrative Procedures: The Administrator may in a separate written
document establish rules or procedures regarding the conditions under
which Policies can be purchased by the Trustee. Such separate written document,
when properly executed, will be deemed incorporated in this Plan. The rules or
procedures therein may be modified or amended by the Administrator without
the necessity of amending this Section, but any such modifications must be
communicated to Participants in the manner described in Section 8.9.
Notwithstanding the foregoing, (1) a summary plan description or summary
of material modifications thereto in which the rules or procedures
regarding the purchase of insurance Policies is described will be considered a
separate written document sufficient to satisfy the requirements (including the
execution requirement) of this paragraph; and (2) any rules or
procedures established under this paragraph must be applied by the
Administrator in a uniform nondiscriminatory manner.


 


7.14                           LOANS TO
PARTICIPANTS


Loans
to Participants are not permitted.


 


7.15                           DIRECTED INVESTMENT
ACCOUNTS


Subject
to any rules or procedures that may be established by the
Administrator under paragraph (h) below, the Trustee may permit
Participants to direct the investment of one or more of their accounts, and
subject to any such rules or procedures, investment directives will be
given in accordance with the following provisions:


 


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(a)                              Accounts That Can
Be Directed: The Administrator will designate which accounts a Participant or
other payee can direct, and whether the Participant or payee can direct all or only
a portion of each such account. Any such designation can be changed by the
Administrator from time to time by communicating new procedures to the Participants.


 


(b)                             Investment Funds:  Any
amount a Participant or other payee directs will be put into a segregated
investment selected by the Participant; or alternative investment funds
established by the Trustee as part of the overall Trust Fund. Such alternative
investment funds will be under the full control and management of the Trustee.
Alternatively, if investments outside the Trustee’s control are allowed,
Participants and other payees may not direct that investments be made in collectibles,
other than U.S. Government gold and silver coins. The Administrator or Trustee
will have the authority to refuse any investment directed by the Participant or
other payee if that investment would be administratively burdensome, or if for
any reason the Administrator or Trustee believes such investment would or might
constitute a prohibited transaction as defined in ERISA §406 or Code §4975. In
the event a Participant or other payee fails to make a timely investment
election, at the Administrator’s discretion either no election will be deemed
to have been made or the Participant or other payee will be considered to have
made an election to invest 100% of his or her account in an investment option,
the primary objective of which is the preservation of principal, until such
time as an investment decision by the Participant or other payee becomes effective.


 


(c)                              Investment
Designation Form: A Participant’s investment direction will be made in a form acceptable
to, and in accordance with procedures established by, the Administrator. Unless
changed by procedures established by the Administrator and communicated to Participants
and other payees, (1) a Participant or other payee may change an
investment election by filing a new investment designation form with the
Administrator or the Administrator’s designee; (2) any change will be
effective no later than the first day of the next investment election period;
and (3) investment election periods will be established at the discretion
of the Administrator but in any event will occur no less frequently than once
in every 12-month period or, at the discretion of the Administrator and the
Trustee, once in every 3-month or 6-month period or at such other more frequent
time which is uniformly available as determined and promulgated by the Administrator
and the Trustee.


 


(d)                             Transfers Between
Funds: Unless changed by procedures established by the Administrator and
communicated to Participants and other payees, if multiple investment fund
options are made available, a Participant or other payee may elect to
transfer all or part of his or her Account in one or more of the
investment funds from one investment fund to another investment fund by filing
an investment designation form with the Administrator or with the
Administrator’s designee within a reasonable administrative period prior to the
next


 


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period
for which investment options may be elected to be transferred. The funds
will be transferred by the Trustee or the Administrator’s designee as soon as
practicable prior to, or by the start of, the new election period. If made
available, telephone or other electronic or computer transfers will be
permitted under uniform procedures approved adopted by the Administrator
and agreed to by the Trustee.


 


(e)                               Administrator
Responsibility:  Either the Administrator
or the Administrator’s designee will be responsible when transmitting Employer
and Employee contributions or other Trust Fund assets to indicate the dollar
amount which is to be credited to each investment fund on behalf of each
Participant or other payee.


 


(f)                                 No Administrator
Liability: Except as otherwise provided herein, neither the Trustee, nor the
Administrator, nor the Employer, nor any Fiduciary of the Plan will be liable
to the Participant or other payee (or to his or her Beneficiaries) for any loss
resulting from action taken under this Section at the direction of the
Participant or other payee.


 


(g)                              Charges And Fees:
Any charge or fee which may be imposed by the Trustee or by any broker,
investment advisor, or otherwise, including legal fees, incurred in connection
with a Participant’s direction under this Section of any Plan account
maintained on the Participant’s behalf may be charged to and paid from the
assets of such account.


 


(h)                              Establishment Of
Administrative Procedures: All investment designations made by Participants are
to be made subject to and in accordance with such rules or procedures as
the Administrator may adopt. At the discretion of the Administrator and
the Trustee, such rules or procedures will permit sufficient selection
among investment alternatives to satisfy the provisions of DOL Regulation §2550.404(c)-1.
Such rules or procedures, when properly executed in a written document,
will be deemed incorporated in this Plan. The rules or procedures therein may be
modified or amended by the Administrator without the necessity of amending this
Section, but any such modifications must be communicated to Participants in the
manner described in Section 8.9. Notwithstanding the foregoing, (1) a
summary plan description or summary of material modifications thereto in which
the rules or procedures regarding investment designations are described
will be considered a separate written document sufficient to satisfy the
requirements (including the execution requirement) of this paragraph; and (2) any rules or procedures
established under this paragraph must be applied in a uniform nondiscriminatory
manner.


 


7.16                        SUPERSEDING TRUST
OR CUSTODIAL AGREEMENT


If any assets of the Plan
are invested in a separate trust or custodial account maintained by a corporate
Trustee or custodian, the provisions of such separate trust or custodial
agreement will supersede all provisions of this Article 7 except Sections
7.11, 7.12, 7.13 and 7.14. In addition, in the absence of a specific provision
in such separate trust or custodial agreement regarding the valuation of
securities held by the Trust Fund, Section 7.3 will


 


95

















 


not be superseded by any
such separate trust or custodial account. If such separate trust or custodial
account should for any reason fail, be found invalid or terminate prior to the
termination of this Plan and the distribution of all the assets hereof, this Article 7
will be deemed to have again become effective immediately prior to such
failure, invalidity or termination.


 


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ARTICLE 8


DUTIES OF THE ADMINISTRATOR


 


8.1                                 APPOINTMENT,
RESIGNATION, REMOVAL AND SUCCESSION


Each
Administrator appointed by the Sponsor will continue until his or her death,
resignation, or removal at any time, with or without cause, by the Sponsor, and
any Administrator may resign by giving 30 days written notice to the
Sponsor. If an Administrator dies, resigns, or is removed by the Sponsor, such
Administrator’s successor will be appointed as promptly as possible, and such
appointment will become effective upon its acceptance in writing by such
successor Administrator. Pending the appointment and acceptance of any
successor Administrator, any then acting or remaining Administrator will have
full power to act.


 


8.2                                 POWERS AND DUTIES OF THE ADMINISTRATOR


The
powers and duties of the Administrator will include (a) appointing the
Plan’s attorney, accountant, actuary, or any other party needed to administer
the Plan; (b) directing the Trustees with respect to payments from the
Trust Fund; (c) deciding if an applicant is entitled to a benefit from the
Plan, which will be paid only if the Administrator in its sole discretion
decides that the applicant is entitled to it; (d) communicating with
Employees regarding their participation and benefits, including the
administration of all claims procedures; (e) filing any returns and
reports with the Internal Revenue Service, Department of Labor, or any other
governmental agency; (f) reviewing and approving any financial reports,
investment reviews, or other reports prepared by any party under (a) above;
(g) establishing a funding policy and investment
objectives consistent with the purposes of the Plan and the Employee Retirement
Income Security Act of 1974; (h) construing and resolving any question of
Plan interpretation; and (i) making any findings of fact the Administrator
deems necessary to proper Plan administration.


 


8.3                                 APPOINTMENT OF ADMINISTRATIVE COMMITTEE


The
Employer may elect to appoint one or more members to an
Administrative/Advisory Committee (to be known as the “Committee”), to which
the Sponsor may elect to delegate certain of its responsibilities as Plan
Administrator. Members of the Committee need not be Participants or
Beneficiaries, and officers and directors of the Sponsor will not be precluded
from serving as members. A member will serve until his or her resignation,
death, or disability, or until removed by the Sponsor. In the event of any
vacancy arising by reason of the death, disability, removal, or resignation of
a member of the Committee, the Sponsor may, but is not required to, appoint a
successor to serve in his or her place. The Committee will select a chairman
and a secretary from among its members. Members of the Committee will serve in
such capacity without compensation. The Committee will act by majority vote.


 


8.4                                 FINALITY OF
ADMINISTRATIVE DECISIONS


The
Administrator’s interpretation of Plan provisions, and any findings of fact,
including eligibility to participate and eligibility for benefits, are final
and will not be subject to “de novo” review unless shown to be arbitrary and
capricious.


 


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8.5                                 MULTIPLE
ADMINISTRATORS


If
there is more than one Administrator, the Administrators may delegate
specific responsibilities among themselves, including the authority to execute
documents unless the Sponsor revokes such delegation. The Sponsor and Trustee
will be notified in writing of any such delegation of responsibilities, and the
Trustee thereafter may rely upon any documents executed by the appropriate
Administrator.


 


8.6                                 COMPENSATION AND
EXPENSES


The
Administrator, the Committee and any party appointed by the Administrator under
Section 8.7 may receive such compensation as agreed upon by the
Sponsor, provided that any person who already receives full-time pay from the
Employer may not receive any fees for services to the Plan as
Administrator or in any other capacity. The Sponsor will pay all “settlor”
expenses (as described in DOL Advisory Opinion 2001-01-A) incurred by the
Administrator, the Committee or any party appointed under Section 8.7 in
the performance of their duties. The Sponsor may, but is not required to pay,
all “non-settlor” expenses incurred by the Administrator, the Committee, or any
party appointed under Section 8.7 in the performance of their duties. Any “non-settlor”
expenses incurred by the Administrator, the Committee or any party appointed
under Section 8.7 that the Sponsor elects not to pay will be reimbursed
from Trust Fund assets. Any expenses paid from the Trust Fund will be charged
to each Adopting Employer in the ratio that each Adopting Employer’s
Participants’ Accounts bears to the total of all the Participants’ Accounts
maintained by this Plan, or in any other reasonable method elected by the
Administrator.


 


8.7                                 APPOINTMENT OF
AGENTS AND COUNSEL


The
Administrator (or Committee) may appoint such actuaries, accountants,
custodians, counsel, agents, consultants, and other persons the Administrator
(or Committee) deems necessary to the administration and operation of the Plan.
The actions of any such third parties will be subject to the limitations
described in Section 7.8 of the Plan; and no such third parties will be
given any authority or discretion concerning the management and operation of
the Plan that would cause them to become Fiduciaries of the Plan.


 


8.8                                 CORRECTING
ADMINISTRATIVE ERRORS


The
Administrator may take such steps as it considers necessary and
appropriate in its discretion to remedy administrative or operational errors.
Such steps may include, but will not be limited to the following: (a) taking
any action required under the employee plans compliance resolution system of
the Internal Revenue Service, any asset management or fiduciary conduct error
correction program available through the Internal Revenue Service, United
States Department of Labor or other governmental administrative agency; (b) a
reallocation of Plan assets; (c) adjustments in amounts of future payments
to Participants, Beneficiaries or Alternate Payees; and (d) institution
and prosecution of actions to recover benefit payments made in error or on the
basis of incorrect or incomplete information.


 


8.9                                 PROMULGATING
NOTICES AND PROCEDURES


The
Sponsor and Administrator are given the power and responsibility to promulgate
certain written notices, policies and/or procedures under the


 


98

















 


terms
of the Plan and disseminate same to the Participants, and the Administrator may satisfy
such responsibility by the preparation of any such notice, policy and/or
procedure in a written form which can be published and communicated to a
Participant in one or more of the following ways: (a) by distribution in
hard copy; (b) through distribution of a summary plan description or
summary of material modifications thereto which sets forth the policy or
procedure with respect to a right, benefit or feature offered under the Plan; (c) by
e-mail, either to a Participant’s personal e-mail address or his or her
Employer-maintained e-mail address; and (d) by publication on a web-site
accessible by the Participant, provided the Participant is notified of the
web-site publication. Any notice, policy and/or procedure provided through an
electronic medium will only be valid if the electronic medium which is used is
reasonably designed to provide the notice, policy and/or procedure in a manner
no less understandable to the Participant than a written document, and under such medium, at the time the
notice, policy and/or procedure is provided, the Employee may request and
receive the notice, policy and/or procedure on a written paper document at no
charge.


 


8.10                           CLAIMS PROCEDURES


The
procedures in this Section will be the sole and exclusive remedy for an
Employee, Participant or Beneficiary (“Claimant”) to make a claim for benefits
under the Plan. These procedures will be administered and interpreted in a
manner consistent with the requirements of ERISA §503 and the regulations
thereunder. Any electronic notices provided by the Administrator will comply
with the standards imposed under regulations issued by the Department of Labor.
All claims determinations made by the Administrator (and when applicable by the
Committee if one has been appointed under Section 8.3) and will be made in
accordance with the provisions of this Section and the Plan, and will be
applied consistently to similarly situated Claimants. For purposes of this Section 8.10,
if a Committee has not been appointed under Section 8.3, any reference to
Committee will be considered a reference to the Administrator.


 


(a)                               Written Claim:  A Claimant, or the Claimant’s duly authorized
representative, may file a claim for a benefit to which the Claimant believes
that he or she is entitled under the Plan. Any such claim must be filed in
writing with the Administrator.


 


(b)                              Denial Of
Claim:  The Administrator, in its sole
and complete discretion, will make all initial determinations as to the right
of any person to benefits. If the claim is denied in whole or in part, the Administrator
will send the Claimant a written or electronic notice, informing the Claimant
of the denial. The notice must be written in a manner calculated to be
understood by the Claimant and must contain the following information: the
specific reason(s) for the denial; a specific reference to pertinent Plan
provisions on which the denial is based; if additional material or information
is necessary for the Claimant to perfect the claim, a description of such
material or information and an explanation of why such material or information
is necessary; and an explanation of the Plan’s claim review (i.e., appeal)
procedures, the time limits applicable to such procedures, and the Claimant’s
right to request arbitration if the claim denial is


 


99

















 


upheld
in whole or in part on appeal. Written or electronic notice of the denial
will be given within a reasonable period of time (but no later than 90 days)
from the date the Administrator receives the claim, unless special
circumstances require an extension of time for processing the claim. In no
event may the extension exceed 90 days from the end of the initial 90-day
period. If an extension is necessary, prior to the expiration of the initial
90-day period, the Administrator will send the Claimant a written notice,
indicating the special circumstances requiring an extension and the date by
which the Administrator expects to render a decision.


 


(c)                               Request for Appeal:
If the Administrator denies a claim in whole or in part, the Claimant may elect
to appeal the denial. If the Claimant does not appeal the denial pursuant to
the procedures set forth herein, the denial will be final, binding and unappealable.
A written request for appeal must be filed by the Claimant (or the Claimant’s
duly authorized representative) with the Committee within 60 days after the
date on which the Claimant receives the Administrator’s notice of denial. If a
request for appeal is timely filed, the Claimant will be afforded a full and
fair review of the claim and the denial. As part of this review, the
Claimant may submit written comments, documents, records, and other
information relating to the claim, and the review will take into account all
such comments, documents, records, or other information submitted by the
Claimant, without regard to whether such information was submitted or
considered in the Administrator’s initial benefit determination. The Claimant
also may obtain, free of charge and upon request, records and other information
relevant to the claim, without regard to whether such information was relied
upon by the Administrator in making the initial benefit determination.


 


(d)                              Review Of Appeal:
The Committee will determine, in its sole and complete discretion, whether to
uphold all or a portion of the initial claim denial. If, on appeal, the
Committee determines that all or a portion of the initial denial should be
upheld, the Committee will send the Claimant a written or electronic notice
informing the Claimant of its decision to uphold all or a portion of the
initial denial, written in a manner calculated to be understood by the Claimant
and containing the following information: the specific reason(s) for the
denial; a specific reference to pertinent Plan provisions on which the denial
is based; a statement that the Claimant is entitled to receive, upon request
and free of charge, reasonable access to and copies of all documents and other
information relevant to the claim; and an explanation of the Claimant’s right
to request arbitration and the applicable time limits for doing so. Written or
electronic notice will be given within a reasonable period of time (but no
later than 60 days) from the date the Committee receives the request for
appeal, unless special circumstances require an extension of time for reviewing
the claim, but in no event may the extension exceed 60 days from the end
of the initial 60-day period. If an extension is necessary, prior to the expiration
of the initial 60-day period, the Committee will send the Claimant a written
notice, indicating the special


 


100

















 


circumstances
requiring an extension and the date by which the Committee expects to render a
decision.


 


(e)                               Alternative Time
For An Appeal To Be Decided: Notwithstanding paragraph (d), if the Committee
holds regularly scheduled meetings on a quarterly or more frequent basis, the
Committee may make its determination of the claim on appeal at its next
regularly scheduled meeting if the Committee receives the written request for
appeal more than 30 days prior to its next regularly scheduled meeting or at the
regularly scheduled meeting immediately following the next regularly scheduled
meeting if the Committee receives the written request for appeal within 30 days
of the next regularly scheduled meeting. If special circumstances require an
extension, the decision may be postponed to the third regularly scheduled
meeting following the Committee’s receipt of the written request for appeal if,
prior to the expiration of the initial time period for review, the Claimant is provided
with written notice, indicating the special circumstances requiring an
extension and the date by which the Committee expects to render a decision. If
the extension is required because the Claimant has not provided information
that is necessary to decide the claim, the Committee may suspend the
review period from the date on which notice of the extension is sent to the
Claimant until the date on which the Claimant responds to the request for
additional information.


 


(f)                                 Right Of
Arbitration: If a Claimant wishes to contest a final decision of the Committee,
the Claimant may request arbitration. If the Claimant does not request
arbitration pursuant to the procedures herein, the decision of the Committee
will be final, binding and unappealable. A written request for arbitration must
be filed by the Claimant (or the Claimant’s authorized representative) with the
Committee within 15 days after the date the Claimant receives the written
decision of the Committee. If a request for arbitration is timely filed, the
Claimant and the Committee will each name an arbitrator within 20 days after the Committee receives the
Claimant’s written request for arbitration. The two arbitrators will jointly
name a third arbitrator within 15 days after their appointment. If either party
fails to select an arbitrator within the 20 day period, or if the two
arbitrators fail to select a third arbitrator within 15 days after their
appointment, then the presiding judge of the county court (or its equivalent)
in the county in which the principal office of the Sponsor is located will
appoint such other arbitrator or arbitrators. The arbitrators will render a decision
within 60 days after their appointment and will conduct all proceedings
pursuant to the laws of the state in which the Sponsor’s principal place of
business is located and the then current Rules of the American Arbitration
Association governing commercial transactions, to the extent that such rules are
not inconsistent with applicable state law. The cost of the arbitration procedure
will be borne by the losing party or, if the decision is not clearly in favor
of one party or the other, in the manner determined by the arbitrators. The
arbitration proceeding provided for in this Section will be the sole and
exclusive remedy of a Claimant to contest decisions of the Committee under this
Plan, and the arbitrators’ decision will be final, binding and unappealable.


 


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8.11                           QUALIFIED DOMESTIC
RELATIONS ORDERS


A
Qualified Domestic Relations Order, or QDRO, is a signed domestic relations
order issued by a State Court that creates, recognizes or assigns to an alternate
payee(s) the right to receive all or part of a Participant’s Plan benefit.
An alternate payee is a Spouse, former Spouse, child, or other dependent of a
Participant who is treated as a Beneficiary under the Plan as a result of the
QDRO. The Administrator may establish QDRO procedures, but in the absence
of such procedures, the Administrator will determine if a domestic relations
order is a Qualified Domestic Relations Order in accordance with the following
provisions:


 


(a)                              Administrator’s
Determination: Promptly upon receipt of a domestic relations order, the
Administrator will notify the Participant and any alternate payees(s) named in
the order of such receipt, and will include a copy of this Section. Within a
reasonable time after receipt of the order, the Administrator will make a
determination as to whether or not the order is a QDRO as defined in Code
§414(p) and will promptly notify the Participant and any alternate payee(s) in writing
of the determination.


 


(b)                             Specific
Requirements Of QDRO: In order for a domestic relations order to be a Qualified
Domestic Relations Order, it must specifically state all of the following: (1) the
name and last known mailing address (if any) of the Participant and each
alternate payee covered by the order; (2) the dollar amount or percentage
of the benefit to be paid to each alternate payee, or the manner in which the
amount or percentage will be determined; (3) the number of payments or
period for which the order applies; and (4) the name of the plan to which
the order applies. The domestic relations order will not be deemed a Qualified
Domestic Relations Order if it requires the Plan to provide any type or form of
benefit, or any option not already provided for in the Plan, or increased
benefits, or benefits in excess of the Participant’s Vested Interest, or
payment of benefits to an alternate payee required to be paid to another
alternate payee under another QDRO.


 


(c)                              Disputed Orders: If
there is a question as to whether or not a domestic relations order is a Qualified
Domestic Relations Order, there will be a delay in any payout to any payee
including the Participant, until the status is resolved. In such event, the
Administrator will segregate the amount that would have been payable to the
alternate payee(s) if the order had been deemed a QDRO. If the order is not
determined to be a QDRO, or the status is not resolved (for example, it has
been sent back to the Court for clarification or modification) within 18 months
beginning with the date the first payment would have to be made under the
order, the Administrator will pay the segregated amounts plus interest to the
person(s) who would have been entitled to the benefits had there been no order.
If a determination as to the Qualified status of the order is made after the
18-month period, then the order will only be applied on a prospective basis. If
the order is determined to be a QDRO, the Participant and alternate payee(s)
will again be notified


 


102

















 


promptly
after such determination. Once an order is deemed a QDRO, the Administrator
will pay to the alternate payee(s) all the amounts due under the QDRO,
including segregated amounts plus interest that may have accrued during a
dispute as to the order’s qualification.


 


(d)                             Payment Prior To
Termination Of Employment: A QDRO may provide for the payment of benefits
to an alternate payee prior to the time a Participant has terminated
employment. Further, such payment can be made even if the affected Participant
has not yet reached the Earliest Retirement Age, which is the earlier of (l) the date on
which the Participant is entitled to a distribution under this Plan, or (2) the
later of the date the Participant attains age 50 or the earliest date on which
the Participant could receive benefits hereunder if the Participant terminated
employment with the Employer.


 


(e)                              Effect Of QDRO On
Survivor Annuity Requirements: Notwithstanding Sections 5.1, 5.2, 5.3 and 5.4
to the contrary, a Participant’s benefits which arc payable in the form of
a Qualified Joint and Survivor Annuity or in the form of a Qualified
Preretirement Survivor Annuity need not be paid in such form if such
payment is inconsistent with, or has been modified by, the terms of a Qualified
Domestic Relations Order.


 


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ARTICLE 9


AMENDMENT,
TERMINATION AND MERGER


 


9.1                                AMENDMENT OF THE
PLAN


The
Sponsor, or, if there is no Sponsor, the Trustee, will have the right to
amend
the Plan at any time subject to the following provisions:


 


(a)                              General
Requirements: Amendments must be in writing and cannot (l) increase the
responsibilities of the Trustee or Administrator without written consent; (2) deprive
any Participant or Beneficiary of benefits to which he or she is entitled; (3) decrease
the amount of any Participant’s Account except as permitted under Code §412(c) (8);
(4) permit any part of the Trust to be used for or diverted to
purposes other than the exclusive benefit of the Participants or their Beneficiaries
except as required to pay taxes and administration expenses, or cause or permit
any portion of the Trust Fund to revert to or become the property of the
Employer; or (5) have the effect of eliminating or restricting the ability of a
Participant or other payee to receive payment of his or her Account balance or
benefit entitlement under a particular optional form of benefit provided
under the Plan unless the provisions of subparagraphs (1) and (2) below
are satisfied:


 


(1)                             Lump Sum
Requirement: The amendment provides a lump sum distribution form that is
otherwise identical to the optional form of benefit that is restricted or
eliminated. For this purpose, a lump sum distribution form is otherwise
identical only if it is identical in all respects to the eliminated or restricted
optional form of benefit (or would be identical except that it provides
greater rights to the payee) except with respect to the timing of payments
after commencement.


 


(2)                             Effective
Date:  The amendment cannot apply to any
distribution with an Annuity Starting Date which is earlier than the earlier of
(A) the 90th day after a Participant has been furnished with a summary
plan description or other summary that reflects the amendment and that
satisfies the ERISA requirements at 29 CFR 2520. 104b-3 relating to a
summary of material modifications; or (B) the first day of the second
PlanYear following the Plan Year in which this amended Plan is adopted.


 


(b)                             Certain Corrective
Amendments: For purposes of satisfying the minimum coverage requirements of Code
§410(b), the nondiscriminatory amount requirement of regulation
§1.401(a)(4)-1(b)(2), or the nondiscriminatory plan amendment requirement of
regulation §1.401(a)(4)-1(b)(4),  a
corrective amendment may retroactively increase allocations for Employees
who benefited under the Plan during the Plan Year being corrected, or may grant
allocations to Employees who did not benefit under the Plan during the Plan
Year being corrected. In addition, to satisfy the nondiscriminatory current
availability requirement of regulation §1.401(a)(4)-4(b) for benefits,
rights or features, a corrective


 


104

















 


amendment
may make a benefit, right or feature available to Employees to whom it was
previously not available. A corrective amendment will not be taken into account
prior to the date of its adoption unless the amendment satisfies the applicable
requirements of regulation §l.401(a)(4)-11(g)(3)(ii) through (vii),
including the requirement that, in order to be effective for the preceding Plan
Year, such amendment must be adopted by the 15th day of the 10th month after
the close of the preceding Plan Year.


 


9.2                               TERMINATION OF PLAN
BY SPONSOR


The
Sponsor at any time can terminate the Plan and Trust in whole or in  part in
accordance with the following provisions: 


 


(a)                              Termination Of Plan:
The Sponsor can terminate the Plan and Trust by filing written notice thereof
with the Administrator and Trustee and by completely discontinuing
contributions to the Plan. Upon any such termination, the Trustee will continue
to administer the Trust until distribution has been made to the Participants
and other payees, which distribution must occur as soon as administratively
feasible after the termination of the Plan, and must be made in accordance with
the provisions of Article 5 of the Plan, including Section 5.6(f) where
applicable. However, the Administrator may elect not to distribute the
Accounts of Participants and other payees upon termination of the Plan but
instead to transfer the entire Trust Fund assets and liabilities attributable
to this terminated Plan to another qualified plan maintained by the Employer or
its successor.


 


(b)                             Vesting
Requirement: Upon complete termination of the Plan, or upon a complete
discontinuance of contributions, all Participants who are affected by the
termination, all Participants who have not incurred a Termination of
Employment, and all Participants who have incurred a Termination of Employment
but have not incurred a 5-year Break in Service will have a 100% Vested
Interest in their unpaid Participant’s Accounts. Upon partial termination of
the Plan only those Participants who have incurred a Termination of Employment
on account of the event which caused the partial termination but have not
incurred a 5-year Break in Service will automatically have a 100% Vested
Interest in their unpaid Participant’s Accounts to the date of partial
termination.


 


(c)                              Discontinuance Of
Contributions Only: The Sponsor may elect at any time to completely
discontinue contributions to the Plan but continue the Plan in operation in all
other respects, in which event the Trustee will continue to administer the
Trust until eventual full distribution of all benefits has been made to the
Participants and other payees in accordance with Article 5 after their
death, retirement, Disability or Termination of Employment. Any such
discontinuance of contributions without an additional notice of termination
from the Sponsor to the Administrator and Trustee will not constitute a termination
of the Plan.


 


105

















 


9.3                                 TERMINATION OF
PARTICIPATION BY ADOPTING EMPLOYER


Any
Adopting Employer may by written resolution terminate participation in the
Plan at any time by notification to the Sponsor, the Administrator, and the
Trustee. Such Adopting Employer may thereupon request a transfer of Trust
Fund assets attributable to its Employees from this Plan to any successor
qualified retirement plan maintained by the Adopting Employer or its successor.
The Administrator may, however, refuse to make such transfer if in its
considered opinion such transfer would operate to the detriment of any
Participant, jeopardize the continued qualification of the Plan, or if such
transfer does not comply with any requirements of the Internal Revenue Service.
If no transfer is made, the provisions in the definition of Adopting Employer
in Article 1 will apply with respect to the payment of benefits for
Employees of such Adopting Employer.


 


9.4                                 MERGER OR
CONSOLIDATION


This
Plan and Trust may not be merged or consolidated with, nor may any of
its assets or liabilities be transferred to, any other plan, unless the
benefits payable to each Participant if the Plan was terminated immediately
after such merger, consolidation or transfer would be equal to or greater than
the benefits such Participant would have been entitled to if this Plan had been
terminated immediately before such merger, consolidation or transfer.


 


106

















 


ARTICLE 10


MISCELLANEOUS
PROVISIONS


 


10.1                           NO CONTRACT OF
EMPLOYMENT


Except
as otherwise provided by law, neither the establishment of this Plan, nor any
modification hereto, nor the creation of any fund or account, nor the payment
of any benefits, will be construed as giving any Participant or other person
any legal or equitable rights against the Employer, any officer or Employee
thereof, or the Trustee, except as herein provided; and the terms of employment
of any Participant will not be modified or affected by this Plan.


 


10.2                           TITLE TO ASSETS


No
Participant or Beneficiary will have any right to, or any interest in, any
assets of the Trust upon separation from service with the Employer, Affiliated
Employer, or Adopting Employer, except as otherwise provided by the terms of
the Plan.


 


10.3                           QUALIFIED MILITARY
SERVICE


Notwithstanding
any other provision of the Plan to the contrary, effective January 1,
2000, contributions, benefits and service credit with respect to qualified
military service will be provided in accordance with the requirements of Code
§414(u).


 


10.4                           BONDING OF
FIDUCIARIES


Fiduciaries
of this Plan will have only those duties that are specifically given to the
Fiduciaries under the terms of this Plan. In addition, every Fiduciary other
than a bank, an insurance company, or a Fiduciary of an Employer which has no
common-law employees, will be bonded in an amount not less than 10% of the
amount of funds under such Fiduciary’s supervision, but such bond will not be
less than $1,000 or more than $500,000. The bond will provide protection to the
Plan against any loss for acts of fraud or dishonesty by a Fiduciary acting
alone or in concert with others. The cost of such bond will be an expense of either
the Employer or the Trust, at the election of the Employer.


 


10.5                           SEVERABILITY OF
PROVISIONS


If
any Plan provision is held invalid or unenforceable, such invalidity or
unenforceability will not affect any other provision of this Plan, and this
Plan will be construed and enforced as if such provision had not been included.


 


10.6                           GENDER AND NUMBER


Words
used in the masculine gender will be construed as though they were also used in
the feminine or neuter gender where applicable, and words used in the singular
will be construed as though they were also used in the plural where applicable.


 


10.7                           HEADINGS AND
SUBHEADINGS


Headings
and subheadings are inserted for convenience of reference. They constitute no part of
this Plan and are not to be considered in its construction.


 


107

















 


10.8                           LEGAL ACTION


In
any claim, suit or proceeding concerning the Plan and/or Trust which is brought
against the Trustee or the Administrator, this Plan and Trust will be construed
and enforced according to the laws of the state in which the Employer maintains
its principal place of business, to the extent that it is not preempted by
ERISA; and unless otherwise prohibited by law, either the Employer or the
Trust, in the sole discretion of the Employer, will reimburse the Trustee
and/or Administrator for all costs, attorneys fees and other expenses
associated with any such claim, suit or proceeding.


 


10.9                           QUALIFIED PLAN
STATUS


This
Plan and the related Trust Agreement are intended to be a qualified retirement
plan under the provisions of Code §401(a) and §501(a).


 


10.10                     MAILING OF NOTICES
TO ADMINISTRATOR, EMPLOYER OR TRUSTEE


Any
notices, documents or forms required to be given to or filed with the Administrator,
the Employer or the Committee will be hand delivered or mailed by first class mail,
postage prepaid, to the Committee or Employer at the Employer’s principal place
of business. Any notices, documents or forms required to be given to or filed
with the Trustee will be hand delivered or mailed by first class mail,
postage prepaid, to the Trustee at its principal place of business.


 


10.11                     PARTICIPANT NOTICES
AND WAIVERS OF NOTICES TO PARTICIPANTS


Whenever
written notice is required to be given under the terms of this Plan, such
notice will be deemed to be given on the date that such written notice is
either hand delivered to the recipient or deposited at a United States Postal
Service Station, first class mail, postage paid. Notice may be waived
by any party otherwise entitled to receive written notice concerning any matter
under the terms of this Plan.


 


10.12                     NO DUPLICATION OF
BENEFITS


There
will be no duplication of benefits under the Plan because of employment by more
than one participating employer.


 


10.13                     EVIDENCE FURNISHED
CONCLUSIVE


Anyone
required to give evidence under the terms of the Plan may do so by
certificate, affidavit, document or other information which the person to act
in reliance may consider pertinent, reliable and genuine, and to have been
signed, made or presented by the proper party or parties. The Fiduciaries under
the Plan will be fully protected in acting and relying upon any evidence
described under this Section.


 


10.14                     RELEASE OF CLAIMS


Any
payment to any Participant or Beneficiary, his or her legal representative, or
to any guardian or committee appointed for such Participant or Beneficiary, will,
to the extent thereof, be in full satisfaction of all claims hereunder against
the Administrator and the Trustee, either of whom may require such
Participant, legal representative, Beneficiary, guardian or committee, as a
condition precedent to such payment, to execute a receipt and release thereof
in such form as determined by the Administrator or the Trustee.


 


108

















 


10.15                     MULTIPLE COPIES OF PLAN AND/OR TRUST


This
Plan and the related Trust Agreement may be executed in any number of
counterparts, each of which will be deemed an original, but all of which will
constitute one and the same Agreement or Trust Agreement, as the case may be,
and will be binding on the respective successors and assigns of the Employer
and all other parties.


 


10.16                     LIMITATION OF
LIABILITY AND INDEMNIFICATION


In
addition to and in furtherance of any other limitations provided in the Plan,
and to the extent permitted by applicable law, the Employer will indemnify and
hold harmless its board of directors (collectively and individually), if any,
the Administrative/Advisory Committee (collectively and individually), if any,
and its officers, Employees, and agents against and with respect to any and all
expenses, losses, liabilities, costs, and claims, including legal fees to
defend against such liabilities and claims, arising out of their good-faith
discharge of responsibilities under or incident to the Plan, excepting only
expenses and liabilities resulting from willful misconduct. This indemnity will
not preclude such further indemnities as may be available under insurance
purchased by the Employer or as may be provided by the Employer under any
by-law, agreement, vote of shareholders or disinterested directors, or
otherwise, as such indemnities are permitted under state law. Payments with
respect to any indemnity and payment of expenses or fees under this Section will
be made only from assets of the Employer, and will not be made directly or
indirectly from assets of the Trust Fund.


 


109

















 


IN WITNESS WHEREOF, this Plan and Trust have been executed by the
Employer and the Trustees as of the day, month and year set forth on page 1
of this Agreement.


 


	
   

  	
  PREMIER COMMERCIAL BANK, N.A.

  
	
   

  
	
   

  
	
   

  	
  By

  	
  /s/ Ashok
  R. Patel, Trustee

  	
   

  
	
   

  	
   

  	
  Ashok R. Patel, President

  	
   

  
	
   

  	
   

  
	
  WITNESS TO THE EMPLOYER:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ Peter
  M. Zebot

  	
   

  	
   

  
	
  Peter M. Zebot, Contract
  Administrator

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TRUSTEES:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Kenneth
  J. Cosgrove

  	
   

  
	
   

  	
  Kenneth J. Cosgrove, Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Ashok R. Patel

  	
   

  
	
   

  	
  Ashok R. Patel, Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
  WITNESS TO THE TRUSTEES:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ Peter
  M. Zebot

  	
   

  	
   

  
	
  Peter M. Zebot, Contract
  Administrator

  	
   

  
									



 


110

















 


IN
WITNESS WHEREOF, this Plan and Trust have been executed by the Employer and the
Trustees as of the day, month and year set forth on page 1 of this
Agreement.


 


	
   

  	
  PREMIER COMMERCIAL BANK, N.A.

  
	
   

  
	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Ashok R. Patel, President

  	
   

  
	
   

  	
   

  
	
  WITNESS TO THE EMPLOYER:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ Peter
  M. Zebot

  	
   

  	
   

  
	
  Peter M. Zebot, Contract Administrator

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TRUSTEES:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Kenneth J. Cosgrove, Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Ashok R. Patel, Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
  WITNESS TO THE TRUSTEES:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ Peter
  M. Zebot

  	
   

  	
   

  
	
  Peter M. Zebot, Contract
  Administrator

  	
   

  
									



 


111

















 


FIRST
AMENDMENT TO


PREMIER
COMMERCIAL BANK, N.A.


EMPLOYEES’
RETIREMENT PLAN


 


WHEREAS,
the Sponsor originally established a defined contributions Plan in compliance
with Internal Revenue Code §40l(a), incorporating §401(k) provisions,
(hereafter referred to as the “Plan”), adopted November 27, 2002,
effective January 1, 2002, in order to provide retirement and other
incidental benefits to Employees who are eligible to participate therein; and


 


WHEREAS,
in accordance with the terms of the Plan, the Sponsor has the ability at any
time, and from time to time, to amend the Plan;


 


NOW,
THEREFORE, effective June 15, 2004 (except for those specific provisions
that have an earlier effective date), the Sponsor hereby amends does hereby
adopt the following Amendment to its Employees’ Retirement Plan dated June 1,
2004. The effective date of this Amendment shall be the close of business on June 15, 2004.


 


Articles
2.1(a-b-c) of the Plan Document is amended to read as follows:


 


(a)                                For Elective
Deferrals: The Eligibility requirements for the purpose of making Elective
Deferrals to the Plan are as follows:


 


(1)                                General Eligibility
Requirements:  For the purpose of making Elective
Deferrals only, an Eligible Employee described in subparagraph (2) will
enter the Plan as a Participant on the applicable entry date in Section 2.2
upon reaching Age 21 and completing 3 Months of Service. An Employee will be
deemed to have completed 3 Months of Service on the last day of the applicable eligibility
computation period during which the Employee is credited with 250 Hours of
Service.


 


(2)                                Eligible Classes Of
Employees: For the purpose of making Elective Deferrals, all Employees are
eligible to participate in the Plan upon satisfying the eligibility
requirements in subparagraph (1) except for the following ineligible
classes of Employees: (1) Employees whose employment is governed by the
terms of a collective bargaining agreement between Employee representatives and
the Employer in which retirement benefits were the subject of good faith
bargaining, unless such agreement expressly provides for the inclusion of such Employees
as Participants in the Plan; and (2) Employees who are non-resident aliens
who do not receive any earned income from the Employer which constitutes income
from sources within the United States.


 


(b)                               Eligibility For
Matching Contributions: The eligibility requirements for the purpose of
receiving an allocation of Employer funded Matching Contributions are the same
eligibility requirements in paragraph (a) above for the purpose of making
Elective Deferrals.


 

















 


(c)                                    Eligibility
Non-Elective Contributions: For the purpose of receiving an allocation of
employer Non-Elective contributions only, an Eligible Employee described in
subparagraph (2) will enter the Plan as a Participant on the applicable
entry date in Section 2.2 upon reaching Age 21 and completing 1 Year of
Service. An Employee will be deemed to have completed a Year of Service on the
last day of the applicable eligibility computation period during which the Employee
is credited with 1,000 Hours of Service.


 


 


IN
WITNESS HEREOF, the Employer has duly executed this Agreement this 1st day of
June, 2004.


 


 


	
   

  	
  By

  	
  /s/ Ashok R. Patel

  	
   

  
	
   

  	
   

  	
  Ashok R. Patel, President

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  TRUSTEES:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ Kenneth J. Cosgrove

  	
   

  	
  /s/ Ashok R. Patel

  	
   

  
	
  Kenneth J. Cosgrove, Trustee

  	
  Ashok R. Patel, Trustee

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  WITNESS:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ Peter M. Zebot

  	
   

  	
   

  
	
  Peter M. Zebot, Contract Administrator

  	
   

  
						



 

















 


SECOND AMENDMENT TO


PREMIER COMMERCIAL BANK,
N.A.


EMPLOYEES RETIREMENT PLAN
AND TRUST


 


WHEREAS, the
Sponsor originally established a defined contribution Plan in compliance with
Internal Revenue Code §401(a), incorporating §401(k) provisions, (hereafter
referred to as the “Plan”), adopted November 27, 2002 and effective January 1,
2002, in order to provide retirement and other incidental benefits to Employees
who are eligible to participate therein; and


 


WHEREAS, in
accordance with the terms of the Plan, the Sponsor has the ability at any time,
and from time to time, to amend the Plan;


 


WHEREAS, effective
June 15, 2004,  the First Amendment
to the 401(k) Profit Sharing Plan was adopted on June 1, 2004.


 


NOW,
THEREFORE, effective July 1, 2005 Premier Commercial Bank, N.A. does
hereby adopt the following second Amendment to its 40l(k) Profit Sharing Plan.


 


Article 2.1(b) of the Plan Document is amended to read as
follows:


 


(a)                                  Eligibility
For Matching Contributions: The eligibility requirements for the purpose of
receiving an allocation of Matching Contributions are as follows:


 


(1)                                General Eligibility Requirements:
For the purpose of receiving an allocation of Matching Contributions, an
Eligible Employee described in subparagraph (2) will enter the Plan as a
Participant on the applicable entry date in Section 2.2 upon reaching Age
21 and completing 1 Year of Service. An Employee will be deemed to have
completed a Year of Service on the last day of the applicable eligibility
computation period during which the Employee is credited with 1,000 Hours of
Service.


 


(2)                                Eligible Classes Of
Employees: For the purpose of receiving an allocation of Matching
Contributions, all Employees are eligible to participate in the Plan upon
satisfying the eligibility requirements in subparagraph (1) except for the
following ineligible classes of Employees: (1) Employees whose employment
is governed by the terms of a collective bargaining agreement between Employee representatives
and the Employer in which retirement benefits were the subject of good faith
bargaining, unless such agreement expressly provides for the inclusion of such
Employees as Participants in the Plan; (2) Employees who are non-resident
aliens who do not receive any earned income from the Employer which constitutes
income from sources within the United States; and (3) Any person who is
considered a Leased Employee but who (A) is not covered by a plan
described in Code §414(n)(5), or (B) is covered by a plan described in
Code §414(n)(5) but Leased Employees constitute more than 20% of the
Employer’s non-highly compensated workforce.


 


Article 2.2(b) of the Plan Document is amended to read as follows:


 


(b)                               Entry
Date For Matching Contributions: For the purpose of receiving an allocation of
Matching Contributions, an Eligible Employee described in Section 2.l(b)(2) who
satisfies the eligibility requirements in Section 2.1(b)(l) will enter the
Plan as a Participant on the January 1st, April 1st, July 1st or
October 1st that coincides with or next follows the date on which the
Employee first satisfies such requirements.


 

















 


Article 3.1(b) of
the Plan Document is amended to read as follows:


 


(b)        Matching Contributions:
The Employer may in its sole discretion make a basic Matching Contribution
to the Plan in accordance with the following provisions;


 


(1)                                Matching Contribution
Formula: For each Plan Year or other contribution period in which a Matching
Contribution is made, such Matching Contribution may be made in any
specific dollar amount (including zero) and/or any specific percentage
(including zero) of Elective Deferrals, as determined by Employer.


 


(2)                                True-Up Election: If
for any Plan Year the contribution period for Matching Contributions is more
frequent than annually, and if on the last day of any such Plan Year the dollar
amount of the Matching Contribution made on behalf of an Eligible Participant is less than the dollar amount that
would have been made if Matching Contributions for that Plan Year had been
contributed on an annual basis only, then the Employer may elect for any
such Plan Year to make an additional Matching Contribution to the Plan in order
to make the Matching Contribution contributed for an Eligible Participant for
the full Plan Year equal to the Matching Contribution that would have been made
to the Plan if Matching Contributions for that Plan Year had been contributed
on an annual basis only. However, any such additional Matching Contribution can
only be made to the Plan on a uniform nondiscriminatory basis.


 


(3)                                Certain Amounts Not
Required To Be Matched: Notwithstanding subparagraph (1) above, for any
Plan Year in which Matching Contributions are only contributed to the Plan on
an annual basis, no Matching Contribution will be required with respect to that
portion of an Elective Deferral which for that Plan Year is determined to be an
Excess Elective Deferral or an Excess Contribution.


 


(4)                                Matching
Contributions Must Satisfy ACP Test: Matching Contributions made for a Plan
Year must satisfy the ACP Test for that Plan Year. Matching Contributions which
do not satisfy the ACP Test will be deemed Excess Aggregate Contributions and
will be returned in accordance with Section 5.20(f). The Employer may elect
to treat all or any portion of a Matching Contribution as a Qualified Matching
Contribution sufficient to satisfy the ADP Test.


 


Matching
Contributions Made On Behalf Of An Ineligible Employee: Any Matching
Contribution mistakenly made on behalf of an Employee prior to the date the
Employee is eligible to enter the Plan as a Participant for the purpose of
receiving an allocation of Matching Contributions will be treated as a
Forfeiture and will be used in the manner described in Section 3.4(a).


 


Article 3.4(a) of
the Plan Document is amended to read as follows:


 


Forfeitures Of Matching Contributions:
Forfeitures attributable to Matching Contributions will be used to reduce, at
the discretion of the Administrator, either the Matching Contribution, the
Qualified Matching Contribution, the Non-Elective Contribution, the Qualified
Non-Elective Contribution, or any combination thereof, for the current Plan
Year or for a future Plan Year.


 

















 


Article 4.6(c) of the Plan Document is amended to read as follows:


 


(c)         Vesting Of Matching Contributions: A Participant’s Vested Interest in
his or her Matching Contribution Account at any given time will be determined
in a non-Top Heavy Plan Year by the vesting schedule which immediately
follows this paragraph based on the number of Years of Service the Participant
has completed. In determining a Participant’s Vested Interest under this
paragraph, all Years of Service will be counted.


 




	
  Years of Service

  	
   

  	
  Vested Interest

  	
   

  
	
  1

  	
   

  	
  20

  	
  %

  
	
  2

  	
   

  	
  40

  	
  %

  
	
  3

  	
   

  	
  60

  	
  %

  
	
  4

  	
   

  	
  80

  	
  %

  
	
  5

  	
   

  	
  100

  	
  %

  






 


In all other respects, said
Plan and Trust Agreement shall remain as originally adopted.


 


IN WITNESS
HEREOF, the Employer/Sponsor has duly executed this Agreement this 2nd day of
September, 2005.


 


 


	
   

  	
  By

  	
  /s/ Ashok R. Patel

  	
   

  
	
   

  	
   

  	
  Ashok R. Patel

  
	
   

  	
   

  	
  President

  
	
   

  	
   

  	
   

  
	
  TRUSTEES:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Kenneth J. Cosgrove

  	
   

  	
   

  	
  /s/ Ashok R. Patel

  	
   

  
	
  Kenneth J. Cosgrove, Trustee

  	
   

  	
  Ashok R. Patel, Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  WITNESS:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Peter M. Zebot

  	
   

  	
   

  	
   

  
	
  Peter M. Zebot, Contract Administrator

  	
   

  	
   

  
							



 

















 


Amendment
To The


Premier
Commercial Bank Employees Retirement Plan

and Trust Agreement


 


This
Amendment is entered into as of this 29th day of November, 2005, by Premier
Commercial Bank (the “Sponsor”).


 


Introduction


 


•  The Sponsor maintains the Premier Commercial
Bank Employees Retirement Plan and Trust Agreement(“the Plan”).


•  The Sponsor, in accordance with Section 9.1
of the Plan, can amend the Plan at any time.


•  The Sponsor has decided to amend the Plan as
set forth below, effective March 28, 2005.


•  The amendment supersedes any conflicting
provision of the Plan.


•  The amendment is intended to be “good faith”
compliance with Code §401(a)(31)(B).


 


Amendment


 


•  Section 5.5 is amended by adding the
following as the last enumerated paragraph therein:


 


Automatic
Rollovers: Notwithstanding any other provision in this Section to the
contrary, effective March 28, 2005, (a) the $5,000 threshold amount
set forth under the other provisions of this Section will be determined
without regard to the Participant’s Rollover Account and Voluntary Employee
Contribution Account; and (b) if the amount to be distributed under this Section exceeds
$1,000 (including the Participant’s Rollover Account and Voluntary Employee
Contribution Account) and the Participant does not elect to have such
distribution paid directly to an eligible retirement plan specified by the
Participant in a direct rollover or to receive the distribution directly, then
the Administrator will pay the distribution in a direct rollover to an
individual retirement plan designated by the Administrator in accordance with
Code §401(a)(31(B).


 


•  Section 5.6 of the Plan is amended by
adding the following to the last enumerated paragraph therein:


 


Effective
March 28, 2005, if the amount of any lump sum to be distributed to the
Participant under this paragraph exceeds $1,000 (including the Participant’s
Rollover Account and Voluntary Employee Contribution Account) and the
Participant does not elect to have such distribution paid directly to an eligible
retirement plan specified by the Participant in a direct rollover or to receive
the distribution directly, then the Administrator will pay the distribution in
a direct rollover to an individual retirement account designated by the
Administrator in accordance with Code §401(a)(31)(B).


his Amendment is executed
by the Sponsor’s duly authorized officer as of the date set forth above.


 


	
  Signature:

  	
  /s/ Ashok Patel

  	
   

  	
  Signature:

  	
  /s/ Kenneth Cosgrove

  	
   

  
	
   

  	
  Ashok Patel

  	
   

  	
  Kenneth Cosgrove

  



 

















 


Corporate
Resolutions


 


Of


 


Premier
Commercial Bank


 


The undersigned Secretary
of Premier Commercial Bank certifies that the following resolutions were
adopted by the Board of Directors on the date set forth below.


 


Resolved,
that the amendment to the Premier Commercial Bank Employees Retirement Plan and
Trust, a copy of which is attached hereto, is hereby approved;


 


Resolved,
that any other actions necessary to effectuate the foregoing resolutions and to
make any necessary communications to employees are hereby authorized to be taken.


 


This
Certificate is hereby executed as of this 29th day of November,
2005.


 


 


	
   

  	
  /s/ Viktor R. Uehlinger

  	
   

  
	
   

  	
  Corporate Secretary