exv4w1



 






Exhibit 4.1



EARLE M. JORGENSEN




RETIREMENT SAVINGS PLAN




(As Amended and Restated




Effective as of August 1, 2005)





 









 








EARLE M. JORGENSEN RETIREMENT SAVINGS PLAN




History




     This plan, originally adopted effective as of May 3, 1990, as the Earle M. Jorgensen Company
Employee Stock Ownership Plan (the “Plan”), was amended and restated effective as of April
1, 1999 to be a stock bonus plan under Section 401(a) of the Code, and an eligible individual
account plan under Section 407(d)(3) of the Employee Retirement Income Security Act of 1974, as
amended (“ERISA”).



     The Kilsby-Roberts Employee Stock Ownership Plan was consolidated with and into the Plan in
1990.



     Effective January 1, 1991, certain assets from the plan adopted as of the first day of
January, 1984 by the Company as the Earle M. Jorgensen Company Employee Stock Ownership and Capital
Accumulation Plan were transferred to this Plan. The Earle M. Jorgensen Employee Stock Ownership
and Capital Accumulation Plan was then renamed the Earle M. Jorgensen Company Employee Capital
Accumulation Plan (the “ECAP”).



     Effective April 1, 2004 the Plan was renamed the Earle M. Jorgensen Stock Bonus Plan.



     Effective August 1, 2005 (the “Effective Date”), (1) the Plan is amended and restated into
this document, (2) the Plan is renamed the Earle M. Jorgensen Retirement Savings Plan, and (3) the
ECAP is merged into the Plan.



     The Company maintains, as of the Effective Date, the Plan for the benefit of eligible
employees of the Company and its participating affiliates. The Plan is intended to constitute a
qualified stock bonus plan, as described in Section 401(a) of the Code, which includes a qualified
cash or deferred arrangement, as described in Section 401(k) of the Code.



     The benefits, rights and features of an individual who participated in this Plan or the ECAP
before the close of business on the Effective Date, but who does not have an account balance under
the Plan at that time, will be determined under the applicable instruments in effect for this Plan
or the ECAP, whichever is applicable, on the earlier of: (1) the day on which such individual’s
account was reduced to zero; or (2) the day on which such individual’s employment terminated. The
terms of this Plan apply to any accounts created for such individual hereunder on or after the
Effective Date.



 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE I DEFINITIONS
	 	 	1	 
	1.1 Accounting Period
	 	 	1	 
	1.2 Accounts
	 	 	1	 
	1.3 Active Participant
	 	 	2	 
	1.4 Additional Employer Contributions
	 	 	2	 
	1.5 Administrative Services Agreement
	 	 	2	 
	1.6 Administrative Committee
	 	 	2	 
	1.7 Allocation Date
	 	 	3	 
	1.8 Alternate Payee
	 	 	3	 
	1.9 Appendix
	 	 	3	 
	1.10 Authority or Discretion
	 	 	3	 
	1.11 Authorized Absence
	 	 	3	 
	1.12 Beneficiary
	 	 	3	 
	1.13 Board of Directors
	 	 	3	 
	1.14 Break in Service
	 	 	3	 
	1.15 Business Day
	 	 	4	 
	1.16 Claims Administrator
	 	 	4	 
	1.17 Code
	 	 	4	 
	1.18 Commonly Controlled Entity
	 	 	4	 
	1.19 Company
	 	 	4	 
	1.20 Company Stock
	 	 	4	 
	1.21 Compensation
	 	 	4	 
	1.22 Continuous Service
	 	 	5	 
	1.23 Contribution
	 	 	5	 
	1.24 Contribution Dollar Limit
	 	 	5	 
	1.25 Contribution Election or Election
	 	 	5	 
	1.26 Contribution Percentage
	 	 	5	 
	1.27 Credited Service
	 	 	6	 
	1.28 Designated Officer
	 	 	6	 
	1.29 Direct Rollover
	 	 	6	 
	1.30 Disability or Disabled
	 	 	7	 
	1.31 Distributee
	 	 	7	 
	1.32 Effective Date
	 	 	7	 
	1.33 Eligible Employee
	 	 	7	 
	1.34 Eligible Retirement Plan
	 	 	8	 
	1.35 Eligible Rollover Distribution
	 	 	8	 
	1.36 EMJ Stock Fund
	 	 	8	 
	1.37 Employee
	 	 	8	 
	1.38 Employer
	 	 	8	 
	1.39 Employment Date
	 	 	9	 
	1.40 ERISA
	 	 	9	 
	1.41 Exchange Election
	 	 	9	 
	1.42 Fair Market Value
	 	 	9	 






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	 	 	Page	 
	1.43 Forfeiture
	 	 	10	 
	1.44 Full Time Employee
	 	 	10	 
	1.45 HCE
	 	 	10	 
	1.46 Hour of Service
	 	 	10	 
	1.47 Inactive Participant
	 	 	10	 
	1.48 Investment Committee
	 	 	11	 
	1.49 Investment Election
	 	 	11	 
	1.50 Investment Fund
	 	 	11	 
	1.51 Kilsby ESOP
	 	 	11	 
	1.52 Maternity/Paternity Absence
	 	 	11	 
	1.53 Member
	 	 	11	 
	1.54 Named Fiduciary
	 	 	11	 
	1.55 NHCE
	 	 	11	 
	1.56 Normal Retirement Date
	 	 	11	 
	1.57 Participant
	 	 	11	 
	1.58 Payment Date
	 	 	12	 
	1.59 Period of Severance
	 	 	12	 
	1.60 Plan
	 	 	12	 
	1.61 Plan Year
	 	 	12	 
	1.62 Predecessor Company
	 	 	12	 
	1.63 QDRO
	 	 	12	 
	1.64 Recordkeeper
	 	 	12	 
	1.65 Reemployment Date
	 	 	12	 
	1.66 Republic ESOP
	 	 	12	 
	1.67 Settlement Date
	 	 	13	 
	1.68 Spousal Consent
	 	 	13	 
	1.69 Spouse
	 	 	13	 
	1.70 Sweep Time
	 	 	13	 
	1.71 Termination of Employment
	 	 	13	 
	1.72 Trade Date
	 	 	13	 
	1.73 Trust
	 	 	13	 
	1.74 Trust Agreement
	 	 	13	 
	1.75 Trust Fund
	 	 	14	 
	1.76 Trustee
	 	 	14	 
	1.77 Vice President
	 	 	14	 
	1.78 Year of Eligibility Service
	 	 	14	 
	 
	 	 	 	 
	ARTICLE II PARTICIPATION
	 	 	15	 
	2.1 Eligibility
	 	 	15	 
	2.2 Impact of Change of Employment Status on Eligibility
	 	 	15	 
	2.3 Duration
	 	 	15	 
	2.4 Electronic Media
	 	 	15	 
	 
	 	 	 	 
	ARTICLE III CONTRIBUTIONS
	 	 	17	 
	3.1 Before-Tax Contributions
	 	 	17	 
	3.2 Rollover Contributions
	 	 	17	 
	3.3 Employer Contributions
	 	 	18	 






ii









 






	 	 	 	 	 
	 	 	Page	 
	3.4 Employer Contribution on Return from Qualified Military Leave
	 	 	19	 
	3.5 Catch-Up Contributions
	 	 	19	 
	 
	 	 	 	 
	ARTICLE IV LIMITATION ON CONTRIBUTIONS
	 	 	21	 
	4.1 Limit on Before-Tax Contributions
	 	 	21	 
	4.2 Actual Deferral Percentage Test
	 	 	21	 
	4.3 Maximum Contributions
	 	 	22	 
	4.4 Imposition of Limitations
	 	 	23	 
	4.5 Return of Excess Annual Additions, Deferrals and Contributions
	 	 	23	 
	4.6 Incorporation by Reference
	 	 	25	 
	 
	 	 	 	 
	ARTICLE V ACCOUNTING FOR PARTICIPANTS’ ACCOUNTS AND FOR INVESTMENT OPTIONS
	 	 	26	 
	5.1 Individual Participant Accounting
	 	 	26	 
	5.2 Accounting for Investment Funds
	 	 	27	 
	5.3 Accounts for Beneficiaries and Alternate Payees
	 	 	27	 
	5.4 Transition Rules
	 	 	28	 
	 
	 	 	 	 
	ARTICLE VI INVESTMENT OPTIONS AND ELECTIONS
	 	 	29	 
	6.1 Investment of Contributions
	 	 	29	 
	6.2 Investment of Accounts
	 	 	29	 
	6.3 Investment Funds
	 	 	30	 
	6.4 Transition Rules
	 	 	30	 
	6.5 Restricted Investment Funds
	 	 	31	 
	6.6 Risk of Loss
	 	 	33	 
	6.7 Interests in the Investment Funds
	 	 	33	 
	6.8 Sole Source of Benefits
	 	 	33	 
	6.9 Alternate Payees and Beneficiaries
	 	 	33	 
	 
	 	 	 	 
	ARTICLE VII VESTING AND FORFEITURES
	 	 	34	 
	7.1 Full Vesting in Employer Contribution Account
	 	 	34	 
	7.2 Vesting
	 	 	34	 
	7.3 Vesting in Before-Tax, After-Tax and Rollover Accounts
	 	 	35	 
	7.4 Forfeitures
	 	 	35	 
	7.5 Application of Forfeitures
	 	 	35	 
	 
	 	 	 	 
	ARTICLE VIII PARTICIPANT LOANS
	 	 	36	 
	8.1 Participant Loans Permitted
	 	 	36	 
	8.2 Loan Funding Limits
	 	 	36	 
	8.3 Maximum Number of Loans
	 	 	36	 
	8.4 Source of Loan Funding
	 	 	37	 
	8.5 Interest Rate
	 	 	37	 
	8.6 Repayment
	 	 	37	 
	8.7 Reinvestment of Repayments
	 	 	37	 
	8.8 Loan Application, Note and Security
	 	 	37	 
	8.9 Default
	 	 	37	 
	8.10 Foreclosure
	 	 	38	 






iii









 






	 	 	 	 	 
	 	 	Page	 
	8.11 Spousal Consent
	 	 	39	 
	8.12 Special Rules Concerning Loan Repayments While on Qualified Military Leave
	 	 	39	 
	 
	 	 	 	 
	ARTICLE IX WITHDRAWALS
	 	 	40	 
	9.1 Withdrawals from After-Tax Account
	 	 	40	 
	9.2 Withdrawals from Rollover Account
	 	 	40	 
	9.3 Withdrawals from Before-Tax Account for Hardship
	 	 	40	 
	9.4 Withdrawals On or After Age 591/2
	 	 	41	 
	9.5 Total Withdrawals
	 	 	41	 
	9.6 Withdrawal Processing Rules
	 	 	41	 
	9.7 Alternate Payees and Beneficiaries
	 	 	42	 
	 
	 	 	 	 
	ARTICLE X ADDITIONAL PROVISIONS FOR AN INACTIVE PARTICIPANT
	 	 	43	 
	10.1 Request for Withdrawal of Benefits
	 	 	43	 
	10.2 Deadline for Withdrawal
	 	 	43	 
	10.3 Payment Form and Medium
	 	 	44	 
	10.4 Small Amounts Paid Immediately
	 	 	44	 
	10.5 Continued Payment of Amounts in Payment Status on Effective Date
	 	 	44	 
	10.6 Direct Rollover
	 	 	44	 
	10.7 Delay
	 	 	44	 
	10.8 Alternate Payees and Beneficiaries
	 	 	45	 
	 
	 	 	 	 
	ARTICLE XI DISTRIBUTION OF ACCRUED BENEFITS ON DEATH
	 	 	46	 
	11.1 Payment to Beneficiary
	 	 	46	 
	11.2 Beneficiary Designation
	 	 	46	 
	11.3 Direct Rollover
	 	 	47	 
	11.4 Alternate Payees and Beneficiaries
	 	 	47	 
	 
	 	 	 	 
	ARTICLE XII MINIMUM DISTRIBUTION REQUIREMENTS
	 	 	48	 
	12.1 General Rules
	 	 	48	 
	12.2 Time and Manner of Distribution
	 	 	48	 
	12.3 Required Minimum Distributions During Participant’s Lifetime
	 	 	49	 
	12.4 Required Minimum Distributions After Participant’s Death
	 	 	50	 
	12.5 Definitions
	 	 	51	 
	 
	 	 	 	 
	ARTICLE XIII PLAN ADMINISTRATION AND COMPANY ACTIONS
	 	 	52	 
	13.1 General
	 	 	52	 
	13.2 Claims Procedure
	 	 	58	 
	13.3 Notices to Participants, Etc
	 	 	61	 
	13.4 Notices to Claims Administrator
	 	 	62	 
	13.5 Committees
	 	 	62	 
	13.6 Company Action
	 	 	62	 
	 
	 	 	 	 
	ARTICLE XIV ADOPTION AND WITHDRAWAL FROM PLAN
	 	 	63	 
	14.1 Adoption by Other Employers.
	 	 	63	 






iv









 






	 	 	 	 	 
	 	 	Page	 
	14.2 Withdrawal from the Plan
	 	 	63	 
	14.3 Employee Transfers Within Participating Group
	 	 	64	 
	14.4 Designation of Agent
	 	 	64	 
	 
	 	 	 	 
	ARTICLE XV AMENDMENT, TERMINATION AND MERGER
	 	 	65	 
	15.1 Amendments
	 	 	65	 
	15.2 Plan Termination
	 	 	66	 
	15.3 Plan Merger and Spinoff
	 	 	66	 
	15.4 Design Decisions
	 	 	67	 
	 
	 	 	 	 
	ARTICLE XVI SPECIAL TOP-HEAVY RULES
	 	 	68	 
	16.1 Application of Article XVI
	 	 	68	 
	16.2 Definitions Concerning Top-Heavy Status
	 	 	68	 
	16.3 Calculation of Top-Heavy Ratio
	 	 	69	 
	16.4 Effect of Top-Heavy Status
	 	 	69	 
	16.5 Effect of Discontinuance of Top-Heavy Status
	 	 	70	 
	16.6 Intent of Article XVI
	 	 	70	 
	 
	 	 	 	 
	ARTICLE XVII MISCELLANEOUS PROVISIONS
	 	 	71	 
	17.1 Assignment and Alienation
	 	 	71	 
	17.2 Protected Benefits
	 	 	71	 
	17.3 Plan Does Not Affect Employment Rights
	 	 	71	 
	17.4 Deduction of Taxes from Amounts Payable
	 	 	71	 
	17.5 Facility of Payment
	 	 	71	 
	17.6 Source of Benefits
	 	 	72	 
	17.7 Reduction for Overpayment
	 	 	72	 
	17.8 Company Merger
	 	 	72	 
	17.9 Employees’ Trust
	 	 	72	 
	17.10 Construction
	 	 	72	 
	17.11 Invalidity of Certain Provisions
	 	 	73	 
	17.12 Headings
	 	 	73	 
	17.13 Governing Law
	 	 	73	 
	17.14 Notice and Information Requirements
	 	 	73	 
	17.15 Reliance on Information Provided to Plan
	 	 	73	 
	17.16 Recognition of Power of Attorney
	 	 	73	 
	 
	 	 	 	 
	APPENDIX 1.50 – Investment Funds
	 	 	 	 
	 
	 	 	 	 
	APPENDIX 3.3 – Additional Employer Contributions for Plan Years Ending in 2005 and 2006
	 	 	 	 






v









 





ARTICLE I




DEFINITIONS




     The following sections of this Article I provide basic definitions of terms used throughout
the Plan, and whenever used herein in a capitalized form, except as otherwise expressly provided,
the terms will be deemed to have the following meanings:



     1.1 “Accounting Period” means a period, not to exceed 1 year in duration, designated
by the Administrative Committee with respect to each Investment Fund.



     1.2 “Accounts” means the record of a Participant’s interest in the Plan’s assets
represented by his:



          (a) “After-Tax Account” which is composed of the amount held in the “Employee
After-Tax Account” in the ECAP or this Plan immediately prior to the Effective Date (which is
attributable to allocation of after-tax contributions prior to 1987), plus all income and gains
credited to, and minus all losses, expenses and withdrawals charged to, such Account.




          (b) “Before-Tax Account” which is composed of the amount held in the “Employee 401(k)
Account” in the ECAP immediately prior to the Effective Date, Before-Tax Contributions allocated to
the Participant on and after the Effective Date under the Plan, plus all income and gains credited
to, and minus all losses, expenses and withdrawals charged to, such Account.




          (c) “Company Stock Account” which is composed of the amount held in the Company Stock
Account of this Plan immediately prior to the Effective Date which contains the former balances in
his “Company Stock Accounts” under the Kilsby ESOP or the “Stock Balance” in his ESOP Account under
the ECAP, Additional Employer Contributions allocated to the Participant, plus income and gains
credited to, and minus all losses, expenses and withdrawals charged to, such Account.




          (d) “Employer Contribution Account” which is composed of Employer Contributions,
excluding Additional Employer Contributions, allocated to the Participant on and after the
Effective Date under the Plan, plus income and gains credited to, and minus all losses, expenses
and withdrawals charged to, such Account.




          (e) “Match Account” which is the amount held in the “Matching Account” of the Plan
immediately prior to the Effective Date (which is attributable to match contributions prior to
1987), plus all income and gains credited to, and minus all losses, expenses and withdrawals
charged to, such Account.




          (f) “Other Investments Account” which is composed of the Other Investments Account of
this Plan immediately prior to the Effective Date (which contains former balances of his Other
Investment Accounts under the Kilsby ESOP or the “Cash Balance in his ESOP Account” in the ECAP), plus all income and gains credited to, and minus all losses, expenses
and withdrawals charged to, such Account.





1









 






          (g) “PAYSOP Account” means the amount held in the “PAYSOP Account” of this Plan
immediately prior to the Effective Date (which reflects a Participant’s interest under the Plan
attributable to his “PAYSOP Account” under the Kilsby ESOP or under the ECAP), plus all income and
gains credited to, and minus all losses, expenses and withdrawals charged to, such Account. There
are two types of PAYSOP Account, one for contributions allocated prior to 1987 and one for
contributions allocated after 1986 and prior to the Effective Date.




          (h) “Prior Stock Bonus Account” means both the Company Stock Account and the Other
Investments Account.




          (i) “Rollover Account” which is composed of the amount held in the “Rollover Accounts”
in the ECAP immediately prior to the Effective Date, the amount held in the “Rollover Account” of
this Plan immediately prior to the Effective Date, Rollover Contributions made by or allocated to
the Participant on and after the Effective Date under the Plan, plus all income and gains credited
to, and minus all losses, expenses and withdrawals charged to, such Account. On and after the
Effective Date, there are two additional types of Rollover Accounts to which Rollover Contributions
are allocated on and after the Effective Date: an After-Tax Rollover Account for Rollover
Contributions of amounts which are not includible in gross income, as described in Section
402(c)(2)(A) of the Code, and a Before-Tax Rollover Account for all other Rollover Contributions.



With respect to an Alternate Payee or Beneficiary, references to Accounts will be deemed to be
references to all or that portion of a Participant’s After-Tax Account, Before-Tax Account,
Employer Contribution Account, Match Account, PAYSOP Account, Prior Stock Bonus Account or Rollover
Account which, under the terms of the Plan, has been allocated to an Account maintained for such
Alternate Payee or Beneficiary, plus all income and gains credited to, and minus all losses,
expenses and withdrawals charged to, such Account. References herein to Accounts will also be
deemed to include each of a Participant’s Accounts and references herein to an Account will be
deemed to include any or each of the Participant’s Accounts.




     1.3 “Active Participant” means a Participant who is an Employee.



     1.4 “Additional Employer Contributions” means Employer Contributions made for Plan
Years ending March 31, 2005, and March 31, 2006, as set forth in Appendix 3.3.



     1.5 “Administrative Services Agreement” means an agreement with the Recordkeeper to
provide administrative services to the Plan and will include the Administration Manual prepared by
the Recordkeeper, or if no such agreement, rules established by the Administrative Committee.



     1.6 “Administrative Committee” means the Vice President plus those other members
added, if any, to, and still serving on, the Administrative Committee, or if a Named Fiduciary has been identified with respect to the Authority or Discretion involved in the administration of this
Plan under consideration, then reference to the Administrative Committee in that context refers to
such Named Fiduciary. References in this Plan to the Administrative Committee will be deemed to be a reference to
any person (other than a Fiduciary) to whom ministerial



2









 




responsibilities involved in the provisions
of this Plan have been delegated by the Administrative Committee, including under an Administrative
Services Agreement.




     1.7 “Allocation Date” means March 31st of each year (the last day of each
Plan Year).



     1.8 “Alternate Payee” means an individual who is entitled to all or a portion of a
Participant’s Account pursuant to a QDRO.



     1.9 “Appendix” means a written supplement attached to this Plan and made a part
hereof.



     1.10 “Authority or Discretion” means(a) the authority, control or discretion with
respect to the Plan or Trust which is identified or allocated to a Named Fiduciary under the terms
of the Plan or Trust or a procedure in the Plan, or (b) the exercise of such authority, control or
discretion by a Named Fiduciary.



     1.11 “Authorized Absence” means a leave of absence (without pay) granted to an
Employee by the Employer, in accordance with rules uniformly applied to all Employees, for reasons
of health or public service or for other reasons determined by the Employer to be in its best
interests, including unpaid leave under the Family and Medical Leave Act of 1993.



     1.12 “Beneficiary” means an individual entitled to receive any benefits payable on the
death of a Participant in accordance with the Plan.



     1.13 “Board of Directors” means the board of directors of the Company as constituted
from time to time.



     1.14 “Break in Service” means:



           (a) with respect to Years of Eligibility Service, the first anniversary (or the second
anniversary if absence from employment was due to a Maternity/Paternity Absence) of the date of the
Participant’s Termination of Employment; and



           (b) with respect to Credited Service, a Plan Year in which an Employee is not credited with
more than 500 Hours of Service. More than one such consecutive Plan Year is referred to herein as
“Breaks in Service.” For purposes of determining whether a Break in Service has occurred, if an
Employee begins a Maternity/Paternity Absence, or any unpaid leave covered under the Family and
Medical Leave Act of 1993, the computation of his Hours of Service shall include the Hours of
Service that would have been credited if he had not been so absent. An Employee shall be credited
for such Hours of Service (up to a maximum of 501
Hours of Service) in the Plan Year in which such
absence begins (if such crediting will prevent him from incurring a Break in Service in such Plan
Year) or in the next following Plan Year.



     1.15 “Business Day” means any day on which the New York Stock Exchange and the Trustee
are open for business.




3









 





     1.16 “Claims Administrator” means the Administrative Committee unless and to the
extent allocated or delegated hereunder to a Named Fiduciary.



     1.17 “Code” means the Internal Revenue Code of 1986, as amended. References to any
specific Section will include any valid regulation promulgated thereunder, and any statutory
provision amending, supplementing or superseding such Section.



     1.18 “Commonly Controlled Entity” means: (a) an Employer and any corporation, trade or
business, but only for so long as it and the Employer are members of a controlled group of
corporations as defined in Section 414(b) of the Code or under common control as defined in Section
414(c) of the Code; provided, however, that solely for purposes of the limitations of Section 415
of the Code, the standard of control under Sections 414(b) and 414(c) of the Code will be deemed to
be “more than 50%” rather than “at least 80%”; (b) an Employer and an organization, but only for so
long as it and the Employer are members of an affiliated service group as defined in Section 414(m)
of the Code; (c) an Employer and an organization, but only for so long as the employees of it and
the Employer are required to be aggregated under Section 414(o) of the Code; or (d) any other
organization designated as such by a Designated Officer. An entity will not be considered a
Commonly Controlled Entity before it becomes a Commonly Controlled Entity pursuant to the preceding
sentence.



     1.19 “Company” means Earle M. Jorgensen Company, a Delaware corporation, or any
successor corporation by merger, consolidation, purchase or otherwise, which elects to adopt the
Plan.



     1.20 “Company Stock” means common shares of the Company.



     1.21 “Compensation” means all “compensation” paid by the Company or a Commonly
Controlled Entity to an Employee during the Plan Year within the meaning of Treas. Reg.
§1.415-2(d)(1), (2) and (3) and including any amounts contributed to a plan qualifying under
Section 401(k) of the Code as salary reduction contributions or to a cafeteria plan under Section
125 of the Code or paid as a qualified transportation fringe under Section 132(f)(4) of the Code;
provided, however, that for purposes of Article III and Appendix 3.3, “Compensation” as defined
herein will only include such amount paid to an Employee for a period of time during which the
Employee is an Eligible Employee and will not include deferred compensation either in the Plan Year
of deferral or in the Plan Year of payment.



     Notwithstanding the foregoing, the maximum amount of an Employee’s Compensation which shall be
taken into account under the Plan for any Plan Year (“Maximum Compensation Limitation”) shall be
$210,000 for Plan Years beginning on or after January 1, 2005, such limitation adjusted at the same
time and in the same manner as under Sections 401(a)(17) and 415(d) of the Code. For any Plan Year
of fewer than twelve months, the Maximum Compensation Limitation shall, if required by Treasury
Regulations, be reduced to the amount obtained by multiplying such limitation by a fraction having
a numerator equal to the number of months in the Plan Year and a denominator equal to twelve.




4









 





     1.22 “Continuous Service” means the sum of the years (and fractions of years) measured
from an Employee’s Employment Date or Reemployment Date after a Break in Service to his or her date
of Termination of Employment first to occur after his or her Employment Date or Reemployment Date
after a Break in Service; provided, that if an Employee has a Period of Severance of less than
twelve (12) consecutive months after a Termination of Employment, such Termination of Employment
shall be disregarded and such Employee’s Continuous Service shall include such period when he or
she is not employed by a Commonly Controlled Entity.



     1.23 “Contribution” means an amount contributed to the Plan on behalf of a
Participant, in one or more of the following types:



           (a) “Before-Tax” which means an amount contributed by the Employer on a before-tax
basis under Section 402(g) or 414(v) of the Code in conjunction with a Contribution Election.



           (b) “Employer” which means contributions made by an Employer for a Plan Year,
including Additional Employer Contributions.



           (c) “Rollover” which means an amount contributed by or on behalf of a Participant that
constitutes all or part of an “eligible rollover distribution” within the meaning of Section
402(f)(2)(A) of the Code, and which satisfies the requirements of Section 402(c)(2) of the Code, to
the extent applicable.



     1.24 “Contribution Dollar Limit” means the annual limit imposed on each Participant
pursuant to Section 402(g) of the Code (as indexed pursuant to Section 402(g)(4) of the Code,
provided that no such adjustment will be taken into account hereunder before the Plan Year in which
it becomes effective), determined without regard to catch-up contributions under Section 414(v) of
the Code.



     1.25 “Contribution Election” or “Election” means the election made by an
Active Participant who is an Eligible Employee to reduce the Compensation to be paid to him by an
amount equal to the product of his Contribution Percentage and such Compensation subject to the
Contribution Election.



     1.26 “Contribution Percentage” means the percentage of an Eligible Employee’s
Compensation which is to be contributed to the Plan by his Employer as a Before-Tax Contribution.



     1.27 “Credited Service” means the number of Plan Years in which an Employee is
credited with at least 1000 Hours of Service. For a Participant in this Plan prior to the
Effective Date, the Participant’s Credited Service as of the Effective Date will be equal to his
Credited Service recognized under this Plan immediately prior to April 1, 2005 plus Credited
Service for Plan Years commencing on or after April 1, 2005. All determinations of Credited
Service shall be made in accordance with the regulations prescribed by the U.S. Department of
Labor. Credited Service will also include:



5









 






           (a) To the extent determined by a resolution of a Designated Officer, a Participant’s Credited
Service will include his service as an employee of a Predecessor Company if the Participant was an employee of the Predecessor Company when it became a Commonly
Controlled Entity.



           (b) Employment with a Commonly Controlled Entity before the Effective Date will be disregarded
in determining an Employee’s Credited Service if such employment would have been disregarded under
the rules of the Plan with regards to breaks in service as such rules were in effect under the Plan
from time to time before the Effective Date.



           (c) Credited Service as a “leased employee” within the meaning of Section 414(n) or (o) of the
Code will be credited for any period during which Section 414 of the Code requires the person to
earn Credited Service as a “leased employee.”



           Notwithstanding the above, if a Participant incurs a Termination of Employment or a withdrawal
under Section 9.4, the following Credited Service will be disregarded:



           (d) Any Participant with a nonforfeitable percentage interest in any of his Accounts will,
upon his Reemployment Date, have all of his Credited Service recognized under the Plan regardless
of the number of consecutive Breaks in Service.



           (e) Any Inactive Participant who does not have a nonforfeitable percentage interest in any of
his Accounts will, upon his Reemployment Date, after he has incurred a Break in Service for 5 or
more consecutive Plan Years, have all of his Credited Service earned prior to such Breaks in
Service disregarded for all purposes.



           (f) Years of Credited Service earned after 5 or more consecutive Breaks in Service will not be
recognized for purposes of determining the nonforfeitable percentage of the Employee Contribution
Account or Prior Stock Bonus Account which accrued prior to such Breaks in Service.



     1.28 “Designated Officer” means the Vice President and any other officer of the
Company to whom (but only to the extent specifically provided) authority to act on behalf of the
Company has been granted by the Board of Directors or one of its committees.



     1.29 “Direct Rollover” means a payment by the Plan to an Eligible Retirement Plan
specified by a Distributee.



     1.30 “Disability” or “Disabled” means the total and permanent disability of an
Employee, determined by a licensed physician approved by the Administrative Committee.



     1.31 “Distributee” means a Participant, or a Participant’s surviving Spouse; or, and
only with regard to the interest of an Alternate Payee, a Participant’s Spouse or former Spouse who
is the Alternate Payee.



     1.32 “Effective Date” means August 1, 2005, the date upon which the provisions of this
amended and restated document take effect.




6









 






     1.33 “Eligible Employee” means an Employee of an Employer whose Compensation is paid
in U.S. currency, except that an Eligible Employee does not include:



           (a) an Employee who is represented by a union unless the union and the Employer have entered
into a collective bargaining or other agreement that provides that the Employee may participate in
the Plan, and in such case the Employee will be considered an Eligible Employee only with respect
to that portion of the Plan for which such bargaining or other agreement specifically provides a
right to participate;



           (b) an Employee who is a “nonresident alien” (within the meaning of Section 7701(b)(1)(B) of
the Code) and who receives no “earned income” (within the meaning of Section 911(d)(2) of the Code)
from the Employer that constitutes income from sources within the United States (within the meaning
of Section 861(a)(3) of the Code);



           (c) an individual employed pursuant to an agreement providing that the individual is not
eligible to participate in the Plan;



           (d) an individual who is not contemporaneously classified as an Employee for purposes of the
Employer’s payroll system. In the event any such individual is reclassified as an Employee for any
purpose, including, without limitation, as a common law or statutory employee, by any action of any
third party, including, without limitation, any government agency, or as a result of any private
lawsuit, action, or administrative proceeding, such individual will, notwithstanding such
reclassification, remain ineligible for participation hereunder and will not be considered an
Eligible Employee. In addition to and not in derogation of the foregoing, the exclusive means for
an individual who is not contemporaneously classified as an Employee of the Employer on the
Employer’s payroll system to become eligible to participate in this Plan is through an amendment to
this Plan which specifically renders such individual eligible for participation hereunder;



           (e) an Employee whose basic compensation for services on behalf of an Employer is not paid
directly by an Employer; or



           (f) an Employee covered by a classification which is scheduled in an Appendix.



     1.34 “Eligible Retirement Plan” means an individual retirement account described in
Section 408(a) of the Code, an individual retirement annuity described in Section 408(b) of the
Code, an annuity plan described in Section 403(a) of the Code, an eligible deferred compensation
plan described in Section 457(b) of the Code which is maintained by an eligible employer described
in Section 457(e)(1)(A) of the Code (but only if such employer agrees to separately account for
amounts transferred into such plan from the Plan), an annuity contract described in Section 403(b)
of the Code, or a qualified trust described in Section 401(a) of the Code which accepts a
Distributee’s Eligible Rollover Distribution. This definition of ‘Eligible Retirement Plan’ will
also apply in the case of a distribution to a surviving Spouse, or to a Spouse or former Spouse who
is the Alternate Payee under a QDRO.





7









 





     1.35 “Eligible Rollover Distribution” means any distribution of all or any portion of
the balance to the credit of a Distributee, except that an Eligible Rollover Distribution does not
include 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 the joint
lives (or joint life expectancies) of the Distributee and the Distributee’s designated Beneficiary,
or for a specified period of 10 years or more; any distribution to the extent such distribution is required under Section 401(a)(9) of
the Code; or any ‘hardship withdrawal’, whether described in Section 401(k)(2)(B) of the Code and
the regulations promulgated thereunder or otherwise. The portion of a distribution which consists
of after-tax contributions which are not includible in gross income may be transferred only in a
trustee-to-trustee transfer and may be transferred only to an individual retirement account or
annuity described in Section 408(a) or (b) of the Code, or to a qualified defined contribution plan
described in Section 401(a) or 403(a) of the Code that agrees to separately account for amounts so
transferred, including separately accounting for the portion of such distribution which is
includible in gross income and the portion of such distribution which is not so includible.



     1.36 “EMJ Stock Fund” means the Investment Fund invested primarily in Company Stock.



     1.37 “Employee” means any person who either: (a) renders services as a common law
employee to a Commonly Controlled Entity and is on the payroll of such Commonly Controlled Entity;
or (b) is on an Authorized Absence. Notwithstanding the foregoing, the term “Employee” does not
include any individual retained by a Commonly Controlled Entity directly or through an agency or
other party to perform services for a Commonly Controlled Entity (for either a definite or
indefinite duration) in the capacity of a fee-for-service worker or independent contractor or any
similar capacity including, without limitation, any such individual employed by temporary help
firms, technical help firms, staffing firms, employee leasing firms, professional employer
organizations or other staffing firms, whether or not deemed to be “common law” employees or
“leased employees” within the meaning of Section 414(n) of the Code.



     1.38 “Employer” means the Company and any Commonly Controlled Entity that adopts the
Plan in accordance with Article XV; provided, that an entity will cease to be an Employer when it ceases to be a Commonly Controlled Entity or it withdraws from the Plan.




     1.39 “Employment Date” means the day an Employee first earns an Hour of Service.



     1.40 “ERISA” means the Employee Retirement Income Security Act of 1974, as amended.
Reference to any specific Section includes any valid regulation promulgated thereunder, and any
statutory provision amending, supplementing or superseding such Section.



     1.41 “Exchange Election” means an election by a Participant to change the investment
of all or some specified portion of such Participant’s Accounts. Rules applicable to Exchange
Elections may be established by the Administrative Committee. Such rules may, among other things,
limit the Investment Funds that may be elected by the Participant and establish the time and manner
in which such an election may be made.






8









 




     1.42 “Fair Market Value” means on each Business Day:



           (a) for an Investment Fund utilizing share accounting for shares readily tradable on an
established securities market:



               (1) if the shares are listed or admitted to trade on a national securities exchange, the
closing price of a share on the Composite Tape, as published in the Western Edition of The Wall
Street Journal, of the principal national securities exchange on which such stock is so listed or
admitted to trade, on such date, or, if there is no trading of the shares of such security on such
date, then the closing price of a share as quoted on such Composite Tape on the next preceding date
on which there was trading in the shares;



               (2) if the shares are not listed or admitted to trade on a national securities exchange, the
closing price for a share on such date, as furnished by the National Association of Securities
Dealers, Inc. (“NASD”) through the NASDAQ National Market Reporting System or a similar
organization if the NASD is no longer reporting such information; or



               (3) if the shares are not listed or admitted to trade on a national securities exchange and is
not reported on the NASDAQ National Market Reporting System, the mean between the bid and asked
price for a Share on such date, as furnished by the NASD or a similar organization.



           (b) for an Investment Fund utilizing unit accounting or for shares not readily tradable, the
value of a unit as determined in good faith by the Investment Committee and regulations under ERISA.


     1.43 “Forfeiture” means the forfeitable percentage of a Participant’s forfeitable
Accounts which is forfeited under the terms of the Plan.



     1.44 “Full Time Employee” means an Employee who is scheduled to work at least
thirty-two (32) hours per week.



     1.45 “HCE” means an Eligible Employee who is a “highly compensated employee” within
the meaning of Section 414(q) of the Code (determined as if the election described in Section
414(q)(1)(B)(ii) of the Code has been made), the provisions of which are incorporated herein by
reference.



     1.46 “Hour of Service” means, for purposes of determining the Hours of Service to be
credited to an Employee under the Plan, the following rules:



           (a) Hours of Service shall include each hour for which an Employee is paid (or entitled to
payment) for the performance of duties; each hour of Service for which an Employee is paid (or
entitled to payment) for a period during which no duties are performed due to vacation, holiday,
illness, incapacity (including disability), layoff, jury duty, military duty or paid leave of
absence; and each additional hour of Service for which back pay is either awarded or agreed to
(irrespective of mitigation of damages); provided, however, that not more than 501



9









 





Hours of Service
shall be credited for a single continuous period during which an Employee does not perform any
duties.



           (b) The crediting of Hours of Service shall be determined in accordance with the rules set
forth in paragraphs (b) and (c) of Section 2530.200b-2 of the regulations prescribed by the
Department of Labor, which rules shall be consistently applied with respect to all Employees within
the same job classification.



           (c) Hours of Service shall not be credited to an Employee for a period during which no duties
are performed if payment is made or due under a plan maintained solely for the purpose of complying
with applicable worker’s compensation, unemployment compensation or disability insurance laws, and
Hours of Service shall not be credited on account of any payment made or due an Employee solely in
reimbursement of medical or medically-related expenses.



           (d) An Employee compensated on an hourly basis shall be credited for each Hour of Service as
described above. Unless the Employer maintains records of actual Hours of Service, a salaried
Employee who completes at least one Hour of Service during a semi-monthly pay period shall be
credited with 95 Hours for each such period.



     The crediting of an Hour of Service will be made in accordance with Department of Labor
Regulation §2530.200b-2 and 3.



     1.47 “Inactive Participant” means a Participant who is not an Active Participant.



     1.48 “Investment Committee” means the Vice President plus those other members, if any, added to, and still serving on, the Investment Committee, or if a Named Fiduciary has been identified with respect to the Authority or Discretion involved in the investment of, or control over, the Plan’s assets under consideration, the references to the Investment Committee in that context refers to such Named Fiduciary. References in this Plan to the Investment Committee will be deemed to be a reference to any person (other than a Fiduciary) to whom ministerial responsibilities involved in the provisions of this Plan have been delegated by the Investment Committee, including under an Administrative Services Agreement.



     1.49 “Investment Election” means an election by which a Participant directs the investment of his Contributions or amounts allocated to his Accounts. Rules applicable to Investment Elections may be established by the Administrative Committee. Such rules may, among other things, limit the Investment Funds that may be elected by the Participant and establish the time and manner in which such an election may be made.



     1.50 “Investment Fund” means each of the Investment Funds available under the Plan as listed in Appendix 1.50.



     1.51 “Kilsby ESOP” means the Kilsby-Roberts Employee Stock Ownership Plan, a combination of a stock bonus plan and a money purchase pension plan (each of which is qualified under Section 401(a) of the Code) that constitutes an employee stock ownership plan under Section 4975(e)(7) of the Code and that includes a tax credit employee stock ownership plan under Section 409 of the Code.






10








 





     1.52 “Maternity/Paternity Absence” means an Employee’s absence (a) by reason of the (i) pregnancy of the Employee, (ii) birth of a child of the Employee or (iii) placement of a child with the individual in connection with the adoption of such child by such Employee, or (b) for purposes of caring for a child described in clause (a) for a period beginning immediately following such birth or placement.



     1.53 “Member” means a Participant, Alternate Payee or Beneficiary.






     1.54 “Named Fiduciary” means a named fiduciary within the meaning of the ERISA,
including without limitation, Sections 402, 403 or 405 of ERISA.



     1.55 “NHCE” means an Eligible Employee who is not an HCE.



     1.56 “Normal Retirement Date” means the date on which a Participant attains age 65.



     1.57 “Participant” means an Active Participant or an Inactive Participant, who is
participating in the Plan after completing the Plan’s requirements for participation, but only for
so long as such individual is considered a Participant in accordance with the terms of the Plan.



     1.58 “Payment Date” means the date on or after the Settlement Date on which a
withdrawal from an individual’s Account is made (or commenced), in whole or in part, which date
will be at least the minimum number of days required by law, if any, after the date the individual
has received such notice as is required by law, if any, before a withdrawal can be made (or
commenced to be made) as determined by the Administrative Committee.



     1.59 “Period of Severance” means the period of time measured from the later of (a) an
Employee’s Termination of Employment, and (b) the conclusion of a Maternity/Paternity Absence of no
longer than twelve (12) consecutive months, to the date thereafter he or she first earns an Hour of
Service.



     1.60 “Plan” means the Earle M. Jorgensen Retirement Savings Plan, as set forth herein
and as hereafter may be amended.



     1.61 “Plan Year” means the 12-month period ending on each Allocation Date, which
period shall also be the “limitation year” for purposes of Section 415 of the Code.



     1.62 “Predecessor Company” means an entity or predecessor thereof, prior, in either
case, to its becoming a Commonly Controlled Entity, or to its assets being acquired by a Commonly
Controlled Entity, as determined by the Company.



     1.63 “QDRO” means a domestic relations order which the Administrative Committee has
determined to be a qualified domestic relations order within the meaning of Section 414(p) of the
Code.



     1.64 “Recordkeeper” means the service provider who is a party to the Administrative
Services Agreement, or if none, the Administrative Committee.



11









 





     1.65 “Reemployment Date” means the first date on which an Employee completes an Hour
of Service by performing services as an Employee after a Break in Service.



     1.66 “Republic ESOP” means the Republic Supply Employee Stock Ownership Plan, a
combination of a stock bonus plan and a money purchase pension plan (each of which was qualified
under Section 401(a) of the Code) that constituted an employee stock ownership plan under Section
4975(e)(7) of the Code, that included a tax credit employee stock ownership plan under Section 409
of the Code and that was merged into the Kilsby ESOP effective as of December 1, 1989.



     1.67 “Settlement Date” means the Business Day as of which an Investment Election or
Exchange Election for a corresponding Trade Date or some other financial transaction involving the
Plan’s assets is posted to the Participant’s Account based on a transaction price or a closing
price as set forth in the Administrative Services Agreement.



     1.68 “Spousal Consent” means the irrevocable written consent given by a Spouse to a
Participant’s election (or waiver) of a specified form of benefit or Beneficiary designation. The
Spouse’s consent must acknowledge the effect on the Spouse of the Participant’s election, waiver or
designation and be duly witnessed by a Plan representative or notary public. Spousal Consent will
be valid only with respect to the Spouse who signs the Spousal Consent and only for the particular
choice made by the Participant which requires Spousal Consent. A Participant may revoke (without
Spousal Consent) a prior election, waiver or designation that required Spousal Consent at any time
before the Sweep Time associated with the Settlement Date upon which payments will begin. Spousal
Consent will not be necessary to the extent that there is a determination by the Administrative
Committee that there is no Spouse, the Spouse cannot be located or such other circumstances as may
be established by applicable law.



     1.69 “Spouse” means a person who, as of the relevant time, is married to the
Participant under the laws of the State of the Participant’s residence as evidenced by a valid
marriage certificate or other proof acceptable to the Administrative Committee.



     1.70 “Sweep Time” means the cutoff time set forth in the Administrative Services
Agreement to receive notification of an Investment Election or Exchange Election in order to
process the transaction with respect to a Trade Date or to receive a funding request for a Payment
Date.



     1.71 “Termination of Employment” means an individual ceases to be an Employee.



     1.72 “Trade Date” means the Business Day as of which an Investment Election or
Exchange Election, or some other financial transaction involving the Plan’s assets, is initiated
and confirmed, as described in the Administrative Services Agreement.



     1.73 “Trust” means the legal entity resulting from the Trust Agreement, in which some
or all of the assets of this Plan will be received, held, invested and distributed to or for the
benefit of Participants and Beneficiaries.



12









 





     1.74 “Trust Agreement” means the agreement between the Company and the Trustee
establishing the Trust, and any amendments thereto.



     1.75 “Trust Fund” means any property, real or personal, received by and held by the
Trustee, plus all income and gains and minus all losses, expenses, withdrawals and distributions
chargeable thereto.



     1.76 “Trustee” means any corporation, individual or individuals designated in the
Trust Agreement accepting the appointment as Trustee to execute the duties of the Trustee as set
forth in the Trust Agreement.



     1.77 “Vice President” means the Corporate Executive Vice President of the Company or,
upon the resignation or removal of such Executive Vice President, any successor officer to the
Executive Vice President who performs substantially similar duties with respect to administration
of employee benefits (whether assigned a different title by the Company or not).



     1.78 “Year of Eligibility Service” means, on or after the Effective Date, the
Employee’s period of Continuous Service; provided however, if the Employee’s most recent Employment
Date or Reemployment Date occurred prior to the Effective Date, a Year of Eligibility Service will
be determined under the terms of the ECAP immediately prior to the Effective Date if it is more
favorable to the Employee.



13









 





ARTICLE II




PARTICIPATION




     2.1 Eligibility.



          (a) Participant on Effective Date. Each person who was a Participant with an Account
in the Plan or ECAP immediately before the Effective Date will continue as a Participant as of the
Effective Date.




          (b) Other Eligible Employee. Each other Eligible Employee who is a Full Time Employee
shall become a Participant on his Employment Date or Reemployment Date as an Eligible Employee, and
each other Eligible Employee who is not a Full Time Employee shall become a Participant in the Plan
on the first day following his completion of one (1) Year of Eligibility Service if he is an
Eligible Employee on that date, or if not an Eligible Employee on such date, the date such person
becomes an Eligible Employee; provided however, if such person is represented in collective
bargaining, he will be a Participant only with respect to that portion of this Plan for which he is
an Eligible Employee.




     2.2 Impact of Change of Employment Status on Eligibility. An Employee who is not an
Eligible Employee will be eligible to become a Participant on the date he becomes an Eligible
Employee. If the status of a Participant changes from Eligible Employee to Employee, such
Participant will cease to be eligible to make, or to have, Contributions made on his behalf to the
Plan, until such time as such Participant is employed by an Employer as an Eligible Employee.



     2.3 Duration. A person will cease to be a Participant on the date that his entire
nonforfeitable Accounts have been withdrawn, or upon his death, whichever occurs first.



     2.4 Electronic Media.



          (a) The Administrative Committee may require or permit Participant (or Beneficiary, as the
context may require) elections and/or consents under this Plan to be made by means of such
electronic media as the Administrative Committee may prescribe.




          (b) A Participant’s consent to distribution, request for a withdrawal or loan, or other form
of election permitted by electronic media under this Plan or by the Administrative Committee,
together with the cashing of any check subsequently issued by this Plan (whether or not endorsed),
shall constitute written consent for purposes of this Plan (including, without limitation,
agreement to the terms of the loan and the related promissory note), the Code (including, without
limitation, Section 411(a)(11), and ERISA (including, without limitation, Section 203(e)).




14









 








          (c) Reasonable efforts will be used to process electronic media consents and elections made
under this Plan. Notwithstanding the preceding sentence or anything else in this Plan to the
contrary, neither the Company, the Administrative Committee, the Trustee nor any other person
guarantees that any consent or election will be so processed. The Administrative Committee may
adopt new or alternative rules for electronic media consents and elections as it deems appropriate
in its sole and complete discretion (including, without limitation, eliminating any electronic
media system and re-implementing a requirement of written forms, establishing the effective date
and the notice date for any type of consent or election and limiting the number of any particular
elections that may be made by a Participant during any specified period). In order to be
effective, each consent and/or election must be made on such other rules as the Administrative
Committee may prescribe.




15









 








ARTICLE III




CONTRIBUTIONS




     3.1 Before-Tax Contributions.



          (a) Any Participant who is an Eligible Employee may elect to have Before-Tax Contributions
made to the Plan by his Employer in an integral percentage of his Compensation of not less than 1
percent nor more than 50 percent. The Compensation of such Participant will be reduced by the
percentage elected under the Contribution Election in effect for such Participant; provided,
however, that no Before-Tax Contributions made with respect to a year on behalf of a Participant
may exceed the limitations set forth in Article IV. With respect to each applicable payroll
period, the Employer will contribute as soon as reasonably possible, an amount to the Trust equal
to the Participant’s Before-Tax Contributions for such payroll period and the Administrative
Committee will cause such amount to be allocated and posted to the Participant’s Before-Tax
Account.




          (b) A Participant’s election to make Before-Tax Contributions will continue in effect (with
automatic adjustment for any change in his Compensation) until changed or terminated pursuant to
procedures established by the Administrative Committee, suspended under the terms of this Plan, or
until the Participant ceases to be paid as an Eligible Employee.




          (c) In the event of a mistake by either the Employer or the Administrative Committee regarding
the amount of a Participant’s Before-Tax Contributions during a Plan Year, the Employer may permit,
in its sole discretion, contributions in excess of the 50 percent limit set forth in this Section
3.1 to be made for 1 or more payroll periods during such Plan Year, but only to the extent required
for such contributions for the Plan Year to equal what they would have been in the absence of the
mistake.




          (d) A Participant’s election to make Before-Tax Contributions may be limited pursuant to
procedures established by the Administrative Committee for purposes of complying with any tax,
deferral or other withholding obligations or elections with respect to such Participant’s
Compensation.




     3.2 Rollover Contributions.



          (a) Any Active Participant who is an Eligible Employee may elect to make a Rollover
Contribution to the Plan by delivering, or causing to be delivered, to the Plan the assets in cash
which constitute such Rollover Contribution, provided that such Rollover Contribution meets such
conditions as the Administrative Committee may establish. The Trustee will allocate and post to
the Rollover Account of such Participant the amount of such Rollover Contribution. No Rollover
Contribution by an Eligible Employee will be deemed to be a contribution of such Eligible Employee
for purposes of Article IV.




          (b) If it is later determined that an amount transferred pursuant to subsection (a), above,
did not in fact qualify as a Rollover Contribution, the balance allocated to the Employee’s
Rollover Account will immediately be: (i) segregated from all other Plan assets; (ii)




16









 







treated as a
non-qualified trust established by and for the benefit of the Employee; and (iii) distributed to
the Employee, as adjusted for earnings and losses. Any such nonqualifying rollover will be deemed
never to have been a part of the Plan.




          (c) A Participant who is entitled to receive a lump sum distribution from a qualified plan
described in Section 401(a) of the Code maintained by an Employer as the result of Termination of
Employment from a Commonly Controlled Entity may elect to have such lump sum distribution deposited
into his Rollover Account under the Plan. Such Rollover Contribution must be made in accordance
with procedures that may be specified by the Administrative Committee.




     3.3 Employer Contributions.



          (a) Amount of Employer Contribution. Subject to subsection (c) hereof, Employer
Contributions shall be paid to the Trustee for each Plan Year in such amounts (or under such
formula) as may be determined by the Board of Directors. Additional Employer Contributions shall
be made for Plan Years ending March 31, 2005 and March 31, 2006 as set forth in Appendix 3.3.




          (b) Payment of Employer Contributions. Employer Contributions for each Plan Year
shall be paid to the Trustee not later than the due date (including extensions) for filing the
Company’s Federal income tax return for that Plan Year. Employer Contributions will be paid in
cash or Company Stock, as determined by the Company; provided however, Additional Employer
Contributions will be made only in shares of Company Stock. For purposes of Article IV, the amount
of any Employer Contributions or Additional Employer Contributions that are paid in the form of
shares of Company Stock will be based upon the Fair Market Value of the shares as of the date such
shares are issued to the Trust.




          (c) Additional Provisions. Employer Contributions will not be made for any Plan Year
in amounts which cannot be allocated to Participant’s Accounts by reason of the allocation
limitations described in Article IV or in amounts which are not deductible under Section 404(a) of
the Code. Any Employer Contributions which are not deductible under Section 404(a) of the Code
shall be returned to the Employer by the Trustee (upon the direction of the Company) within one
year after the deduction is disallowed or after it is determined that the deduction is not
available. In the event that Employer Contributions are paid to the Trust by reason of a mistake of
fact, such Employer Contributions will be returned to the Employer by the Trustee (upon the
direction of the Company) within one year after the payment to the Trust.




          (d) Employer Contributions and Forfeitures. Employer Contributions (excluding
Additional Employer Contributions) and Forfeitures available for each Plan Year will be allocated
as of the Allocation Date among the Accounts of Participants so entitled under this Section 3.3 in
the ratio that the Compensation of each such Participant bears to the total Compensation of all
such Participants, subject to the allocation limitations described in Article IV. A Participant is
entitled to share in the allocation of Employer Contributions (excluding Additional Employer
Contributions) and Forfeitures for each Plan Year if in such Plan Year he is credited with at least
1000 Hours of Service and if in such Plan Year he is an




17









 







Eligible Employee on the Allocation Date.
A Participant who ceases to be an Eligible Employee is entitled to share in the allocation of
Employer Contributions (excluding Additional Employer Contributions) and available Forfeitures for
the Plan Year in which he ceases to be an Eligible Employee if he is an Employee on the Allocation
Date, but his Compensation shall include only amounts paid to him while he was an Eligible
Employee. An Employee who becomes an Eligible Employee shall become a Participant on the date he
becomes an Eligible Employee, and his Compensation shall include only amounts paid to him while he
is an Eligible Employee. A Participant who is an Eligible Employee during a Plan Year is also
entitled to share in the allocation of Employer Contributions (excluding Additional Employer Contributions) and
Forfeitures for that Plan Year if in such Plan Year he occurs his Termination of Employment, on or
over the age of 65, or for reasons of his Disability or death.




          (e) Additional Employer Contributions. Additional Employer Contributions described in
Appendix 3.3 for each Plan Year will be allocated as of the Allocation Date among the Accounts of
“Applicable Participants” so entitled under Appendix 3.3 in accordance with Appendix 3.3.




     3.4 Employer Contribution on Return from Qualified Military Leave. If an Employee: (i)
was absent from employment for qualified military service with the armed forces of the United
States on or after January 1, 2001, (ii) returns to employment with the Employer within the period
required by the Uniformed Services Employment and Reemployment Act of 1994, or any successor
statute, and (iii) was a Participant in the Plan at the commencement of the qualified military
leave, then following his return to employment with the Employer, the Employer will contribute to
the Trust an amount determined under this Section 3.4 as a contribution to the Participant’s
Employer Contribution Account as soon as administratively practicable following the Employee’s
return from qualified military leave. The amount of the contribution will equal the maximum
Employer Contribution the Employee would have been entitled to under the Plan had the Employee not
been on qualified military leave, reduced by the Employer Contribution actually made on behalf of
the Employee during the leave period; provided, however, that no contribution made with respect to
a year on behalf of a Participant may exceed the limitations under Section 415 of the Code
applicable to the year to which the missed Employer Contribution relates. The missed compensation
to be considered for purposes of calculating the contribution under this Section 3.4 will be the
Employee’s compensation as that term is defined under Section 414(u)(7) of the Code, reduced by
Compensation actually paid to the Employee during the leave period. The contribution under this
Section 3.4 will be in satisfaction of any amount otherwise required to be contributed by the
Employer pursuant to Section 414(u) of the Code or Section 3.3 of the Plan.



     3.5 Catch-Up Contributions. Notwithstanding anything in this Plan to the contrary, a
Participant who attains age 50 before the close of the relevant Plan Year will be eligible to make
additional Before-Tax Contributions as catch-up contributions in accordance with, and subject to
the limitations of, Section 414(v) of the Code, the provisions of which are hereby incorporated
herein by reference. Such catch-up contributions will not be taken into account for purposes of
the provisions of the Plan implementing the required limitations of Sections 402(g) and 415 of the
Code, and will not be subject to the requirements of Section 4.5. The Plan will not be treated



18









 




as failing to satisfy the provisions of the Plan implementing the requirements of Section 401(k)(3),
410(b) or 416 of the Code by reason of the making of such catch-up contributions.





19









 








ARTICLE IV




LIMITATION
ON CONTRIBUTIONS




     4.1 Limit on Before-Tax Contributions. The aggregate elective deferrals (as defined
in Section 402(g)(3) of the Code) made on behalf of each Participant under the Plan for any Plan
Year will not exceed:



          (a) the Contribution Dollar Limit, reduced by:




          (b) the sum of any of the following amounts that were contributed on behalf of the Participant
for the Plan Year under a plan, contract, or arrangement other than this Plan:




               (1) any employer contribution under a qualified cash or deferred arrangement (as defined in
Section 401(k) of the Code) to the extent not includable in the Participant’s gross income for the
taxable year under Section 402(e)(3) of the Code (determined without regard to Section 402(g) of
the Code);



               (2) any employer contribution to the extent not includable in the Participant’s gross income
for the taxable year under Section 402(h)(1)(B) of the Code (determined without regard to Section
402(g) of the Code);



               (3) any employer contribution to purchase an annuity contract under Section 403(b) of the Code
under a salary reduction agreement (within the meaning of Section 3121(a)(5)(D) of the Code); and



               (4) any elective employer contribution under Section 408(p)(2)(A)(i) of the Code;


provided that no contribution described in this subsection (b) will be taken into account for the
purpose of reducing the dollar limit in subsection (a), above, if the plan, contract, or
arrangement is not maintained by a Commonly Controlled Entity unless the Participant has filed a
notice with the Administrative Committee not later than March 15 of the next Plan Year regarding
such contribution.




     4.2 Actual Deferral Percentage Test.



          (a) The Plan will satisfy the actual deferral percentage test set forth in Section 401(k)(3)
of the Code and Treasury Regulation §1.401(k)-1(b), the provisions of which (and any subsequent
Internal Revenue Service guidance issued thereunder) are incorporated herein by reference
(including, at the election of the Employer, the making of qualified nonelective contributions, as
defined in Section 401(m)(4)(C) of the Code, to be treated as Before-Tax Contributions hereunder),
each as modified by subsection (b), below. In accordance with Section 401(k)(3) of the Code and
Treasury Regulation §1.401(k)-1(b), as modified by subsection (b), below, the actual deferral
percentage for HCEs for any Plan Year will not exceed the greater of:

20









 









               (1) the actual deferral percentage for NHCEs for the current Plan Year multiplied by 1.25, or



               (2) the lesser of (i) the actual deferral percentage for NHCEs for the current Plan Year
multiplied by 2 and (ii) the actual deferral percentage for NHCEs for the current Plan Year plus
2%.



          (b) In performing the actual deferral percentage test described in subsection (a), above, the
following special rules will apply:




               (1) the deferral percentages of Participants who are covered by an agreement that the
Secretary of Labor finds to be a collective bargaining agreement between employee representatives
and an Employer will be disaggregated from the deferral percentages of other Participants and the
provisions of this Section 4.2 will be applied separately with respect to each group.



               (2) Employees who have not become eligible to become Participants will be disregarded in
applying this Section 4.2.



               (3) The Administrative Committee may permissively aggregate the Plan with other plans to the
extent permitted under Treasury Regulation §1.401(k)-1.



     4.3 Maximum Contributions.



          (a) In addition to any other limitation set forth in the Plan and notwithstanding any other
provision of the Plan, in no event will the annual additions allocated to a Participant’s Account
under the Plan, together with the aggregate annual additions allocated to the Participant’s
Accounts under all other defined contribution plans required to be aggregated with the Plan under
the provisions of Section 415 of the Code, exceed the maximum amount permitted under Section 415 of
the Code, the provisions of which are incorporated herein by reference.




          (b) If the limitations imposed by this Section 4.3 apply to a Participant who is entitled to
annual additions under one or more tax-qualified plans with which the Plan is aggregated for
purposes of Section 415 of the Code, the annual additions under the Plan and such other plan or
plans will be reduced in the following order, to the extent necessary to prevent the Participant’s
benefits and/or annual additions from exceeding the limitations imposed by this Section 4.3:




               (1) All other defined contribution plans in which the Participant participated and with which
the Plan is aggregated for purposes of Section 415 of the Code, in an order based on the reverse chronology of the annual additions to the plans, beginning with the last annual addition and ending
with the first annual addition; and



               (2) the Plan.



21









 





     4.4 Imposition of Limitations. Notwithstanding anything contained in the Plan to the
contrary (except Section 3.5), the Administrative Committee may, in his sole discretion, limit the
amount of a Contributions to be allocated to a Participant during a Plan Year to the extent that
the Administrative Committee determines that the imposition of such a limit is necessary or
appropriate to ensure that the Plan will satisfy the requirements of this Article. Any such
limitation may be imposed on a Participant at any time and without advance notice to the
Participant, and regardless of whether
the Participant is covered by a collective bargaining agreement between employee
representatives and an Employer. The Administrative Committee can impose limitations beyond those
that are absolutely necessary to satisfy the requirements of this Article and may, in his sole
discretion, impose more restrictive limitations that are designed to enable the Plan to satisfy
those requirements by a reasonable margin. Notwithstanding anything contained in the Plan to the
contrary, in the event that the Contributions to be allocated to a Participant for a particular
payroll period would cause the limitations of Section 4.3 to be exceeded with respect to a
Participant, the Contributions which otherwise would be made with respect to such Participant for
such period will be first reduced or eliminated so that the limitations of Section 4.3 are not
exceeded.



     4.5 Return of Excess Annual Additions, Deferrals and Contributions.



          (a) If a Participant’s Contributions or deemed Contributions to his After-Tax Account cause
the annual additions allocated to a Participant’s Account to exceed the limit imposed by Section
4.3, such excess contributions (plus or minus any gains or losses thereon) will be returned to the
Participant in the following order: (i) Employer Contributions (other than Additional Employer
Contributions); (ii) Before-Tax Contributions; and (iii) Additional Employer Contributions.
Contributions returned pursuant to this subsection (a) will be disregarded in applying the limits
imposed by Sections 4.1 through 4.3.




          (b) After any excess annual additions (plus or minus any gains or losses thereon) with respect
to a Calendar Year have been distributed as provided in subsection (a), above, if a Participant’s
aggregate elective deferrals (as defined in Section 402(g)(3) of the Code) with respect to a
Calendar Year exceed the Contribution Dollar Limit, the following rules will apply to such excess
(the Participant’s “excess deferrals”):




               (1) Not later than the first January 31 following the close of the Calendar Year, the
Participant may allocate to the Plan all or any portion of the Participant’s excess deferrals for
the Calendar Year (provided that the amount of the excess deferrals allocated to the Plan will not
exceed the amount of the Participant’s Before-Tax Contributions to the Plan for the Calendar Year
that have not been withdrawn or distributed) and will notify the Administrative Committee of any
amount allocated to the Plan.



               (2) If excess deferrals have been made to this Plan, or any other plan maintained by a
Commonly Controlled Entity, on behalf of a Participant for a Calendar Year, the Participant will be
deemed to have allocated such excess deferrals to the Plan pursuant to subsection (b)(1), above,
and the Plan will distribute such excess deferrals pursuant to subsection (b)(3), below.



22









 





               (3) As soon as practicable, but in no event later than the first April 15th following the
close of the Calendar Year, the Plan will distribute to the Participant the amount allocated or
deemed allocated to the Plan under subsection (b)(1) or (b)(2), above (plus or minus any gains or
losses thereon). The distribution described in this subsection (b)(3) will be made notwithstanding
any other provision of the Plan.



          (c) After any excess annual additions (plus or minus any gains or losses thereon) with respect
to a Plan Year have been distributed as provided in subsection (a), above, after any excess
deferrals (plus or minus any gains or losses thereon) with respect to a Calendar



Year have been distributed as provided in subsection (b), above, and after any action pursuant
to Section 4.4 with respect to the Plan Year has been taken, if the actual deferral percentage for
the Plan Year of HCEs exceeds the limit imposed by Section 4.2, the following rules apply:




               (1) (A) The amount of the excess contributions (determined in accordance with Section
401(k)(8)(B) of the Code and subparagraph (3), below), plus or minus any gains or losses thereon
(including, in the discretion of the Administrative Committee, gains or losses attributable to the
“gap period” within the meaning of Treasury Regulation §1.401(k)-1(f)(4)), will be distributed to
HCEs, beginning with the HCE with the highest dollar amount of Before-Tax Contributions for the
Plan Year in an amount required to cause that HCE’s Before-Tax Contributions to equal the dollar
amount of the Before-Tax Contributions of the HCE with the next highest dollar amount of Before-Tax
Contributions (or in such lesser amount that is equal to the total amount of excess contributions).
The process described in the preceding sentence will continue until the reduction equals the total
excess contributions made to the Plan.



                    (B) The distribution described in subparagraph (A), above, will be made as soon as
practicable, but in no event later than the close of the Plan Year following the close of the Plan
Year with respect to which the excess contributions were made.



                    (C) The gains or losses on excess contributions will be determined by multiplying the total
annual earnings (positive or negative) for the Plan Year in the Participant’s Before-Tax Account by
the following fraction:



                         (i) The numerator of the fraction will be the amount of the excess contributions.



                         (ii) The denominator of the fraction will be the Fair Market Value of the Participant’s
Before-Tax Account as of the last day of the Plan Year (or at the end of the gap period, if elected
by the Company), reduced by any positive earnings (or increased by any negative earnings) credited
to the Participant’s Before-Tax Account for the Plan Year (and for the gap period, if elected by
the Company).


Notwithstanding the preceding provisions of this subparagraph (C), in the discretion of the
Administrative Committee, the gains and losses on excess contributions will be determined in
accordance with any method permitted under the Code and the applicable Treasury Regulations.




               (2) In accordance with Treasury Regulations, the Administrative Committee may elect, in his
sole discretion, to treat as a Contribution to a Participant’s After-



23









 




Tax Account the amount of the
excess contributions attributable to a Participant who is an HCE, except to the extent that such a
Contribution to a Participant’s After-Tax Account would cause the Plan to exceed (or to continue to
exceed) the limit imposed by Section 4.3.




               (3) The excess contributions to the Plan will be determined in accordance with Section
401(k)(8)(B) of the Code by performing the hypothetical calculation described in this subparagraph
(3). The actual deferral percentage of the HCE with the highest individual actual deferral
percentage will be reduced to the extent necessary to cause his actual deferral percentage to equal
the actual deferral percentage of the HCE with the second highest individual actual deferral
percentage (or, if it would result in a lesser reduction, to the extent necessary to cause the Plan
to satisfy the actual deferral percentage test under Section 4.2). The excess contribution to the
Plan is the amount by which the Before-Tax Contributions of the HCE
with the highest individual actual deferral percentage would have been reduced after the
hypothetical reduction in actual deferral percentage described in the preceding sentence. This
process will continue until no excess contributions remain.


The distribution described in subparagraph (1), above, will be made notwithstanding any other
provision of the Plan. The amount distributed pursuant to subparagraph (1), above, or
recharacterized pursuant to subparagraph (2), above, for a Plan Year with respect to a Participant
will be reduced by any excess deferral previously distributed from the Plan to such Participant for
the Participant’s taxable year ending with or within such Plan Year.




     4.6 Incorporation by Reference. Each incorporation by reference in this Article IV of
the provisions of Sections 401(k)(3) and 415, and the specific underlying regulations thereunder,
includes this incorporation by reference to any subsequent Internal Revenue Service guidance issued
thereunder.



24









 





ARTICLE V




ACCOUNTING FOR PARTICIPANTS’

ACCOUNTS AND FOR INVESTMENT OPTIONS




     5.1 Individual Participant Accounting.



          (a) Account Maintenance. The Administrative Committee will cause the Accounts for
each Participant to reflect transactions involving Contributions and other allocations thereto,
loans, earnings, losses, withdrawals, distributions and expenses to be allocated and posted to the
Accounts in accordance with the terms of this Plan. Financial transactions during or with respect
to an Accounting Period will be accounted for at the individual Account level by allocating and
posting each transaction to the Account as of a Settlement Date. At any point in time, the Fair
Market Value of all of a Participant’s Accounts will be equal to the sum of the aggregate of the
following amounts determined under (1), (2) and (3) with regard to each Investment Fund:




               (1) the (A) Fair Market Value of the portion of his Accounts invested in each Investment Fund
under 5.2(a) multiplied by (B) the number of full and fractional units for each such Investment
Fund posted to his Accounts;



               (2) the (A) Fair Market Value for the shares for the portion of his Accounts invested in each
Investment Fund under 5.2(b) multiplied by (B) the number of full and fractional shares for each
such Investment Fund posted to his Accounts; and



               (3) the Fair Market Value of any other assets of the Trust Fund (exclusive of assets described
in (1) and (2)) in which a portion of his Accounts is invested or held.



          (b) Deadline for Investment Directions. For any Investment Election or Exchange
Election to be processed as of a Trade Date, the Recordkeeper must receive the Investment Election
or Exchange Election by the Sweep Time and such instructions will apply only to amounts held in and
posted to the Accounts as of the Trade Date.




          (c) Suspension of Transactions. Whenever the Administrative Committee considers such
action to be in the best interest of the Participants, the Administrative Committee in its
discretion may suspend and change from time to time the Trade Date or Settlement Date or reset the
Sweep Time.




          (d) How Fees and Expenses are Charged to Accounts. Account maintenance fees will be
charged pro rata to each Account based on the ratio of the Fair Market Value of such Account to the
aggregate Fair Market Value of all Accounts (to the extent such fees are not paid by the Employer),
provided that no fee will reduce an Account balance below zero. Transaction type fees (such as
loan set-up fees, etc.) will be charged to the Accounts involved in the transaction as determined
pursuant to procedures adopted by the Administrative Committee. Fees and expenses incurred for the
management and maintenance of Investment Funds will be




25









 







charged at the Investment Fund level and
reflected in the net gain or loss of each Investment Fund to the extent not paid by the Employer.




          (e) Error Correction. The Administrative Committee may correct any errors or
omissions in the administration of the Plan by crediting or charging any Account with the amount
that would have been allocated, credited or charged to the Account had no error or omission been
made. Funds necessary for any such crediting will be provided through payment made by the
Administrative Committee, or, if the Administrative Committee was not responsible for such error or
omission, through payment by the Employer.




     5.2 Accounting for Investment Funds.



          (a) Unit Accounting. The investments in each Investment Fund designated by the
Administrative Committee as subject to unit accounting will be maintained in full and fractional
units.




          (b) Share Accounting. The investments in each Investment Fund designated by the
Administrative Committee as subject to share accounting will be maintained in full and fractional
shares.




     5.3 Accounts for Beneficiaries and Alternate Payees. A separate Account will be
established for any Beneficiary entitled to any portion of a deceased Participant’s Account, and
for an Alternate Payee as of the date and in accordance with the directions specified in the QDRO.
Such Account will be valued and accounted for in the same manner as any other Account.
Beneficiaries and Alternate Payees will be treated as Participants to the extent provided as
follows:



          (a) Exchange Election. A Beneficiary or an Alternate Payee may direct or exchange the
investment of such Account in the same manner as a Participant.




          (b) Withdrawals and Forms of Payment. Payment to a Beneficiary may be made as
provided herein. An Alternate Payee will receive payment of the amount specified in the QDRO as
soon as administratively possible, regardless of whether the Participant is an Employee or has
attained his “earliest retirement age” (as defined in Section 414(p) of the Code), unless the QDRO
specifically provides that payment be delayed, including at the election of the Alternate Payee.
Payment may be made in the same forms as are available to the Participant with respect to whom the
QDRO has been obtained, to the extent provided in the QDRO. Unless the QDRO provides otherwise,
such distribution will be made pro rata from each of the Participant’s Accounts.




          (c) Participant Loans. A Beneficiary or an Alternate Payee will not be entitled to
borrow from his Account. If a QDRO specifies that the Alternate Payee is entitled to any portion
of the Account of a Participant who has an outstanding loan balance, all outstanding loans will
continue to be held in the Participant’s Account and will not be divided between the Participant’s
and Alternate Payee’s Accounts.

26









 









          (d) Beneficiary. A Beneficiary or an Alternate Payee (to the extent provided for in
the QDRO) may designate a Beneficiary in the same manner as a Participant.




     5.4 Transition Rules. The Administrative Committee may adopt such procedures,
including imposing “transition” periods, as are necessary
to accommodate any plan mergers, Investment Fund or accounting changes or events, or similar
events as it determines are necessary for the proper administration of the Plan.



27









 





ARTICLE VI




INVESTMENT
OPTIONS AND ELECTIONS




     6.1 Investment of Contributions.



          (a) Investment Elections. Each Participant may direct the Recordkeeper, by submission
to the Recordkeeper of an Investment Election, to invest Contributions (and loan repayments) posted
to his Accounts and other amounts allocated and posted to the Participant’s Account in one or more
Investment Funds; provided, however, that Investment Elections may only be accepted for Rollover
Contributions to the extent allowed by the Recordkeeper. Notwithstanding the above, Employer
Contributions made in the form of Company Stock or Additional Employer Contributions will be
invested directly in the EMJ Stock Fund. In the absence of an Investment Election, and subject to
such rules as the Administrative Committee may make, any other Contributions (and loan repayments)
will be invested in the applicable Default Fund set forth in Appendix 1.50.




          (b) Effective Date of Investment Election; Change of Investment Election. A
Participant’s Investment Election will be effective with respect to an Investment Fund as soon as
administratively possible after the date the Recordkeeper receives the Participant’s new Investment
Election pursuant to procedures specified by the Administrative Services Agreement. A
Participant’s Investment Election will continue in effect, notwithstanding any change in his
Compensation or his Contribution Percentage, until the earliest of: (1) the effective date of a new
Investment Election; or (2) the date he ceases to be a Participant.




     6.2 Investment of Accounts.



          (a) Exchange Election. Subject to Section 6.5, notwithstanding a Participant’s
Investment Election, a Participant may direct the Recordkeeper, by submission of an Exchange
Election to the Recordkeeper, to change the investment of his Accounts between 2 or more Investment
Funds, on a pro rata basis with respect to each of the Participant’s Accounts (exclusive of the
Participant’s loans).




          (b) Effective Date of Exchange Election. An Exchange Election to change a
Participant’s investment of his Accounts in one Investment Fund to another Investment Fund will be
effective with respect to such Investment Funds as soon as administratively possible after the date
the Recordkeeper receives the Participant’s new Investment Election pursuant to procedures
specified by the Administrative Services Agreement. Notwithstanding the foregoing, an Exchange
Election made with respect to the balance of Accounts of a Participant who dies on or after the
Effective Date will not be valid if it is made after such time that is established by the
Administrative Services Agreement following the date the Recordkeeper is notified of such
Participant’s death.




          (c) Delayed Effective Date. Notwithstanding any provision of this Section 6.2 to the
contrary, if the sell portion of an Exchange Election can not be processed due to a problem in the
market, a liquidity shortage in an Investment Fund or disruption of other sell or




28









 







buy orders in
another Investment Fund, the buy portion of the Exchange Election will not be processed on a Trade
Date until the Settlement Date for the sell transaction.




     6.3 Investment Funds. The Plan’s Investment Funds are indicated in Appendix 1.50. In
addition, a Designated Officer may, by amending the Plan, from time to time:



          (a) limit or freeze investments in, or transfers from, an Investment Fund;




          (b) liquidate, consolidate or otherwise reorganize an existing Investment Fund; or




          (c) add new Investment Funds to, or delete Investment Funds from, Appendix 1.50.




     6.4 Transition Rules. Effective as of the date designated by the Designated Officer
on which any Investment Fund is addressed under Section 6.3, each Participant will have the
opportunity to make new Investment Elections and Exchange Elections to the Recordkeeper. The
Administrative Committee may take such action as the Administrative Committee deems appropriate,
including, but not limited to:



          (a) using any reasonable accounting methods in performing his duties during the period of
transition;




          (b) designating into which Investment Fund a Participant’s Accounts or Contributions will be
invested;




          (c) establishing the method for allocating net investment gains or losses and the extent, if
any, to which amounts received by and distributions paid from the Trust during this period share in
such allocation;




          (d) investing all or a portion of the Trust’s assets in a short-term, interest-bearing
Investment Fund during such transition period;




          (e) delaying any Trade Date or Settlement Date during a designated transition period or
changing any Sweep Time during such transition period; or




          (f) designating how and to what extent a Participant’s Investment Election or Exchange
Election will apply to Investment Funds.




     6.5 Restricted Investment Funds.



          (a) General. Notwithstanding anything contained herein to the contrary: (a) purchases
and sales in the EMJ Stock Fund will be restricted for Participants subject to applicable
statutory, stock exchange or Company trading restrictions; and (b) amounts invested hereunder will
be subject to such restrictions as may be imposed by (i) the issuer of securities to an Investment
Fund, or (ii) the investment manager or advisor of such Investment Fund. In addition, the
Administrative Committee reserves the right to take any and all actions he




29









 







determines to be
appropriate to minimize plan disruptions, and to protect the interest of all Plan Participants,
including disruptions caused by excessive Participant trading or for any other reason. Such
actions may include establishing redemption fees (and the terms and conditions thereof) or
establishing rules which may operate to limit or restrict Participant rights under the Plan to
effectuate transactions. The Administrative Committee may implement such actions without prior
notice to Plan Participants.




          (b) Limitation After Initial Public Offering. In addition to any diversification
right set forth in Section 6.5(c), on or after the closing of the Company’s initial public offering
on April 20, 2005 (the “IPO Closing Date”), subject to any applicable restrictions imposed by any
agreement entered into by all principal Company shareholders, including the Trust, and the
underwriter or underwriters managing the Initial Public Offering, or by any agreement entered into
between any Participant and the Company, such Participant may only make an Exchange Election to
diversify into other Investment Funds a number of shares of Company Stock held in the EMJ Stock
Fund in which the Participant’s Account is invested not exceeding the difference of (x) the number
of shares of Company Stock allocated to the Participant’s After-Tax Account, Match Account, Company
Stock Account, PAYSOP Account and Rollover Account as of the IPO Closing Date plus the number of
shares of Company Stock allocated to the Participant’s Accounts at any time thereafter, including
Additional Employer Contributions (but excluding any such shares acquired by virtue of the
Participant’s Exchange Election or Investment Election on and after the Effective Date to transfer
a portion of his Accounts into the EMJ Stock Fund), multiplied (y) by (i) 25% on or after the date
6 months after the IPO Closing Date but before the date 12 months after the IPO Closing Date, (ii)
50% on or after the date 12 months after the IPO Closing Date but before the date 18 months after
the IPO Closing Date, (iii) 75% on or after the date 18 months after the IPO Closing Date but
before the date 24 months after the IPO Closing Date, and (iv) 100% on or after the date 24 months
after the IPO Closing Date less (z) the number of shares of Company Stock, if any, previously
transferred by the Participant under any provision of this Section 6.5(b) and Section 6.5(c) at any
time on or after the IPO Closing Date. In addition, subject to any applicable restrictions imposed
by any agreement entered into by all principal Company shareholders, including the Trust, and the
underwriter or underwriters managing the Company’s initial public offering, or by any agreement
entered into between any Participant and the Company, Participants may elect to make Exchange
Elections to transfer out of the EMJ Stock Fund any shares acquired by virtue of the Participant’s
prior Exchange Election to transfer, or prior Investment Election to invest, a portion of his
Accounts into the EMJ Stock Fund.




          (c) Diversification Rights.




               (1) Diversification. A Participant who has attained age 55 and completed at least ten
years of participation in the Plan (including any years of participation in the Kilsby ESOP, the
Republic ESOP or the ECAP) shall be notified of his right to elect to
“diversify” a portion of the balances in his Employer Contribution Account composed of his
“Company Stock Account,” “PAYSOP Account,” “Rollover Account” and “Matching Account,” attributable
to shares of Company Stock acquired by the Trust (including the Trusts under the Kilsby ESOP, the
Republic ESOP or the ECAP) after December 31, 1986 and prior to April 1, 1999 (“Post-1986
Shares”), as provided in Section 401(a)(28)(B) of the Code. An election to




30










 






“diversify” must be made on the prescribed form
and filed with the Administrative Committee within the 90-day period immediately following the
Allocation Date of a Plan Year in the Election Period. For purposes of this Section 6.5(c), the
“Election Period” means the period of six consecutive Plan Years beginning with the Plan
Year in which the Participant first becomes eligible to make an election.




               (2) Amount of Diversification. For each of the first five Plan Years in the Election
Period, the Participant may elect to “diversify” an amount which does not exceed 25% of the number
of Post-1986 Shares allocated to his Employer Contribution Account composed of his Company Stock
Account, and his PAYSOP Account and Matching Account, since the inception of the Plan, the Kilsby
ESOP, the Republic ESOP or the ECAP, less all shares with respect to which amounts have previously
been “diversified” under this Section 6.5(c). In the case of the sixth Plan Year in the Election
Period, the Participant may elect to “diversify” an amount which does not exceed 50% of the number
of Post-1986 Shares allocated to his Employer Contribution Account composed of his Company Stock
Account, and his PAYSOP Account and Matching Account, since the inception of the Plan, the Kilsby
ESOP, the Republic ESOP or the ECAP, less all shares with respect to which amounts have previously
been “diversified” under this Section 6.5(c). No “diversification” election shall be permitted if
the balance of Post-1986 Shares in a Participant’s Employer Contribution Account composed of his
Company Stock Account, and his PAYSOP Account and Matching Account as of the Allocation Date of the
first Plan Year in the Election Period has a Fair Market Value of $500 or less, unless and until
the balance of Post-1986 Shares in his Employer Contribution Account composed of his Company Stock
Account, and his PAYSOP Account and Matching Account as of a subsequent Allocation Date in the
Election Period exceeds $500.



               (3) “Diversification Extension.” Notwithstanding anything contained in the Plan to
the contrary, a Participant who was previously eligible to elect to diversify Post-1986 Shares
under part (1) of this part (c) and who did not elect to so diversify the entire amount eligible
for diversification during the six year diversification period applicable to such Participant (and
who is now ineligible to make any election under part (1) of this part (c)) or who has had
additional shares contributed to his Account after the diversification period under part (1) of
this part (c), shall be permitted to elect to diversify up to 50% of the number of Post-1986 Shares
allocated to his Company Stock Account, PAYSOP Account and Matching Account since the inception of
the Plan, the Kilsby ESOP, the Republic ESOP or the ECAP less all shares with respect to which
amounts have previously been diversified under part (a) of this part (c). An election to
“diversify” must be made on the prescribed form and filed with the Administrative Committee within
the 90-day period immediately following the Allocation Date of a Plan Year.



               (4) “Diversification” will be effected (a) by a distribution of Company Stock with
respect to the portion of their Accounts invested in the EMJ Stock Fund which are
comprised of the Company Stock Accounts, PAYSOP Accounts and Matching Accounts, and (b) by
changing the investment of such Accounts in accordance with the provisions of Section 6.2 dealing
with an Exchange Election, with respect to which a “diversification” election is made.



31









 





               (5) Excluded Shares. Notwithstanding anything contained in the Plan to the contrary,
the number of shares that can be diversified under this Section (c)(2) or (c)(3) at any time on or
after the end of the 24-month period described in Section 6.5(b) (the ‘freeze date’) shall be
calculated by ignoring any shares allocated to the Participant’s Account after the freeze date.



     6.6 Risk of Loss. Neither the Plan nor the Company guarantees that the Fair Market
Value of the Investment Funds, or of any particular Investment Fund, will be equal to or greater
than the amounts invested therein. Neither the Plan nor the Company guarantees that the Fair
Market Value of the Accounts will be equal to or greater than the Contributions allocated thereto.
Except as required pursuant to ERISA, each Participant will have sole responsibility for the
investment of his Accounts and for transfers among the available Investment Funds, and no
fiduciary, or other person will have any liability for any loss or diminution in Fair Market Value
resulting from any Participants’ exercise of, or failure to exercise, such investment
responsibility. Each Member assumes all risk of any decrease in the Fair Market Value of the
Investment Funds and the Accounts. The Plan is intended to constitute a plan described in Section
404(c) of ERISA.



     6.7 Interests in the Investment Funds. No Member will have any claim, right, title,
or interest in or to any specific assets of any Investment Fund until distribution of such assets
is made to such Member. No Member will have any claim, right, title, or interest in or to the
Investment Fund, except as and to the extent expressly provided herein.



     6.8 Sole Source of Benefits. Members may only seek payment of benefits under the Plan
from the Trust, and except as otherwise required by law, the Employer assumes no responsibility or
liability therefor.



     6.9 Alternate Payees and Beneficiaries. See Section 5.3 for the treatment of
Alternate Payees and Beneficiaries as Participants for purposes of this Article VI.



32









 





ARTICLE VII




VESTING AND FORFEITURES




     7.1 Full Vesting in Employer Contribution Account. An Active Participant will have a
100 percent nonforfeitable interest in his Employer Contribution Account and his Prior Stock Bonus
Account if:



          (a) he is credited with at least 5 years of Credited Service;




          (b) he attains age 65;




          (c) he becomes Disabled;




          (d) he dies; or




          (e) was an employee of an employer under the Kilsby ESOP or an employee of Earle M. Jorgensen
Company on May 2, 1990.




     7.2 Vesting.



          (a) General. Subject to subparagraph (b) of this Section 7.2, a Participant with an
Employer Contribution Account or Prior Stock Bonus Account who does not have a 100 percent
nonforfeitable interest in such Accounts in accordance with Section 7.1 above, will have a
nonforfeitable interest in a portion of such Accounts as determined in accordance with the
following schedule:




	 	 	 	 	 
	 	 	Nonforfeitable
	Credited Service	 	Percentage
	Less than One Year
	 	 	0	%
	One Year
	 	 	20	%
	Two Years
	 	 	40	%
	Three Years
	 	 	60	%
	Four Years
	 	 	80	%
	Five Years or More
	 	 	100	%






          (b) Vesting After Breaks in Service. If a Participant who does not have a
nonforfeitable percentage of 100% in his Employer Contribution Account or Prior Stock Bonus Account
receives a withdrawal or distribution from his Employer Contribution Account or Prior Stock Bonus
Account and the portion of the forfeitable Accounts have not yet been forfeited under Section 7.4
as of the determination date, until his nonforfeitable percentage becomes 100% vested, his
nonforfeitable portion of his Employer Contribution Account or Prior Stock Bonus Account as of a
determination date will be an amount (“X”) determined by the formula: X = P (AB + D) — D. For
purposes of applying the formula: P is the vested percentage at the




33









 







relevant time; AB is the
account balance at the determination date; and D is the amount of the withdrawal or distribution.




     7.3 Vesting in Before-Tax, After-Tax and Rollover Accounts. A Participant always has
a 100 percent nonforfeitable interest in his Before-Tax, After-Tax, Match Account, PAYSOP Account
and Rollover Accounts.



     7.4 Forfeitures. The forfeitable portion of his Employer Contribution Account or
Prior Stock Bonus Account of an Inactive Participant will be forfeited upon the occurrence of 5 or
more consecutive Breaks in Service.



     7.5 Application of Forfeitures. Forfeitures may be applied to reduce the Employer’s
obligation to pay Plan expenses and then any amounts remaining will be allocated pursuant to
Section 3.3.



34









 





ARTICLE VIII




PARTICIPANT LOANS




     8.1 Participant Loans Permitted. An Active Participant will be eligible for a loan
with respect to all of his Accounts pursuant to this Article VIII only to the extent: (a) the
Participant will not be in default on the loan under Section 8.9 immediately after the loan is
made; and (b) in the case of a Participant who has previously defaulted on a loan (other than a
Participant whose outstanding loan balance was repaid in full in accordance with Section 8.10(c) or
who received the defaulted loan in an actual (not deemed) distribution), the defaulted loan (plus
interest accrued from the date of the default) has been repaid in full. All loan limits are
determined as of the Settlement Date as of which the loan is funded.



     8.2 Loan Funding Limits. The loan amount must be within the following limits:



          (a) Plan Maximum Limit. Subject to the legal limit described in (b) below, the
maximum a Participant may borrow, including the outstanding balance of existing Plan loans, is 50
percent of his following Accounts in which the Participant has a 100% nonforfeitable percentage;
disregarding any amount subject to a QDRO:




	 	 	 
	 

	 	Before-Tax Account
	 

	 	Before-Tax Rollover Account
	 

	 	Employer Contribution Account
	 

	 	After-Tax Rollover Account
	 

	 	Post-86 Stock Bonus Account
	 

	 	Post-86 Money Purchase Account





Notwithstanding the amount determined in the preceding sentence, in no event may the Participant
borrow more from such Accounts than the Fair Market Value of such Accounts minus the Fair Market
Value of such Accounts invested in the EMJ Stock Fund.




          (b) Legal Maximum Limit. The maximum a Participant may borrow, including the
outstanding balance of existing loans, is based upon the Fair Market Value of his nonforfeitable
interest in this Plan and all other qualified plans maintained by a Commonly Controlled Entity (the
“Vested Interest”). The maximum amount is equal to 50 percent of his Vested Interest, not
to exceed $50,000. However, the $50,000 amount is reduced by the Participant’s highest outstanding
balance of all loans from any Commonly Controlled Entity’s qualified plans during the 12-month
period ending on the day before the Trade Date on which the loan is requested.




          (c) Loan Minimum Limit. The minimum amount a Participant can borrow with respect to
each loan at any time is $1,000.




     8.3 Maximum Number of Loans. A Participant may have only one loan outstanding from
the Plan at any time.



35









 





     8.4 Source of Loan Funding. A loan to a Participant will be made solely from the
assets of his own Accounts. The available assets will be determined first by Contribution Account. The hierarchy for loan funding by type of
Contribution Account will be the order listed in Section 8.2(a). Within each Account used for
funding, amounts will be taken by Investment Fund in direct proportion to the Fair Market Value of
the Participant’s interest in each Investment Fund as of the Trade Date on which the loan is
requested, unless the Participant elects otherwise.



     8.5 Interest Rate. The interest rate charged on Participant loans will be fixed
throughout the term of the loan and will equal one plus the prime rate, as published in the Western
Edition of The Wall Street Journal, in effect on the last Business Day of the calendar quarter
immediately preceding the calendar quarter in which the loan request is received by the
Administrative Committee.



     8.6 Repayment. Substantially level amortization will be required of each loan with
payments made at least monthly. Loans may be prepaid in full at any time. The loan repayment
period will be as mutually agreed upon by the Participant and the Administrative Committee, not to
exceed five years or fifteen years if the loan is used by the Participant to acquire the
Participant’s principal residence.



     8.7 Reinvestment of Repayments. Loan payments will be invested in Investment Funds
based upon the Participant’s current Investment Election for that Account except that the current
Investment Election in effect for Before-Tax Contributions will also be applied for amounts posted
to the Participant’s Rollover Account.



     8.8 Loan Application, Note and Security. A Participant must apply to the Recordkeeper
for any loan in accordance with the procedures established by the Administrative Services
Agreement. The Recordkeeper will administer Participant loans and will specify the time frame for
approving loan applications. All loans will be evidenced by a promissory note and security
agreement and secured only by up to 50 percent of a Participant’s nonforfeitable Account balance
determined immediately after the origination of the loan. The Plan will have a lien on such
portion of a Participant’s Account to the extent of any outstanding loan balance. Each such note
will constitute an asset of each of the Accounts from which the source of the loan originated.
Likewise, each security agreement will represent a liability of each of the Accounts, but only to
the extent that the note constitutes an asset of such Account.



     8.9 Default.



          (a) A Participant will default on a loan if any of the following events occurs:




               (1) the Participant’s death;



               (2) the Participant’s failure to make the equivalent of one month’s payment of principal and
interest on the loan;



36









 





               (3) the Participant misses more than one month’s repayment but the loan’s term cannot be
extended to recover these repayments without extending its term beyond 5 years;



               (4) the Participant’s failure to perform or observe any covenant, duty, or agreement under the
promissory note evidencing the loan;



               (5) receipt by the Plan of an opinion of counsel to the effect that (A) the Plan will, or
could, lose its status as a tax-qualified Plan unless the loan is repaid or (B) the loan violates,
or might violate, any provision of ERISA;



               (6) any portion of the Participant’s Account that secures the loan becomes payable to the
Participant, his surviving Spouse or Beneficiary, an Alternate Payee, or any other person; or



               (7) the termination of the Plan.



     8.10 Foreclosure.



          (a) If a default on a loan occurs, the Participant, the Participant’s estate, or any other
person will have 90 days from the date of the default to pay the entire outstanding balance of the
loan to the Plan. Upon the death of the Participant, payment may only be made by certified check
or such other means acceptable to the Administrative Committee.




          (b) If full repayment does not happen under Section 8.10(a), the Participant’s nonforfeitable
interest in his Account securing the loan will be applied immediately, to the extent lawful, when
and to the extent the Participant’s Account is then available for withdrawal in accordance with the
applicable provisions of the Plan, to pay the entire outstanding balance of the loan (together with
accrued and unpaid interest).




          (c) Notwithstanding the foregoing, no portion of the Participant’s Before-Tax Account, or
other Accounts which are not available to be withdrawn, will be withdrawn or applied to pay an
outstanding loan before the date on which it is otherwise withdrawable under the Plan. In the
event of a default and failure to repay under Section 8.10(a), the Administrative Committee will
direct the Trustee to report the unpaid balance of the loan (less amounts withdrawn under Section
8.10(b)) as a taxable distribution. To the extent that the Participant’s nonforfeitable interest
in his Account securing the loan has not been applied under Section 8.10(b) to pay the entire
outstanding balance of the loan (together with accrued and unpaid interest), (i) the loan may be
repaid, (ii) the loan will be considered outstanding for purposes of Section 8.3 and (iii) any
repayment will be allocated and posted to the Participant’s After-Tax Account (other than for
purposes of Article IV).




          (d) Any failure by the Administrative Committee to enforce the Plan’s rights with respect to a
default on a loan will not constitute a waiver of such rights either with respect to that default
or any other default.




     8.11 Spousal Consent. Spousal Consent will not be required for any loan.



37









 





     8.12 Special Rules Concerning Loan Repayments While on Qualified Military Leave.
Notwithstanding anything contained herein to the contrary, if an Employee fails to make one or more
loan repayments while he is on a qualified military leave of absence (as defined in accordance with
Section 414(u)(5) of the Code), no loan will be deemed to be in
default solely as a result of such failure. As of the end of the qualified military leave of
absence, the term of any outstanding loan will be extended by the period of the qualified military
leave of absence and the outstanding loan balance will be reamortized to reflect interest accrued
during such period. If such an extension would, after reamortizing such loan to reflect loan
repayments made and interest accrued during such qualified military leave of absence, result in
smaller monthly loan repayments than under the terms of the original loan, then the loan term will
be extended but only for such time to ensure that monthly loan repayments following the qualified
military leave of absence are at least equal to monthly loan repayments under the terms of the
original loan.



38









 





ARTICLE IX




WITHDRAWALS




     9.1 Withdrawals from After-Tax Account. By applying to the Recordkeeper in the form
and manner prescribed by the Administrative Services Agreement, an Active Participant may elect to
withdraw any amounts contributed to his After-Tax Account up to the entire Fair Market Value of his
After-Tax Account. The withdrawal will be taken first from any amounts contributed to his
After-Tax Account made prior to 1987. When pre-1987 contribution amounts are exhausted, such
withdrawal will be taken from the balance of the After-Tax Account with a portion of each
withdrawal representing a return of amounts contributed to his After-Tax Account in an amount equal
to the product of (a) the total withdrawal multiplied by (b) a fraction, the numerator of which is
the Participant’s total contributions remaining in the After-Tax Account, and Rollover
Contributions allocated to the After-Tax Rollover Account, prior to the withdrawal and the
denominator of which is the Fair Market Value of the balance of the After-Tax Account and After-Tax
Rollover Account.



     9.2 Withdrawals from Rollover Account. By applying to the Recordkeeper in the form
and manner prescribed by the Administrative Services Agreement, an Active Participant may elect to
withdraw any portion, up to the entire Fair Market Value of his Rollover Account. The withdrawal
will be taken pursuant to the rules set forth in Section 9.1.



     9.3 Withdrawals from Before-Tax Account for Hardship.



          (a) Subject to the provisions of this Section 9.3, an Active Participant may apply to the
Recordkeeper in the form and manner prescribed by the Administrative Services Agreement, for a
withdrawal from his Before-Tax Account excluding any earnings posted to his Before-Tax Account
after December 31, 1988; provided that he has first withdrawn the total Fair Market Value of his
After-Tax Account and the total Fair Market Value of his Rollover Account.




          (b) A withdrawal under this Section 9.3 will be permitted only if the Administrative Committee
determines that such withdrawal is (1) on account of a Participant’s “Deemed Financial
Need” and (2) “Deemed Necessary” to satisfy the financial need.




          A “Deemed Financial Need” will be limited to financial commitments relating to:




               (1) costs directly related to the purchase or construction (excluding mortgage payments or
balloon payments) of a Participant’s principal residence;



               (2) the payment of expenses for medical care described in Section 213(d) of the Code
previously incurred by the Participant, the Participant’s Spouse, or any dependents of the
Participant (as defined in Section 152 of the Code) or necessary for those persons to obtain
medical care described in Section 213(d) of the Code;



               (3) payment of tuition and related educational fees and room and board expenses for the next
12 months of post-secondary education for the Participant, his Spouse, children or dependents (as
defined in Section 152 of the Code);



39









 





               (4) necessary payments to prevent the eviction of the Participant from his principal residence
or the foreclosure on the mortgage of the Participant’s principal residence; or



               (5) the payment of funeral or burial expenses for the Participant’s Spouse or any dependents
of the Participant (as defined in Section 152 of the Code).



          A withdrawal is “Deemed Necessary” to satisfy the financial need only if all of these
conditions are met:




               (1) the withdrawal may not exceed the dollar amount needed to satisfy the Participant’s
documented financial hardship, plus an amount necessary to pay federal, state, or local income
taxes or penalties reasonably anticipated to result from such withdrawal;



               (2) the Participant must have obtained all distributions, other than financial hardship
distributions, and all nontaxable loans under all plans maintained by any Commonly Controlled
Entity; and



               (3) the Participant will be suspended from making Before-Tax Contributions (or similar
contributions under any other qualified or nonqualified plan of deferred compensation maintained by
a Commonly Controlled Entity) for at least 6 months from the date the withdrawal is received.



     9.4 Withdrawals On or After Age 591/2. By applying to the Recordkeeper in the form and
manner prescribed by the Administrative Services Agreement, an Active Participant who has attained
the age of 591/2, may elect to withdraw any portion, up to the entire nonforfeitable, Fair Market
Value of his Accounts.



     9.5 Total Withdrawals. By applying to the Recordkeeper in the form and manner
prescribed by the Administrative Services Agreement, an Inactive Participant may make a total
withdrawal from all Accounts of the entire nonforfeitable portion of those Accounts.



     9.6 Withdrawal Processing Rules.



          (a) Minimum Amount. Except for Section 9.5, there is no minimum amount for any type
of withdrawal.




          (b) Permitted Frequency. There is no maximum number of withdrawals permitted in any
Plan Year.




          (c) Application by Participant. A Participant must submit a withdrawal request to the
Recordkeeper in accordance with procedures established by the Administrative Services Agreement.




          (d) Approval by Administrative Committee. The Recordkeeper is responsible for
determining that a withdrawal request conforms to the requirements described in this Section 9.6.




40









 








          (e) Time of Processing. Except as otherwise provided herein, the Recordkeeper will
process all withdrawal requests which it receives by the Sweep Time that relates to the Payment
Date, based on the Fair Market Value of the fund available on the Settlement Date. The
Recordkeeper will then make payment to the Participant as soon thereafter as is administratively
possible.




          (f) Medium and Form of Payment. The medium of payment for withdrawals is all cash;
provided however, a withdrawal may be paid, as directed by the Participant, all in kind to the
extent the withdrawal is funded from the EMJ Stock Fund. The form of payment for all withdrawals
will be a single installment.




          (g) Investment Fund Sources. Within each Account used for funding a withdrawal,
amounts will be taken by Investment Fund in direct proportion to the Fair Market Value of the
Participant’s interest in each Investment Fund (which excludes the Participant’s loans) as of the
Settlement Date on which the withdrawal is funded.




          (h) Direct Rollover. With respect to any cash payment hereunder which constitutes an
Eligible Rollover Distribution, a Distributee may direct the Recordkeeper to have such payment paid
to an Eligible Retirement Plan.




          (i) Outstanding Loan. Notwithstanding any other provision of this Article IX, the
portion of a Participant’s Account that secures a loan to such Participant under Article VIII may
not be taken as a withdrawal.




          (j) Spousal Consent. Spousal Consent will not be required for any withdrawal.




          (k) Required Withdrawals. Notwithstanding any provision of the Plan to the contrary,
the Payment Date of the Accounts of an Active Participant will be paid in accordance with the
provisions of Article X of the Plan.




     9.7 Alternate Payees and Beneficiaries. See Section 5.3 for the application of the
provisions of this Article IX to Alternate Payees and Beneficiaries. In the event of a
Participant’s death, see Article XII for the rules regarding the timing and form of distributions
following such Participant’s death.



41









 





ARTICLE X




ADDITIONAL PROVISIONS

FOR AN INACTIVE PARTICIPANT




     10.1 Request for Withdrawal of Benefits.



          (a) Request for Withdrawal. Subject to the other requirements of this Article, an
Inactive Participant may elect to have all of his nonforfeitable balance of his Accounts paid to
him beginning upon any Payment Date following his Termination of Employment (and prior to a
Reemployment Date) in a form of payment allowed hereunder.




          (b) Failure to Request Withdrawal. If an Inactive Participant fails to submit a
withdrawal request to the Recordkeeper in accordance with procedures established by the
Administrative Services Agreement by the Required Beginning Date described in Article XII, each
minimum payment required by Article XII will be valued as of the Valuation Date which immediately
precedes such latest date of withdrawal (the “Default Valuation Date”) and such withdrawal will be
issued to his last known address. If the payment is returned to the Trust, each minimum payment
required by Article XII determined on the Default Valuation Date will be treated as a forfeiture.
If the Participant subsequently files a claim, the amount forfeited (unadjusted for gains and
losses) will be reinstated to his Accounts and distributed as soon as administratively possible,
and such payment will be accounted for by charging it against the Forfeitures or, to the extent the
Forfeitures are insufficient, by a contribution from the Employer of the affected Inactive
Participant.




     10.2 Deadline for Withdrawal.



          (a) Required Commencement at Retirement. Except as provided in Section 10.2(b), a
Participant must make a request for payment to the Recordkeeper before payment must commence under
this Section 10.2(a). In addition to any other Plan requirements and unless the Inactive
Participant elects otherwise, or cannot be located, but subject to the preceding sentence, the
Payment Date of an Inactive Participant’s nonforfeitable balance of his Accounts will be not later
than 60 days after the latest of the close of the Plan Year in which: (i) the Participant attains
the earlier of age 65 or his Normal Retirement Date; (ii) occurs the tenth anniversary of the Plan
Year in which the Inactive Participant commenced participation in the Plan; or (iii) the
Participant had a Termination of Employment. However, if the amount of the payment or the location
of the Inactive Participant (after a reasonable search) cannot be ascertained by that deadline,
payment will be made no later than 60 days after the earliest date on which such amount or location
is ascertained.




          (b) Minimum Required Distributions. In any case, the Payment Date of the balance of
his Accounts of a Participant (i) who is not an Employee, or (ii) who is an Employee and who is a
5-percent owner (as defined in Section 416 of the Code), will not be later than April 1 following
the calendar year in which the Participant attains age 70-1/2 (with required distributions to be
made by each December 31 thereafter).




42









 








     10.3 Payment Form and Medium.



          (a) Form. An Inactive Participant’s nonforfeitable Accrued Benefit may be paid in the
form of a single sum. Within each Account used for funding a withdrawal, amounts will be taken by
Investment Fund in direct proportion to the Fair Market Value of the Participant’s interest in each
Investment Fund at the Settlement Date for which the distribution is funded, unless the Participant
elects a withdrawal from specific Investment Fund(s).




          (b) Medium. Payments will be made in cash; alternatively, to the extent the
withdrawal is funded from the EMJ Stock Fund, the Inactive Participant can elect to receive payment
in whole shares of Company Stock or a combination of whole shares and cash.




     10.4 Small Amounts Paid Immediately.



          (a) If the Fair Market Value of an Inactive Participant’s nonforfeitable Accounts is $1,000 or
less at any time, including after withdrawals, the Inactive Participant’s balance of his Accounts
will be paid by the Recordkeeper as a single sum as soon as administratively possible, pursuant to
such procedures as may be established by the Administrative Services Agreement.




          (b) Except as otherwise provided in Section 10.2, a Participant’s Accounts will be distributed
following his Termination of Employment, but only at the time and in the manner described in this
Article X. If the Fair Market Value of a Participant’s Accounts exceeds $1,000, no portion of his
Accounts may be distributed to him without his written consent; see Subsection 10.2 if consent is
not provided.




     10.5 Continued Payment of Amounts in Payment Status on Effective Date. Any person who
became an Inactive Participant on the Effective Date only because he has Accounts and who had
commenced to receive payments prior to the Effective Date will continue to receive such payments in
the same form and payment schedule under this Plan.



     10.6 Direct Rollover. With respect to any cash payment hereunder which constitutes an
Eligible Rollover Distribution, a Distributee may direct the Administrative Committee to have such
payment paid to an Eligible Retirement Plan.



     10.7 Delay. Notwithstanding any other provision of the Plan, a payment will not be
considered to be made after the applicable Payment Date merely because actual payment is reasonably
delayed for the calculation and/or distribution of the benefit amount, or to ascertain the location
of the payee, if all payments due are actually made.



     10.8 Alternate Payees and Beneficiaries. See Section 5.3 for the application of the
provisions of this Article X to Alternate Payees and Beneficiaries. In the event of a
Participant’s death, see Article XII for the rules regarding the timing and form of distributions
following such Participant’s death.



43









 





ARTICLE XI




DISTRIBUTION OF ACCRUED BENEFITS ON DEATH




     11.1 Payment to Beneficiary. In the case of a Participant’s death, distribution of
the Participant’s nonforfeitable Accounts will be made to the Beneficiaries as soon as reasonably
possible in accordance with procedures established by the Administrative Services Agreement.



     11.2 Beneficiary Designation.



          (a) Prior Designation. On and after the Effective Date and until October 1, 2005, the
Participant’s Beneficiary designation under this Plan in effect immediately prior to the Effective
Date will remain effective for the Employer’s Contribution Account and for all other Accounts which
existed under this Plan prior to the Effective Date. On and after the Effective Date and until
October 1, 2005, the Participant’s Beneficiary designation under the ECAP in effect immediately
prior to the Effective Date will remain in effect for all Accounts under the ECAP prior to the
Effective Date. On and after October 1, 2005, only a Beneficiary designation received by the
Recordkeeper will be effective.




          (b) Manner of Designation. Each Participant may designate the Beneficiary who is to
receive the Participant’s remaining Plan interest at his death. The Participant may change his
designation of Beneficiary by filing a new designation with the Administrative Committee.
Notwithstanding any designation to the contrary, the Participant’s Beneficiary will be the
Participant’s surviving Spouse, unless such designation includes Spousal Consent. In the absence
of Spousal Consent, a Participant will be deemed to have designated his surviving Spouse as his
Beneficiary unless and to the extent that such designation is inconsistent with a QDRO. If the
Participant dies leaving no Spouse and either (1) the Participant failed to file a valid
Beneficiary designation, or (2) all persons designated as Beneficiary have predeceased the
Participant, the Administrative Committee will have the Trustee distribute such Participant’s
balance of his Accounts in a single sum to his estate by December 31 of the year in which the fifth
anniversary of the Participant’s death occurs.




          (c) Revocation. Subject to the provisions of this Section, a Participant may
designate a Beneficiary under the Plan at any time by making the designation to the Recordkeeper in
the form and manner and at the time determined by the Administrative Services Agreement. No such
designation will be effective until and unless it is received by the Recordkeeper.




          (d) Spouse as Beneficiary. Subject to the provisions of this Section, a Participant
may revoke a prior designation of a Beneficiary at any time by making the revocation in the form
and manner and at the time determined by the Administrative Services Agreement. No such revocation
will be effective until and unless it is received by the Recordkeeper.




          (e) QDRO. Subject to the provisions of this Section, if a Participant designates his
Spouse as his Beneficiary, except to the extent required by applicable law, that designation will
not be revoked or otherwise altered or affected by any:




44









 








               (1) change in the marital status of the Participant and such Spouse,



               (2) agreement between the Participant and such Spouse.



          (f) Death. If a Participant designates his Spouse as his Beneficiary, and the
Administrative Committee receives a QDRO with respect to the marriage, separation or divorce of the
Participant and such Spouse, such Spouse will cease to be the Participant’s Beneficiary unless and
until the Participant again designates his Spouse as his Beneficiary in accordance with the
provisions of this Section, except to the extent otherwise provided in the QDRO.




          (g) A Participant’s Beneficiary may not be changed following the Participant’s death,
including, but not limited to, by a disclaimer otherwise valid under applicable law.




     11.3 Direct Rollover. With respect to any cash payment hereunder which constitutes an
Eligible Rollover Distribution, a Distributee may direct the Recordkeeper to have such payment paid
to an Eligible Retirement Plan.



     11.4 Alternate Payees and Beneficiaries. See Section 5.3 for the application of the
provisions of this Article XI to Alternate Payees and Beneficiaries. Notwithstanding anything
herein to the contrary, the death of a Beneficiary will not extend the time period described in
Section 11.1 with respect to the Beneficiary of such Beneficiary, if any.



45









 





ARTICLE XII




MINIMUM DISTRIBUTION REQUIREMENTS




     12.1 General Rules.



          (a) Precedence. The requirements of this Article XII will take precedence over any
inconsistent provisions of the Plan.




          (b) Requirements of Treasury Regulations Incorporated. All distributions required
under this Article XII will be determined and made in accordance with the Treasury regulations
under Section 401(a)(9) of the Code.




          (c) TEFRA Section 242(b)(2) Elections. Notwithstanding the other provisions of this
Section 12.5, distributions may be made under a designation made before January 1, 1984, in
accordance with Section 242(b)(2) of the Tax Equity and Fiscal Responsibility Act (TEFRA) and the
provisions of the plan that relate to Section 242(b)(2) of TEFRA.




     12.2 Time and Manner of Distribution.



          (a) Required Beginning Date. The Participant’s entire interest will be distributed, or
begin to be distributed, to the Participant no later than the Participant’s required beginning
date.




          (b) Death of Participant Before Distributions Begin. If the Participant dies before
distributions begin, the Participant’s entire interest will be distributed, or begin to be
distributed, no later than as follows:




               (1) If the Participant’s surviving Spouse is the Participant’s sole designated Beneficiary,
then distributions to the surviving Spouse will begin by December 31 of the calendar year
immediately following the calendar year in which the Participant died, or by December 31 of the
calendar year in which the Participant would have attained age 70 1/2, if later.



               (2) If the Participant’s surviving Spouse is not the Participant’s sole designated
Beneficiary, the Participant’s entire interest will be distributed to the designated Beneficiary by
December 31 of the calendar year containing the fifth anniversary of the Participant’s death. If
the Participant’s surviving Spouse is the Participant’s sole designated Beneficiary and the
surviving Spouse dies after the Participant but before distributions to either the Participant or
the surviving Spouse begin, this provision will apply as if the surviving Spouse were the
Participant.



               (3) If there is no designated Beneficiary as of September 30 of the year following the year of
the Participant’s death, the Participant’s entire interest will be distributed by December 31 of
the calendar year containing the fifth anniversary of the Participant’s death.



46









 





               (4) If the Participant’s surviving Spouse is the Participant’s sole designated Beneficiary and
the surviving Spouse dies after the Participant but before
distributions to the surviving Spouse begin, this Section 12.2(b), other than Section
12.2(b)(1), will apply as if the surviving Spouse were the Participant.



     For purposes of this Section 12.2(b) and Section 12.4 below, unless Section 12.2(b)(4)
applies, distributions are considered to begin on the Participant’s required beginning date. If
Section 12.2(b)(4) applies, distributions are considered to begin on the date distributions are
required to begin to the surviving Spouse under Section 12.2(b)(1). If distributions under an
annuity purchased from an insurance company irrevocably commence to the Participant before the
Participant’s required beginning date, or to the Participant’s surviving Spouse before the date
distributions are required to begin to the surviving Spouse under Section 12.2(b)(1), the date
distributions are considered to begin is the date distributions actually commence.



          (c) Forms of Distribution. Unless the Participant’s interest is distributed in the
form of an annuity purchased from an insurance company or in a single sum on or before the required
beginning date, as of the first distribution calendar year distributions will be made in accordance
with Sections 12.3 and 12.4. If the Participant’s interest is distributed in the form of an
annuity purchased from an insurance company, distributions thereunder will be made in accordance
with the requirements of Section 401(a)(9) of the Code and the Treasury regulations.




     12.3 Required Minimum Distributions During Participant’s Lifetime.



          (a) Amount of Required Minimum Distribution For Each Distribution Calendar Year.
During the Participant’s lifetime, the minimum amount that will be distributed for each
distribution calendar year is the lesser of:




               (1) the quotient obtained by dividing the Participant’s account balance by the distribution
period in the Uniform Lifetime Table set forth in Section 1.401(a)(9)-9 of the Treasury
regulations, using the Participant’s age as of the Participant’s birthday in the distribution
calendar year; or



               (2) if the Participant’s sole designated Beneficiary for the distribution calendar year is the
Participant’s Spouse, the quotient obtained by dividing the Participant’s account balance by the
number in the Joint and Last Survivor Table set forth in Section 1.401(a)(9)-9 of the Treasury
regulations, using the Participant’s and Spouse’s attained ages as of the Participant’s and
Spouse’s birthdays in the distribution calendar year.



          (b) Lifetime Required Minimum Distributions Continue Through Year of Participant’s
Death. Required minimum distributions will be determined under this Section 12.3 beginning with
the first distribution calendar year and up to and including the distribution calendar year that
includes the Participant’s date of death.




47









 








     12.4 Required Minimum Distributions After Participant’s Death.



          (a) Death On or After Date Distributions Begin.




               (1) Participant Survived by Designated Beneficiary. If the Participant dies on or
after the date distributions begin and there is a designated Beneficiary, the minimum amount that
will be distributed for each distribution calendar year after the year of the
Participant’s death is the quotient obtained by dividing the Participant’s account balance by
the longer of the remaining life expectancy of the Participant or the remaining life expectancy of
the Participant’s designated Beneficiary, determined as follows:



                    (A) The Participant’s remaining life expectancy is calculated using the age of the Participant
in the year of death, reduced by one for each subsequent year.



                    (B) If the Participant’s surviving Spouse is the Participant’s sole designated Beneficiary,
the remaining life expectancy of the surviving Spouse is calculated for each distribution calendar
year after the year of the Participant’s death using the surviving Spouse’s age as of the Spouse’s
birthday in that year. For distribution calendar years after the year of the surviving Spouse’s
death, the remaining life expectancy of the surviving Spouse is calculated using the age of the
surviving Spouse as of the Spouse’s birthday in the calendar year of the Spouse’s death, reduced by
one for each subsequent calendar year.



                    (C) If the Participant’s surviving Spouse is not the Participant’s sole designated
Beneficiary, the designated Beneficiary’s remaining life expectancy is calculated using the age of
the Beneficiary in the year following the year of the Participant’s death, reduced by one for each
subsequent year.



               (2) No Designated Beneficiary. If the Participant dies on or after the date
distributions begin and there is no designated Beneficiary as of September 30 of the year after the
year of the Participant’s death, the minimum amount that will be distributed for each distribution
calendar year after the year of the Participant’s death is the quotient obtained by dividing the
Participant’s account balance by the Participant’s remaining life expectancy calculated using the
age of the Participant in the year of death, reduced by one for each subsequent year.



          (b) Death Before Date Distributions Begin.




               (1) Participant Survived by Designated Beneficiary. To the extent Section 12.2(b)(2)
does not contain the ‘five-year rule,’ if the Participant dies before the date distributions begin
and there is a designated Beneficiary, the minimum amount that will be distributed for each
distribution calendar year after the year of the Participant’s death is the quotient obtained by
dividing the Participant’s account balance by the remaining life expectancy of the Participant’s
designated Beneficiary, determined as provided in Section 12.4(a).



               (2) No Designated Beneficiary. If the Participant dies before the date distributions
begin and there is no designated Beneficiary as of September 30 of the year following the year of
the Participant’s death, distribution of the Participant’s entire interest will



48









 




be completed by December 31 of the calendar year containing the fifth anniversary of the Participant’s death.




               (3) Death of Surviving Spouse Before Distributions to Surviving Spouse Are Required to
Begin. If the Participant dies before the date distributions begin, the Participant’s
surviving Spouse is the Participant’s sole designated Beneficiary, and the surviving Spouse dies
before distributions are required to begin to the surviving Spouse under Section 12.2(b)(1), this
Section 12.4(b) will apply as if the surviving Spouse were the Participant.



     12.5 Definitions.



          (a) Designated Beneficiary. The individual who is designated as the Beneficiary under
Section 11.2 and is the designated Beneficiary under Section 401(a)(9) of the Code and Section
1.401(a)(9)-1, Q&A-4, of the Treasury Regulations.




          (b) Distribution Calendar Year. A calendar year for which a minimum distribution is
required. For distributions beginning before the Participant’s death, the first distribution
calendar year is the calendar year immediately preceding the calendar year which contains the
Participant’s required beginning date. For distributions beginning after the Participant’s death,
the first distribution calendar year is the calendar year in which distributions are required to
begin under Section 12.2(b). The required minimum distribution for the Participant’s first
distribution calendar year will be made on or before the Participant’s required beginning date.
The required minimum distribution for other distribution calendar years, including the required
minimum distribution for the distribution calendar year in which the Participant’s required
beginning date occurs, will be made on or before December 31 of that distribution calendar year.




          (c) Life Expectancy. Life expectancy as computed by use of the Single Life Table in
Section 1.401(a)(9)-9 of the Treasury Regulations.




          (d) Participant’s Account Balance. The account balance as of the last valuation date
in the calendar year immediately preceding the distribution calendar year (valuation calendar year)
increased by the amount of any Contributions made and allocated or forfeitures allocated to the
Account balance as of dates in the valuation calendar year after the valuation date and decreased
by distributions made in the valuation calendar year after the valuation date. The Account balance
for the valuation calendar year includes any amounts rolled over or transferred to the Plan either
in the valuation calendar year or in the distribution calendar year if distributed or transferred
in the valuation calendar year.




          (e) Required Beginning Date. The date specified in Section 10.2 of this Plan.




49









 








ARTICLE XIII




PLAN ADMINISTRATION AND COMPANY ACTIONS




     13.1 General.



          (a) Establishment of Authority. The Company, through the authority vested in its
Board, hereby establishes:




               (1) the Administrative Committee and enables the Administrative Committee to have the
Authority or Discretion to act, to the extent provided in the Plan or Trust, on behalf of the Plan
or Trust, but not on behalf of the Company; and



               (2) the Investment Committee and enables the Investment Committee to have the Authority or
Discretion to act, to the extent provided in the Plan or Trust, on behalf of the Plan or Trust, but
not on behalf of the Company.



          (b) Designated Officer Acting as the Company. The Designated Officer acting as the
Company has all powers necessary, incidental or desirable to act as an Employer and all powers
necessary, incidental or desirable to carrying out the duties and rights assigned by the Plan or
Trust to the Designated Officer acting as the Company. This grant of power is nonexclusive and, by
way of illustration and not limitation, these powers will include the power to:




               (1) amend the Plan in any manner which, in the reasonable opinion of the Designated Officer
acting as the Company, does not have a material effect on cost to the Employer(s) of, or benefits
in the aggregate under, the Plan;



               (2) identify any person or entity as a Named Fiduciary, and allocate to them their duties and
responsibilities, in the manner provided herein;



               (3) determine what expenses, if any, related to the operation and administration of the Plan
or Trust and the investment of Plan or Trust assets, will be paid from Employer assets, subject to
applicable law;



               (4) establish such policies and make such delegations or designations as may be necessary or
incidental to the Designated Officer’s authority and control over the Plan or Trust acting as the
Company;



               (5) retain, monitor and terminate such service providers and advisors as it considers
appropriate to perform Employer activities with respect to the Plan or Trust and to delegate any of
its duties, as appropriate, to such service providers and advisors; to determine appropriate fees
for such service providers and advisors; and to ensure that appropriate contracts (under terms
acceptable to the Designated Officer acting as the Company) are signed and in place with such
service providers and advisors;




50










 







               (6) consult with legal counsel, independent consulting or evaluation firms, accountants,
actuaries, or other advisors, as necessary, to perform its functions;



               (7) adopt, amend or terminate, in part or completely, a Trust document;



               (8) determine the funding policy for the Plan, including the level of contributions to be paid
by Members and whether benefits are self-funded or insured;



               (9) add a corporation or business entity as an Employer and remove such corporation or entity
as an Employer, on such terms and in such manner as the Designated Officer acting as the Company in
its discretion will determine; and



               (10) take any other actions it deems necessary, incidental or desirable to the performance of
the duties of the Designated Officer acting as the Company, including the power to delegate that
power to any persons.



          (c) Administrative Committee Acting as a Named Fiduciary.




               (1) The Administrative Committee acting as a Named Fiduciary and, subject to subparagraph (2)
hereof, has all the Authority or Discretion of a Named Fiduciary. This grant of Authority or
Discretion is exclusive, subject to the power of the Administrative Committee to allocate or
delegate such Authority or Discretion pursuant to the procedures in the Plan, and includes, but is
not limited to, Authority or Discretion to:



                    (A) to the extent provided in an Administrative Services Agreement, but only if it has been
specifically designated in such agreement as being the responsibility of the Administrative
Committee;



                    (B) construe and apply the provisions of the Plan or Trust, including a determination of who
is eligible to be a Member or is otherwise eligible for coverage under the Plan, subject only to
the terms and conditions of the Plan;



                    (C) appoint and compensate such specialists (including attorneys, actuaries, consultants and
accountants) to aid it in the administration of the Plan or Trust, and arrange for such other
services, as the Administrative Committee acting as a Named Fiduciary considers necessary,
appropriate or desirable in carrying out the provisions of the Plan or Trust;



                    (D) appoint and compensate an independent outside accountant to conduct such audits of the
financial statements of the Plan or Trust as the Administrative Committee acting as a Named
Fiduciary considers necessary, appropriate or desirable;



                    (E) execute on behalf of the Plan or Trust, Administrative Services Agreements or other
contracts which are legally enforceable and binding on the Plan or Trust, subject to ERISA;



51









 





                    (F) formulate, adopt, issue and apply procedures and rules and change, alter or amend such
procedures and rules in accordance with law and as may be consistent with the terms of the Plan or
Trust;



                    (G) be a final appeals Fiduciary under ERISA Section 503, to make a final determination with
respect to any claim for a benefit;



                    (H) settle or compromise any litigation against the Plan or Trust or against a Fiduciary with
respect to which the Plan or Trust has an indemnity obligation; and



                    (I) take any other actions necessary, incidental or desirable to the performance of the
Authority or Discretion of the Administrative Committee.



               (2) The Administrative Committee will not be a Named Fiduciary whenever it acts as the Company
and, notwithstanding any other term or provision of the Plan, Trust or any Administrative Services
Agreement, the Administrative Committee will cease to be a Named Fiduciary with respect to any
specified portion of the Authority or Discretion, to the extent such Authority or Discretion has
been identified or allocated to another Named Fiduciary pursuant to the procedure in the Plan or
Trust.



          (d) Investment Committee Acting as a Named Fiduciary.




               (1) The Investment Committee acting as a Named Fiduciary, subject to subparagraph (2) hereof,
has all the Authority or Discretion of a Named Fiduciary as set forth in the Trust.



               (2) The Investment Committee will not be a Named Fiduciary whenever it acts as the Plan
Sponsor and, notwithstanding any other term or provision of the Plan, Trust or any Administrative
Services Agreement, the Investment Committee will cease to be a Named Fiduciary with respect to any
specified portion of Authority or Discretion, to the extent such Authority or Discretion has been
identified or allocated to another Named Fiduciary pursuant to the procedure in the Plan or Trust.



          (e) Procedures for Identification of a Named Fiduciary.




               (1) Procedure for Identification. Subject to Subsection 13.1(e)(2) below, the
Designated Officer acting as the Company may from time to time identify a person to be a Named
Fiduciary by (i) amending the Plan or Trust to specify in the Plan or Trust document (A) the name
or position of the person identified and (B) the Authority or Discretion with respect to which the
person will be a Named Fiduciary; or (ii) referencing an Administrative Services Agreement as a
means for specifying the Authority or Discretion with respect to which such person will be a Named
Fiduciary, in which case the Designated Officer acting as the Company may make such identification
under this clause (ii) by use of an Exhibit to the Plan or such other method of taking action as
the Designated Officer acting as the Company may select.



                    No person who is identified as a Named Fiduciary hereunder must consent to such designation or
identification nor will it be necessary for the Designated Officer



52









 




acting as the Company to seek
such person’s or entity’s acquiescence. The Authority or Discretion which a Named Fiduciary
identified hereunder may have, will be several and not joint with the Administrative Committee,
Investment Committee or any other Named Fiduciary and the identification of such Named Fiduciary
will result in the Administrative Committee, Investment Committee or other Named Fiduciary no
longer being a Named Fiduciary with respect to, nor having any longer, such Authority or
Discretion. On and after the identification of a person as a Named Fiduciary, neither the
Administrative Committee, Investment Committee nor any Named Fiduciary with respect to the Plan or
Trust, will have any liability for the acts (or failure to act) of any such identified Named
Fiduciary except to the extent of its co-Fiduciary duty under ERISA.




               (2) No Identification of Employer. Notwithstanding the procedure set forth in (1)
above, the Designated Officer may not identify the Trustee, an Employer or its board of directors
as a Named Fiduciary. Nor may the Designated Officer identify any officer of an Employer or an
Employee as a Named Fiduciary, except by making them a member of the Administrative Committee or
Investment Committee.



          (f) Compensation. The members of the Administrative Committee and Investment
Committee, acting as a Named Fiduciary, will serve without compensation for their services as such.




          (g) Allocations and Delegations of Authority or Discretion.




               (1) Delegations. Subject to Subsection 13.1(g)(4), each Named Fiduciary may (i)
delegate Authority or Discretion, other than trustee responsibilities as described in Section
405(c)(3) of ERISA unless the delegation is to an investment manager as defined in ERISA Section
3(38), to persons it designates, and (ii) make a change of delegated responsibilities. Each such
delegation will either (i) if it relates to an individual employed by an Employer, specify the
delegated person by name or by office and describe the Authority or Discretion delegated to such
individual, or (ii) use an Administrative Services Agreement with such person as a means for
specifying the Authority or Discretion delegated to such person. The Administrative Committee or
Investment Committee acting as a Named Fiduciary may make such delegations by use of an Exhibit to
the Plan or such other method of taking such action which the Administrative Committee or
Investment Committee acting as a Named Fiduciary may select. Any Named Fiduciary, other than the
Administrative Committee or Investment Committee acting as a Named Fiduciary, may make such
delegations only (i) in writing and (ii) after giving prior written notice of such delegation to
the Administrative Committee or Investment Committee acting as a Named Fiduciary. No person, other
than an investment manager (as defined in Section 3(38) of ERISA), to whom Authority or Discretion
has been properly delegated must consent to being a Fiduciary nor will it be necessary for the
delegating Named Fiduciary to seek such person’s acquiescence; however, where such person has not
signed a contract, the person must be given notification of the services to be performed and agree
to perform, or perform, such services. A permissible delegation of Authority or Discretion which
is not implemented in the manner set forth herein will not be void; however, whether the delegating
Named Fiduciary will have joint liability for acts of such person will be determined by applicable
law.



53









 





               (2) Allocations. Subject to Section 13.1(g)(4), the Designated Officer acting as the
Company may allocate Authority or Discretion, other than trustee responsibilities described in
Section 405(c)(3) of ERISA, to a Named Fiduciary when it identifies such Named Fiduciary in the
manner described in Section 13.1(e). The Administrative Committee or Investment Committee acting
as a Named Fiduciary may allocate or reallocate Authority or Discretion, other than trustee
responsibilities described in Section 405(c)(3) of ERISA, among Named Fiduciaries. Each such
allocation will either (i) if it relates to an individual employed by an Employer, specify the
allocated person by name or by office and describe the Authority or Discretion allocated to such
individual, or (ii) use an Administrative Services Agreement with such person as a means for
specifying the Authority or Discretion allocated to such person. The Administrative Committee or
Investment Committee acting as a Named Fiduciary may make such allocations by use of an Exhibit to
the Plan or such other method of taking such action which the Administrative Committee or
Investment Committee acting as a Named Fiduciary may select. No person to whom Authority or
Discretion has been properly allocated must consent to
being a Fiduciary nor will it be necessary for the allocating Named Fiduciary to seek such
person’s acquiescence; however, where such person has not signed a contract, the person must be
given notification of the services to be performed and agree to perform, or perform, such services.
A permissible allocation of Authority or Discretion which is not implemented in the manner set
forth herein will not be void; however, whether the allocating Named Fiduciary will have joint
liability for acts of such person will be determined by applicable law.



               (3) Limit on Liability. The allocation and delegation of Authority or Discretion
pursuant to the terms of this Plan are intended to limit the liability of the (i) Administrative
Committee or Investment Committee acting as a Named Fiduciary, and (ii) each other Named Fiduciary,
as appropriate, in accordance with the provisions of Section 405(c) of ERISA.



               (4) No Delegation or Allocation to Employer. Notwithstanding the procedures set forth
in (1) or (2) above, a Named Fiduciary may not delegate or allocate Authority or Discretion to the
Company, an Employer, or their respective boards of directors. Nor may the Administrative
Committee or Investment Committee allocate Authority or Discretion to an officer of an Employer or
an Employee, unless it is an allocation among the members of the Administrative Committee or
Investment Committee.



          (h) Committee Bonding. The Administrative Committee or Investment Committee acting as
a Named Fiduciary will serve without bond (except as otherwise required by federal law).




          (i) Information to be Supplied by Employer. Each Employer will supply to the
Administrative Committee acting as a Named Fiduciary, within a reasonable time of its request, the
names of all Employees, their ages, their dates of hire, the names of all Employees who incur a
termination of employment during any Plan Year and the dates of such terminations, and such other
information in the Employer’s possession as the Administrative Committee acting as a Named
Fiduciary will from time to time request. The Administrative Committee acting as a Named Fiduciary
may rely conclusively on the information supplied to it by an Employer.





54









 








          (j) Misrepresentations. The Administrative Committee acting as a Named Fiduciary may,
but will not be required to, rely upon any certificate, statement or other representation made to
it by another Named Fiduciary or by an Employee, a Member, or another individual, or personal
representative of any thereof with respect to any fact. Any such certificate, statement or other
representation will be conclusively binding upon such other Named Fiduciary, Employee, Member, or
other individual or personal representative, and on any heir or assignee of any thereof (but not
upon the Administrative Committee), and any such person will thereafter be estopped from disputing
the truth of any such certificate, statement or other representation.




          (k) Records. The regularly kept records of any Named Fiduciary, Trustee, Recordkeeper
or Employer may be relied upon conclusively by the Administrative Committee acting as a Named
Fiduciary.




          (l) Plan Expenses. All expenses of the Plan or Trust which have been approved by the
Administrative Committee or Investment Committee acting as a Named Fiduciary will be paid by the
Trust except to the extent paid by the Employer; and if paid by the Employer, such Employer may, if
authorized by the Designated Officer acting as the Company,
seek reimbursement of such expenses from the Trust and the Trust will reimburse the Employer.
If borne by the Employer(s), expenses of administering the Plan or Trust will be borne by the
Employer(s) in such proportion as the Designated Officer, acting as the Company, will determine.




          (m) Fiduciary Capacity. Any person or group of persons may serve in more than one
Fiduciary capacity with respect to the Plan or Trust. In addition, any person or group of persons
may serve both as a Fiduciary and as a Plan Sponsor, however, they must act as either a Fiduciary
or a Plan Sponsor, but not both, with respect to any matter.




          (n) Employer’s Agent. The Designated Officer acting as the Company will act as agent
for each Employer.




          (o) Notices to Members, Etc. Any notice, report or statement given, made, delivered
or transmitted to a Member or any other person entitled to or claiming benefits under the Plan will
be deemed to have been duly given, made or transmitted when sent via messenger, delivery service,
facsimile or mailed by first class mail with postage prepaid and addressed to the Member or such
person at the address last appearing on the records of the Named Fiduciary. A Member or such other
person may record any change of his address from time to time by written notice filed with the
Named Fiduciary.




          (p) Plan Administrator. The term “Plan Administrator” will have the meaning assigned
to that term by ERISA Section 3(16)(A). The Plan Administrator is the Administrative Committee
acting as a Named Fiduciary.




          (q) Named Fiduciary Decisions Final. The decision of a Named Fiduciary in matters
within its jurisdiction will be final, binding, and conclusive upon
each Employer and the




55









 







 Trustee
and upon each Employee, Member, and every other person or party interested or concerned.




          (r) Agency. Each Fiduciary will perform (or fail to perform) its Authority or
Discretion with respect to the Plan or Trust as an independent contractor and not as an agent of
the Plan, any Employer, the Trust, the Administrative Committee or the Investment Committee. No
agency is intended to be created nor is the Administrative Committee or Investment Committee
empowered to create an agency relationship with a Fiduciary acting as a Fiduciary. Except as
provided in this Subsection 14.1(r), the Plan, Trust, the Administrative Committee, the Investment
Committee, or another Fiduciary may act through agents.




     13.2 Claims Procedure.



          (a) Definitions. For purposes of this Section 13.2, the following words or phrases in
quotes when capitalized will have the meaning set forth below:




               (1) ‘Adverse Benefit Determination’ means a denial, reduction or the termination of, or a
failure to provide or make payment (in whole or in part) with respect to a Claim for a benefit,
including any such denial, reduction, termination, or failure to provide or make payment that is
based on a determination of a Participant’s or Beneficiary’s eligibility to participate in the
Plan.



               (2) ‘Claim’ means a request for a benefit or eligibility to participate in the Plan, made by a
Claimant in accordance with the Plan’s procedures for filing Claims, as described in this Section
13.2. For this purpose, an inquiry or request for reconsideration made under the Plan’s
established administrative procedures will not constitute a Claim.



               (3) ‘Claimant’ is defined in Section 13.2(b)(2).



               (4) ‘Notice’ or ‘Notification’ means the delivery or furnishing of information to an
individual in a manner that satisfies applicable Department of Labor regulations with respect to
material required to be furnished or made available to an individual.



               (5) ‘Relevant Documents’ include documents, records or other information with respect to a
Claim that:



                    (A) were relied upon by the Claims Administrator in making the benefit determination;



                    (B) were submitted to, considered by or generated for, the Claims Administrator in the course
of making the benefit determination, without regard to whether such documents, records or other
information were relied upon by the Claims Administrator in making the benefit determination;



                    (C) demonstrate compliance with administrative processes and safeguards required in making the
benefit determination; or



56









 





                    (D) constitute a statement of policy or guidance with respect to the Plan concerning the
denied benefit for the Participant’s circumstances, without regard to whether such advice was
relied upon by the Claims Administrator in making the benefit determination.



          (b) Procedure for Filing a Claim. In order for a communication from a Claimant to
constitute a valid Claim, it must satisfy the following paragraphs (1) and (2) of this paragraph
(b).




               (1) Any Claim submitted by a Claimant must be in writing on the appropriate Claim form (or in
such other manner acceptable to the Claims Administrator) and delivered, along with any supporting
comments, documents, records and other information, to the Claims Administrator in person, or by
mail postage paid, to the address for the Claims Administrator provided in the Summary Plan
Description.



               (2) Claims and appeals of denied Claims may be pursued by a Participant or an authorized
representative of the Participant (each of whom will be referred to in this section as a
‘Claimant’). However, the Claims Administrator may establish reasonable procedures for determining
whether an individual has been authorized to act on behalf of a Participant.



          (c) Initial Claim Review. The initial Claim review will be conducted by the Claims
Administrator, with or without the presence of the Claimant, as determined by the Claims
Administrator in its discretion. The Claims Administrator will consider the applicable terms and
provisions of the Plan and amendments to the Plan, information and evidence that is presented by
the Claimant and any other information it deems relevant. In reviewing the Claim, the Claims
Administrator will also consider and be consistent with prior determinations of Claims from
other Claimants who were similarly situated and which have been processed through the Plan’s claims
and appeals procedures within the past 24 months.




          (d) Initial Benefit Determination.




               (1) The Claims Administrator will notify the Claimant of the Claims Administrator’s
determination within a reasonable period of time, but in any event (except as described in
paragraph (2) below) within 90 days after receipt of the Claim by the Claims Administrator.



               (2) The Claims Administrator may extend the period for making the benefit determination by 90
days if it determines that such an extension is necessary due to matters beyond the control of the
Plan and if it notifies the Claimant, prior to the expiration of the initial 90 day period, of
circumstances requiring the extension of time and the date by which the Claims Administrator
expects to render a decision.



57









 





          (e) Manner and Content of Notification of Adverse Benefit Determination.




               (1) The Claims Administrator will provide a Claimant with written or electronic Notice of any
Adverse Benefit Determination, in accordance with applicable Department of Labor regulations.



               (2) The Notification will set forth in a manner calculated to be understood by the Claimant:



                    (A) The specific reason or reasons for the Adverse Benefit Determination;



                    (B) Reference to the specific provision(s) of the Plan on which the determination is based;



                    (C) Description of any additional material or information necessary for the Claimant to
perfect the Claim and an explanation of why such material or information is necessary;



                    (D) A description of the Plan’s review procedures and the time limits applicable to such
procedures, including a statement of the Claimant’s right to bring a civil action under Section
502(a) of ERISA following an Adverse Benefit Determination on review.



          (f) Procedure for Filing a Review of an Adverse Benefit Determination.




               (1) Any appeal of an Adverse Benefit Determination by a Claimant must be brought to the Claims
Administrator within 60 days after receipt of the Notice of the Adverse Benefit Determination.
Failure to appeal within such 60-day period will be deemed to be a failure to exhaust all
administrative remedies under the Plan. The appeal must be in writing utilizing the appropriate
form provided by the Claims Administrator (or in such other manner acceptable to the Claims
Administrator); provided, however, that if the Claims Administrator does not provide the
appropriate form, no particular form is required to be utilized by the Participant. The appeal must
be filed with the Claims Administrator at the address listed in the Summary Plan Description.



               (2) A Claimant will have the opportunity to submit written comments, documents, records and
other information relating to the Claim.



          (g) Review Procedures for Adverse Benefit Determinations.




               (1) The Claims Administrator will provide a review that takes into account all comments,
documents, records and other information submitted by the Claimant without regard to whether such
information was submitted or considered in the initial benefit determination.



               (2) The Claimant will be provided, upon request and free of charge, reasonable access to and
copies of all Relevant Documents.



58









 





               (3) The review procedure may not require more than two levels of appeals of an Adverse Benefit
Determination.



          (h) Timing and Notification of Benefit Determination on Review. The Claims
Administrator will notify the Claimant within a reasonable period of time, but in any event within
60 days after the Claimant’s request for review, unless the Claims Administrator determines that
special circumstances require an extension of time for processing the review of the Adverse Benefit
Determination. If the Claims Administrator determines that an extension is required, written Notice
will be furnished to the Claimant prior to the end of the initial 60-day period indicating the
special circumstances requiring an extension of time and the date by which the Claims Administrator
expects to render the determination on review, which in any event will be within 60 days from the
end of the initial 60-day period. If such an extension is necessary due to a failure of the
Claimant to submit the information necessary to decide the Claim, the period in which the Claims
Administrator is required to make a decision will be tolled from the date on which the notification
is sent to the Claimant until the Claimant adequately responds to the request for additional
information.




          (i) Manner and Content of Notification of Benefit Determination on Review.




               (1) The Claims Administrator will provide a written or electronic Notice of the Plan’s benefit
determination on review, in accordance with applicable Department of Labor regulations.



               (2) The Notification will set forth:



                    (A) The specific reason or reasons for the Adverse Benefit Determination;



                    (B) Reference to the specific provision(s) of the Plan on which the determination is based;



                    (C) A statement that the Claimant is entitled to receive, upon request and free of charge,
reasonable access to and copies of all Relevant Documents; and



                    (D) A statement of the Claimant’s right to bring a civil action under Section 502(a) of ERISA
following an Adverse Benefit Determination on review.



          (j) Statute of Limitations. No cause of action may be brought by a Claimant who has
received an Adverse Benefit Determination later than two years following the date of such Adverse
Benefit Determination.




     13.3 Notices to Participants, Etc. Any notice, report or statement given, made,
delivered or transmitted to a Participant or any other person entitled to or claiming benefits
under the Plan will be deemed to have been duly given, made or transmitted when sent via messenger,
delivery service, facsimile or mailed by first class mail with postage prepaid and addressed to the
Participant or such person at the address last appearing on the records of the Administrative
Committee or the Named Fiduciary, whichever is applicable. A Participant or other person may



59









 







record any change of his address from time to time by following the procedures established by the
Administrative Committee.



     13.4 Notices to Claims Administrator. Any written direction, notice or other
communication from Participants or any other person entitled to or claiming benefits under the Plan
to the Claims Administrator will be deemed to have been duly given, made or transmitted either when
delivered to such location as will be specified upon the forms prescribed by the Claims
Administrator for the giving of such direction, notice or other communication or when otherwise
received by the Claims Administrator.



13.5 Committees




          (a) Composition of Administrative Committee and Investment Committee. The
Administrative Committee and Investment Committee will consist, at a minimum, of the Vice
President. The Vice President may add additional members pursuant to procedures established in its
by-laws.




          (b) By-Laws. The Administrative Committee and Investment Committee may always act by
unanimous consent and will adopt by-laws to govern its activities and may amend such by-laws from
time to time.




     13.6 Company Action. Any action to be taken under this Plan by the Company may be
taken by a Designated Officer acting as the Company (subject to the limitations of the Plan,
including without limitation, Section 13.1), or any officer designated by the board of directors of
the Company for this purpose (including any successor to any of the foregoing officers who performs
substantially similar duties but who is assigned a different title by the Company), each of which
is authorized to take action on behalf of the Company hereunder.



60









 





ARTICLE XIV



ADOPTION AND WITHDRAWAL FROM PLAN




     14.1 Adoption by Other Employers.



          (a) With the consent of a Designated Officer, any Commonly Controlled Entity may adopt this
Plan and participate herein (for purposes of this Article XIV, a “Participating Employer”),
effective as of the date specified in such adoption, by filing with the Designated Officer a
certified copy of a resolution of its board of directors or other governing authority to that
effect, and such other instruments as the Designated Officer may require, and, if the resolution
involves a change in the Trust Agreement, the Designated Officer’s filing with the Trustee a copy
of such resolution, together with a certified copy of the consent of the Designated Officer
approving such adoption as a proposed amendment to the Trust Agreement.




          (b) The adoption resolution may contain such specific changes and variations in the terms of
the Plan or Trust Agreement that apply to such Participating Employer and its Employees as may be
acceptable to the Designated Officer and if the resolution involves a change in the Trust
Agreement, the Trustee. However, the sole, exclusive right to amend the Plan or the Trust
Agreement on behalf of the Company and Participating Employers in any other respect is reserved in
accordance with Section 13.1, and any such amendment will be binding upon the Participating
Employer; provided that no amendment without the consent of a Participating Employer may alter
specific changes and variations in the Plan or Trust Agreement terms adopted by the Participating
Employer in its adoption resolution. The adoption resolution will become, as to such Participating
Employer and its Employees, a part of this Plan and, to the extent that the adoption resolution is
filed with the Trustee and approved by the Trustee, the Trust Agreement. It will not be necessary
for the Participating Employer to sign or execute the Plan, the Trust Agreement, or any amendment
thereof. The coverage date of the Plan for any Participating Employer will be the date stated in
the adoption resolution, and from and after such effective date, such Participating Employer will
assume all the rights, obligations and liabilities of an individual Employer entity under the Plan
and the Trust Agreement. The administrative powers and control of the Company and any Designated
Officer, as provided in the Plan and the Trust Agreement, including the exclusive right to amend
the Plan and the Trust Agreement on behalf of the Company and Participating Employers, and the
administrative powers of the Company to appoint and remove the Trustee, and its successors, will
not be diminished by reason of the participation of any Participating Employer in the Plan.




     14.2 Withdrawal from the Plan. With the consent of a Designated Officer, a
Participating Employer may discontinue or revoke its participation in the Plan on at least 90 days’
notice by filing a properly executed document with the Designated Officer. Notwithstanding the
foregoing, a Participating Employer will be deemed to have terminated its participation in the Plan
when it ceases to be a Commonly Controlled Entity.



     14.3 Employee Transfers Within Participating Group. It is anticipated that an
Employee may be transferred between Participating Employers. No such transfer will be deemed
Termination of Employment.



61









 





     14.4 Designation of Agent. Each Participating Employer will be deemed a part of the
Company; provided that, with respect to its relations with the Trustee and the Administrative
Committee in connection with the Plan, each Participating Employer will be deemed to have
irrevocably designated the Company and each Designated Officer as its agent.



62









 





ARTICLE XV



AMENDMENT, TERMINATION AND MERGER




     15.1 Amendments.



          (a) Power to Amend. The Company may at any time and from time to time amend, suspend
or modify the Plan, in whole or in part, by written instrument duly adopted by: (i) the Board of
Directors; or (ii) any Designated Officer, if the Board of Directors has delegated to such
Designated Officer the authority to execute such amendments. Any such amendment, suspension or
modification will become effective on such date as the Board of Directors or such Designated
Officer, as the case may be, will determine, and may apply retroactively or prospectively to
Members at the time thereof, as well as to future Members; provided, however, that no amendment
will:




               (1) increase the duties or liabilities of the Trustee or the Administrative Committee without
its written consent;



               (2) have the effect of vesting in any Employer any interest in any funds, securities or other
property, subject to the terms of this Plan and the Trust Agreement;



               (3) authorize or permit at any time any part of the corpus or income of the Plan’s assets to
be used or diverted to purposes other than for the exclusive benefit of Members;



               (4) except to the extent permissible under ERISA and the Code, make it possible for any
portion of the Trust assets to revert to an Employer to be used for, or diverted to, any purpose
other than for the exclusive benefit of Members entitled to Plan benefits and to defray reasonable
expenses of administering the Plan;



               (5) permit an Employee to be paid the balance of his Before-Tax Account unless the payment
would otherwise be permitted under Section 401(k) of the Code; and



               (6) have any retroactive effect as to deprive any such person of any benefit already accrued,
except that no amendment made in order to conform the Plan as a plan described in Section 401(a) of
the Code of which amendments are permitted by the Code or are required or permitted by any other
statute relating to employees’ trusts, or any official regulations or ruling issued pursuant
thereto, will be considered prejudicial to the rights of any such person.



          (b) Restriction on Amendment. No amendment to the Plan will deprive a Participant of
his nonforfeitable rights to benefits accrued to the date of the amendment. In addition to the
foregoing, the Plan will not be amended so as to eliminate an optional form of payment of the
balance of a Participant’s Accounts attributable to employment prior to the date of the amendment,
except to the extent permissible under ERISA and the Code. The foregoing limitations do not apply
to benefit accruals occurring after the date of the amendment.




63









 








          (c) Authority of Designated Officer. The Designated Officer, acting on behalf of the
Company, may amend, modify, change or revise the Plan or any Appendix, in whole or in part, or with
respect to all persons or a designated group of persons unless the Board of Directors has
specifically granted authority outside of this Plan to another Designated Officer to act under this
Article XV, and then only to the extent so granted; provided however (1) no such action may be
taken if it could not have been adopted under this Section by the Board of Directors; and (2) no
such action may amend Articles XIII and XV.




     15.2 Plan Termination. It is the expectation of the Company that it will continue the
Plan and the payment of Contributions hereunder indefinitely, but the continuation of the Plan and
the payment of Contributions hereunder is not assumed as a contractual obligation of the Company or
any other Employer. The Company reserves the right, at any time, to terminate the Plan, or to
reduce, suspend or discontinue its or any other Employer’s Contributions hereunder, provided,
however, that the Contributions for any Plan Year accrued or determined prior to the end of such
year will not after the end of such year be retroactively reduced, suspended or discontinued except
as may be permitted by law. Upon termination of the Plan or complete discontinuance of
Contributions hereunder (other than for the reason that the Employer has had no net profits or
accumulated net profits), each Participant’s balance of his Accounts will be 100% nonforfeitable.
Upon termination of the Plan or a complete discontinuance of Contributions, unclaimed amounts will
be applied as forfeitures and any unallocated amounts will be allocated to Participants who are
Eligible Employees as of the date of such termination or discontinuance on the basis of
Compensation for the Plan Year (or short Plan Year). Upon a partial termination of the Plan, to
the extent required by law or in the sole discretion of the Plan Administrator, the balance of his
Accounts of each affected Participant will be 100% nonforfeitable. In the event of termination of
the Plan, the Administrative Committee will direct the Trustee to distribute to each Participant
the entire amount of the balance of his Accounts as soon as administratively possible, but not
earlier than would be permitted in order to retain the Plan’s qualified status under Sections
401(a), (k) and (m) of the Code, as if all Participants who are Employees had incurred a
Termination of Employment on the Plan’s termination date. Should a Participant or a Beneficiary
not elect immediate payment of the nonforfeitable balance of his Accounts in excess of $5,000, the
Administrative Committee will direct the Trustee to continue the Plan and Trust Agreement for the
sole purpose of paying to such Participant the balance of his Accounts or death benefit,
respectively, unless in the opinion of the Administrative Committee, to make immediate single sum
payments to such Participant or Beneficiary would not adversely affect the tax qualified status of
the Plan upon termination and would not impose additional liability upon any Employer or the
Trustee.



     15.3 Plan Merger and Spinoff. The Plan will not merge or consolidate with, or
transfer any assets or liabilities to any other plan, unless each person entitled to benefits would
receive a benefit immediately after the merger, consolidation or transfer (if the Plan were then
terminated) which is equal to or greater than the benefit he would have been entitled to
immediately before the merger, consolidation or transfer (if the Plan were then terminated). The
Designated Officer will amend or take such other action as is necessary to amend the Plan in order
to satisfy the requirements applicable to any merger, consolidation or transfer of assets and
liabilities.



64









 





     15.4 Design Decisions. Decisions regarding the design of the Plan (including any
decision to amend or terminate, or to not amend or
terminate the Plan) will be made in a settlor capacity and will not be governed by the
fiduciary responsibility provisions of ERISA.



65









 





ARTICLE XVI



SPECIAL TOP-HEAVY RULES




     16.1 Application of Article XVI. This Article XVI will apply only if the Plan is
Top-Heavy, as defined below. If, as of any Top-Heavy Determination Date, as defined below, the
Plan is Top-Heavy, the provisions of Section 16.4 will take effect as of the first day of the Plan
Year next following the Top-Heavy Determination Date and will continue to be in effect until the
first day of any subsequent Plan Year following a Top-Heavy Determination Date as of which it is
determined that the Plan is no longer Top-Heavy.



     16.2 Definitions Concerning Top-Heavy Status. In addition to the definitions set
forth in Article I, the following definitions will apply for purposes of this Article XVI, and will
be interpreted in accordance with the provisions of Section 416 of the Code:



          (a) Aggregation Group — a group of Company Plans consisting of each Company Plan in
the Required Aggregation Group and each other Company Plan selected by the Company for inclusion in
the Aggregation Group that would not, by its inclusion, prevent the group of Company Plans included
in the Aggregation Group from continuing to meet the requirements of Section 401(a)(4) and 410 of
the Code.




          (b) Annual Compensation — compensation for a calendar year within the meaning of
Treasury Regulation §1.415-2(d)(11)(ii) to the extent that such compensation does not exceed the
annual compensation limit in effect for the calendar year under Section 401(a)(17) of the Code.




          (c) Company Plan — any plan of any Commonly Controlled Entity that is, or that has
been determined by the Internal Revenue Service to be, qualified under Section 401(a) or 403(a) of
the Code.




          (d) Key Employee — any employee of any Commonly Controlled Entity who satisfies the
criteria set forth in Section 416(i)(1) of the Code.




          (e) Required Aggregation Group — one or more Company Plans comprising each Company
Plan in which a Key Employee is a participant and each Company Plan that enables any Company Plan
in which a Key Employee is a participant to meet the requirements of Section 401 (a)(4) or 410 of
the Code.




          (f) Top-Heavy — the Plan is included in an Aggregation Group under which, as of the
Top-Heavy Determination Date, the sum of the actuarial present value of the cumulative balance of
the Accounts for Key Employees under all defined benefit plans in the Aggregation Group and the
aggregate of the Accounts of Key Employees under all defined contribution plans in the Aggregation
Group exceeds 60 percent of the analogous sum determined for all employees. The determination of
whether the Plan is Top-Heavy will be made in accordance with Section 416(g)(2)(B) of the Code.




66









 








          (g) Top-Heavy Determination Date — the December 31 immediately preceding the Plan Year
for which the determination is made.




          (h) Top-Heavy Ratio — the percentage calculated in accordance with subparagraph (f),
above, and Section 416(g)(2) of the Code.




          (i) Top-Heavy Year — a Plan Year for which the Plan is Top-Heavy.




     16.3 Calculation of Top-Heavy Ratio. The Top-Heavy Ratio with respect to any Plan
Year will be determined in accordance with the following rules:



          (a) Determination of Accounts: The balance of the Accounts of any current Participant
will be calculated, as of the most recent valuation date that is within a 12-month period ending on
the Top-Heavy Determination Date, as if the Participant had voluntarily terminated employment as of
such valuation date. Such valuation date will be the same valuation date used for computing plan
costs for purposes of the minimum funding provisions of Section 412 of the Code. Unless, as of the
valuation date, the Plan provides for a nonproportional subsidy, the actuarial present value of the
balance of the Accounts will reflect a retirement income commencing at age 65 (or attained age, if
later). If, as of the valuation date, the Plan provides for a nonproportional subsidy, the benefit
will be assumed to commence at the age at which the benefit is most valuable. The present values
of the balance of the Accounts and the amounts of account balances of an employee as of the
Top-Heavy Determination Date will be increased by the distributions made with respect to the
employee under the Plan and any plan aggregated with the plan under Section 416(g)(2) of the Code
during the 1-year period ending on the Top-Heavy Determination Date. The preceding sentence will
also apply to distributions under a terminated plan which, had it not been terminated, would have
been aggregated with the plan under Section 416(g)(2)(A)(i) of the Code. In the case of a
distribution made for a reason other than Termination of Employment, death, or disability, this
provision will be applied by substituting ‘5-year period’ for ‘1-year period’. The balance of the
Accounts of any individual who has not performed services for the employer during the 1-year period
ending on the determination date will not be taken into account.




          (b) Aggregation. The Plan will be aggregated with all Company Plans included in the
Aggregation Group.




     16.4 Effect of Top-Heavy Status.



          (a) Minimum Contribution. Notwithstanding Article III, as of the last day of each
Top-Heavy Year, the Employer will make, for each Participant, (i) the contributions it otherwise
would have made under the Plan for such Top-Heavy Year, or if greater, (ii) contributions for such
Top-Heavy Year that, when added to the contributions made by the Employer for such Participant (and
any forfeitures allocated to his Accounts) for such Top-Heavy Year under all other defined
contribution plans of any Commonly Controlled Entity, aggregate three percent of his Annual
Compensation; provided that the Plan will meet the requirements of this subsection (a) without
taking into account Before-Tax Contributions or other employer contributions attributable to a
salary reduction or similar arrangement. Employer





67









 







matching contributions will be taken into
account for purposes of satisfying the minimum contribution requirements of section 416(c)(2) of
the Code and the Plan. The preceding sentence
will apply with respect to matching contributions under the Plan or, if the Plan provides that
the minimum contribution requirement will be met in another plan, such other plan. Employer
matching contributions that are used to satisfy the minimum contribution requirements will be
treated as matching contributions for purposes of the actual contribution percentage test and other
requirements of Section 401(m) of the Code.




          (b) Inapplicability to Union Employees. The preceding provisions of this Section 16.4
will not apply with respect to any employee included in a unit of employees covered by an agreement
that the Secretary of Labor finds to be a collective bargaining agreement between employee
representatives and the Employer, if there is evidence that retirement benefits were the subject of
good faith bargaining between such employee representatives and the Employer.




     16.5 Effect of Discontinuance of Top-Heavy Status. If, for any Plan Year after a
Top-Heavy Year, the Plan is no longer Top-Heavy, the provisions of Section 16.4 will not apply with
respect to such Plan Year.



     16.6 Intent of Article XVI. This Article XVI is intended to satisfy the requirements
imposed by Section 416 of the Code and will be construed in a manner that will effectuate this
intent. This Article XVI will not be construed in a manner that would impose requirements on the
Plan that are more stringent than those imposed by Section 416 of the Code.



68









 





ARTICLE XVII



MISCELLANEOUS
PROVISIONS




     17.1
Assignment and Alienation. As provided by Section 401(a)(13) of the Code and to the extent not otherwise required by law, no benefit provided by the Plan may be anticipated, assigned or alienated, except:



          (a) to create, assign or recognize a right to any benefit with respect to a Participant pursuant to a QDRO,




          (b) to use a Participant’s nonforfeitable balance of his Accounts as security for a loan from the Plan which is permitted pursuant to Section 4975 of the Code, or




          (c) to allow the enforcement of a federal tax levy made pursuant to Section 6331 of the Code, or the collection by the United States on a judgment resulting from an unpaid tax assessment.




     17.2
Protected Benefits.
All benefits which are protected by the terms of Section 411(d)(6) of the Code and Section 204(g) of ERISA, which cannot be eliminated without adversely affecting the qualified status of the Plan on and after the Effective Date, will be provided under this Plan to Participants for whom such benefits are protected. The Administrative Committee will cause such benefits to be determined and the terms and provisions of any relevant plan setting forth such protected benefits are incorporated herein by reference and made a part hereof, but only to the extent such terms and provisions are so protected. Otherwise, they will operate within the terms and provisions of this Plan, as determined by the Administrative Committee.



     17.3
Plan Does Not Affect Employment Rights. The Plan does not provide any employment rights to any Employee. The Employer expressly reserves the right to discharge an Employee at any time, with or without cause, without regard to the effect such discharge would have upon the Employee’s interest in the Plan.



     17.4
Deduction of Taxes from Amounts Payable.
 The Trustee will deduct from the amount to be distributed such amount as the Administrative Committee, in his sole discretion, deems proper to protect the Trustee and the Plan’s assets held under the Trust Agreement against liability for the payment of death, succession, inheritance, income, or other taxes, and out of money so deducted, the Trustee may discharge, as directed by the Administrative Committee, any such liability and pay the amount remaining to the Participant, the Beneficiary or the deceased Participant’s estate, as the case may be.



     17.5
Facility of Payment.
If a Member is declared an incompetent or is a minor and a conservator, guardian, or other person legally charged with his care has been appointed, any benefits to which such Member is entitled will be payable to such conservator, guardian, or other person legally charged with his care. The decision of the Administrative Committee in such matters will be final, binding, and conclusive upon the Employer and the Trustee and upon each Member, and every other person or party interested or concerned. An Employer, the Trustee and



69









 







the Administrative Committee will not be under any duty to see to the proper application of such payments.



     17.6
Source of Benefits. All benefits payable under the Plan will be paid or provided for solely from the Plan’s assets held under the Trust Agreement and the Employers assume no liability or responsibility therefor.



     17.7
Reduction for Overpayment.
The Administrative Committee will, whenever it determines that a person has received benefit payments under this Plan in excess of the amount to which the person is entitled under the terms of the Plan, make a reasonable attempt to collect such overpayment from the person. The amount of any overpayment may be set off against further amounts payable to or on account of the person who received the overpayment.



     17.8
Company Merger. In the event any successor corporation to the Company, by merger, consolidation, purchase or otherwise, will elect to adopt the Plan, such successor corporation will be substituted hereunder for the Company upon filing in writing with the Trustee its election so to do.



     17.9
Employees’ Trust.
The Plan and Trust Agreement are created for the exclusive purpose of providing benefits to the Members of the Plan and defraying reasonable expenses of administering the Plan. The Plan and Trust Agreement will be interpreted and operated in a manner consistent with their being, respectively, a Plan described in Sections 401(a) and 401(k) of the Code and Trust Agreements exempt under Section 501(a) of the Code. The Designated Officer and the Administrative Committee are authorized to the fullest extent allowed by law, to take whatever action may be required to correct any such interpretational or operational violation which would result in the Plan not being a plan described in Sections 401(a) and 401(k) of the Code and Trust Agreements exempt under Section 501(a) of the Code. At no time will the assets of the Plan be diverted from the above purpose.



     17.10
Construction.
Unless the contrary is plainly required by the context, wherever any words are used herein in the masculine gender, they will be construed as though they were also used in the feminine gender, and vice versa; wherever any words are used herein in the singular form, they will be construed as though they were also used in the plural form, and vice versa; and wherever the words “herein,” “hereof,” “hereunder,” and words of similar import are used, they will be construed to refer to the Plan in its entirety and not only to the portion of the Plan in which they appear. Any election, direction, notice or designation (or similar action) to be made by a Member hereunder will be made in such manner as is provided for by, and acceptable to, the Administrative Committee. No such election, direction, notice or designation (or similar action) will be deemed to have been given to the Administrative Committee unless it is properly completed and delivered to the Administrative Committee in accordance with the procedures established by such Administrative Committee for such purpose, and will take effect at such time as is established by the Administrative Committee, which in any event will not be earlier than is administratively possible.



     17.11
Invalidity of Certain Provisions. If any provision of this Plan will be held invalid or unenforceable, such invalidity or unenforceability will not affect any other provisions hereof




70










 






and the Plan will be construed and enforced as if such provisions, to the extent invalid or
unenforceable, had not been included.




     17.12 Headings. The headings or articles are included solely for convenience of
reference, and if there is any conflict between such headings and the text of this Plan, the text
will control.



     17.13 Governing Law. The Plan will be construed, administered and regulated in
accordance with the provisions of ERISA and, to the extent not preempted thereby, in accordance
with the laws of the State of Illinois, determined without regard to its choice of law rules.



     17.14 Notice and Information Requirements. Except as otherwise provided in this Plan
or in the Trust Agreement, the Employer will have no duty or obligation to affirmatively disclose
to any Member, nor will any Member have any right to be advised of, any material information
regarding the Employer, at any time prior to, upon or in connection with the Employer’s purchase,
or any other distribution or transfer (or decision to defer any such distribution) of any Company
Stock or any other stock held under the Plan.



     17.15 Reliance on Information Provided to Plan. Notwithstanding anything contained
herein to the contrary, if an individual is provided a statement in confirmation of any election or
information provided to the Plan by such individual hereunder, the election or information
reflected on such confirmation statement will be deemed to be accurate and may be conclusively
relied upon for all purposes hereunder unless the individual timely demonstrates to the
Administrative Committee, in the form and manner established by the Administrative Committee, that
the election or information reflected on the confirmation statement is not what the individual had
originally delivered to the Administrative Committee.



     17.16 Recognition of Power of Attorney. Notwithstanding anything in this Plan to the
contrary, the Administrative Committee may, in his discretion, refuse to recognize any agent of a
Participant who seeks to act on behalf of such Participant pursuant to a power of attorney unless
and to the extent the power of attorney conforms with guidelines adopted by the Administrative
Committee from time to time.



71









 





     Executed this                     day of                                         , 2005.



	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 	 	EARLE M. JORGENSEN COMPANY	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 





72









 






APPENDIX 1.50




Investment Funds




TRP Retirement Income Fund

TRP Retirement 2005 Fund

TRP Retirement 2010 Fund

TRP Retirement 2015 Fund

TRP Retirement 2020 Fund

TRP Retirement 2025 Fund

TRP Retirement 2030 Fund

TRP Retirement 2035 Fund

TRP Retirement 2040 Fund

TRP Retirement 2045 Fund




TRP Prime Reserve Fund

TRP Spectrum Income Fund

TRP GNMA Fund

TRP Balanced Fund

TRP Mid-Cap Growth Fund

TRP Equity Income Fund

TRP New Horizons Fund

TRP International Stock Fund

TRP Equity Index 500 Fund

TRP Blue Chip Growth Fund

TRP Science & Technology Fund

EMJ Stock Fund




Default Funds



Based on the year in which the Participant was born, the following applicable Investment Fund will
be the default Investment Election or Conversion Election for such participant:




	 	 	 
	In 1937 or before

	 	TRP Retirement Income Fund
	Between 1938 and 1942

	 	TRP Retirement 2005 Fund
	Between 1943 and 1947

	 	TRP Retirement 2010 Fund
	Between 1948 and 1952

	 	TRP Retirement 2015 Fund
	Between 1953 and 1957

	 	TRP Retirement 2020 Fund
	Between 1958 and 1962

	 	TRP Retirement 2025 Fund
	Between 1963 and 1967

	 	TRP Retirement 2030 Fund
	Between 1968 and 1972

	 	TRP Retirement 2035 Fund
	Between 1973 and 1977

	 	TRP Retirement 2040 Fund
	In 1978 or after

	 	TRP Retirement 2045 Fund






Appendix 1.50 — Page 1




 









 








APPENDIX 3.3




Additional Employer Contributions for Plan Years Ending in 2005 and 2006





     (a) Additional Employer Contributions. In addition to the Employer
Contributions permitted under the discretionary basis pursuant to Section 3.3(a), Additional
Employer Contributions shall be made for Plan Years ending March 31, 2005 and March 31, 2006
as set forth in this Appendix 3.3. Said Additional Employer Contributions will be made in shares of Company Stock no later than the date specified in Section 3.3(b). For the Plan
Years ending March 31, 2005 and 2006, the Company will specify which portion of the Employer
Contribution is made pursuant to Section 3.3 (to be allocated under Section 3.3(d)) or is an
Additional Employer Contribution made and allocated under this Appendix 3.3. Except for
purposes of Sections 3.3(a) and (d) and this Appendix 3.3, Additional Employer Contributions
will be considered Employer Contributions.




     (b) Overview. The Additional Employer Contributions are part of a program (the
“Program”) intended to provide certain eligible persons with either allocations
under the Plan, or direct cash payments outside the Plan, and/or Supplemental Employee Stock
Bonus Plan (the “Supplemental SBP”) credits. The benefit for any eligible person is
an amount based on 108.17% of the total number of shares of Company Stock that remain
allocated to his Company Stock Account on the Relevant Date, as those capitalized terms are
defined below. Notwithstanding the above, the Additional Employer Contributions will only be
allocated to Applicable Participants, as defined below.




     For purposes of this Appendix 3.3, the following terms shall be defined as follows:




“Applicable Participant” shall mean each Participant who meets all of the
following conditions: (i) as of the Relevant Date, his or her Company Stock Accounts
includes Company Stock, (ii) he or she has not, on or before the Relevant Date, both
terminated employment from the Company and Employer, and filed a written notice with
the Company to put the Company Stock back to the Company in accordance with the
terms of this Plan prior to the Effective Date, and (iii) he or she earned Statutory
Compensation during the period from April 1, 2004 until the Relevant Date,
inclusive, whether or not employed by the Employer on the Relevant Date.
Notwithstanding Sections 2.1 and 2.2, an Applicable Participant shall be entitled to
an allocation of Additional Employer Contributions to the extent set forth in this
Appendix 3.3.




“Relevant Date” shall mean the date on which amended Consent Order and
Release by and between United States Department of Labor, the Company, the Plan and
certain other parties is entered by the court.



Appendix 3.3 — Page 1




 









 









“Total Allocation” shall mean, for an Applicable Participant, the product of
108.17% and the total number of shares of Company Stock allocated to his Company
Stock Account on the Relevant Date (expressed as a number of shares).



     If it were not for applicable tax limitations, the Company and/or Employer would contribute to
the Plan shares of Company Stock so that each Applicable Participant would receive allocations
under the Plan of a number of shares equal to the Total Allocation. However, due to tax
limitations, the full amount of such contributions and allocations are not permitted for some of
the Applicable Participants. Accordingly, part of the contribution will be made for the Plan Year
ending March 31, 2005 and part will be contributed for the Plan Year ending March 31, 2006. To the
extent applicable tax limitations do not permit an Applicable Participant to receive an aggregate
allocation of the Additional Employer Contributions for those two Plan Years equal to the Total
Allocation, the Applicable Participant will receive, outside of the Plan, either direct cash
payments from the Company (or Employer) pursuant to a Former Employees Cash Bonus Plan or phantom
stock units under the Supplemental SBP.



     Notwithstanding the foregoing description, the actual amount of Additional Employer
Contributions to be made and allocated under this Plan are set forth in the following subsections
of this Appendix 3.3.




     (c) The number of shares of Company Stock contributed as an Additional Employer
Contribution for the Plan Year ending March 31, 2005 for an Applicable Participant
(“2005 Allocation”) shall be calculated and allocated as follows. A separate
calculation shall be performed for each Applicable Participant.




     (1) Subject to this subsection (c), the Total Allocation for the Applicable
Participant shall be tentatively allocated to that Applicable Participant for the
Plan Year. As soon as practicable after March 31, 2005, the Company shall determine
whether a contribution of the Total Allocation for the Applicable Participant would
violate Article IV of this Plan, taking into account all other contributions to the
Plan and the ECAP for the Plan Year. For this purpose, the Total Allocation shall
be valued at the Fair Market Value as of the date the Additional Employer
Contribution is issued to the Trust. Notwithstanding Article IV, to the extent that
the limit under Article IV is exceeded for any particular Applicable Participant,
the tentative allocation for that Applicable Participant shall be reduced to the
extent needed to comply with Article IV.




     (2) The Company shall then determine whether the remaining tentative
allocations under paragraph (1), together with any other Employer Contributions made
for the Plan Year, would violate Section 401(a)(4) of the Code and the regulations
thereunder (“Section 401(a)(4)”). For this purpose, the Company shall
perform a general nondiscrimination test under Section 401(a)(4); the test shall be
performed in accordance with Appendix A of this Appendix 3.3. The remaining
tentative allocation for each Applicable Participant who is an HCE shall be reduced
as necessary to comply with Section 401(a)(4).



Appendix 3.3 — Page 2




 









 









     (3) For any particular Applicable Participant, the Company shall contribute, as
an Additional Employer Contribution for the Plan Year ending March 31, 2005, that
number of shares of Company Stock equal to the tentative allocation for that
Applicable Participant, as reduced in accordance with paragraphs (1) and (2) above
(“2005 Allocation”). Said shares shall be allocated to the Company Stock
Account of that Applicable Participant.




     (4) The excess of the Total Allocation over the 2005 Allocation for an
Applicable Participant, if any, is called the “Remaining Allocation” for the
Applicable Participant.




     (d) Any Applicable Participant who is not an Employee on April 1, 2005, shall not be
entitled to any Additional Employer Contribution for any Plan Year ending after March 31,
2005, or any credits under the Supplemental SBP. Instead, such Applicable Participant shall
receive cash payments (pursuant to the Former Employees Cash Bonus Plan, and not this Plan)
to reflect the Remaining Allocation, if any, in an amount set forth in said Bonus Plan.




     (e) The number of shares of Company Stock contributed as an Additional Employer
Contribution for the Plan Year ending March 31, 2006 for an Applicable Participant
(“2006 Allocation”) shall be calculated and allocated as follows. A separate
calculation shall be performed for each Applicable Participant.




     (1) Subject to this subsection (e), the Remaining Allocation for the Applicable
Participant shall be tentatively allocated to that Applicable Participant for the
Plan Year. No contribution or allocation shall be made for Applicable Participants
paid pursuant to subsection (d) above.




     (2) As soon as practicable after March 31, 2006, the Company shall apply the
limits of Article IV and Appendix A of this Appendix 3.3 for said Plan Year in
accordance with subsections (c)(1) and (2) above. Notwithstanding Article IV, to the
extent that the limit under Article IV is exceeded for any particular Applicable
Participant, the tentative allocation for that Applicable Participant shall be
reduced to the extent needed to comply with Article IV. To the extent necessary, the
remaining tentative allocation for that Plan Year of each Applicable Participant who
is an HCE shall be further reduced as necessary to comply with Section 401(a)(4).




     (3) For any particular Applicable Participant (other than those paid pursuant
to subsection (d) above), the Company shall contribute, as an Additional Employer
Contribution for the Plan Year ending March 31, 2006, that number of shares of
Company Stock equal to the tentative allocation for that Applicable Participant, as
reduced in accordance with paragraph (2) above (“2006 Allocation”). Said
shares shall be allocated to the Company Stock Account of that Applicable
Participant.



Appendix 3.3 — Page 3




 









 









     (f) The sum of the reductions under paragraph (e)(2) above for an Applicable
Participant (other than those paid pursuant to subsection (d) above), if any, shall be
referred to as the “Supplemental SBP Allocation” (expressed as a number of units).
Each such Applicable Participant’s Supplemental SBP Allocation, if any, shall be credited in
accordance with the terms of the Supplemental SBP and shall not be contributed or allocated
under this Plan.



APPENDIX A




NONDISCRIMINATION LIMITS




     This Appendix A describes how the requirements of Appendix 3.3(c)(3) of the Plan are applied
with respect to Section 401 of the Code. To implement Appendix 3.3(c)(3), all of the allocations in
the Plan are first performed on a hypothetical basis; no actual allocations are made until it is
determined that the allocations comply with Section 401(a)(4) as described below.



     In order to determine whether the allocations under the Plan comply with Section 401(a)(4),
the Plan will apply the rules set forth in Treasury Regulation Section 1.401(a)(4)-(2)(c) (the
general test for nondiscrimination in amounts of contributions). Accordingly, the following steps
will be taken.



Step 1




     Calculate an Allocation Rate for each Participant. It is equal to all allocations (based on
the Fair Market Value, on the date of the contributions, of the Company Stock contributed for the
Plan Year in question) for a Participant attributable to all Contributions (including Additional
Employer Contributions but excluding After-Tax and Rollover Contributions), and allocations of
Forfeitures divided by the Participant’s Statutory Compensation for the Plan Year. For this
purpose, Social Security shall be imputed.



Step 2




     Group all Participants into Rate Groups, with each Rate Group corresponding to a given HCE.



Step 3




     For each Rate Group, determine the ratio of Participants who are NHCEs within the Rate Group
compared to all NHCEs (excluding those hired since the last Entry Date of the year) divided by the
ratio of Participants who are HCEs within the Rate Group compared to all HCEs. If said ratio equals
or exceeds 70% for every Rate Group, the Plan shall comply with Section 401(a)(4).



Step 4




     In the event one or more Rate Groups fail to meet the requirements of Step 3, the ratios for
each Rate Group calculated pursuant to Step 3 shall be compared with the Safe Harbor Mid



Appendix 3.3 — Page 4





 









 







Point Percentage. If the ratio so determined for any Rate Group is less than the Safe Harbor
Mid Point Percentage, the allocations do not meet Section 401(a)(4) of the Code and the allocations
shall be reduced pursuant to Step 6. Otherwise, proceed to Step 5.




Step 5




     In the event every Rate Group’s ratio calculated pursuant to Step 4 is equal to or greater
than the Safe Harbor Mid Point Percentage, determine the average Allocation Rate for all NHCEs and
the average shall mean Allocation Rate for all HCEs. Include in this calculation benefits from all
tax qualified retirement plans sponsored by the Employer, normalizing any defined benefit plan
benefits. If the ratio of the average Allocation Rate for NHCEs compared to the average Allocation
Rate for HCEs equals or exceeds 70%, the allocations under this Plan comply with Code Section
401(a)(4). If the ratios are less than 70%, the allocations do not comply with Code Section 401(a)
and must be reduced pursuant to Step 6.



Step 6




     If any Rate Group (or the average Allocation Rate under Step 5) fails to meet the foregoing
rules, then the amount tentatively contributed and allocated to the HCE(s) for that Plan Year shall
be reduced so as to comply with Section 401(a)(4) of the Code. Said reductions shall generally be
made by reducing the highest paid Participant(s) in the Rate Group such amount as is necessary to
move him or her to the next highest Rate Group. However, if it is necessary to reduce the next
highest Rate Group as well, Participants in such next highest Rate Group whose allocations have not
already been adjusted pursuant to this Step 6 for the Plan Year shall be adjusted before
Participants whose allocations have previously been adjusted for the Plan Year (and persons whose
allocations have only been adjusted once shall be adjusted before those whose allocations have been
adjusted twice, etc.)



     For purposes of this Appendix A, the following definitions shall apply:



     (i) “Rate Group” means a group of Participants consisting of an HCE and all other
Participants with Allocation Rates equal to or greater than the Allocation Rate of the HCE. A Rate
Group shall be established for each Participant who is an HCE.



     (ii) “NHCE Concentration Percentage” means the percentage of all Employees who meet
age and service requirements of this Plan who are NHCEs.



     (iii) “Safe Harbor Mid Point Percentage” shall be the rate determined pursuant to
Table I attached hereto.



Appendix 3.3 — Page 5




 









 








TABLE I

IRS NONDISCRIMINATORY CLASSIFICATION PERCENTAGES




	 	 	 	 	 
	NHCE	 	Safe Harbor
	Concentration Percentage	 	Mid Point Percentage
	60 or below
	 	 	45.00	%
	61
	 	 	44.25	%
	62
	 	 	43.50	%
	63
	 	 	42.75	%
	64
	 	 	42.00	%
	65
	 	 	41.25	%
	66
	 	 	40.50	%
	67
	 	 	39.75	%
	68
	 	 	39.00	%
	69
	 	 	38.25	%
	70
	 	 	37.50	%
	71
	 	 	36.75	%
	72
	 	 	36.00	%
	73
	 	 	35.25	%
	74
	 	 	34.50	%
	75
	 	 	33.75	%
	76
	 	 	33.00	%
	77
	 	 	32.25	%
	78
	 	 	31.50	%
	79
	 	 	30.75	%
	80
	 	 	30.00	%
	81
	 	 	29.25	%
	82
	 	 	28.50	%
	83
	 	 	27.75	%
	84
	 	 	27.00	%
	85
	 	 	26.25	%
	86
	 	 	25.50	%
	87
	 	 	24.87	%
	88
	 	 	24.50	%
	89
	 	 	24.12	%
	90
	 	 	23.75	%
	91
	 	 	23.37	%
	92
	 	 	23.00	%
	93
	 	 	22.62	%
	94
	 	 	22.25	%
	95
	 	 	21.87	%
	96
	 	 	21.50	%
	97
	 	 	21.12	%
	98
	 	 	20.75	%
	99
	 	 	20.37	%”






Appendix 3.3 — Page 6