exv4w2






Exhibit 4.2




CMI WESTERN WAGE AGREEMENTS

401(K) PLAN




 









 








TABLE OF CONTENTS




ARTICLE I

DEFINITIONS




ARTICLE II

ADMINISTRATION




	 	 	 	 	 
	2.1  POWERS AND RESPONSIBILITIES OF THE EMPLOYER
	 	 	11	 
	2.2  DESIGNATION OF ADMINISTRATIVE AUTHORITY
	 	 	11	 
	2.3  ALLOCATION AND DELEGATION OF RESPONSIBILITIES
	 	 	11	 
	2.4  POWERS AND DUTIES OF THE ADMINISTRATOR
	 	 	11	 
	2.5  RECORDS AND REPORTS
	 	 	12	 
	2.6  APPOINTMENT OF ADVISERS
	 	 	12	 
	2.7  PAYMENT OF EXPENSES
	 	 	12	 
	2.8  CLAIMS PROCEDURE
	 	 	13	 
	2.9  CLAIMS REVIEW PROCEDURE
	 	 	13	 
	 
	 	 	 	 
	ARTICLE III

	ELIGIBILITY

	 
	 	 	 	 
	3.1  CONDITIONS OF ELIGIBILITY
	 	 	13	 
	3.2  EFFECTIVE DATE OF PARTICIPATION
	 	 	13	 
	3.3  DETERMINATION OF ELIGIBILITY
	 	 	14	 
	3.4  TERMINATION OF ELIGIBILITY
	 	 	14	 
	3.5  REHIRED EMPLOYEES AND BREAKS IN SERVICE
	 	 	14	 
	3.6  ELECTION NOT TO PARTICIPATE
	 	 	14	 
	3.7  OWNER-EMPLOYEE LIMITATION
	 	 	14	 
	3.8  OMISSION OF ELIGIBLE EMPLOYEE; INCLUSION OF INELIGIBLE EMPLOYEE
	 	 	14	 
	 
	 	 	 	 
	ARTICLE IV

	CONTRIBUTION AND ALLOCATION

	 
	 	 	 	 
	4.1  FORMULA FOR DETERMINING EMPLOYER CONTRIBUTION
	 	 	14	 
	4.2  PARTICIPANT’S SALARY REDUCTION ELECTION
	 	 	15	 
	4.3  TIME OF PAYMENT OF EMPLOYER CONTRIBUTION
	 	 	17	 
	4.4  ALLOCATION OF CONTRIBUTION AND EARNINGS
	 	 	17	 
	4.5  ACTUAL DEFERRAL PERCENTAGE TEST
	 	 	18	 
	4.6  ADJUSTMENT TO ACTUAL DEFERRAL PERCENTAGE TEST
	 	 	20	 
	4.7  MAXIMUM ANNUAL ADDITIONS
	 	 	21	 
	4.8  ADJUSTMENT FOR EXCESS ANNUAL ADDITIONS
	 	 	22	 
	4.9  PLAN-TO-PLAN TRANSFERS (OTHER THAN ROLLOVERS) FROM QUALIFIED PLANS
	 	 	23	 
	4.10  PARTICIPANT DIRECTED INVESTMENTS
	 	 	23	 
	4.11  QUALIFIED MILITARY SERVICE
	 	 	25	 
	 
	 	 	 	 
	ARTICLE V

	VALUATIONS

	 
	 	 	 	 
	5.1  VALUATION OF THE TRUST FUND
	 	 	25	 
	5.2  METHOD OF VALUATION
	 	 	25	 






 









 






	 	 	 	 	 
	ARTICLE VI

	DETERMINATION AND DISTRIBUTION OF BENEFITS

	 
	 	 	 	 
	6.1  DETERMINATION OF BENEFITS UPON RETIREMENT
	 	 	25	 
	6.2  DETERMINATION OF BENEFITS UPON DEATH
	 	 	25	 
	6.3  DISABILITY RETIREMENT BENEFITS
	 	 	26	 
	6.4  DETERMINATION OF BENEFITS UPON TERMINATION
	 	 	26	 
	6.5  DISTRIBUTION OF BENEFITS
	 	 	27	 
	6.6  DISTRIBUTION OF BENEFITS UPON DEATH
	 	 	27	 
	6.7  TIME OF DISTRIBUTION
	 	 	28	 
	6.8  REQUIRED MINIMUM DISTRIBUTIONS
	 	 	28	 
	6.9  DISTRIBUTION FOR MINOR OR IMCOMPETENT INDIVIDUAL
	 	 	31	 
	6.10  LOCATION OF PARTICIPANT OR BENEFICIARY UNKNOWN
	 	 	31	 
	6.11  PRE-RETIREMENT DISTRIBUTION OF EMPLOYER CONTRIBUTIONS
	 	 	31	 
	6.12  ADVANCE DISTRIBUTION FOR HARDSHIP
	 	 	32	 
	6.13  QUALIFIED DOMESTIC RELATIONS ORDER DISTRIBUTION
	 	 	33	 
	6.14  DIRECT ROLLOVER
	 	 	33	 
	6.15  TRANSFER OF ASSETS FROM A MONEY PURCHASE PLAN
	 	 	33	 
	6.16  CORRECTIVE DISTRIBUTIONS
	 	 	34	 
	 
	 	 	 	 
	ARTICLE VII

	TRUSTEE

	 
	 	 	 	 
	7.1  BASIC RESPONSIBILITIES OF THE TRUSTEE
	 	 	34	 
	7.2  INVESTMENT POWERS AND DUTIES OF THE TRUSTEE
	 	 	34	 
	7.3  OTHER POWERS OF THE TRUSTEE
	 	 	35	 
	7.4  POWERS OF THE CUSTODIAN
	 	 	36	 
	7.5  ALLOCATION AND DELEGATION OF RESPONSIBILITIES
	 	 	36	 
	7.6  MAJORITY ACTION
	 	 	36	 
	7.7  TRUSTEE’S COMPENSATION AND EXPENSES AND TAXES
	 	 	36	 
	7.8  ANNUAL REPORT OF THE TRUSTEE
	 	 	36	 
	7.9  AUDIT
	 	 	37	 
	7.10  RESIGNATION, REMOVAL AND SUCCESSION OF TRUSTEE
	 	 	37	 
	7.11  TRANSFER OF INTEREST
	 	 	38	 
	7.12  TRUSTEE INDEMNIFICATION
	 	 	38	 
	 
	 	 	 	 
	ARTICLE VIII

	AMENDMENT, TERMINATION AND MERGERS

	 
	 	 	 	 
	8.1  AMENDMENT
	 	 	38	 
	8.2  TERMINATION
	 	 	39	 
	8.3  MERGER, CONSOLIDATION OR TRANSFER OF ASSETS
	 	 	39	 
	 
	 	 	 	 
	ARTICLE IX

	TOP-HEAVY

	 
	 	 	 	 
	9.1  TOP-HEAVY PLAN REQUIREMENTS
	 	 	39	 
	9.2  DETERMINATION OF TOP-HEAVY STATUS
	 	 	39	 






 









 






	 	 	 	 	 
	ARTICLE X

	MISCELLANEOUS

	 
	 	 	 	 
	10.1  PARTICIPANT’S RIGHTS
	 	 	40	 
	10.2  ALIENATION OF BENEFITS
	 	 	40	 
	10.3  CONSTRUCTION AND INTERPRETATION OF PLAN
	 	 	41	 
	10.4  GENDER AND NUMBER
	 	 	41	 
	10.5  LEGAL ACTION
	 	 	41	 
	10.6  PROHIBITION AGAINST DIVERSION OF FUNDS
	 	 	41	 
	10.7  EMPLOYER’S AND TRUSTEE’S PROTECTIVE CLAUSE
	 	 	41	 
	10.8  INSURER’S PROTECTIVE CLAUSE
	 	 	41	 
	10.9  RECEIPT AND RELEASE FOR PAYMENTS
	 	 	42	 
	10.10  ACTION BY THE EMPLOYER
	 	 	42	 
	10.11  NAMED FIDUCIARIES AND ALLOCATION OF RESPONSIBILITY
	 	 	42	 
	10.12  HEADINGS
	 	 	42	 
	10.13  APPROVAL BY INTERNAL REVENUE SERVICE
	 	 	42	 
	10.14  ELECTRONIC MEDIA
	 	 	42	 
	10.15  PLAN CORRECTION
	 	 	42	 
	10.16  UNIFORMITY
	 	 	43	 
	 
	 	 	 	 
	ARTICLE XI

	PARTICIPATING EMPLOYERS

	 
	 	 	 	 
	11.1  ADOPTION BY OTHER EMPLOYERS
	 	 	43	 
	11.2  REQUIREMENTS OF PARTICIPATING EMPLOYERS
	 	 	43	 
	11.3  DESIGNATION OF AGENT
	 	 	43	 
	11.4  EMPLOYEE TRANSFERS
	 	 	43	 
	11.5  PARTICIPATING EMPLOYER CONTRIBUTION AND FORFEITURES
	 	 	43	 
	11.6  AMENDMENT
	 	 	43	 
	11.7  DISCONTINUANCE OF PARTICIPATION
	 	 	44	 
	11.8  ADMINISTRATOR’S AUTHORITY
	 	 	44	 
	11.9  PROVISIONS APPLIED SEPARATELY (OR JOINTLY) FOR PARTICIPATING NON-AFFILIATED
EMPLOYERS
	 	 	44	 
	11.10  TOP-HEAVY APPLIED SEPARATELY FOR PARTICIPATING NON-AFFILIATED EMPLOYERS
	 	 	44	 
	11.11  HIGHLY COMPENSATED EMPLOYEE STATUS
	 	 	45	 
	11.12  SERVICE
	 	 	45	 
	11.13  REQUIRED MINIMUM DISTRIBUTIONS
	 	 	45	 






 









 






CMI WESTERN WAGE AGREEMENTS

401(K) PLAN




     THIS AGREEMENT, hereby made and entered into this
1st day of January, 2009 by and between Chevron Mining, Inc.
(herein referred to as the “Employer”) and Merrill Lynch Trust Company of New Jersey (herein
referred to as the “Trustee”).



W I T N E S S E T H:




     WHEREAS, the Employer heretofore established a Profit Sharing Plan and Trust effective October 1,
1996, (hereinafter called the “Effective Date”) known as The Pittsburg & Midway Coal Mining Co.
401(k) Plan for Represented Employees at the Kemmerer Mine and
the McKinley Mine which plan shall hereinafter be known
as CMI Western Wage Agreements 401(k) Plan (herein referred to as the “Plan”) in recognition of
the contribution made to its successful operation by its Employees and for the exclusive benefit of
its Eligible Employees; and



     WHEREAS, under the terms of the Plan, the Employer has the ability to amend the Plan, provided the
Trustee joins in such amendment if the provisions of the Plan affecting the Trustee are amended;



     NOW, THEREFORE, effective January 1, 2009, except as otherwise provided herein, the Employer and
the Trustee in accordance with the provisions of the Plan pertaining to amendments thereof, hereby
amend the Plan in its entirety and restate the Plan to provide as follows:



ARTICLE I

DEFINITIONS



1.1 “Account” means any separate notational account established and maintained by the Administrator
for each Participant under the Plan. The term “Participant’s Account” or “Participant’s Account
Balance” generally means the sum of all Accounts being maintained for the Participant, which
represents the Participant’s total interest in the Plan. Section 6.8 contains a definition of
“Participant’s Account Balance” for purposes of that Section. To the extent applicable, a
Participant may have any (or all) of the following notational Accounts:





	 	(a)	 	the Elective Deferral Account
	 
	 	(b)	 	the Qualified Matching Contribution Account
	 
	 	(c)	 	the Qualified Nonelective Contribution Account
	 
	 	(d)	 	the Transfer Account
	 
	 	(e)	 	any other account, including an overlapping account or sub-account, necessary for the
administration of the Plan




1.2 “Act” means the Employee Retirement Income Security Act of 1974, as it may be amended from time
to time.



1.3 “Administrator” means the Employer unless another person or entity has been designated by the
Employer pursuant to Section 2.2 to administer the Plan on behalf of the Employer. “Administrator”
also includes any Qualified Termination Administrator (QTA) that has assumed the responsibilities
of the Administrator in accordance with guidelines set forth by the Department of Labor.



1.4 “ADP” means the actual deferral percentage that is equal to, for a specific group of
Participants (either Highly Compensated Employees or Nonhighly Compensated Employees) for a Plan
Year, the average of the ADRs (calculated separately for each Participant in such group). The ADP
for each group shall be calculated to the nearest one-hundredth of one percent.




     For purposes of computing an ADP, a Participant is an Eligible Employee who is eligible to make
Elective Deferrals pursuant to Section 4.2 (whether or not a deferral election was made or
suspended pursuant to Section 4.2(e)) allocated to the Participant’s Elective Deferral Account for
a “specific Plan Year.” However, if a Participant has no 414(s) Compensation for the Plan Year,
then such Participant shall be disregarded for purposes of calculating the ADP of a group.



     For purposes of the above paragraph, the term “specific Plan Year” means, for Participants who are
Highly Compensated Employees, the Plan Year being tested. If the current year testing method is
being used, then the term “specific Plan Year” means, for Participants who are Nonhighly
Compensated Employees, the Plan Year being tested. If the prior year testing method is being used,
then the term “specific Plan Year” means, for Participants who are Nonhighly Compensated Employees,
the Plan Year prior to the Plan Year being tested.


1.5 “ADP Test” means the actual deferral percentage test determined pursuant to Section 4.5.



1.6 “ADR” means the actual deferral ratio of each Participant, that is a ratio (expressed as a
percentage) equal to (1) the amount of Employer contributions actually paid over to the Plan on
behalf of such Participant for such Plan Year, to (2) such Participant’s 414(s) Compensation for
such Plan Year.




     For purposes of this definition of ADR, Employer contributions actually paid over to the Plan on
behalf of any Participant shall include: (a) any Elective Deferrals (other than Catch-Up
Contributions) made pursuant to the Participant’s deferral election (including



1









 







Excess Deferrals of any Highly Compensated Employee), but excluding Excess Deferrals of any
Nonhighly Compensated Employee that arise solely from Elective Deferrals made under this Plan or
any other plans maintained by the Employer; and (b) at the election of the Employer, Qualified
Nonelective Contributions and Qualified Matching Contributions, as well as any contributions
authorized by (and to the extent prescribed by) Section 4.6(c).



     For purposes of computing a Participant’s ADR, an Eligible Employee who would be a Participant but
for the failure to make Elective Deferrals shall be treated as a Participant on whose behalf no
Elective Deferrals are made.



     The ADR for each Participant shall be calculated to the nearest one-hundredth of one percent.


1.7 “Affiliated Employer” means any corporation which is a member of a controlled group of
corporations (as defined in Code Section 414(b)) which includes the Employer; any trade or business
(whether or not incorporated) which is under common control (as defined in Code Section 414(c))
with the Employer; any organization (whether or not incorporated) which is a member of an
affiliated service group (as defined in Code Section 414(m)) which includes the Employer; and any
other entity required to be aggregated with the Employer pursuant to Regulations under Code Section
414(o).



1.8 “Anniversary Date” means the last day of the Plan Year.



1.9 “Annual Additions” means, for purposes of applying the limitations of Code Section 415, the sum
credited to a Participant’s Accounts for any Limitation Year of (1) Employer contributions, (2)
Employee contributions, (3) forfeitures, (4) amounts allocated to an individual medical account, as
defined in Code Section 415(1)(2) which is part of a pension or annuity plan maintained by the
Employer, (5) amounts derived from contributions paid or accrued which are attributable to
post-retirement medical benefits allocated to the separate account of a key employee (as defined in
Code Section 419A(d)(3)) under a welfare benefit plan (as defined in Code Section 419(e))
maintained by the Employer and (6) allocations under a simplified employee pension plan.




     Annual Additions do not include the transfers of funds from one plan to another. In addition, the
following are not Annual Additions for the purposes of this definition: (1) rollover contributions
as defined in Code Sections 402(c), 403(a)(4), 403(b)(8), 408(d)(3) and 457(e)(16); (2) repayments
of loans made to a Participant from the Plan; (3) repayment of distributions received by an
Employee pursuant to Code Section 411(a)(7)(B) (cash-outs); (4) repayment of distributions received
by an Employee pursuant to Code Section 411(a)(3)(D) (mandatory contributions); (5) Catch-Up
Contributions and (6) employee contributions to a simplified employee pension excludable from gross
income under Code Section 408(k)(6).


1.10 “Beneficiary” means the person (or entity) to whom the share of a deceased Participant’s
interest in the Plan is payable. Section 6.8 contains a definition of “designated Beneficiary” for
purposes of that Section.



1.11 “Catch-Up Contribution” means, effective January 1, 2002, Elective Deferrals made to the Plan
by a Catch-Up Eligible Participant during any taxable year of such Participant that are in excess
of:





(a) a statutory dollar limit on Elective Deferrals or Annual Additions as provided in Code Sections
401(a)(30), 402(h), 403(b), 408, 415(c), or 457(b)(2) (without regard to Code Section 457(b)(3)),
as applicable;




(b) a Plan limit on Elective Deferrals which is not a limit provided in (a) above; or




(c) the limit imposed by the ADP Test under Code Section 401(k)(3), in which Excess Contributions
would otherwise be distributed pursuant to Section 4.6(b) to a Highly Compensated Employee who is a
Catch-Up Eligible Participant.



     Catch-Up Contributions for a Participant for a Participant’s taxable year may not exceed the dollar
limit on Catch-Up Contributions under Code Section 414(v)(2)(B)(i) for the Participant’s taxable
year. The dollar limit on Catch-Up Contributions under 414(v)(2)(B)(i) is $1,000 for taxable years
beginning in 2002, increasing by $1,000 for each year thereafter up to $5,000 for taxable years
beginning in 2006 and later years. After 2006, the $5,000 limit will be adjusted by the Secretary
of the Treasury for cost-of-living increases under Code Section 414(v)(2)(C). Any such adjustments
will be in multiples of $500.


1.12 “Catch-Up Eligible Participant” means, effective January 1, 2002, a Participant who:





	 	(a)	 	is eligible to defer Compensation pursuant to Section 4.2; and
	 
	 	(b)	 	will attain age 50 or over by the end of the Participant’s taxable year.




1.13 “Code” means the Internal Revenue Code of 1986, as amended or replaced from time to time.



1.14 “Compensation” means, with respect to any Participant and except as otherwise provided herein,
such Participant’s wages, salaries, fees for professional services and other amounts received
(without regard to whether or not an amount is paid in cash) for personal services actually
rendered in the course of employment with the Employer maintaining the Plan to the extent that the
amounts are includible in gross income (including, but not limited to, commissions paid salesmen,
compensation for services on the basis of a percentage of profits, commissions on insurance
premiums, tips, bonuses, fringe benefits, and reimbursements or other expense allowances under a
nonaccountable plan as described in Regulation 1.62-2(c)) for a Plan Year (the “determination
period”). Compensation for any Self-Employed Individual shall be equal to such individual’s Earned
Income.




2









 








     Compensation shall exclude (a)(1) contributions made by the Employer to a plan of deferred
compensation to the extent that the contributions are not includible in the gross income of the
Participant for the taxable year in which contributed, (2) Employer contributions made on behalf of
an Employee to a simplified employee pension plan described in Code Section 408(k) to the extent
such contributions are excludable from the Employee’s gross income, (3) any distributions from a
plan of deferred compensation; (b) amounts realized from the exercise of a non-qualified stock
option, or when restricted stock (or property) held by an Employee either becomes freely
transferable or is no longer subject to a substantial risk of forfeiture; (c) amounts realized from
the sale, exchange or other disposition of stock acquired under a qualified stock option; and (d)
other amounts which receive special tax benefits, or contributions made by the Employer (whether or
not under a salary reduction agreement) towards the purchase of any annuity contract described in
Code Section 403(b) (whether or not the contributions are actually excludable from the gross income
of the Employee).



     For purposes of this Section, the determination of Compensation shall be made by:




(a) including amounts which are contributed by the Employer pursuant to a salary reduction
agreement and which are not includible in the gross income of the Participant under Code Sections
125, 132(f)(4), 402(e)(3), 402(h)(1)(B), 403(b) or 457(b), and employee contributions described in
Code Section 414(h)(2) that are treated as Employer contributions. For this purpose, effective
January 1, 1998, amounts not includible in gross income under Code Section 125 shall be deemed to
include any amounts not available to a Participant in cash in lieu of group health coverage because
the Participant is unable to certify that the Participant has other health coverage, provided the
Employer does not request or collect information regarding the Participant’s other health coverage
as part of the enrollment process for the health plan.




(b) excluding pre-participation Compensation paid during the Plan Year while not a Participant in
the component of the Plan for which Compensation is being used.




(c) effective for Plan Years beginning in and after 2006 including Post-Severance Compensation.



     For Plan Years beginning on or after January 1, 2002, Compensation in excess of $200,000 (or such
other amount provided in the Code) shall be disregarded for all purposes other than for purposes of
salary deferral elections pursuant to Section 4.2. Such amount shall be adjusted for increases in
the cost-of-living in accordance with Code Section 401(a)(17)(B), except that the dollar increase
in effect on January 1 of any calendar year shall be effective for the Plan Year beginning with or
within such calendar year. For any “determination period” of less than twelve (12) months, the
Compensation limit shall be an amount equal to the Compensation limit for the calendar year in
which the “determination period” begins multiplied by the ratio obtained by dividing the number of
full months in the short “determination period” by twelve (12). A “determination period” is not
less than twelve (12) months solely because a Participant’s Compensation does not include
Compensation paid during a “determination period” while the Participant was not a Participant in
the Plan (or a component of the Plan).



     If any Employees are excluded from the Plan (or from any component of the Plan), then Compensation
for any such Employees who become eligible or cease to be eligible to participate in the Plan (or
in the component of the Plan) during a Plan Year shall only include Compensation while such
Employees are Eligible Employees of the Plan (or of such component of the Plan).



     For purposes of this Section, if the Plan is a plan described in Code Section 413(c) or 414(f) (a
plan maintained by more than one Employer), the limitation applies separately with respect to the
Compensation of any Participant from each Employer maintaining the Plan.



     If, in connection with the adoption of any amendment, the definition of Compensation has been
modified, then, except as otherwise provided herein, for Plan Years prior to the Plan Year which
includes the adoption date of such amendment, Compensation means compensation determined pursuant
to the terms of the Plan then in effect.


1.15 “Contract” or “Policy” means any life insurance policy, retirement income policy or annuity
contract (group or individual) issued pursuant to the terms of the Plan. In the event of any
conflict between the terms of this Plan and the terms of any contract purchased hereunder, the Plan
provisions shall control.



1.16 “Custodian” means a person or entity that has custody of all or any portion of the Plan
assets.



1.17 “Designated Investment Alternative” means a specific investment identified by name by the
Employer (or such other Fiduciary who has been given the authority to select investment options) as
an available investment under the Plan to which Plan assets may be invested by the Trustee pursuant
to the investment direction of a Participant.



1.18 “Directed Account” means that portion of a Participant’s interest in the Plan with respect to
which the Participant has directed the investment in accordance with the Participant Direction
Procedures.



1.19 “Directed Investment Option” means a Designated Investment Alternative and any other
investment permitted by the Plan and the Participant Direction Procedures to which Plan assets may
be invested by the Trustee pursuant to the investment direction of a Participant.



1.20 “Disability” means a physical or mental condition of a Participant resulting from bodily
injury, disease, or mental disorder which renders such Participant incapable of continuing usual
and customary employment with the Employer. The disability of a Participant shall be
determined by a licensed physician. The determination shall be applied uniformly to all
Participants.




3









 







1.21 “Early Retirement Date.” This Plan does not provide for a retirement date prior to Normal
Retirement Date.



1.22 “Earned Income” means with respect to a Self-Employed Individual, the net earnings from
self-employment in the trade or business with respect to which the Plan is established, for which
the personal services of the individual are a material income-producing factor. Net earnings will
be determined without regard to items not included in gross income and the deductions allocable to
such items. Net earnings are reduced by contributions by the Self-Employed Individual to a
qualified Plan to the extent deductible under Code Section 404. In addition, net earnings shall be
determined with regard to the deduction allowed to the Self-Employed Individual by Code Section
164(f).




     If any combination of bonuses, commissions, tips, overtime, moving expenses, fringe benefits, or
any other element of compensation is excluded from Compensation for the purpose of determining any
contribution, then for the purpose of determining the amount of such contribution on behalf of any
Self-Employed Individual, such person’s Earned Income will be reduced in the same proportion that
the “includible compensation” of “common law participants” bears to the “total compensation” of all
“common law participants.”



     For purposes of the preceding paragraph, “common law participant” means a Participant who is
neither a Highly Compensated Employee nor a Self-Employed Individual, “includible compensation”
means the amount of Compensation taken into account in determining the amount of such contribution
for “common law participants,” and “total compensation” means the amount of Compensation that would
have been taken into account in determining such contribution for “common law participants” if (1)
no element of Compensation had been excluded in determining such contribution, and (2) all of the
following are included in Compensation: any amount which is contributed by the Employer at the
election of the Participant pursuant to a salary reduction agreement and which is not includible in
the gross income of the Participant by reason of Code Sections 125, 132(f)(4), 402(e)(3),
402(h)(1)(B), 403(b) or 457(b), and employee contributions described in Code Section 414(h)(2) that
are treated as Employer contributions.



     However, to the extent that the amount of “includible compensation” for “common law participants”
includes any amount which is contributed by the Employer at the election of the Participant
pursuant to a salary reduction agreement and which is not includible in the gross income of the
Participant by reason of Code Sections 125, 132(f)(4), 402(e)(3), 402(h)(1)(B), 403(b) or 457(b),
and employee contributions described in Code Section 414(h)(2) that are treated as Employer
contributions, then those amounts shall be added back to Earned Income after making the adjustment
described in the preceding paragraph.


1.23 “Elective Deferral” means any Employer contributions made to the Plan at the election of the
Participant in lieu of cash Compensation pursuant to Section 4.2. With respect to any taxable year,
a Participant’s Elective Deferrals is the sum of all employer contributions made on behalf of such
Participant pursuant to an election to defer under any qualified cash or deferred arrangement
(“CODA”) described in Code Section 401 (k), any salary reduction simplified employee pension
described in Code Section 408(k)(6), any SIMPLE IRA plan described in Code Section 408(p) and any
plan described under Code Section 501(c)(18), and any employer contributions made on the behalf of
a Participant for the purchase of an annuity contract under Code Section 403(b) pursuant to a
salary reduction agreement. Elective Deferrals shall not include any deferrals properly distributed
as excess Annual Additions pursuant to Section 4.8(a).



1.24 “Elective Deferral Account” means the separate account established and maintained by the
Administrator for each Participant with respect to the Participant’s total interest in the Plan
resulting from Elective Deferrals. Amounts in the Elective Deferral Account are nonforfeitable when
made and are subject to the distribution restrictions of Section 4.2(d).



1.25 “Eligible Employee” means any Employee, except as provided below, and except as provided in
any other particular provision for the limited purposes of that provision (e.g., ADP test). The
following Employees shall not be eligible to participate in this Plan:





(a) Employees of Affiliated Employers, unless such Affiliated Employers have specifically adopted
this Plan in writing.




(b) An individual shall not be an Eligible Employee if such individual is not reported on the
payroll records of the Employer as a common law employee. In particular, it is expressly intended
that individuals not treated as common law employees by the Employer on its payroll records and
out-sourced workers, are neither Employees nor Eligible Employees, and are excluded from Plan
participation even if a court or administrative agency determines that such individuals are common
law employees and not independent contractors. However, this paragraph shall not apply to partners
or other Self-Employed Individuals unless the Employer treats them as independent contractors.




(c) Unless or until otherwise provided, Employees who became Employees as the result of a “Code
Section 410(b)(6)(C) transaction” will not be Eligible Employees until the expiration of the
transition period beginning on the date of the transaction and ending on the last day of the first
Plan Year beginning after the date of the transaction. A Code Section 410(b)(6)(C) transaction is
an asset or stock acquisition, merger, or similar transaction involving a change in the Employer of
the Employees of a trade or business that is subject to the special rules set forth in Code Section
410(b)(6)(C).


1.26 “Employee” means any common law employee, Self-Employed Individual, Leased Employee or other
person to the extent that the Code treats such an individual as an employee of the Employer for
purposes of the Plan, such as (for certain purposes) any person who is employed by an Affiliated
Employer.




4









 




1.27 “Employer” means Chevron Mining, Inc. and any successor which shall maintain this Plan; and any
predecessor which has maintained this Plan. The Employer is a corporation, with principal offices
in the State of Colorado. In addition, where appropriate, the term Employer shall include any
Participating Employer.



1.28 “Excess Contributions” means, with respect to a Plan Year, the excess of Elective Deferrals
made on behalf of Participants who are Highly Compensated Employees for the Plan Year over the
maximum amount of such contributions permitted under Section 4.5(a) (determined by hypothetically
reducing contributions made on behalf of Participants who are Highly Compensated Employees in order
of the ADRs beginning with the highest of such ADRs). Excess Contributions shall be treated as an
Annual Addition pursuant to Section 1.9.



1.29 “Excess Deferrals” shall mean those Elective Deferrals of a Participant that either (1) are
made during the Participant’s taxable year and which exceed the dollar limitation under Code
Section 402(g) (including, if applicable, the dollar limitation on Catch-Up Contributions defined
in Code Section 414(v)) for such year; or (2) are made during a calendar year and exceed the dollar
limitation under Code Section 402(g) (including, if applicable, the dollar limitation on Catch-Up
Contributions defined in Code Section 414(v)) for the Participant’s taxable year beginning in such
calendar year, counting only Elective Deferrals made under this Plan and any other plan, contract
or arrangement maintained by the Employer.



1.30 “Fiduciary” means any person who (a) exercises any discretionary authority or discretionary
control respecting management of the Plan or exercises any authority or control respecting
management or disposition of its assets, (b) renders investment advice for a fee or other
compensation, direct or indirect, with respect to any monies or other property of the Plan or has
any authority or responsibility to do so, or (c) has any discretionary authority or discretionary
responsibility in the administration of the Plan.



1.31 “Fiscal Year” means the Employer’s accounting year of 12 months commencing on January 1st of
each year and ending the following December 31st.



1.32 “Forfeiture.” Under this Plan, Participant accounts are 100% Vested at all times. Any amounts
that may otherwise be forfeited under the Plan pursuant to Section 6.10 shall be used to reduce the
contribution of the Employer or be used to pay any administrative expenses of the Plan.




     For purposes of this Plan, any Forfeiture will be disposed of in the Plan Year in which the
Forfeiture arises.


1.33 “Former Employee” means an Employee who had a severance from employment with the Employer or
an Affiliated Employer.



1.34 “415 Compensation” with respect to any Participant means such Participant’s wages, salaries,
fees for professional services and other amounts received (without regard to whether or not an
amount is paid in cash) for personal services actually rendered in the course of employment with
the Employer maintaining the Plan to the extent that the amounts are includible in gross income
(including, but not limited to, commissions paid salesmen, compensation for services on the basis
of a percentage of profits, commissions on insurance premiums, tips, bonuses, fringe benefits, and
reimbursements or other expense allowances under a nonaccountable plan as described in Regulation
1.62-2(c)) for a Plan Year. 415 Compensation for any Self-Employed Individual shall be equal to
such individual’s Earned Income.




     415 Compensation shall exclude (a)(1) contributions made by the Employer to a plan of deferred
compensation to the extent that, the contributions are not includible in the gross income of the
Participant for the taxable year in which contributed, (2) Employer contributions made on behalf of
an Employee to a simplified employee pension plan described in Code Section 408(k) to the extent
such contributions are excludable from the Employee’s gross income, (3) any distributions from a
plan of deferred compensation; (b) amounts realized from the exercise of a non-qualified stock
option, or when restricted stock (or property) held by an Employee either becomes freely
transferable or is no longer subject to a substantial risk of forfeiture; (c) amounts realized from
the sale, exchange or other disposition of stock acquired under a qualified stock option; and (d)
other amounts which receive special tax benefits, or contributions made by the Employer (whether or
not under a salary reduction agreement) towards the purchase of any annuity contract described in
Code Section 403(b) (whether or not the contributions are actually excludable from the gross income
of the Employee).



     Notwithstanding the above, the determination of 415 Compensation shall be made by:




(a) including any Elective Deferrals, and any amount which is contributed by the Employer at the
election of the Participant pursuant to a salary reduction agreement and which is not includible in
the gross income of the Participant by reason of Code Sections 125, 132(f)(4), 402(e)(3),
402(h)(1)(B), 403(b) or 457(b), and employee contributions described in Code Section 414(h)(2) that
are treated as Employer contributions. For this purpose, effective January 1, 1998, amounts not
includible in gross income under Code Section 125 shall be deemed to include any amounts not
available to a Participant in cash in lieu of group health coverage because the Participant is
unable to certify that the Participant has other health coverage, provided the Employer does not
request or collect information regarding the Participant’s other health coverage as part of the
enrollment process for the health plan.




(b) effective for Limitation Years and Plan Years beginning in and after 2006, including
Post-Severance Compensation.


1.35 “414(s) Compensation” means 415 Compensation or any other definition of compensation that
satisfies the nondiscrimination requirements of Code Section 414(s) and the Regulations thereunder.
The period for determining 414(s) Compensation must be either the Plan Year or the calendar year
ending with or within the Plan Year. An Employer may further limit the period taken into account to
that part of the Plan Year or calendar year in which an Employee was a Participant in the component
of the Plan being tested. The period used to determine 414(s) Compensation must be applied
uniformly to all Participants for the Plan Year.




5









 







1.36 “Highly Compensated Employee” means an Employee described in Code Section 414(q) and the
Regulations thereunder, and generally means any Employee who:





(a) was a “five percent owner” as defined in Section 1.41(b) at any time during the “determination
year” or the “look-back year”; or




(b) for the “look-back year” had 415 Compensation from the Employer in excess of $80,000 and was in
the Top-Paid Group for the “look-back year.” The $80,000 amount is adjusted at the same time and in
the same manner as under Code Section 415(d), except that the base period is the calendar quarter
ending September 30, 1996.



     The “determination year” means the Plan Year for which testing is being performed, and the
“look-back year” means the immediately preceding twelve (12) month period.



     In determining who is a Highly Compensated Employee, Employees who are nonresident aliens and who
received no earned income (within the meaning of Code Section 911(d)(2)) from the Employer
constituting United States source income within the meaning of Code 
Section 861(a)(3) shall not be
treated as Employees. If an Employee who is a nonresident alien has U.S. source income, that
Employee is treated as satisfying this definition if all of such Employee’s U.S. source income from
the Employer is exempt from U.S. income tax under an applicable income tax treaty. Additionally,
all Affiliated Employers shall be taken into account as a single employer and Leased Employees
within the meaning of Code Sections 414(n)(2) and 414(o)(2) shall be considered Employees unless
such Leased Employees are covered by a plan described in Code Section 414(n)(5) and are not covered
in any qualified plan maintained by the Employer. The exclusion of Leased Employees for this
purpose shall be applied on a uniform and consistent basis for all of the Employer’s retirement
plans. Highly Compensated Former Employees shall be treated as Highly Compensated Employees without
regard to whether they performed services during the “determination year.”


1.37 “Highly Compensated Participant” means, for a particular Plan Year, a Participant who meets
the definition of a Highly Compensated Employee in effect for that Plan Year.



1.38 “Hour of Service” means (1) each hour for which an Employee is directly or indirectly
compensated or entitled to Compensation by the Employer for the performance of duties (these hours
will be credited to the Employee for the computation period in which the duties are performed); (2)
each hour for which an Employee is directly or indirectly compensated or entitled to compensation
by the Employer (irrespective of whether the employment relationship has terminated) for reasons
other than performance of duties (such as vacation, holidays, sickness, jury duty, disability,
lay-off, military duty or leave of absence) during the applicable computation period (these hours
will be calculated and credited pursuant to Department of Labor regulation 2530.200b-2, which is
incorporated herein by reference); (3) each hour for which back pay is awarded or agreed to by the
Employer without regard to mitigation of damages (these hours will be credited to the Employee for
the computation period or periods to which the award or agreement pertains rather than the
computation period in which the award, agreement or payment is made). The same Hours of Service
shall not be credited both under (1) or (2), as the case may be, and under (3).




     Notwithstanding (2) above, (i) no more than 501 Hours of Service are required to be credited to an
Employee on account of any single continuous period during which the Employee performs no duties
(whether or not such period occurs in a single computation period); (ii) an hour for which an
Employee is directly or indirectly paid, or entitled to payment, on account of a period during
which no duties are performed is not required to be credited to the Employee if such payment is
made or due under a plan maintained solely for the purpose of complying with applicable worker’s
compensation, or unemployment compensation or disability insurance laws; and (iii) Hours of Service
are not required to be credited for a payment which solely reimburses an Employee for medical or
medically related expenses incurred by the Employee.



     For purposes of (2) above, a payment shall be deemed to be made by or due from the Employer
regardless of whether such payment is made by or due from the Employer directly, or indirectly
through, among others, a trust fund, or insurer, to which the Employer contributes or pays premiums
and regardless of whether contributions made or due to the trust fund, insurer, or other entity are
for the benefit of particular Employees or are on behalf of a group of Employees in the aggregate.



     Each Employee shall be credited with such Employee’s actual Hours of Service.



     For purposes of this Section, Hours of Service will be credited for employment with any Affiliated
Employers. The provisions of Department of Labor regulations 2530.200b-2(b) and (c) are
incorporated herein by reference.


1.39 “Income” means the gains or losses for the “applicable computation period” allocable to an
“excess amount”, which amount shall be determined and allocated, at the discretion of the
Administrator, using any of the methods set forth below:





(a) Method of allocating Income. The Administrator may use any reasonable method for computing the
Income allocable to an “excess amount” for the “applicable computation period,” provided that the
method is used consistently for all Participants and for all corrective distributions under the
Plan for the “applicable computation period,” and is used by the Plan for allocating earnings to a
Participant’s “specific account(s).”




(b) Alternative method of allocating Income. The Administrator may allocate Income to an “excess
amount” for the “applicable computation period” by multiplying the earnings for the “applicable
computation period” allocable to the “Employer contributions”



6









 







taken into account under the test or limitation giving rise to such “excess amount” by a fraction,
the numerator of which is the “excess amount” for the Employee for the “applicable computation
period,” and the denominator of which is the sum of:




(1) The “specific account(s)” balance(s) taken into account under the test or limitation giving
rise to such “excess amount” as of the beginning of the “applicable computation period,” and




(2) Any additional amount of such “Employer contributions” made for the “applicable computation
period” to the “specific account(s).”




(c) For purposes of calculating the Income attributable to Excess Deferrals of Section 4.2(g), the
terms “applicable computation period”, “Employer contributions”, “excess amount”, and “specific
account(s)” will have the following substitutions:




(1) The taxable year of the Participant shall be substituted for the “applicable computation
period”;




(2) Elective Deferrals shall be substituted for “Employer contributions”;




(3) Excess Deferrals shall be substituted for “excess amount”; and




(4) The Elective Deferral Account shall be substituted for the “specific account(s).”




(d) For purposes of calculating the Income attributable to Excess Contributions of Section 4.6(b),
the terms “applicable computation period”, “Employer contributions”, “excess amount”, and “specific
account(s)” will have the following substitutions:




(1) The Plan Year shall be substituted for the “applicable computation period”;




(2) Elective Deferrals, and other contributions included in determining the ADR under Section 1.6,
shall be substituted for “Employer contributions”;




(3) Excess Contributions shall be substituted for “excess amount”;




(4) The Elective Deferral Account, and, if included in the determination of the ADR under Section
1.6, the Qualified Matching Contribution and/or the Qualified Nonelective Contribution Account(s),
shall be substituted for the “specific account(s).”




(e) With respect to Excess Contributions, effective beginning with the first Plan Year beginning in
2006, Income for the period between the end of the Plan Year and the date of the distribution (the
“gap period”) is required to be distributed. A Plan will not fail to use a reasonable method for
computing the Income that is allocable to Excess Contributions merely because the Income allocable
to Excess Contributions is determined on a date that is no more than 7 days before the
distribution. Income for the “gap period” shall be calculated by using any of the methods set forth
below:




(1) Safe harbor method of allocating “gap period” income. The Administrator may use the safe harbor
method in this paragraph to determine the Income on Excess Contributions for the “gap period.”
Under this safe harbor method, Income on Excess Contributions for the “gap period” is equal to 10%
of the Income allocable to Excess Contributions for the Plan Year that would be determined under
paragraph (b) above (with the appropriate substitutions of paragraph (d)), multiplied by the number
of calendar months that have elapsed since the end of the Plan Year. For purposes of calculating
the number of calendar months that have elapsed under this safe harbor method, a corrective
distribution that is made on or before the fifteenth day of a month is treated as made on the last
day of the preceding month and a distribution made after the fifteenth day of a month is treated as
made on the last day of the month.




(2) Alternative method for allocating Plan Year and “gap period” income. The Administrator may
determine the allocable Income for the aggregate of the Plan Year and the “gap period” by applying
the alternative method provided by paragraph (b) above with respect to the entire period
represented by the Plan Year and the “gap period”, rather than just the Plan Year.


1.40 “Investment Manager” means any Fiduciary described in Act Section 3(38).



1.41 “Key Employee” means, for Plan Years beginning after December 31, 2001, an Employee as defined
in Code Section 416(i) and the Regulations thereunder. Generally, any Employee or Former Employee
(as well as each of the Employee’s or Former Employee’s Beneficiaries) is considered a Key Employee
if the Employee or Former Employee, at any time during the Plan Year that contains the
“determination date” is described in one of the following categories:





(a) an officer of the Employer (as that term is defined within the meaning of the Regulations under
Code Section 416) having annual 415 Compensation greater than $130,000 (as adjusted under Code
Section 416(i)(l) for Plan Years beginning after December 31, 2002).




(b) a “five percent owner” of the Employer. “Five percent owner” means any person who owns (or is
considered as owning within the meaning of Code Section 318) more than five percent (5%) of the
outstanding stock of the Employer or stock possessing more than five percent (5%) of the total
combined voting power of all stock of the Employer or, in the case of an unincorporated business,
any person who owns more than five percent (5%) of the capital or profits interest in the Employer.
In determining percentage



7









 






ownership hereunder, employers that would otherwise be aggregated under Code Sections 414(b), (c),
(m) and (o) shall be treated as separate employers.




(c) a “one percent owner” of the Employer having an annual 415 Compensation from the Employer of
more than $150,000. “One percent owner” means any person who owns (or is considered as owning
within the meaning of Code Section 318) more than one percent (1%) of the outstanding stock of the
Employer or stock possessing more than one percent (1%) of the total combined voting power of all
stock of the Employer or, in the case of an unincorporated business, any person who owns more than
one percent (1 %) of the capital or profits interest in the Employer. In determining percentage
ownership hereunder, employers that would otherwise be aggregated under Code Sections 414(b), (c),
(m) and (o) shall be treated as separate employers. However, in determining whether an individual
has 415 Compensation of more than $150,000, 415 Compensation from each employer required to be
aggregated under Code Sections 414(b), (c), (m) and (o) shall be taken into account.



     In determining percentage ownership hereunder, employers that would otherwise be aggregated under
Code Sections 414(b), (c), (m) and (o) shall be treated as separate employers. In determining
whether an individual has 415 Compensation of more than $150,000, 415 Compensation from each
employer required to be aggregated under Code Sections 414(b), (c), (m) and (o) shall be taken into
account.


1.42 “Late Retirement Date” means the first day of the month coinciding with or next following a
Participant’s actual Retirement Date after having reached Normal Retirement Date.



1.43 “Leased Employee” means any person (other than an Employee of the recipient Employer) who,
pursuant to an agreement between the recipient Employer and any other person or entity (“leasing
organization”), has performed services for the recipient (or for the recipient and related persons
determined in accordance with Code Section 414(n)(6)) on a substantially full time basis for a
period of at least one year, and such services are performed under primary direction or control by
the recipient Employer. Contributions or benefits provided a Leased Employee by the leasing
organization which are attributable to services performed for the recipient Employer shall be
treated as provided by the recipient Employer. Furthermore, Compensation for a Leased Employee
shall only include Compensation from the leasing organization that is attributable to services
performed for the recipient Employer.




     A Leased Employee shall not be considered an employee of the recipient Employer if: (a) such
employee is covered by a money purchase pension plan providing: (1) a non-integrated employer
contribution rate of at least ten percent (10%) of compensation, as defined in Code Section
415(c)(3), (2) immediate participation, and (3) full and immediate vesting; and (b) leased
employees do not constitute more than twenty percent (20%) of the recipient Employer’s nonhighly
compensated work force.


1.44 “Limitation Year” means the Plan Year. However, the Employer may elect a different Limitation
Year by amending the Plan. All qualified plans maintained by the Employer must use the same
Limitation Year. Furthermore, unless there is a change to a new Limitation Year, the Limitation
Year will be a twelve (12) consecutive month period. In the case of an initial Limitation Year, the
Limitation Year will be the twelve (12) consecutive month period ending on the last day of the
initial Plan Year. If the Limitation Year is amended to a different twelve (12) consecutive month
period, the new Limitation Year must begin on a date within the Limitation Year in which the
amendment is made.



1.45 “Nonhighly Compensated Employee/Participant” means any Employee who is not a Highly
Compensated Employee. A Nonhighly Compensated Participant is a Participant who is not a Highly
Compensated Employee.




     A Participant is a Nonhighly Compensated Participant for a particular Plan Year if such Participant
does not meet the definition of a Highly Compensated Employee in effect for that Plan Year.


1.46 “Non-Key Employee” means any Employee or Former Employee (and such Employee’s or Former Employee’s Beneficiaries) who is not a Key Employee.



1.47 “Normal Retirement Age” means the Participant’s 62nd birthday.



1.48 “Normal Retirement Date” means the first day of the month coinciding with or next following the Participant’s Normal Retirement Age.



1.49 “1-Year Break in Service” means the applicable computation period during which an Employee has
not completed more than 500 Hours of Service with the Employer. Further, solely for the purpose of
determining whether a Participant has incurred a 1-Year Break in Service, Hours of Service shall be
recognized for “authorized leaves of absence” and “maternity and paternity leaves of absence.”
Years of Service and 1-Year Breaks in Service shall be measured on the same computation period.




     For purposes of this definition, “authorized leave of absence” means an unpaid, temporary cessation
from active employment with the Employer pursuant to an established nondiscriminatory policy,
whether occasioned by illness, military service, or any other reason.



     Furthermore, for purposes of this definition, “maternity and paternity leave of absence” means an
absence from work for any period by reason of the Employee’s pregnancy, birth of the Employee’s
child, placement of a child with the Employee in connection with the adoption of such child, or any
absence for the purpose of caring for such child for a period immediately following such birth or
placement. For this purpose, Hours of Service shall be credited for the computation period in which
the absence from work begins, only if credit therefore is necessary to prevent the Employee from
incurring a 1-Year Break in Service, or, in any other case, in the immediately following
computation period. The Hours of Service credited for “maternity and paternity leaves of absence”
shall be those which would normally



8









 







have been credited but for such absence, or, in any case in which the Administrator is unable to
determine such hours normally credited, eight (8) Hours of Service per day. The total Hours of
Service required to be credited for “maternity and paternity leaves of absence” shall not exceed
the number of Hours of Service needed to prevent the Employee from incurring a 1-Year Break in
Service.


1.50 “Owner-Employee” means a sole proprietor who owns the entire interest in the Employer or a
partner (or member in the case of a limited liability company treated as a partnership or sole
proprietorship for federal income tax purposes) who owns more than 10% of either the capital
interest or the profits interest in the Employer and who receives income for personal services from
the Employer.



1.51 “Participant” means any Employee or Former Employee who has satisfied the requirements of
Sections 3.1 and 3.2 and entered the Plan and is eligible to accrue benefits under the Plan. In
addition, the term “Participant” also includes any individual who was a Participant (as defined in
the preceding sentence) and who must continue to be taken into account under a particular provision
of the Plan (e.g., because the Participant has an Account Balance in the Plan).



1.52 “Participant Direction Procedures” means such instructions, guidelines or policies, the terms
of which are incorporated herein, as shall be established pursuant to Section 4.10 and observed by
the Administrator and applied and provided to Participants who have Participant Directed Accounts.



1.53 “Participating Employer” means an Employer who adopts the Plan pursuant to Section 11.1.



1.54 “Plan” means this instrument, including all amendments thereto.



1.55 “Plan Year” means the Plan’s accounting year of twelve (12) months commencing on January 1st
of each year and ending the following December 31st.



1.56 “Post-Severance Compensation” means payments made within 2 1/2 months after severance from
employment (within the meaning of Code Section 401(k)(2)(B)(i)(I)) if they are payments that,
absent a severance from employment, would have been paid to the Employee while the Employee
continued in employment with the Employer and are regular compensation for services during the
Employee’s regular working hours, compensation for services outside the Employee’s regular working
hours (such as overtime or shift differential), commissions, bonuses, or other similar
compensation, and payments for accrued bona fide sick, vacation or other leave, but only if the
Employee would have been able to use the leave if employment had continued. Any payments not
described above are not considered compensation if paid after severance from employment, even if
they are paid within 2 1/2 months following severance from employment, except for payments to an
individual who does not currently perform services for the Employer by reason of qualified military
service (within the meaning of Code Section 414(u)(l)) to the extent these payments do
not exceed the amounts the individual would have received if the individual had continued to
perform services for the Employer rather than entering qualified military service.



1.57 “Qualified Matching Contribution” means any Employer contribution (including a contribution
made at the Employer’s discretion) to the Plan on account of a Participant’s Elective Deferrals
that are designated as such pursuant to Section 4.6.



1.58 “Qualified Matching Contribution Account” means the separate account established and
maintained by the Administrator for each Participant with respect to the Participant’s total
interest in the Plan resulting from Qualified Matching Contributions. Amounts in the Qualified
Matching Contribution Account are nonforfeitable when made and are subject to the distribution
restrictions of Section 4.2(d).



1.59 “Qualified Nonelective Contribution” means any Employer contributions to the Plan that are
designated as such pursuant to Sections 4.1(b) and 4.6 or any other provision of the Plan.
Qualified Nonelective Contributions may be used to satisfy the ADP Test. All such contributions
shall be allocated to the Qualified Nonelective Contribution Account, and shall be fully vested and
subject to the restrictions on distributions from that Account.



1.60 “Qualified Nonelective Contribution Account” means the separate account established and
maintained by the Administrator for each Participant with respect to the Participant’s total
interest in the Plan resulting from Qualified Nonelective Contributions. Amounts in the Qualified
Nonelective Contribution Account are nonforfeitable when made and are subject to the distribution
restrictions of Section 4.2(d).



1.61 “Regulation” means the Income Tax Regulations as promulgated by the Secretary of the Treasury
or a delegate of the Secretary of the Treasury, and as amended from time to time.



1.62 “Retirement Date” means the date as of which a Participant retires for reasons other than
Disability, whether such retirement occurs on a Participant’s Normal Retirement Date or Late
Retirement Date.



1.63 “Self-Employed Individual” means an individual, other than an independent contractor, who has
Earned Income for the taxable year from the trade or business for which the Plan is established,
and, also, an individual who would have had Earned Income but for the fact that the trade or
business had no net profits for the taxable year. A Self-Employed Individual shall be treated as an
Employee.



1.64 “Shareholder-Employee” means a Participant who owns more than five percent (5%) of the
Employer’s outstanding capital stock during any year in which the Employer elected to be taxed as a
Small Business Corporation under the applicable Code Section.



1.65 “Terminated Participant” means a person who has been a Participant, but whose employment has
been terminated other than by death, Disability or retirement.







9









 







1.66 “Top-Heavy Plan” means a plan described in Section 9.1(a).



1.67 “Top-Heavy Plan Year” means a Plan Year during which the Plan is a Top-Heavy Plan.



1.68 “Top-Paid Group” means the top-paid group as determined pursuant to Code Section 414(q) and
the Regulations thereunder and generally means the top twenty percent (20%) of Employees who
performed services for the Employer during the applicable year, ranked according to the amount of
415 Compensation received from the Employer during such year. All Affiliated Employers shall be
taken into account as a single employer, and Leased Employees shall be treated as Employees if
required pursuant to Code Section 414(n) or (o). Employees who are nonresident aliens who received
no earned income (within the meaning of Code Section 911(d)(2)) from the Employer constituting
United States source income within the meaning of Code Section 861(a)(3) shall not be treated as
Employees. Furthermore, for the purpose of determining the number of Employees in any year, the
following additional Employees may also be excluded, however, such Employees shall still be
considered for the purpose of identifying the particular Employees in the Top-Paid Group:





(a) Employees with less than six (6) months of service;




(b) Employees who normally work less than 17 1/2 hours per week;




(c) Employees who normally work less than six (6) months during a year; and




(d) Employees who have not yet attained age twenty-one (21).



     In addition, if ninety percent (90%) or more of the Employees of the Employer are covered under
agreements the Secretary of Labor finds to be collective bargaining agreements between Employee
representatives and the Employer, and the Plan covers only Employees who are not covered under such
agreements, then Employees covered by such agreements shall be excluded from both the total number
of active Employees as well as from the identification of particular Employees in the Top-Paid
Group.



     The foregoing exclusions set forth in this Section shall be applied on a uniform and consistent
basis for all purposes for which the Code Section 414(q) definition is applicable. Furthermore, in
applying such exclusions, the Employer may substitute any lesser service, hours or age.


1.69 “Total Vested Benefit” means the total Participant’s Vested Account balances derived from
Employer and Employee contributions, including rollover contributions, whether Vested before or
upon death.



1.70 “Transfer Account” means the separate account established and maintained by the Administrator
for each Participant with respect to the Participant’s total interest in the Plan resulting from
amounts transferred to this Plan from a direct plan-to-plan transfer in accordance with Section
4.9. To the extent that the Plan is a direct or indirect transferee of a defined benefit or defined
contribution pension plan, then the funds transferred to this Plan from such other plan shall be
treated as funds that are subject to a life annuity form of payment as well as the survivor annuity
requirements of Code Sections 401(a)(11) and 417 (and are part of the Participant’s
Pre-Retirement Survivor Annuity Account). The preceding sentence does not apply to amounts rolled
over into a Participant’s Rollover Account, even if from a pension plan.



1.71 “Trustee” means the person or entity named as trustee herein or in any separate trust forming
a part of this Plan, and any successors, effective upon the written acceptance of such person or
entity to serve as Trustee.



1.72 “Trust Fund” means the assets of the Plan and Trust as the same shall exist from time to time.



1.73 “Valuation Date” means the Anniversary Date and may include any other date or dates deemed
necessary or appropriate by the Administrator for the valuation of the Participants’ Accounts
during the Plan Year, which may include any day that the Trustee, any transfer agent appointed by
the Trustee or the Employer or any stock exchange used by such agent, is open for business. Nothing
in this Plan requires or implies a uniform Valuation Date for all Accounts; thus certain valuation
provisions that apply to an Account that is not valued on each business day will have no
application, in operation, to an Account that is valued on each business day.



1.74 “Vested” means the nonforfeitable portion of any account maintained on behalf of a
Participant.



1.75 “Year of Service” means the computation period of twelve (12) consecutive months, herein set
forth, during which an Employee has at least 1,000 Hours of Service.




     The computation period shall be the Plan Year if not otherwise set forth herein.



     Notwithstanding the foregoing, for any short Plan Year, the determination of whether an Employee
has completed a Year of Service shall be made in accordance with Department of Labor regulation
2530.203-2(c).



     Years of Service with any Affiliated Employer shall be recognized.



10









 





     In the event the method of crediting service is amended from the elapsed-time method to the
hour-of-service method, an Employee will receive credit for Years of Service equal to:




(a) The number of Years of Service equal to the number of 1-year Periods of Service credited to the
Employee as of the date of the amendment; and




(b) In the computation period which includes the date of the amendment, a number of Hours of
Service (using the Hours of Service equivalency method elected in the Plan) to any fractional part
of a year credited to the Employee under this Section as of the date of the amendment.



ARTICLE II

ADMINISTRATION




2.1 POWERS AND RESPONSIBILITIES OF THE EMPLOYER





(a) Appointment of Trustee and Administrator. In addition to the general powers and
responsibilities otherwise provided for in this Plan, the Employer shall be empowered to appoint
and remove the Trustee and the Administrator from time to time as it deems necessary for the proper
administration of the Plan to ensure that the Plan is being operated for the exclusive benefit of
the Participants and their Beneficiaries in accordance with the terms of the Act, the Plan and the
Code. The Employer may appoint counsel, specialists, advisers, agents (including any nonfiduciary
agent) and other persons as the Employer deems necessary or desirable in connection with the
exercise of its fiduciary duties under this Plan. The Employer may compensate such agents or
advisers from the assets of the Plan as fiduciary expenses (but not including any business
(settlor) expenses of the Employer), to the extent not paid by the Employer.




(b) Appointment of Investment Manager. The Employer may appoint, at its option, an Investment
Manager (qualified under the Investment Company Act of 1940 as amended), investment adviser, or
other agent to provide investment direction to the Trustee with respect to any or all of the Plan
assets. Such appointment shall be given by the Employer in writing in a form acceptable to the
Trustee and shall specifically identify the Plan assets with respect to which the Investment
Manager or other agent shall have authority to direct the investment.




(c) Funding policy and method. The Employer shall establish a funding policy and method, i.e., it
shall determine whether the Plan has a short run need for liquidity (e.g., to pay benefits) or
whether liquidity is a long run goal and investment growth (and stability of same) is a more
current need, or shall appoint a qualified person to do so. The Employer or its delegate shall
communicate such needs and goals to the Trustee, who shall coordinate such Plan needs with its
investment policy. The communication of such a funding policy and method shall not, however,
constitute a directive to the Trustee as to the investment of the Trust Funds. Such funding policy
and method shall be consistent with the objectives of this Plan and with the requirements of Title
I of the Act.




(d) Review of fiduciary performance. The Employer shall periodically review the performance of any
Fiduciary or other person to whom duties have been delegated or allocated by it under the
provisions of this Plan or pursuant to procedures established hereunder. This requirement may be
satisfied by formal periodic review by the Employer or by a qualified person specifically
designated by the Employer, through day-to-day conduct and evaluation, or through other appropriate
ways.



2.2 DESIGNATION OF ADMINISTRATIVE AUTHORITY




     The Employer shall be the Administrator. The Employer may appoint any person, including, but not
limited to, the Employees of the Employer, to perform the duties of the Administrator. Any person
so appointed shall signify acceptance by filing written acceptance with the Employer. Upon the
resignation or removal of any individual performing the duties of the Administrator, the Employer
may designate a successor.



2.3 ALLOCATION AND DELEGATION OF RESPONSIBILITIES




     If more than one person is serving as Administrator, the responsibilities of each Administrator may
be specified by the Employer and accepted in writing by each Administrator. In the event that no
such delegation is made by the Employer, the Administrators may allocate the responsibilities among
themselves, in which event the Administrators shall notify the Employer and the Trustee in writing
of such action and specify the responsibilities of each Administrator. The Trustee thereafter shall
accept and rely upon any documents executed by the appropriate Administrator until such time as the
Employer or the Administrators file with the Trustee a written revocation of such designation.



2.4 POWERS AND DUTIES OF THE ADMINISTRATOR




     The primary responsibility of the Administrator is to administer the Plan for the exclusive benefit
of the Participants and their Beneficiaries, subject to the specific terms of the Plan. The
Administrator shall administer the Plan in accordance with its terms and shall have the power and
discretion to construe the terms of the Plan and to determine all questions arising in connection
with the administration, interpretation, and application of the Plan. Benefits under this Plan will
be paid only if the Administrator decides in its discretion that the applicant is entitled to them.
Any such determination by the Administrator shall be conclusive and binding upon all persons. The
Administrator may establish procedures, correct any defect, supply any information, or reconcile
any inconsistency in such manner and to such extent as shall be deemed necessary or advisable to
carry out the purpose of the Plan; provided, however, that any procedure, discretionary act,
interpretation or construction shall be done in a nondiscriminatory manner based upon uniform
principles consistently



11









 







applied and shall be consistent with the intent that the Plan shall continue to be deemed a
qualified plan under the terms of Code Section 401(a), and shall comply with the terms of the Act
and all regulations issued pursuant thereto. The Administrator shall have all powers necessary or
appropriate to accomplish the Administrator’s duties under the Plan.



     The Administrator shall be charged with the duties of the general administration of the Plan as set
forth under the terms of the Plan, including, but not limited to, the following:




(a) the discretion to determine all questions relating to the eligibility of Employees to
participate or remain a Participant hereunder and to receive benefits under the Plan;




(b) the authority to review and settle all claims against the Plan, including claims where the
settlement amount cannot be calculated or is not calculated in accordance with the Plan’s benefit
formula. This authority specifically permits the Administrator to settle disputed claims for
benefits and any other disputed claims made against the Plan;




(c) to compute, certify, and direct the Trustee with respect to the amount and the kind of benefits
to which any Participant shall be entitled hereunder;




(d) to authorize and direct the Trustee with respect to all discretionary or otherwise directed
disbursements from the Trust;




(e) to maintain all necessary records for the administration of the Plan;




(f) to interpret the provisions of the Plan and to make and publish such rules for regulation of
the Plan as are consistent with the terms hereof;




(g) to determine the size and type of any Contract to be purchased from any insurer, and to
designate the insurer from which such Contract shall be purchased;




(h) to compute and certify to the Employer and to the Trustee from time to time the sums of money
necessary or desirable to be contributed to the Plan;




(i) to consult with the Employer and the Trustee regarding the short and long-term liquidity needs
of the Plan in order that the Trustee can exercise any investment discretion (if the Trustee has
such discretion) in a manner designed to accomplish specific objectives;




(j) to prepare and implement a procedure to notify Eligible Employees that they may elect to have a
portion of their Compensation deferred or paid to them in cash;




(k) to act as the named Fiduciary responsible for communications with Participants as needed to
maintain Plan compliance with Act Section 404(c), including, but not limited to, the receipt and
transmitting of Participant’s directions as to the investment of their account(s) under the Plan
and the formulation of policies, rules, and procedures pursuant to which Participants may give
investment instructions with respect to the investment of their accounts;




(1) to determine the validity of, and take appropriate action with respect to, any qualified
domestic relations order received by it; and




(m) to assist any Participant regarding the Participant’s rights, benefits, or elections available
under the Plan.



2.5 RECORDS AND REPORTS




     The Administrator shall keep a record of all actions taken and shall keep all other books of
account, records, policies, and other data that may be necessary for proper administration of the
Plan and shall be responsible for supplying all information and reports to the Internal Revenue
Service, Department of Labor, Participants, Beneficiaries and others as required by law.



2.6 APPOINTMENT OF ADVISERS




     The Administrator, or the Trustee with the consent of the Administrator, may appoint counsel,
specialists, advisers, agents (including nonfiduciary agents) and other persons as the
Administrator or the Trustee deems necessary or desirable in connection with the administration of
this Plan, including but not limited to agents and advisers to assist with the administration and
management of the Plan, and thereby to provide, among such other duties as the Administrator may
appoint, assistance with maintaining Plan records and the providing of investment information to
the Plan’s investment fiduciaries and to Plan Participants.



2.7 PAYMENT OF EXPENSES




     All reasonable expenses of administration may be paid out of the Plan assets unless paid by the
Employer. Such expenses shall include any expenses incident to the functioning of the
Administrator, or any person or persons retained or appointed by any named Fiduciary incident to
the exercise of their duties under the Plan, including, but not limited to, fees of accountants,
counsel, Investment Managers, agents (including nonfiduciary agents) appointed for the purpose of
assisting the Administrator or the Trustee in carrying out the instructions of Participants as to
the directed investment of their accounts (if permitted) and other specialists and their agents,
the costs of



12









 







any bonds required pursuant to Act Section 412, and other costs of administering the Plan. Until
paid, the expenses shall constitute a liability of the Trust Fund. In addition, unless specifically
prohibited under statute, regulation or other guidance of general applicability, the Administrator
may charge to the Account of an individual Participant a reasonable charge to offset the cost of
making a distribution to the Participant, Beneficiary, or alternate payee under a qualified
domestic relation order, as defined in Code Section 414(p). If liquid assets of the Plan are
insufficient to cover the fees of the Trustee or the Plan Administrator, then Plan assets shall be
liquidated to the extent necessary for such fees. In the event any part of the Plan assets becomes
subject to tax, all taxes incurred will be paid from the Plan assets. Until paid, the expenses
shall constitute a liability of the Trust Fund.



2.8 CLAIMS PROCEDURE




     Claims for benefits under the Plan may be filed in writing with the Administrator. Written notice
of the disposition of a claim shall be furnished to the claimant within ninety (90) days (45 days
if the claim involves disability benefits) after the application is filed, or such period as is
required by applicable law or Department of Labor regulation. In the event the claim is denied, the
reasons for the denial shall be specifically set forth in the notice in language calculated to be
understood by the claimant, pertinent provisions of the Plan shall be cited, and, where
appropriate, an explanation as to how the claimant can perfect the claim will be provided. In
addition, the claimant shall be furnished with an explanation of the Plan’s claims review
procedure.



2.9 CLAIMS REVIEW PROCEDURE




     Any Employee, Former Employee, or Beneficiary of either, who has been denied a benefit by a
decision of the Administrator pursuant to Section 2.8 shall be entitled to request the
Administrator to give further consideration to a claim by filing with the Administrator a written
request for a hearing. Such request, together with a written statement of the reasons why the
claimant believes the claim should be allowed, shall be filed with the Administrator no later than
sixty (60) days (45 days if the claim involves disability benefits) after receipt of the written
notification provided for in Section 2.8. The Administrator shall then conduct a hearing within the
next 60 days (45 days if the claim involves disability benefits), at which the claimant may be
represented by an attorney or any other representative of such claimant’s choosing and expense and
at which the claimant shall have an opportunity to submit written and oral evidence and arguments
in support of the claim. At the hearing the claimant or the claimant’s representative shall have an
opportunity to review all documents in the possession of the Administrator which are pertinent to
the claim at issue and its disallowance. A final decision as to the allowance of the claim shall be
made by the Administrator within sixty (60) days (45 days if the claim involves disability
benefits) of receipt of the appeal (unless there has been an extension of sixty (60) days (45 days
if the claim involves disability benefits) due to special circumstances, provided the delay and the
special circumstances occasioning it are communicated to the claimant within the 60-day period (45
days if the claim involves disability benefits)). Such communication shall be written in a manner
calculated to be understood by the claimant and shall include specific reasons for the decision and
specific references to the pertinent Plan provisions on which the decision is based.
Notwithstanding the preceding, to the extent any of the time periods specified in this Section are
amended by law or Department of Labor regulation, then the time frames specified herein shall
automatically be changed in accordance with such law or regulation.



     If the Administrator, pursuant to the claims review procedure, makes a final written determination
denying a Participant’s or Beneficiary’s benefit claim, then in order to preserve the claim, the
Participant or Beneficiary must file an action with respect to the denied claim not later than one
hundred eighty (180) days following the date of the Administrator’s final determination.



ARTICLE III

ELIGIBILITY




3.1 CONDITIONS OF ELIGIBILITY





(a) Eligibility. For all Plan purposes, any Eligible Employee who has attained age eighteen (18)
shall be eligible to participate hereunder as of the date such Employee has satisfied such
requirements. However, any Employee who was a Participant in the Plan prior to the effective date
of this amendment and restatement shall continue to participate in the Plan.



3.2 EFFECTIVE DATE OF PARTICIPATION





(a) Effective date of participation. An Eligible Employee shall become a Participant effective as
of the date on which such Employee satisfies the eligibility requirements of Section 3.1.




(b) Ineligible to eligible classification. If an Employee, who has satisfied the Plan’s eligibility
requirements and would otherwise have become a Participant in the Plan, shall go from a
classification of an ineligible Employee to an Eligible Employee, such Employee shall become a
Participant in the Plan on the date such Employee becomes an Eligible Employee or, if later, the
date that the Employee would have otherwise entered the Plan had the Employee always been an
Eligible Employee.




(c) Eligible to ineligible classification. If an Employee, who has satisfied the Plan’s eligibility
requirements and would otherwise become a Participant in the Plan, shall go from a classification
of an Eligible Employee to an ineligible class of Employees, such Employee shall become a
Participant in the Plan on the date such Employee again becomes an Eligible Employee, or, if later,
the date that the Employee would have otherwise entered the Plan had the Employee always been an
Eligible Employee.



13









 





3.3 DETERMINATION OF ELIGIBILITY




     The Administrator shall determine the eligibility of each Employee for participation in the Plan
based upon information furnished by the Employer. Such determination shall be conclusive and
binding upon all persons, as long as the same is made pursuant to the Plan and the Act. Such
determination shall be subject to review pursuant to Section 2.9.



3.4 TERMINATION OF ELIGIBILITY




     In the event a Participant shall go from a classification of an Eligible Employee to an ineligible
Employee with respect to the Plan, then such Participant shall continue to Vest in the Plan for
each Year of Service completed while an ineligible Employee, until such time as the Participant’s
Account is forfeited or distributed pursuant to the terms of the Plan. Additionally, the
Participant’s interest in the Plan shall continue to share in the earnings of the Trust Fund.



3.5 REHIRED EMPLOYEES AND BREAKS IN SERVICE





(a) Reemployed before five (5) consecutive 1-Year Breaks in Service. If any Employee becomes a
Former Employee due to severance from employment with the Employer and is reemployed by the
Employer, then the Former Employee’s prior service shall count in the same manner as if severance
from employment with the Employer had not occurred. If any Participant ceases to be a Participant
due to severance from employment with the Employer and is reemployed by the Employer, then the
Participant shall resume participation (in the same manner as if severance from employment with the
Employer had not occurred) as of the reemployment date.



3.6 ELECTION NOT TO PARTICIPATE





(a) Irrevocable election not to participate. An Employee may, subject to the approval of the
Employer, elect voluntarily not to participate in every Qualified Plan maintained by the Employer.
Such election must be made prior to the time the Employee first becomes eligible to participate
under any Qualified Plan maintained by the Employer. The election not to participate must be
irrevocable and communicated to the Employer, in writing, within a reasonable period of time before
the date the Employee would have otherwise entered any Qualified Plan. “Qualified Plan” means, for
purposes of this Section, a plan intended to be tax-qualified under Code Section 401(a).




(b) Prior Plan document provision. Notwithstanding anything in this Section to the contrary, if any
prior Plan document of this Plan contained a provision permitting an Employee to make a revocable
election not to participate and an Employee made such revocable election not to participate while
that prior Plan document was in effect, then such Employee may irrevocably revoke such election at
any time and participate in the Plan.




(c) Effect on coverage and ADP Tests. An Employee who elected not to participate under the Plan is
treated as a nonbenefiting Employee for purposes of the minimum coverage requirements under Code
Section 410(b). Furthermore, such Employee is not a Participant for purposes of the ADP Test.



3.7 OWNER-EMPLOYEE LIMITATION




     If this Plan provides contributions or benefits for one or more Owner-Employees, the contributions
on behalf of any Owner-Employee shall be made only with respect to the Earned Income for such
Owner-Employee which is derived from the trade or business with respect to which such Plan is
established.



3.8 OMISSION OF ELIGIBLE EMPLOYEE; INCLUSION OF INELIGIBLE EMPLOYEE




     If, in any Plan Year, any Employee who should be included as a Participant in the Plan is
erroneously omitted and discovery of such omission is not made until after a contribution by the
Employer for the year has been made and allocated, or any person who should not have been included
as a Participant in the Plan is erroneously included, then the Employer shall apply the principles
described by, and take corrective actions consistent with, the IRS Employee Plans Compliance
Resolution System.



ARTICLE IV

CONTRIBUTION AND ALLOCATION




4.1 FORMULA FOR DETERMINING EMPLOYER CONTRIBUTION




     For each Plan Year, the Employer shall contribute to the Plan:




(a) Salary reductions. The amount that all Participants’ Compensation was reduced pursuant to
Section 4.2(a), which amount shall be Elective Deferrals.




(b) Qualified Nonelective Contribution. On behalf of each Participant who is eligible to share in
the Qualified Nonelective Contribution for the Plan Year, a discretionary Qualified Nonelective
Contribution equal to a uniform percentage of each eligible individual’s Compensation or 415
Compensation. Such Qualified Nonelective Contribution shall be allocated to the Qualified
Nonelective Contribution Account.



14









 






(c) Top-Heavy contribution. Additionally, to the extent necessary, the Employer shall contribute to the
Plan the amount necessary to provide the top-heavy minimum contribution, even if it exceeds the
amount that would be deductible under Code Section 404.




(d) Form of contribution. All contributions by the Employer shall be made in cash or in such
property as is acceptable to the Trustee.



4.2 PARTICIPANT’S SALARY REDUCTION ELECTION





(a) Deferral elections. Each Participant may elect to defer a portion of Compensation which would
have been received in the Plan Year (except for the deferral election) by up to the maximum amount
which will not cause the Plan to violate the provisions of Sections 4.5(a) and 4.7. A deferral
election (or modification of an earlier election) may not be made with respect to Compensation
which is currently available on or before the date the Participant executed such election. For
purposes of this Section, Compensation shall be determined prior to any reductions made pursuant to
Code Sections 125, 132(f)(4), 402(e)(3), 402(h)(1)(B), 403(b) or 457(b), and employee contributions
described in Code Section 414(h)(2) that are treated as Employer contributions.



     Notwithstanding anything in this Plan to the contrary, the Employer may impose a minimum elective
deferral percentage of 1 % as an administrative procedure applied on a uniform and consistent basis
to all Participants.



     For purposes of this Section, the annual dollar limitation of Code Section 401(a)(17) ($200,000 as
adjusted) shall not apply except that the Administrator may elect to apply such limit as part of
the deferral election procedures established hereunder.



     The amount that is deferred by a Participant shall be subject to the limitations of this Section,
shall be an Elective Deferral, and shall be held for such Participant in the Elective Deferral
Account.




(b) Catch-Up Contributions. Notwithstanding anything in the Plan to the contrary, effective January
1, 2002, each Catch-Up Eligible Participant shall be eligible to make Catch-Up Contributions during
the Participant’s taxable year in accordance with, and subject to the limitations of, Code Section
414(v). Such Catch-Up Contributions are not subject to the limits on Annual Additions under Code
Section 415(c), are not counted in the ADP Test of Section 4.5(a), are not counted in determining
the minimum allocation required in a Top-Heavy Plan during a Top-Heavy Plan Year under Code Section
416 (but Catch-Up Contributions made in prior years are counted in determining whether the Plan is
a Top-Heavy Plan), and are not taken into account under the limit on Elective Deferrals under Code
Section 402(g). Catch-Up Contributions may be a dollar amount or a percentage of Compensation for
each payroll period not to exceed the applicable dollar limit under Code Section 414(v), pursuant
to procedures established by the Administrator. The Plan shall not be treated as failing to satisfy
the provisions of the Plan implementing the requirements of Code Section 401(k)(3), 416 or 410(b),
as applicable, by reason of the making of such Catch-Up Contributions.




(c) Full vesting. Each Participant’s Elective Deferral Account shall be fully Vested at all times
and shall not be subject to Forfeiture for any reason.




(d) Distribution restrictions. Notwithstanding anything in the Plan to the contrary, effective with
respect to distributions and transactions made after December 31, 2001, amounts held in the
Participant’s Elective Deferral Account may not be distributed except as authorized by other
provisions of this Plan, but in no event may such amounts be distributed earlier than:




(1) a Participant’s death, disability or other severance of employment;




(2) a Participant’s attainment of age 59 1/2;




(3) effective beginning with the first Plan Year beginning in 2006, the termination of the Plan
without the existence at the time of Plan termination of an alternative defined contribution plan
or the establishment of an alternative defined contribution plan by the Employer or an Affiliated
Employer within the period ending twelve months after distribution of all assets from the Plan
maintained by the Employer. For this purpose, a defined contribution plan is not treated as an
alternative defined contribution plan if the plan is an employee stock ownership plan (as defined
in Code Section 4975(e)(7) or 409(a)), a simplified employee pension plan (as defined in Code
Section 408(k)), a SIMPLE IRA plan (as defined in Code Section 408(p)), a plan or contract that
satisfies the requirements of Code Section 403(b), or a plan that is described in Code Sections
457(b) or 457(f). Furthermore, if at all times during the 24-month period beginning 12 months
before the date of the Plan’s termination, fewer than 2% of the Participants in the Plan as of the
date of Plan termination are eligible under the other defined contribution plan, then the other
defined contribution plan is not an alternative defined contribution plan. Distributions from the
terminating Plan may only be made in lump sum distributions, pursuant to and defined in Regulation
1.401(k)-1(d)(4)(ii);




(4) the proven financial hardship of a Participant, subject to the limitations of Section 6.12.




(e) Suspension due to hardship. In the event a Participant has received a hardship distribution, on
or after December 31, 2001 pursuant to Regulation 1.401(k)-1(d)(3)(iv)(E)(2) from this Plan or any
other plan maintained by the Employer, then such Participant shall not be permitted to elect to
have Elective Deferrals contributed to the Plan for a period of six months following the receipt of
the distribution.




15











 






(f) Deferrals limited to Code Section 402(g) dollar limit. A Participant’s “elective deferrals”
made under this Plan and all other plans, contracts or arrangements of the Employer maintaining
this Plan during any calendar year shall not exceed the dollar limitation. For this purpose,
“elective deferrals” means, with respect to a calendar year, the sum of all Employer contributions
made on behalf of such Participant pursuant to an election to defer under any qualified cash or
deferred arrangement as described in Code Section 401(k), any salary reduction simplified employee
pension (as defined in Code Section 408(k)(6)), any SIMPLE IRA plan described in Code Section
408(p), any eligible deferred compensation plan under Code Section 457, any plans described under
Code Section 501(c)(18), and any Employer contributions made on the behalf of a Participant for the
purchase of an annuity contract under Code Section 403(b) pursuant to a salary reduction agreement.
“Elective deferrals” shall not include any deferrals properly distributed as excess “Annual
Additions” pursuant to Section 4.7. “Dollar limitation” shall mean the dollar limitation contained
in Code Section 402(g) in effect for the Participant’s taxable year beginning in such calendar
year. In the case of a participant aged 50 and over by the end of the taxable year, the “dollar
limitation” described in the preceding sentence shall be adjusted to include the amount of Elective
Deferrals that may be treated as Catch-Up Contributions. The “dollar limitation” contained in Code
Section 402(g) is $10,500 for taxable years beginning in 2000 and 2001, increasing to $11,000 for
taxable years beginning in 2002 and increasing by $1,000 for each year thereafter up to $15,000 for
taxable years beginning in 2006 and later years. After 2006 the $15,000 limit will be adjusted by
the Secretary of the Treasury for cost-of-living increases under Code Section 402(g)(4). Any such
adjustments will be in multiples of $500.




(g) Assigning Excess Deferrals to this Plan. If a Participant’s Elective Deferrals under this Plan
together with any elective deferrals (as defined in Regulation 1.402(g)-1(b)) under another
qualified cash or deferred arrangement (as described in Code Section 401(k)), a simplified employee
pension (as described in Code Section 408(k)(6)), a simple individual retirement account plan (as
described in Code Section 408(p)), a salary reduction arrangement (within the meaning of Code
Section 3121(a)(5)(D)), or a trust described in Code Section 501(c)(18) cumulatively exceed the
“dollar limitation” described in the subsection 4.2(f) of this Section, for such Participant’s
taxable year, then the Participant may assign to this Plan any Excess Deferrals made during a
taxable year of the Participant by notifying the Administrator in writing on or before March 1
following the close of the Participant’s taxable year, of the amount of the Excess Deferrals to be
assigned to the Plan. A Participant shall be deemed to notify the Administrator of any Excess
Deferrals that arise by taking into account only those Elective Deferrals made to this Plan and any
other plan, contract, or arrangement of the Employer.




     Notwithstanding any other provision of the Plan to the contrary, the Administrator may direct
the Trustee to distribute such Excess Deferrals, plus any Income allocable to such Excess
Deferrals, to the Participant not later than the first April 15th following the close of the
Participant’s taxable year. Such a distribution may be made to a Participant to whose account
Excess Deferrals were assigned for the preceding year or/and who claims Excess Deferrals for such
taxable year or calendar year. Any distribution of less than the entire amount of Excess Deferrals
and Income shall be treated as a pro rata distribution of Excess Deferrals and Income. The amount
of the distribution shall not exceed the Participant’s Elective Deferrals under the Plan for the
taxable year (and any Income allocable to such Excess Deferrals). If a distribution of Excess
Deferrals is to be made on or before the last day of the Participant’s taxable year, then each of
the following conditions must be satisfied:




	 	(1)	 	the distribution must be made after the date on which the Plan received the Excess
Deferrals;
	 
	 	(2)	 	the Participant shall designate the distribution as Excess Deferrals; and
	 
	 	(3)	 	the Plan must designate the distribution as a distribution of Excess Deferrals.






(h) Coordination with ADP Test. Notwithstanding Section 4.2(g) above, a Participant’s Excess
Deferrals shall be reduced, but not below zero, by any distribution of Excess Contributions
pursuant to Section 4.6 for the Plan Year beginning with or within the taxable year of the
Participant.




(i) Segregation. Elective Deferrals made pursuant to this Section may be segregated into a
separate account for each Participant in a federally insured savings account, certificate of
deposit in a bank or savings and loan association, money market certificate, or other short-term
debt security acceptable to the Trustee until such time as the allocations pursuant to Section 4.4
have been made.




(j) No conditions to receive Elective Deferrals. Notwithstanding anything herein to the contrary,
Participants who terminated employment for any reason during the Plan Year shall share in the
Elective Deferrals made by the Employer for the year of termination without regard to the Hours of
Service credited.




(k) Procedures to implement deferral elections. The Employer and the Administrator may adopt a
procedure to implement the salary reduction elections provided for herein. If such procedure is
adopted, then the procedure shall include (and shall not be limited to) the following:




(1) A Participant must make an initial salary deferral election, or an election to receive cash
in lieu of a salary deferral election, unless the Employer has implemented an automatic
deferral election feature. If the Participant fails to make an initial salary deferral
election, or an election to receive cash in lieu of a salary deferral election, if the
automatic deferral election applies, then such Participant may thereafter make an election in
accordance with the rules governing modifications. The Participant shall make such an election
by entering into a salary reduction agreement with the Employer and filing such agreement with
the Administrator. Such election shall initially be effective beginning with the pay period
following the acceptance of the salary reduction agreement by the Administrator (or as soon
thereafter as practical), shall not have retroactive effect and shall remain in force until
revoked.



16









 






(2) A Participant may modify a prior salary deferral election during the Plan Year and
concurrently make a new election by filing a notice with the Administrator (in accordance
with procedures established by the Administrator) within a reasonable time before the pay
period for which such modification is to be effective. However, modifications to a salary
deferral election shall only be permitted quarterly, during election periods established by
the Administrator prior to the first day of each Plan Year quarter. Any modification shall
be implemented as soon as practical after being accepted by the Administrator, shall not
have retroactive effect and shall remain in force until revoked.




(3) A Participant may elect to prospectively revoke the Participant’s salary reduction
agreement in its entirety at any time during the Plan Year by providing the Administrator
with thirty (30) days written notice of such revocation (or upon such shorter notice period
as may be acceptable to the Administrator). Such revocation shall become effective as of the
beginning of the first pay period coincident with or next following the expiration of the
notice period (or as soon thereafter as practical).




(4) Any notices or required actions under this subsection may be provided or made in
accordance with Section 10.14.



4.3 TIME OF PAYMENT OF EMPLOYER CONTRIBUTION




     Unless otherwise provided by contract or law, the Employer may make its contribution to the
Plan for a particular Plan Year at such time as the Employer, in its sole discretion, determines.
If the Employer makes a contribution for a particular Plan Year after the close of that Plan Year,
then the Employer will designate to the Administrator the Plan Year for which the Employer is
making its contribution.



4.4 ALLOCATION OF CONTRIBUTION AND EARNINGS





(a) Separate accounting. The Administrator shall establish and maintain an account in the name
of each Participant to which the Administrator shall credit as of each Anniversary Date, or
other Valuation Date, all amounts allocated to a particular Account of each such Participant as
set forth herein.




(b) Allocation of contributions. The Employer shall provide the Administrator with all
information required by the Administrator to make a proper allocation of the Employer
contributions for each Plan Year. Within a reasonable period of time after the date of receipt
by the Administrator of such information, the Administrator shall allocate such contribution as
follows:




(1) Elective Deferrals. With respect to the Elective Deferrals made pursuant to Section 4.1
(a), to each Participant’s Elective Deferral Account.




(2) Qualified Nonelective Contributions. With respect to the Qualified Nonelective
Contribution made pursuant to Section 4.1(b), to each Participant’s Qualified Nonelective
Contribution Account in accordance with Section 4.1(b).




     The Employer may limit such Qualified Nonelective Contributions only to Participants
who are Nonhighly Compensated Employees and/or Non-Key Employees. In addition, the Employer
may condition such Qualified Nonelective Contributions only to Participants who have
completed a Year of Service (or portion thereof) during the Plan Year and/or who are
employed on the last day of the Plan Year. Notwithstanding anything in this subsection to
the contrary, if this Plan becomes a Top-Heavy Plan, then any top-heavy minimum required
allocation that is required pursuant to Section 4.4(f) shall be made to each Non-Key
Employee’s Qualified Nonelective Contribution Account.




(c) Minimum required allocation to those not otherwise eligible to share. For any Top-Heavy Plan
Year, Non-Key Employees not otherwise eligible to share in the allocation of contributions as
provided above, shall receive the minimum required allocation of Section 4.4(f) if eligible
pursuant to the provisions of Section 4.4(h).




(d) Allocation of earnings. As of each Valuation Date, before the current valuation period
allocation of Employer contributions, any earnings or losses (net appreciation or net
depreciation) of the Trust Fund shall be allocated in the same proportion that each
Participant’s nonsegregated accounts bear to the total of all Participants’ nonsegregated
accounts as of such date. Earnings or losses with respect to a Participant’s Directed Account
shall be allocated in accordance with Section 4.10.




(e) Incoming transfers. Participants’ transfers from other qualified plans deposited in the
general Trust Fund shall share in any earnings and losses (net appreciation or net depreciation)
of the Trust Fund in the same manner provided above. Each segregated account maintained on
behalf of a Participant shall be credited or charged with its separate earnings and losses.




(f) Minimum required allocation for Top-Heavy Plan Years. Notwithstanding the foregoing, for any
Top-Heavy Plan Year, the sum of the Employer contributions allocated to the Account of each
Non-Key Employee shall be equal to at least three percent (3%) of such Non-Key Employee’s 415
Compensation (reduced by contributions and forfeitures, if any, allocated to each Non-Key
Employee in any defined contribution plan included with this Plan in a required aggregation
group). However, if (1) the sum of the Employer contributions allocated to the Participant’s
Account of each Key Employee for such Top-Heavy Plan Year is less than three percent (3%) of
each Key Employee’s 415 Compensation and (2) this Plan is not required to be included in an
aggregation group to enable a defined benefit plan to meet the requirements of Code Section
401(a)(4) or 410, then the sum of the Employer contributions allocated to the Participant’s
Account of each Non-Key Employee shall be equal to the largest percentage allocated to the
Account of any Key Employee. However, in determining whether a Non-Key Employee has received the
minimum required allocation, such Non-Key



17









 






Employee’s Elective Deferrals shall not be taken into account. The minimum allocation required
(to the extent required to be nonforfeitable under Code Section 416(b)) may not be forfeited
under Code Section 411(a)(3)(B) or 411(a)(3)(D).




     However, no minimum required allocation shall be required in this Plan for any Non-Key
Employee who participates in another defined contribution plan subject to Code Section 412
included with this Plan in a required aggregation group, if the other defined contribution plan
subject to Code Section 412 satisfies the minimum required allocation.




(g) Top-Heavy contribution allocation. For purposes of the minimum required allocation set
forth above, the percentage allocated to the Account of any Key Employee who is a Participant
shall be equal to the ratio of the sum of the Employer contributions (excluding any Catch-Up
Contributions) allocated on behalf of such Key Employee for the Plan Year divided by the 415
Compensation for such Key Employee for the Plan Year.




(h) Participants eligible for top-heavy allocation. For any Top-Heavy Plan Year, the minimum
required allocation set forth above shall be allocated to the Qualified Nonelective
Contribution Account of all Non-Key Employees who are Participants and who are employed by the
Employer on the last day of the Plan Year regardless of the Non-Key Employee’s level of
Compensation, including Non-Key Employees who have (1) failed to complete a Year of Service;
and (2) declined to make mandatory contributions (if required) or, in the case of a cash or
deferred arrangement, Elective Deferrals to the Plan.




(i) 415 Compensation for top-heavy purposes. For the purposes of this Section, 415 Compensation
will be limited to the same dollar limitations set forth in Section 1.14, adjusted in such
manner as permitted under Code Section 415(d).




(j) Delay in processing transactions. Notwithstanding anything in this Section to the contrary,
all information necessary to properly reflect a given transaction may not be available until
after the date specified herein for processing such transaction, in which case the transaction
will be reflected when such information is received and processed. Subject to express limits
that may be imposed under the Code, the processing of any contribution, distribution or other
transaction may be delayed for any legitimate business reason or force majeure (including, but
not limited to, failure of systems or computer programs, failure of the means of the
transmission of data, the failure of a service provider to timely receive values or prices, and
the correction for errors or omissions or the errors or omissions of any service provider). The
processing date of a transaction will be binding for all purposes of the Plan.



4.5 ACTUAL DEFERRAL PERCENTAGE TEST





(a) ADP Test. The ADP for Highly Compensated Employees who are Participants for each Plan Year
and the ADP for Nonhighly Compensated Employees who are Participants for each Plan Year (or for
the preceding Plan Year if the prior year testing method is used) shall satisfy one of the
following tests:




(1) The ADP for the group of Highly Compensated Employees who are Participants shall not
exceed the ADP for the group of Nonhighly Compensated Employees who are Participants (for
the preceding Plan Year if the prior year testing method is used to calculate the ADP for
the group of Nonhighly Compensated Employees who are Participants) multiplied by 1.25, or




(2) The ADP for the group of Highly Compensated Employees who are Participants shall not
exceed the ADP for the group of Nonhighly Compensated Employees who are Participants (for
the preceding Plan Year, if the prior year testing method is used to calculate the ADP for
the group of Nonhighly Compensated Employees who are Participants) by more than two
percentage points. Furthermore, the ADP for the group of Highly Compensated Employees who
are Participants shall not exceed the ADP for the group of Nonhighly Compensated Employees
who are Participants (for the preceding Plan Year, if the prior year testing method is used
to calculate the ADP for the group of Nonhighly Compensated Employees who are Participants)
multiplied by 2.




(b) Prior Year test upon amendment. Notwithstanding the above, if the prior year test method is
used to calculate the ADP for the group of Nonhighly Compensated Employees who are Participants
for the first Plan Year of this amendment and restatement, then the ADP for the group of
Nonhighly Compensated Employees who are Participants for the preceding Plan Year shall be
calculated pursuant to the provisions of the Plan then in effect.




(c) Participant regardless of deferral election. For the purposes of Sections 4.5(a) and 4.6, a
Participant shall be any Employee eligible to make a deferral election pursuant to Section 4.2
at any point during the Plan Year, whether or not such deferral election was made or suspended
pursuant to Section 4.2.




(d) Aggregation with other plans. In the event this Plan satisfies the requirements of Code
Sections 401(a)(4), 401(k), or 410(b) only if aggregated with one or more other plans, or if one
or more other plans satisfy the requirements of such Code Sections only if aggregated with this
Plan, then this Section shall be applied by determining the ADP of Employees as if all such
plans were a single plan. If more than ten percent (10%) of the Employer’s Nonhighly Compensated
Employees are involved in a plan coverage change as defined in Regulation Section
1.401(k)-2(c)(4), then any adjustments to the Nonhighly Compensated Employees’ ADP for the prior
year will be made in accordance with such Regulations, unless the Employer has elected to use
the current year testing method. Plans may be aggregated in order to satisfy Code Section 401
(k) only if they have the same Plan Year and use the same ADP Testing method.




(e) ADP of Highly Compensated Employee in multiple plans. For the purposes of this Section, the
ADP for any Participant who is a Highly Compensated Employee for the Plan Year and who is
eligible to have Elective Deferrals (and Qualified Nonelective Contributions and/or Qualified
Matching Contributions, if treated as Elective Deferrals for purposes of the ADP Test) allocated
to the



18









 






Participant’s accounts under two or more cash or deferred arrangements described in Code Section
401(k) of the Employer or an Affiliated Employer, shall be determined as if such Elective
Deferrals (and, if applicable, such Qualified Nonelective Contributions and/or Qualified Matching
Contributions) were made under a single cash or deferred arrangement. If a Highly Compensated
Employee participates in two or more cash or deferred arrangements of the Employer or an
Affiliated Employer that have different plan years, then all Elective Deferrals made during the
Plan Year under all such arrangements shall be aggregated. However, for Plan Years beginning
before 2006, if the cash or deferred arrangements have different plan years, then all such cash or
deferred arrangements ending with or within the same calendar year shall be treated as a single
arrangement. Notwithstanding the foregoing, certain plans shall be treated as separate if
mandatorily disaggregated under the Regulations of Code Sections 401(k) or 410(b).




(f) Testing method. For the purpose of this Section, when calculating the ADP for the group of
Nonhighly Compensated Employees who are Participants, the current year testing method shall be
used. Once the current year testing method has been elected, then the Employer may elect to use the
prior year testing method for a Plan Year only if the Plan has used the current year testing method
for each of the preceding 5 Plan Years (or if lesser, the number of Plan Years that the Plan has
been in existence) or if, as a result of a merger or acquisition described in Code Section
410(b)(6)(C)(i), the Employer maintains both a plan using prior year testing method and a plan
using current year testing method and the change is made within the transition period described in
Code Section 410(b)(6)(C)(ii).




(g) Otherwise excludable Employee and early participation rules. Notwithstanding anything in this
Section to the contrary, the provisions of this Section and Section 4.6 may be applied separately
(or will be applied separately to the extent required by Regulations) to each “plan” within the
meaning of Regulation Section 1.401(k)-1(b)(4)(iv). For purposes of applying this provision, the
Administrator may use any effective date of participation that is permitted under Code Section
410(b) provided such date is applied on a consistent and uniform basis to all Participants.
Alternatively, the provisions of Code Section 401(k)(3)(F) may be used to exclude from
consideration all Nonhighly Compensated Employees who have not satisfied the greatest minimum age
and service requirements of Code Section 410(a)(1)(A).




(h) Timing of allocations. For purposes of determining the ADP Test, only Elective Deferrals,
Qualified Nonelective Contributions and Qualified Matching Contributions that are contributed to
the Plan prior to the end of the twelve (12) month period immediately following the Plan Year to
which the contributions relate shall be considered.




(i) Targeted Qualified Nonelective Contributions. Notwithstanding the preceding, for Plan Years
beginning in and after 2006, Qualified Nonelective Contributions cannot be taken into account in
determining the ADR for a Plan Year for a Nonhighly Compensated Employee to the extent such
contributions exceed the product of that Nonhighly Compensated Employee’s 414(s) Compensation and
the greater of five percent (5%) or two (2) times the Plan’s “representative contribution rate.”
For purposes of this subsection:




(1) The Plan’s “representative contribution rate” is the lowest applicable contribution rate of
any eligible Nonhighly Compensated Employee among a group of eligible Nonhighly Compensated
Employees that consists of half of all eligible Nonhighly Compensated Employees for the Plan
Year (or, if greater, the lowest “applicable contribution rate” of any eligible Nonhighly
Compensated Employee in the group of all eligible Nonhighly Compensated Employees for the Plan
Year and who is employed by the Employer on the last day of the Plan Year), and




(2) The “applicable contribution rate” for an eligible Nonhighly Compensated Employee is the sum
of the Qualified Matching Contributions taken into account for the eligible Nonhighly
Compensated Employee for the Plan Year and the Qualified Contributions made for the eligible
Nonhighly Compensated Employee for the Plan Year, divided by the eligible Nonhighly Compensated
Employee’s 414(s) Compensation for the same period.




     Restriction on Qualified Matching Contributions. Qualified Matching Contributions may only be
used to calculate the ADP to the extent that such Qualified Matching Contributions are Matching
Contributions that are not precluded from being taken into account for ACP Test purposes under the
rules of Regulation Section 1.401(m)-2(a)(5)(ii).




     Restrictions of Qualified Nonelective Contributions and Qualified Matching Contributions.
Qualified Nonelective Contributions and Qualified Matching Contributions cannot be taken into
account to determine the ADP to the extent such contributions are taken into account for purposes
of satisfying any other ADP Test, any ACP Test, or the requirements of Regulation Sections
1.401(k)-3, 1.401(m)-3 or 1.401(k)-4. Thus, for example, Matching Contributions that are made
pursuant to Regulation Section 1.401(k)-3(c) cannot be taken into account under the ADP Test.
Similarly, if a plan switches from the current year testing method to the prior year testing
method pursuant to Regulation Section 1.401(k)-2(c), then Qualified Nonelective Contributions that
are taken into account under the current year testing method for a year may not be taken into
account under the prior year testing method for the next year.




(j) ADP when no Nonhighly Compensated Employees. If, for the applicable year for determining the
ADP of the Nonhighly Compensated Employees for a Plan Year, there are no eligible Nonhighly
Compensated Employees, then the Plan is deemed to satisfy the ADP Test for the Plan Year.




(k) Repeal of multiple use test. The multiple use test described in Code Section 401(m) in effect
prior to the enactment of the Economic Growth and Tax Relief Reconciliation Act of 2001 shall not
apply for Plan Years beginning after December 31,2001.



19









 





4.6 ADJUSTMENT TO ACTUAL DEFERRAL PERCENTAGE TEST





(a) Authority to correct. In the event that the initial allocations of the Elective Deferrals
made pursuant to Section 4.2 do not satisfy the ADP Test set forth in Section 4.5(a), the
Administrator shall implement some or all of the provisions of this Section in order to correct
such failure.




(b) Corrective action. The Participant who is the Highly Compensated Employee having the largest
dollar amount of Elective Deferrals shall have a portion of such Participant’s Elective
Deferrals first treated as Catch-Up Contributions and then distributed until the amount of such
Participant’s remaining Elective Deferrals equals the Elective Deferrals (less Catch-Up
Contributions) of the Participant who is the Highly Compensated Employee having the second
largest dollar amount of Elective Deferrals (less Catch-Up Contributions). This process shall
continue until the total amount of Excess Contributions has been eliminated. In determining the
amount of Excess Contributions to be treated as Catch-Up Contributions and/or distributed with
respect to an affected Participant who is a Highly Compensated Employee as determined herein,
such amount shall be reduced pursuant to Section 4.2(g) by any Excess Deferrals previously
distributed to such affected Participant who is a Highly Compensated Employee for such
Participant’s taxable year ending with or within such Plan Year.




(1) Corrective distribution. With respect to the distribution of Excess Contributions
pursuant to (a) above, such distribution:




(i) may be postponed but not later than the last day of the twelve-month period
following the Plan Year to which they are allocable;




(ii) shall be adjusted for Income; and




(iii) shall be designated by the Employer as a distribution of Excess Contributions (and
Income).




(2) Income and principal. Any distribution of less than the entire amount of Excess
Contributions shall be treated as a pro rata distribution of Excess Contributions and
Income.




(c) Corrective contributions. Notwithstanding the above, if the current year testing method is
used, within twelve (12) months after the end of the Plan Year, the Employer may make a
Qualified Nonelective Contribution or Qualified Matching Contribution in accordance with one of
the following provisions which contribution shall be allocated either to the Qualified
Nonelective Contribution Account or Qualified Matching Contribution Account of each Participant
who is a Nonhighly Compensated Employee eligible to share in the allocation in accordance with
such provision. If the prior year testing method is used, then a Qualified Nonelective
Contribution may not be made to correct a failed ADP test. The Employer shall provide the
Administrator with written notification of the amount of the contribution being made and for
which provision it is being made pursuant to:




(1) A Qualified Nonelective Contribution may be made on behalf of Nonhighly Compensated
Participants in an amount sufficient to satisfy one of the tests set forth in Section 4.5(a).
Such contribution shall be allocated in the same proportion that each Nonhighly Compensated
Employee’s 414(s) Compensation for the year bears to the total 414(s) Compensation of all
Nonhighly Compensated Employees for such year.




(2) A Qualified Nonelective Contribution may be made on behalf of Nonhighly Compensated
Employees in an amount sufficient to satisfy one of the tests set forth in Section 4.5(a).
Such contribution shall be allocated in the same proportion that each Nonhighly Compensated
Employee’s 414(s) Compensation for the year bears to the total 414(s) Compensation of all
Nonhighly Compensated Employees for such year. However, for purposes of this contribution,
Nonhighly Compensated Employees who are not employed at the end of the Plan Year shall not be
eligible to share in the allocation and shall be disregarded.




(3) A Qualified Nonelective Contribution may be made on behalf of Nonhighly Compensated
Employees in an amount sufficient to satisfy one of the tests set forth in Section 4.5(a).
Such contribution shall be allocated in equal amounts (per capita).




(4) A Qualified Nonelective Contribution may be made on behalf of Nonhighly Compensated
Employees in an amount sufficient to satisfy one of the tests set forth in Section 4.5(a).
Such contribution shall be allocated in equal amounts (per capita). However, for purposes of
this contribution, Nonhighly Compensated Employees who are not employed at the end of the
Plan Year shall not be eligible to share in the allocation and shall be disregarded.




(5) A Qualified Nonelective Contribution may be made on behalf of Nonhighly Compensated
Employees in an amount sufficient to satisfy one of the tests set forth in Section 4.5(a).
Such contribution shall be allocated to the Qualified Nonelective Contribution Account of the
Nonhighly Compensated Employee having the lowest 414(s) Compensation, until one of the tests
set forth in Section 4.5(a) is satisfied, or until such Nonhighly Compensated Employee has
received the maximum permissible amount pursuant to Section 4.7 or the maximum that may be
taken into account in the ADP Test pursuant to Section 4.5(i) (Targeted Qualified Nonelective
Contributions). This process shall continue until one of the tests set forth in Section
4.5(a) is satisfied.




(6) A Qualified Nonelective Contribution may be made on behalf of Nonhighly Compensated
Employees in an amount sufficient to satisfy one of the tests set forth in Section 4.5(a).
Such contribution shall be allocated to the Qualified Nonelective Contribution Account of the
Nonhighly Compensated Employee having the lowest 414(s) Compensation, until one of the tests
set



20









 






forth in Section 4.5(a) is satisfied, or until such Nonhighly Compensated Employee has
received the maximum permissible amount pursuant to Section 4.7 or the maximum that may be
taken into account in the ADP Test pursuant to Section 4.5(i) (Targeted Qualified
Nonelective Contributions). This process shall continue until one of the tests set forth in
Section 4.5(a) is satisfied. However, for purposes of this contribution, Nonhighly
Compensated Employees who are not employed at the end of the Plan Year shall not be
eligible to share in the allocation and shall be disregarded.




(7) A Qualified Matching Contribution may be made on behalf of Nonhighly Compensated
Employees in an amount sufficient to satisfy one of the tests set forth in Section 4.5(a).
Such contribution shall be allocated to the Qualified Matching Contribution Account of each
Nonhighly Compensated Employee in the same proportion that each Nonhighly Compensated
Employee’s Elective Deferrals for the year bears to the total Elective Deferrals of all
Nonhighly Compensated Employees.




(8) A Qualified Matching Contribution may be made on behalf of Nonhighly Compensated
Employees in an amount sufficient to satisfy one of the tests set forth in Section 4.5(a).
Such contribution shall be allocated to the Qualified Matching Contribution Account of each
Nonhighly Compensated Employee in the same proportion that each Nonhighly Compensated
Employee’s Elective Deferrals for the year bears to the total Elective Deferrals of all
Nonhighly Compensated Employees. However, for purposes of this contribution, Nonhighly
Compensated Employees who are not employed at the end of the Plan Year shall not be eligible
to share in the allocation and shall be disregarded.




     Notwithstanding the above, if the testing method changes from the current year testing
method to the prior year testing method, then for purposes of preventing the double counting of
Qualified Nonelective Contributions for the first testing year for which the change is
effective, any special Qualified Nonelective Contribution on behalf of Nonhighly Compensated
Participants used to satisfy the ADP Test under the current year testing method for the prior
year testing year shall be disregarded.




(d) Administrator may prevent projected failure. If during a Plan Year, it is projected that the
aggregate amount of Elective Deferrals to be allocated to all Highly Compensated Participants
under this Plan would cause the Plan to fail the tests set forth in Section 4.5(a), then the
Administrator may automatically reduce the deferral amount of affected Highly Compensated
Participants, beginning with the Highly Compensated Participant who has the highest ADR until it
is anticipated the Plan will pass the tests or until such Participant’s ADR equals the ADR of
the Highly Compensated Participant having the next highest ADR. This process may continue until
it is anticipated that the Plan will satisfy one of the tests set forth in Section 4.5(a).
Alternatively, the Employer may specify a maximum percentage of Compensation that may be
deferred.




(e) Excise tax after 2 1/2 months. Any Excess Contributions (and Income) which are distributed
on or after 2 1/2 months after the end of the Plan Year shall be subject to the ten percent
(10%) Employer excise tax imposed by Code Section 4979.



4.7 MAXIMUM ANNUAL ADDITIONS





(a) Maximum permissible amount. Notwithstanding the foregoing, for Limitation Years beginning
after December 31, 2001, the maximum Annual Additions credited to a Participant’s Accounts for
any Limitation Year shall equal the lesser of:




(1) $40,000 adjusted annually as provided in Code Section 415(d) pursuant to the
Regulations, or




(2) one-hundred percent (100%) of the Participant’s 415 Compensation for such Limitation
Year.




     The percentage limitation in paragraph (2) above shall not apply to: (1) any contribution
for medical benefits (within the meaning of Code Section 419A(f)(2)) after separation from
service which is otherwise treated as an annual addition, or (2) any amount otherwise treated as
an annual addition under Code Section 415(1)(1).




     For any short Limitation Year, the dollar limitation in paragraph (1) above shall be
reduced by a fraction, the numerator of which is the number of full months in the short
Limitation Year and the denominator of which is twelve (12).




(b) Reasonable estimate permissible. Prior to determining the Participant’s actual 415
Compensation for the Limitation Year, the Employer may determine the maximum permissible amount
for a Participant on the basis of a reasonable estimation of the Participant’s 415 Compensation
for the Limitation Year, uniformly determined for all Participants similarly situated. As soon
as is administratively feasible after the end of the Limitation Year, the maximum permissible
amount for the Limitation Year will be determined on the basis of the Participant’s actual 415
Compensation for the Limitation Year.




(c) Excess Annual Additions defined. For purposes of this Article, the term “Excess Annual
Additions” for any Participant for a Limitation Year means a Participant’s Annual Additions
under this Plan and such other plans of the Employer or Affiliated Employer that are in excess
of the maximum permissible amount of Section 4.7 for a Limitation Year. The Excess Annual
Additions will be deemed to consist of the Annual Additions last allocated, except that Annual
Additions attributable to a simplified employee pension will be deemed to have been allocated
first, followed by Annual Additions to a welfare benefit fund or individual medical account, and
then by Annual Additions to a plan subject to Code Section 412, regardless of the actual
allocation date.




(d) Annual Additions can cease when maximum permissible amount reached. If the Employer
contribution that would otherwise be contributed or allocated to the Participant’s Accounts
would cause the Annual Additions for the Limitation Year to exceed the maximum permissible
amount, then the amount that would otherwise be contributed or allocated will be reduced so that
the Annual



21









 






Additions for the Limitation Year will equal the maximum permissible amount, and any such
amounts which would have been allocated to such Participant may be allocated to other
Participants.




(e) All DC plans treated as one plan. For the purpose of this Section, all qualified defined
contribution plans (regardless of whether such plan has terminated) maintained by the Employer
during a Limitation Year shall be treated as one defined contribution plan.




(f) All Employees of Related Employers treated as employed by one Employer. For the purpose of
this Section, if the Employer is a member of a controlled group of corporations, trades or
businesses under common control (as defined by Code Section 1563(a) or Code Section 414(b) and
(c) as modified by Code Section 415(h)), is a member of an affiliated service group (as defined
by Code Section 414(m)), or is a member of a group of entities required to be aggregated
pursuant to Regulations under Code Section 414(o), then all Employees of such Employers shall be
considered to be employed by a single Employer.




(g) 413(c) Plan. If this is a plan described in Code Section 413(c) (other than a plan described
in Code Section 414(f)), then all of the benefits or contributions attributable to a Participant
from all of the Employers maintaining this Plan shall be taken into account in applying the
limits of this Section with respect to such Participant. Furthermore, in applying the
limitations of this Section with respect to such a Participant, the total 415 Compensation
received by the Participant from all of the Employers maintaining the Plan shall be taken into
account.




(h)(1) DC Plans with same/different Anniversary Dates. If a Participant participates in more
than one defined contribution plan maintained by the Employer that have different Anniversary
Dates, then the maximum permissible amount under this Plan shall equal the maximum permissible
amount for the Limitation Year minus any Annual Additions previously credited to such
Participant’s Accounts during the Limitation Year.




(2) If a Participant participates in both a defined contribution plan subject to Code
Section 412 and a defined contribution plan not subject to Code Section 412 maintained by
the Employer which have the same Anniversary Date, then Annual Additions will be credited to
the Participant’s Accounts under the defined contribution plan subject to Code Section 412
prior to crediting Annual Additions to the Participant’s Accounts under the defined
contribution plan not subject to Code Section 412.




(3) If a Participant participates in more than one defined contribution plan not subject to
Code Section 412 maintained by the Employer which have the same Anniversary Date, then the
maximum permissible amount under this Plan shall equal the product of (A) the maximum
permissible amount for the Limitation Year minus any Annual Additions previously credited
under subparagraphs (1) or (2) above, multiplied by (B) a fraction (i) the numerator of
which is the Annual Additions which would be credited to such Participant’s Accounts under
this Plan without regard to the limitations of Code Section 415 and (ii) the denominator of
which is such Annual Additions for all plans described in this subparagraph.



4.8 ADJUSTMENT FOR EXCESS ANNUAL ADDITIONS





(a) Disposal of Excess Annual Additions. Allocation of Annual Additions to a Participant’s
Account for a Limitation Year generally will cease in accordance with Section 4.7(d) once the
maximum permissible amount of Section 4.7 has been reached for such Limitation Year. However,
if, as a result of a reasonable error in estimating a Participant’s Compensation, a reasonable
error in determining the amount of Elective Deferrals (within the meaning of Code Section
402(g)(3)) that may be made with respect to any Participant with respect to the maximum
permissible amount of Section 4.7 or other facts and circumstances to which Regulation
1.415-6(b)(6) shall be applicable, the Annual Additions under this Plan would cause Excess
Annual Additions for any Participant, then the Excess Annual Additions will be disposed of in
one of the following ways, as uniformly determined by the Administrator for all Participants
similarly situated.




(1) Any Elective Deferrals (and any gain attributable to such Elective Deferrals), to the
extent they would reduce the Excess Annual Additions, will be distributed to the
Participant;




(2) If the Participant is covered by the Plan at the end of the Limitation Year, then the
Excess Annual Additions will be used to reduce the Employer contribution for such
Participant in the next Limitation Year, and each succeeding Limitation Year if necessary;




(3) If the Participant is not covered by the Plan at the end of the Limitation Year, then
the Excess Annual Additions will be held unallocated in a “Section 415 suspense account.”
The “Section 415 suspense account” will be applied to reduce future Employer contributions
for all remaining Participants in the next Limitation Year, and each succeeding Limitation
Year if necessary;




(4) If a “Section 415 suspense account” is in existence at any time during the Limitation
Year pursuant to this Section, then the “Section 415 suspense account” will not participate
in the allocation of investment gains and losses of the Trust Fund. If a “Section 415
suspense account” is in existence at any time during a particular Limitation Year, then all
amounts in the “Section 415 suspense account” must be allocated and reallocated to
Participants’ Accounts before any Employer contributions or any Employee contributions may
be made to the Plan for that Limitation Year. Except as provided above, Excess Annual
Additions may not be distributed to Participants.




(b) Section 415 suspense account defined. For purposes of this Section, the term “Section 415
suspense account” means an unallocated account equal to the sum of Excess Annual Additions for
all Participants in the Plan during the Limitation Year.



22









 





4.9 PLAN-TO-PLAN TRANSFERS (OTHER THAN ROLLOVERS) FROM QUALIFIED PLANS





(a) Transfers into this Plan. With the consent of the Administrator (such consent must be
exercised in a nondiscriminatory manner and applied uniformly to all Participants), amounts may
be transferred (within the meaning of Code Section 414(1)) to this Plan from other tax qualified
plans under Code Section 401(a), provided that the plan from which such funds are transferred
permits the transfer to be made, the funds are not subject to the notice and consent
requirements of Code Section 417 (i.e., qualified joint and survivor annuity requirements), and
the transfer will not jeopardize the tax exempt status of the Plan or Trust or create adverse
tax consequences for the Employer. Prior to accepting any transfers to which this Section
applies, the Administrator may require satisfactory evidence that the amounts to be transferred
meet the requirements of this Section. The transferred amounts shall be allocated to the
Transfer Account of the Participant.




     At the time of the transfer, the nonforfeitable percentage of the funds under the
transferor plan shall apply, but thereafter shall increase (if applicable) for each Year of
Service that the Participant completes after such transfer in accordance with the Vesting
provisions of this Plan applicable to the type of Account represented by the transferred funds
(e.g., transferred nonelective funds will be subject to the vesting schedule applicable to
Nonelective Contributions under this Plan). If the vesting schedule applicable to a Transferred
Account changes as a result of this paragraph, such change will be treated as an amendment to
the vesting schedule for each affected Participant.




(b) Accounting of transfers. The Transfer Account of a Participant shall be held by the Trustee
pursuant to the provisions of this Plan and may not be withdrawn by, or distributed to the
Participant, in whole or in part, except as provided in paragraph (d) of this Section. The
Trustee shall have no duty or responsibility to inquire as to the propriety of the amount, value
or type of assets transferred, nor to conduct any due diligence with respect to such assets;
provided, however, that such assets are otherwise eligible to be held by the Trustee under the
terms of this Plan.




(c) Restrictions on elective deferrals. Except as permitted by Regulations (including Regulation
Section 1.411(d)-4), amounts attributable to elective deferrals (as defined in Regulation
Section 1.401(k)-6), including amounts treated as elective deferrals, which are transferred from
another qualified plan in a plan-to-plan transfer (other than a direct rollover) shall be
subject to the distribution limitations provided for in Code Section 401(k)(2) and the
Regulations.




(d) Distribution of Transfer Account. At Normal Retirement Date, or such other date when the
Participant or the Participant’s Beneficiary shall be entitled to receive benefits, the Transfer
Account of a Participant shall be used to provide additional benefits to the Participant or the
Participant’s Beneficiary. Any distributions of amounts held in the Transfer Account shall be
made in a manner which is consistent with and satisfies the provisions of Sections 6.5 and 6.6,
including, but not limited to, all notice and consent requirements of Code Section 411(a)(11)
and the Regulations thereunder. Furthermore, the Transfer Account shall be considered as part of
a Participant’s benefit in determining whether an involuntary cash-out of benefits may be made
without Participant consent.




(e) Segregation. The Administrator may direct that Employee transfers made after a Valuation
Date be segregated into a separate account for each Participant until such time as the
allocations pursuant to this Plan have been made, at which time they may remain segregated or be
invested as part of the general Trust Fund or be directed by the Participant pursuant to Section
4.10.




(f) Protected benefits. Notwithstanding anything herein to the contrary, a transfer directly to
this Plan from another qualified plan (or a transaction having the effect of such a transfer)
shall only be permitted if it will not result in the elimination or reduction of any “Section 411(d)(6)
protected benefit” as described in Section 8.1(e).




(g) Separate Accounts. With respect to each Participant’s Transfer Account, separate
sub-accounts shall be maintained to the extent necessary to carry out the provisions of this
Plan.



4.10 PARTICIPANT DIRECTED INVESTMENTS





(a) Directed Investments allowed. Participants may, subject to a procedure established by the
Administrator (the Participant Direction Procedures) and applied in a uniform nondiscriminatory
manner, direct the Trustee, in writing (or in such other form which is acceptable to the
Trustee), to invest the accounts/amounts specified below in specific assets, specific funds or
other investments permitted under the Plan and the Participant Direction Procedures. That
portion of the interest of any Participant so directing will thereupon be considered a
Participant’s Directed Account.




(b) Establishment of Participant Direction Procedures. The Administrator will establish
Participant Direction Procedures, to be applied in a uniform and nondiscriminatory manner,
setting forth the permissible investment options under this Section, how often changes between
investments may be made, and any other limitations and provisions that the Administrator may
impose on a Participant’s right to direct investments.




(c) Administrative discretion. The Administrator may, in its discretion, include or exclude by
amendment or other action from the Participant Direction Procedures such instructions,
guidelines or policies as it deems necessary or appropriate to ensure proper administration of
the Plan, and may interpret the same accordingly.



23









 






(d) Allocation of earnings. As of each Valuation Date, all Participant Directed Accounts shall be
charged or credited with the net earnings, gains, losses and expenses as well as any appreciation
or depreciation in the market value using publicly listed fair market values when available or
appropriate as follows:




(1) to the extent that the assets in a Participant’s Directed Account are accounted for as
pooled assets or investments, the allocation of earnings, gains and losses of each Participant’s
Directed Account shall be based upon the total amount of funds so invested in a manner
proportionate to the Participant’s share of such pooled investment; and




(2) to the extent that the assets in the Participant’s Directed Account are accounted for as
segregated assets, the allocation of earnings, gains and losses from such assets shall be made
on a separate and distinct basis.




(e) Plan will follow investment directions. Investment directions will be processed as soon as
administratively practicable after proper investment directions are received from the Participant.
No guarantee is made by the Plan, Employer, Administrator or Trustee that investment directions
will be processed on a daily basis, and no guarantee is made in any respect regarding the
processing time of an investment direction. Notwithstanding any other provision of the Plan, the
Employer, Administrator or Trustee reserves the right to not value an investment option on any
given Valuation Date for any reason deemed appropriate by the Employer, Administrator or Trustee.
Furthermore, the processing of any investment transaction may be delayed for any legitimate
business reason or force majeure (including, but not limited to, failure of systems or computer
programs, failure of the means of the transmission of data, the failure of a service provider to
timely receive values or prices, and correction for errors or omissions or the errors or omissions
of any service provider). The processing date of a transaction will be binding for all purposes of
the Plan and considered the applicable Valuation Date for an investment transaction.




(f) Section 404(c) provisions. The Participant Direction Procedures shall provide an explanation of
the circumstances under which Participants and their Beneficiaries may give investment
instructions, including, but not limited to, the following to the extent required under the
Department of Labor regulations or guidance:




(1) the conveyance of instructions by the Participants and their Beneficiaries to invest
Participant Directed Accounts in Directed Investment Options;




(2) the name, address and phone number of the Fiduciary (and, if applicable, the person or
persons designated by the Fiduciary to act on its behalf) responsible for providing information
to the Participant or a Beneficiary upon request relating to the Directed Investment Options;




(3) applicable restrictions on transfers to and from any Designated Investment Alternative;




(4) any restrictions on the exercise of voting, tender and similar rights related to a Directed
Investment Option by the Participants or their Beneficiaries;




(5) a description of any transaction fees and expenses which affect the balances in Participant
Directed Accounts in connection with the purchase or sale of Directed Investment Options; and




(6) general procedures for the dissemination of investment and other information relating to the
Designated Investment Alternatives as deemed necessary or appropriate, including but not limited
to a description of the following:




(i) the investment vehicles available under the Plan, including specific information
regarding any Designated Investment Alternative;




(ii) any designated Investment Managers; and




(iii) a description of the additional information which may be obtained upon request from
the Fiduciary designated to provide such information.




(g) Other documents. Any information regarding investments available under the Plan, to the extent
not required to be described in the Participant Direction Procedures, may be provided to the
Participant in one or more written documents (or in any other form including, but not limited to,
electronic media) which are separate from the Participant Direction Procedures and are not thereby
incorporated by reference into this Plan.




(h) Instructions, guidelines or policies. The Administrator may, in its discretion, include or
exclude by amendment or other action from the Participant Direction Procedures such instructions,
guidelines or policies as it deems necessary or appropriate to ensure proper administration of the
Plan, and may interpret the same accordingly.




(i) Accounts that can be directed. The Participant is permitted to direct
the following accounts/amounts:




(1) the Pre-Tax Elective Deferral
Account.



24









 





4.11 QUALIFIED MILITARY SERVICE




     Notwithstanding any provision of this Plan to the contrary, contributions, benefits and
service will be provided in accordance with Code Section 414(u).



ARTICLE V

VALUATIONS




5.1 VALUATION OF THE TRUST FUND




     The Administrator shall direct the Trustee, as of each Valuation Date, to determine the net
worth of the assets comprising the Trust Fund as it exists on the Valuation Date. In determining
such net worth, the Trustee shall value the assets comprising the Trust Fund at their fair market
value as of the Valuation Date and shall deduct all expenses for which the Trustee has not yet
obtained reimbursement from the Employer or the Trust Fund. The Trustee may update the value of
any shares held in the Participant Directed Account by reference to the number of shares held by
that Participant, priced at the market value as of the Valuation Date.



5.2 METHOD OF VALUATION




     In determining the fair market value of securities held in the Trust Fund which are listed on
a registered stock exchange, the Administrator shall direct the Trustee to value the same at the
prices they were last traded on such exchange preceding the close of business on the Valuation
Date. If such securities were not traded on the Valuation Date, or if the exchange on which they
are traded was not open for business on the Valuation Date, then the securities shall be valued at
the prices at which they were last traded prior to the Valuation Date. Any unlisted security held
in the Trust Fund shall be valued at its bid price next preceding the close of business on the
Valuation Date, which bid price shall be obtained from a registered broker or an investment
banker. In determining the fair market value of assets other than securities for which trading or
bid prices can be obtained, the Trustee may appraise such assets itself, or in its discretion,
employ one or more appraisers for that purpose and rely on the values established by such
appraiser or appraisers.



ARTICLE VI

DETERMINATION AND DISTRIBUTION OF BENEFITS




6.1 DETERMINATION OF BENEFITS UPON RETIREMENT




     Every Participant may terminate employment with the Employer and retire for the purposes
hereof on the Participant’s Normal Retirement Date. However, a Participant may postpone the
termination of employment with the Employer to a later date, in which event the participation of
such Participant in the Plan, including the right to receive allocations pursuant to Section 4.4,
shall continue until such Participant’s Late Retirement Date. Upon a Participant’s Retirement Date
or attainment of Normal Retirement Date without termination of employment with the Employer
(subject to the provisions of Section 4.2(d)), or as soon thereafter as is practicable, the
Administrator shall direct the distribution, at the election of the Participant, of the
Participant’s entire Vested interest in the Plan (or any portion thereof), in accordance with
Section 6.5.



6.2 DETERMINATION OF BENEFITS UPON DEATH





(a) 100% Vesting on death. Upon the death of a Participant before the Participant’s Retirement
Date or other termination of employment, all amounts credited to such Participant’s Account
shall become fully Vested.




(b) Distribution upon death. Upon the death of a Participant, the Administrator shall direct, in
accordance with the provisions of Sections 6.6 and 6.7, the distribution of any remaining
amounts credited to the accounts of the deceased Participant to such Participant’s Beneficiary.




(c) Determination of death benefit by Administrator. The Administrator may require such proper
proof of death and such evidence of the right of any person to receive payment of the value of
the account of a deceased Participant as the Administrator may deem desirable. The
Administrator’s determination of death and of the right of any person to receive payment shall
be conclusive.




(d) Beneficiary designation. The Beneficiary of the death benefit payable pursuant to this
Section shall be the Participant’s surviving spouse. Except, however, the Participant may
designate a Beneficiary other than the spouse if:




(1) the spouse has waived the right to be the Participant’s Beneficiary, or




(2) the Participant is legally separated or has been abandoned (within the meaning of local
law) and the Participant has a court order to such effect (and there is no qualified
domestic relations order as defined in Code Section 414(p) which provides otherwise), or




(3) the Participant has no spouse, or




(4) the spouse cannot be located.




25












 






     In such event, the designation of a Beneficiary shall be made on a form satisfactory to
the Administrator. A Participant may at any time revoke a designation of a Beneficiary or
change a Beneficiary by filing written notice (or in such other form as permitted by the
Internal Revenue Service) of such revocation or change with the Administrator. However, the
Participant’s spouse must again consent in writing (or in such other form as permitted by the
Internal Revenue Service) to any change in Beneficiary unless the original consent acknowledged
that the spouse had the right to limit consent only to a specific Beneficiary and that the
spouse voluntarily elected to relinquish such right.




(e) Beneficiary if no beneficiary elected by Participant. In the event no valid designation of
Beneficiary exists with respect to all or a portion of the death benefit, or if the Beneficiary
of such death benefit is not alive at the time of the Participant’s death and no contingent
Beneficiary has been designated, then such death benefit will be paid in the following order of
priority to:




	 	(1)	 	the Participant’s surviving spouse;
	 
	 	(2)	 	the Participant’s children, including adopted children, per stirpes;
	 
	 	(3)	 	the Participant’s surviving parents, in equal shares; or
	 
	 	(4)	 	the Participant’s estate.






     If the Beneficiary does not predecease the Participant, but dies prior to distribution of
the death benefit, the death benefit will be paid to the Beneficiary’s designated Beneficiary
(or there is no designated Beneficiary, to the Beneficiary’s estate).




(f) Divorce revokes spousal beneficiary designation. Notwithstanding anything in this Section to
the contrary, if a Participant has designated the spouse as a Beneficiary, then a divorce decree
or a legal separation that relates to such spouse shall revoke the Participant’s designation of
the spouse as a Beneficiary unless the decree or a qualified domestic relations order (within
the meaning of Code Section 
414(p)) provides otherwise or a subsequent beneficiary designation
is made.




(g) Spousal consent. Any consent by the Participant’s spouse to waive any rights to the death
benefit must be in writing (or in such other form as permitted by the Internal Revenue Service),
must acknowledge the effect of such waiver, and be witnessed by a Plan representative or a
notary public. Further, the spouse’s consent must be irrevocable and must acknowledge the
specific nonspouse Beneficiary.



6.3 DISABILITY RETIREMENT BENEFITS




     In the event of a Participant’s Disability prior to the Participant’s Retirement Date or
other termination of employment, all amounts credited to such Participant’s Account shall become
fully Vested. In the event of a Participant’s Disability, the Administrator, in accordance with
the provisions of Sections 6.5 and 6.7, shall direct the distribution to such Participant of all
Vested amounts credited to such Participant’s Account.



6.4 DETERMINATION OF BENEFITS UPON TERMINATION





(a) Payment on termination of employment. If a Participant’s employment with the Employer is
terminated for any reason other than death, Disability or retirement, then such Participant
shall be entitled to such benefits as are provided hereinafter pursuant to this Section 6.4.




     Distribution of the funds due to a Terminated Participant shall be made on the occurrence
of an event which would result in a distributable event had the Terminated Participant remained
in the employ of the Employer (upon the Participant’s death, Disability or Normal Retirement).
However, at the election of the Participant, the Administrator shall direct the distribution of
the entire Vested portion of the Terminated Participant’s Account be payable to such Terminated
Participant as soon as administratively feasible after termination of employment. Any
distribution under this paragraph shall be made in a manner which is consistent with and
satisfies the provisions of Section 6.5, including, but not limited to, all notice and consent
requirements of Code Section 411(a)(11) and the Regulations thereunder.




(b) Full vesting. A Participant shall be fully Vested immediately upon entry into the Plan.




(c) No reduction in Vested percentage due to change in vesting schedule. Notwithstanding the
vesting schedule above, the Vested percentage of a Participant’s Account shall not be less than
the Vested percentage attained as of the later of the effective date or adoption date of this
amendment and restatement.




(d) Continuation of old schedule if 3 years of service. The computation of a Participant’s
nonforfeitable percentage of such Participant’s interest in the Plan shall not be reduced as the
result of any direct or indirect amendment to this Plan. In the event that the Plan is amended
to change or modify any vesting schedule, or if the Plan is amended in any way that directly or
indirectly affects the computation of the Participant’s nonforfeitable percentage, or if the
Plan is deemed amended by an automatic change to or from a top-heavy vesting schedule, then
each Participant with an Hour of Service after such change and who has at least three (3) Years
of Service as of the expiration date of the election period may elect to have such Participant’s
nonforfeitable percentage computed under the Plan without regard to such amendment or change. If
such a Participant fails to make such election, then such Participant shall be



26









 






subject to the new vesting schedule. The Participant’s election period shall commence on the
date the amendment is adopted or deemed to be made and shall end sixty (60) days after the
latest of:




	 	(1)	 	the adoption date of the amendment,
	 
	 	(2)	 	the effective date of the amendment, or
	 
	 	(3)	 	the date the Participant receives written notice of the amendment from the Employer or
Administrator.





6.5 DISTRIBUTION OF BENEFITS





(a) The Administrator, pursuant to the election of the Participant, shall direct the Trustee to
distribute to a Participant or such Participant’s Beneficiary the amount (if any) to which the
Participant (or Beneficiary) has become entitled under the Plan in one or more of the following
methods:




(1) One lump-sum payment in cash or in property allocated to the Participant’s Account. This
shall be the normal form of payment, except as otherwise provided below.




(2) Payments over a period certain in monthly, quarterly, semiannual, or annual cash
installments. In order to provide such installment payments, the Administrator may (A)
segregate the aggregate amount thereof in a separate, federally insured savings account,
certificate of deposit in a bank or savings and loan association, money market certificate
or other liquid short-term security or (B) purchase a nontransferable annuity Contract for a
term certain (with no life contingencies) providing for such payment. The period over which
such payment is to be made shall not extend beyond the Participant’s life expectancy (or the
life expectancy of the Participant and the Participant’s designated Beneficiary).




     If the value of the Participant’s Total Vested Benefit does not exceed $5,000, then
distribution may only be paid as a lump-sum payment. This distribution will be made regardless
of the Participant’s and the Participant’s spouse’s written consent. No distribution may be
made under the preceding sentence after the Annuity Starting Date unless the Participant and
the Participant’s spouse consent in writing (or in such form as permitted by the Internal
Revenue Service) to such distribution.




(b) Any distribution to a Participant who has a Total Vested Benefit which exceeds $5,000 shall
require such Participant’s written consent (or in such other form as permitted by the Internal
Revenue Service) if such distribution commences prior to the time the benefit is “immediately
distributable.” A benefit is “immediately distributable” if any part of the benefit could be
distributed to the Participant (or surviving spouse) before the Participant attains (or would
have attained if not deceased) the later of the Participant’s Normal Retirement Age or age 62.




     Any such distribution may be made less than thirty (30) days after the notice required
under Regulation 1.411(a)-11(c) is given, provided that: (1) the Administrator clearly informs
the Participant that the Participant has a right to a period of at least thirty (30) days after
receiving the notice to consider the decision of whether or not to elect a distribution (and,
if applicable, a particular distribution option), and (2) the Participant, after receiving the
notice, affirmatively elects a distribution.




(c) If a mandatory distribution greater than $1,000 is made in accordance with the provisions of
the Plan providing for an automatic distribution to a Participant without the Participant’s
consent, and the Participant does not elect to have such distribution paid directly to an
eligible retirement plan specified by the Participant in a direct rollover (in accordance with
the direct rollover provisions of the Plan) or to receive the distribution directly, then the
Administrator shall direct that the distribution be made in a direct rollover to an Individual
Retirement Account described in Code Section 408(a) or an Individual Retirement Annuity
described in Code Section 408(b), as designated by the Administrator. The Administrator may
operationally implement this provision with respect to distributions that are $1,000 or less.




(d) All annuity Contracts under this Plan shall be non-transferable when distributed.
Furthermore, the terms of any annuity Contract purchased and distributed to a Participant or
spouse shall comply with all of the requirements of the Plan.




(e) Required minimum distributions (Code Section 401(a)(9)). Notwithstanding any provision in
the Plan to the contrary, the distribution of a Participant’s benefits shall be made in
accordance with the requirements of Section 6.8.



6.6 DISTRIBUTION OF BENEFITS UPON DEATH





(a) The death benefit payable pursuant to Section 6.2 shall be paid to the Participant’s
Beneficiary within a reasonable time after the Participant’s death by either of the following
methods, as elected by the Participant (or if no election has been made prior to the
Participant’s death, by the Participant’s Beneficiary) subject, however, to the rules specified
in Section 6.8:




(1) One lump-sum payment in cash or in property allocated to the Participant’s Account.




(2) Payment in monthly, quarterly, semi-annual, or annual cash installments over a period to
be determined by the Participant or the Participant’s Beneficiary. After periodic
installments commence, the Beneficiary shall have the right to direct the Trustee to reduce
the period over which such periodic installments shall be made, and the Trustee shall adjust
the cash amount of such periodic installments accordingly.



27









 






     In the event the death benefit payable pursuant to Section 6.2 is payable in installments,
then, upon the death of the Participant, the Administrator may direct the Trustee to segregate
the death benefit into a separate account, and the Trustee shall invest such segregated account
separately, and the funds accumulated in such account shall be used for the payment of the
installments.




(b) Notwithstanding any provision in the Plan to the contrary, distributions upon the death of
a Participant shall comply with the requirements of Section 6.8.



6.7 TIME OF DISTRIBUTION




     Except as limited by Section 6.8, whenever a distribution is to be made, or a series of
payments are to commence, the distribution or series of payments may be made or begun as soon as
practicable. However, unless a Participant elects in writing to defer the receipt of benefits (such
election may not result in a death benefit that is more than incidental), the payment of benefits
shall begin not later than the sixtieth (60th) day after the close of the Plan Year in which the
latest of the following events occurs: (a) the date on which the Participant attains the earlier of
age 65 or the Normal Retirement Age specified herein; (b) the tenth (10th) anniversary of the year
in which the Participant commenced participation in the Plan; or (c) the date the Participant
terminates service with the Employer.



     Notwithstanding the foregoing, the failure of a Participant and, if applicable, the
Participant’s spouse, to consent to a distribution that is immediately distributable (within the
meaning of Section 6.5), shall be deemed to be an election to defer the commencement of payment of
any benefit sufficient to satisfy this Section.



6.8 REQUIRED MINIMUM DISTRIBUTIONS





	 	(a)	 	General Rules






(1) Effective Date. Unless otherwise specified, the provisions of this Section will apply
for purposes of determining required minimum distributions for calendar years beginning with
the 2002 calendar year.




(2) Precedence. The requirements of this Section shall apply to any distribution of a
Participant’s interest in the Plan and take precedence over any inconsistent provisions of
the Plan.




(3) Requirements of Treasury Regulations Incorporated. All distributions required under this
Section will be determined and made in accordance with the Regulations under Code Section
401(a)(9) and the minimum distribution incidental benefit requirement of Code Section
401(a)(9)(G).




	 	(b)	 	Time and manner of distribution






(1) 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.




(2) Death of Participant before distributions begin. If the Participant dies before
distributions begin, the Participant’s entire death benefit will be distributed, or begin to
be distributed, as follows:




(i) Distributions of the required minimum distributions will begin by December 31 of the
calendar year immediately following the calendar year in which the Participant died, or,
if the Participant’s surviving spouse is the Participant’s designated beneficiary, by
December 31 of the calendar year in which the Participant would have attained age 70
1/2, if later.




(ii) If there is no beneficiary as of September 30 of the year following the year of the
Participant’s death, the distribution of the Participant’s death benefit will be
completed by December 31 of the calendar year containing the fifth anniversary of the
Participant’s death.




(iii) 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 6.8(b), other than this paragraph, will
apply as if the surviving spouse were the Participant, Thus, in all such cases, the time
at which distributions must commence (or be completed by) shall be determined solely by
reference to the year that the Participant died, and not the year in which the
Participant would have attained age 70 1/2.




     For purposes of this Section 6.8(b), unless a surviving spouse is electing to commence
benefits based upon the date that the Participant would have attained age 70 1/2,
distributions are considered to begin on the Participant’s required beginning date. If the
surviving-spouse election applies, distributions are considered to begin on the date
distributions are required to begin to the surviving spouse under Section 6.8(b).




(3) Forms of distribution. Unless the Participant’s interest is distributed 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 6.8(c) and 6.8(d). All distributions
under this Section shall be made in a manner which is consistent with and satisfies the
provisions of Section 6.5, including, but not limited to, all notice and consent
requirements of Code Section 411(a)(11) and the Regulations thereunder.




28









 









	 	(c) 	Required minimum distributions during Participant’s lifetime






(1) 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:




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




(ii) if the Participant’s sole designated beneficiary for the distribution calendar year is
the Participant’s spouse and the spouse is more than 10 years younger than the Participant,
the quotient obtained by dividing the Participant’s Account balance by the number in the
Joint and Last Survivor Table set forth in Regulation Section 1.401(a)(9)-9, using the
Participant’s and spouse’s attained ages as of the Participant’s and spouse’s birthdays in
the distribution calendar year.




(2) Lifetime required minimum distributions continue through year of Participant’s death.
Required minimum distributions will be determined under this Section 6.8(c) beginning with the
first distribution calendar year and up to and including the distribution calendar year that
includes the Participant’s date of death.




	 	(d)	 	Required minimum distributions after Participant’s death






	 	(1)	 	Death on or after date distributions begin.






(i) 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.




(ii) 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.




	 	(2)	 	Death before date distributions begin.






(i) Participant survived by designated beneficiary. Except as provided in Section
6.8(b)(3), 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 6.8(d)(l).




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




(iii) 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
6.8(b), this Section 6.8(d)(2) will apply as if the surviving spouse were the Participant.




29









 









	 	(e)	 	Definitions. For purposes of this Section, the following definitions apply:






(1) “Designated beneficiary” means the individual who is designated as the Beneficiary under the
Plan and is the designated beneficiary under Code Section 401(a)(9) and Regulation Section
1.401(a)(9)-4, Q&A-4.




(2) “Distribution calendar year” means 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 6.8(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.




(3) “Life expectancy” means the life expectancy as computed by use of the Single Life Table in
Regulation Section 1.401(a)(9)-9, Q&A-1.




(4) “Participant’s account balance” means the “Participant’s 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. For this purpose, the Administrator may exclude contributions that are allocated
to the account balance as of dates in the valuation calendar year after the Valuation Date, but
that are not actually made during the valuation calendar year. 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.




(5) “Required beginning date” means, with respect to any Participant, April 1 of the calendar
year following the later of the calendar year in which the Participant attains age 70 1/2 or the
calendar year in which the Participant retires, except that benefit distributions to a 
5-percent
owner must commence by April 1 of the calendar year following the calendar year in which the
Participant attains age 70 1/2.




(6) “5-percent owner” means a Participant who is a 5-percent owner as defined in Code Section
416 at any time during the Plan Year ending with or within the calendar year in which such owner
attains age 70 1/2. Once distributions have begun to a 5-percent owner under this Section they
must continue to be distributed, even if the Participant ceases to be a 5-percent owner in a
subsequent year.




	 	(f)	 	Transition rules






(1) Rules for plans in existence before 1997. Any required minimum distribution rights conferred
on participants in order to comply with (or as a means of complying with) the changes to Code
Section 401(a)(9) made by the Small Business Jobs Protection Act of 1996 that were still in
effect immediately prior to this restatement shall be preserved.




(2) Applicable regulations. Notwithstanding any Plan provision to the contrary, required minimum
distributions before 2003 were made as follows:




(i) 2001. Required minimum distributions for calendar year 2001 were made pursuant to the
proposed Regulations under Code Section 401(a)(9) published in the Federal Register on
January 17, 2001 (the “2001 Proposed Regulations”). If distributions were made in 2001 under
the 1987 Proposed Regulations prior to the date in 2001 the plan began operating under the
2001 Proposed Regulations, the special transition rule in Announcement 2001-82, 2001-2 C.B.
123, applied.




(ii) 2002. Required minimum distributions for calendar year 2002 were made pursuant to the
Final and Temporary Regulations under Code Section 401(a)(9) published in the Federal
Register on April 17, 2002, (the “2002 Final and Temporary Regulations”) which are
described in Sections (b) through (f) of this Section. If distributions were made in 2002
under either the 1987 Proposed Regulations or the 2001 Proposed Regulations prior to the
date in 2002 the Plan began operating under the 2002 Final and Temporary Regulations, the
special transition rule in Section 1.2 of the model amendment in Revenue Procedure 2002-29,
2002-1 C.B. 1176, applied.




	 	(g)	 	Statutory (TEFRA) Transition Rules






(1) Notwithstanding the other provisions of this Section, other than the spouse’s right of
consent afforded under the Plan, distributions may be made on behalf of any Participant,
including a five percent (5%) owner, who has made a designation in accordance with Section
242(b)(2) of the Tax Equity and Fiscal Responsibility Act (TEFRA) and in accordance with all of
the following requirements (regardless of when such distribution commences):




(i) The distribution by the Plan is one which would not have disqualified such plan under
Code Section 401(a)(9) as in effect prior to amendment by the Deficit Reduction Act of
1984.



30









 






(ii) The distribution is in accordance with a method of distribution designated by the
Participant whose interest in the plan is being distributed or, if the Participant is
deceased, by a Beneficiary of such Participant.




(iii) Such designation was in writing, was signed by the Participant or the Beneficiary,
and was made before January 1, 1984.




(iv) The Participant had accrued a benefit under the Plan as of December 31, 1983.




(v) The method of distribution designated by the Participant or the Beneficiary
specifies the time at which distribution will commence, the period over which
distributions will be made, and in the case of any distribution upon the Participant’s
death, the Beneficiaries of the Participant listed in order of priority.




(2) A distribution upon death will not be covered by the transitional rule of this
subsection unless the information in the designation contains the required information
described above with respect to the distributions to be made upon the death of the
Participant.




(3) For any distribution which commences before January 1, 1984, but continues after
December 31, 1983, the Participant, or the Beneficiary, to whom such distribution is being
made, will be presumed to have designated the method of distribution under which the
distribution is being made if the method of distribution was specified in writing and the
distribution satisfies the requirements in (1)(i) and (1)(v) of this subsection.




(4) If a designation is revoked, any subsequent distribution must satisfy the requirements
of Code Section 401(a)(9) and the Regulations thereunder. If a designation is revoked
subsequent to the date distributions are required to begin, the Plan must distribute by the
end of the calendar year following the calendar year in which the revocation occurs the
total amount not yet distributed which would have been required to have been distributed to
satisfy Code Section 401(a)(9) and the Regulations thereunder, but for the Section 242(b)(2)
election. For calendar years beginning after December 31, 1988, such distributions must meet
the minimum distribution incidental benefit requirements. Any changes in the designation
will be considered to be a revocation of the designation. However, the mere substitution or
addition of another Beneficiary (one not named in the designation) under the designation
will not be considered to be a revocation of the designation, so long as such substitution
or addition does not alter the period over which distributions are to be made under the
designation, directly or indirectly (for example, by altering the relevant measuring life).




(5) In the case in which an amount is transferred or rolled over from one plan to another
plan, the rules in Regulation Section 
1.401(a)(9)-8, Q&A-14 and Q&A-15, shall apply.



6.9 DISTRIBUTION FOR MINOR OR INCOMPETENT INDIVIDUAL




     In the event a distribution is to be made to a minor or incompetent individual, then the
Administrator may direct that such distribution be paid to the court-appointed legal guardian or
any other person authorized under state law to receive such distribution, or if none, then in the
case of a minor Beneficiary, to a parent of such Beneficiary, or to the custodian for such
Beneficiary under the Uniform Gift to Minors Act or Gift to Minors Act, if such is permitted by
the laws of the state in which said Beneficiary resides. Such a payment to the guardian, custodian
or parent of a minor or incompetent individual shall fully discharge the Trustee, Employer, and
Plan from further liability on account thereof.



6.10 LOCATION OF PARTICIPANT OR BENEFICIARY UNKNOWN




     In the event that all, or any portion, of the distribution payable to a Participant or
Beneficiary hereunder shall, at the later of the Participant’s attainment of age 62 or Normal
Retirement Age, remain unpaid solely by reason of the inability of the Administrator, after sending
a registered letter, return receipt requested, to the last known address, and after further
diligent effort, to ascertain the whereabouts of such Participant or Beneficiary, the amount so
distributable shall be treated as a Forfeiture pursuant to the Plan. Notwithstanding the foregoing,
effective with respect to distributions made after March 28, 2005, if the Plan provides for
mandatory distributions and the amount to be distributed to a Participant or Beneficiary does not
exceed $1,000, then the amount distributable may, in the sole discretion of the Administrator,
either be treated as a Forfeiture, or be paid directly to an individual retirement account
described in Code Section 408(a) or an individual retirement annuity described in Code Section
408(b) at the time it is determined that the whereabouts of the Participant or the Participant’s
Beneficiary cannot be ascertained. In the event a Participant or Beneficiary is located subsequent
to the Forfeiture, such benefit shall be restored, first from Forfeitures, if any, and then from an
additional Employer contribution if necessary. Upon Plan termination, the portion of the
distributable amount that is an eligible rollover distribution as defined in Plan Section 6.14 may
be paid directly to an individual retirement account described in Code Section 408(a) or an
individual retirement annuity described in Code Section 408(b). However, regardless of the
preceding, a benefit that is lost by reason of escheat under applicable state law is not treated as
a Forfeiture for purposes of this Section nor as an impermissible forfeiture under the Code.



6.11 PRE-RETIREMENT DISTRIBUTION OF EMPLOYER CONTRIBUTIONS




     At such time as a Participant shall have attained Normal Retirement Age, the Administrator,
at the election of the Participant who has not severed employment with the Employer, shall direct
the Trustee to distribute all or a portion of the amount then credited to all accounts maintained
on behalf of the Participant.



31









 





     In the event that the Administrator makes such a distribution, the Participant shall continue
to be eligible to participate in the Plan on the same basis as any other Employee. Any
distribution made pursuant to this Section shall be made in a manner consistent with Section 6.5,
including, but not limited to, all notice and consent requirements of Code Section 411(a)(11)
and the Regulations thereunder.



     For purposes of this Section, a Participant shall also mean an Employee or Former Employee with
an Account Balance under the Plan.



     Notwithstanding anything in this Section to the contrary, pre-retirement distributions from a
Participant’s Elective Deferral Account, Qualified Nonelective Account, or Qualified Matching
Account shall not be permitted prior to the Participant attaining age 59 1/2 or one of the other
events described in Section 4.2(d).



6.12 ADVANCE DISTRIBUTION FOR HARDSHIP





(a) The Administrator, at the election of the Participant whether or not currently employed as
an Employee, shall direct the Trustee to distribute to any Participant from the portion of the
Participant’s Account the amount necessary to satisfy the immediate and heavy financial need of
the Participant, subject to the limitations of this Section. Any distribution made pursuant to
this Section shall be deemed to be made as of the first day of the Plan Year or, if later, the
Valuation Date immediately preceding the date of distribution. Effective with respect to Plan
Years beginning in 2006, any withdrawal made pursuant to this Section shall be deemed to be on
account of an immediate and heavy financial need of the Participant if the withdrawal is for:




(1) Expenses for (or necessary to obtain) medical care (for the Participant or the spouse or
dependent of the Participant) that would be deductible by the Participant under Code Section
213(d) (determined without regard to whether the expenses exceed 7.5% of adjusted gross
income);




(2) Costs directly related to the purchase (excluding mortgage payments) of a principal
residence for the Participant;




(3) Payments for burial or funeral expenses for the Participant’s deceased parent, spouse,
children or dependents (as defined in Code Section 152, and, for taxable years beginning on
or after January 1, 2005, without regard to Code Section 152(d)(1)(B));




(4) Payment of tuition, related educational fees, and room and board expenses, for up to the
next twelve (12) months of post-secondary education for the Participant, the Participant’s
spouse, children, or dependents (as defined in Code Section 152, and, for taxable years
beginning on or after January 1, 2005, without regard to Code Sections 152(b)(1), (b)(2),
and (d)(1)(B));




(5) Payments necessary to prevent the eviction of the Participant from the Participant’s
principal residence or foreclosure on the mortgage on that residence; or




(6) For Plan Years beginning on or after January 1, 2006, expenses for the repair of damage
to the Participant’s principal residence that would qualify for the casualty deduction under
Code Section 165 (determined without regard to whether the loss exceeds 10% of adjusted
gross income).




(b) No distribution shall be made pursuant to this Section unless the Administrator, based upon
the Participant’s representation and such other facts as are known to the Administrator,
determines that all of the following conditions are satisfied:




(1) The distribution is not in excess of the amount of the immediate and heavy financial
need of the Participant. The amount of the immediate and heavy financial need may include
any amounts necessary to pay any federal, state, or local income taxes or penalties
reasonably anticipated to result from the distribution;




(2) The Participant has obtained all distributions, other than hardship distributions, and
all nontaxable (at the time of the loan) loans currently available under all plans
maintained by the Employer;




(3) On or after December 31, 2001, the Plan, and all other plans maintained by the Employer,
provide that the Participant’s Elective Deferrals and After-Tax Voluntary Contributions will
be suspended for at least six (6) months after receipt of the hardship distribution or, the
Participant, pursuant to a legally enforceable agreement, will suspend Elective Deferrals
and After-Tax Voluntary Contributions to the Plan and all other plans maintained by the
Employer for at least six (6) months after receipt of the hardship distribution; and




(4) For hardship distributions made prior to 2002, the Plan, and all other plans maintained
by the Employer, provide that the Participant may not make Elective Deferrals for the
Participant’s taxable year immediately following the taxable year of the hardship
distribution in excess of the applicable limit under Code Section 402(g) for such next
taxable year less the amount of such Participant’s Elective Deferrals for the taxable year
of the hardship distribution.




(c) Notwithstanding the above, distributions from the Participant’s “elective account” pursuant
to this Section shall be limited in amount, as of the date of distribution, to the Participant’s
“elective account” as of the end of the last Plan Year ending before July 1, 1989, plus the sum
of the Participant’s Elective Deferrals after such date, reduced by the amount of any previous
distributions from this Account pursuant to this Section and Section 6.11. A Participant’s
“elective account” shall be the amount attributable to Elective Deferrals, Qualified Matching
Contributions, and Qualified Nonelective Contributions as of the end of the last Plan Year
ending before July 1, 1989.



32









 






(d) Any distribution made pursuant to this Section shall be made in a manner which is consistent
with and satisfies the provisions of Section 6.5, including, but not limited to, all notice and
consent requirements of Code Section 411(a)(11) and the Regulations thereunder.




(e) The following limitations apply to hardship distributions:




(f) Hardship distributions may be made from only the following accounts:




(1) Elective Deferral Account, subject to the limitations noted above



6.13 QUALIFIED DOMESTIC RELATIONS ORDER DISTRIBUTION




     All rights and benefits, including elections, provided to a Participant in this Plan shall be
subject to the rights afforded to any alternate payee under a qualified domestic relations order.
Furthermore, a distribution to an alternate payee shall be permitted if such distribution is
authorized by a qualified domestic relations order, even if the affected Participant has not
separated from service and has not reached the earliest retirement age. For the purposes of this
Section, the terms “alternate payee,” “qualified domestic relations order” and “earliest
retirement age” shall have the meaning set forth under Code Section 414(p).



6.14 DIRECT ROLLOVER





(a) Right to direct partial rollover. Notwithstanding any provision of the Plan to the contrary
that would otherwise limit a distributee’s election under this Section, effective for Plan Years
beginning on or after January 1, 2002, a distributee may elect, at the time and in the manner
prescribed by the Administrator, to have only a portion of an eligible rollover distribution
paid directly to an eligible retirement plan specified by the distributee in a direct rollover.
However, the minimum partial rollover must equal at least $500.




(b) For purposes of this Section the following definitions shall apply:




(1) An “eligible rollover distribution” means any distribution described in Code Section
402(c)(4) and generally includes any distribution of all or any portion of the balance to
the credit of the distributee, except that an eligible rollover distribution does not
include: 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 ten (10) years or more;
any distribution to the extent such distribution is required under Code Section 401(a)(9);
the portion of any other distribution(s) that is not includible in gross income (determined
without regard to the exclusion for net unrealized appreciation with respect to employer
securities); and any other distribution reasonably expected to total less than $200 during a
year. Any amount that is distributed on account of hardship shall not be an eligible
rollover distribution and the distributee may not elect to have any portion of such a
distribution paid directly to an eligible retirement plan.




(2) An “eligible retirement plan” is an individual retirement account described in Code
Section 408(a), an individual retirement annuity described in Code Section 408(b), (other
than an endowment contract), a qualified trust (an employees’ trust) described in Code
Section 401(a) which is exempt from tax under Code Section 501(a) and which agrees to
separately account for amounts transferred into such plan from this Plan, an annuity plan
described in Code Section 403(a), an eligible deferred compensation plan described in Code
Section 457(b) which is maintained by a state, political subdivision of a state, or any
agency or instrumentality thereof which agrees to separately account for amounts transferred
into such plan from this Plan, and an annuity contract described in Code Section 403(b) that
accepts the distributee’s eligible rollover distribution. The definition of eligible
retirement plan shall 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 qualified domestic relation
order, as defined in Code Section 414(p).




(3) A “distributee” includes an Employee or Former Employee. In addition, the Employee’s or
Former Employee’s surviving spouse and the Employee’s or Former Employee’s spouse or former
spouse who is the alternate payee under a qualified domestic relations order, as defined in
Code Section 414(p), are distributees with regard to the interest of the spouse or former
spouse.




(4) A “direct rollover” is a payment by the Plan to the “eligible retirement plan” specified
by the distributee.




(c) Participant Notice. A Participant entitled to an eligible rollover distribution must receive
a written explanation of his/her right to a direct rollover, the tax consequences of not making
a direct rollover, and, if applicable, any available special income tax elections. The notice
must be provided within the same 30-to-90 day timeframe applicable to the Participant consent
notice. The direct rollover notice must be provided to all Participants, unless the total amount
the Participant will receive as a distribution during the calendar year is expected to be less
than $200.



6.15 TRANSFER OF ASSETS FROM A MONEY PURCHASE PLAN




     Notwithstanding any provision of this Plan to the contrary, to the extent that any optional
form of benefit under this Plan permits a distribution prior to the Employee’s attainment of
Normal Retirement Age, death, disability, or severance from employment, and prior to Plan
termination, the optional form of benefit is not available with respect to benefits attributable
to assets (including the post-transfer earnings thereon) and liabilities that are transferred,
within the meaning of Code Section 414(1), to this Plan from a money purchase




33












 




pension plan qualified under Code Section 401(a) (other than any portion of those assets and
liabilities attributable to after-tax voluntary employee contributions or to a direct or indirect
rollover contribution).




6.16 CORRECTIVE DISTRIBUTIONS




     Nothing in this Article shall preclude the Administrator from making a distribution to a
Participant, to the extent such distribution is made to correct a qualification defect in
accordance with the corrective procedures under any voluntary compliance program.



ARTICLE VII

TRUSTEE




7.1 BASIC RESPONSIBILITIES OF THE TRUSTEE





(a) The Trustee shall have the following categories of responsibilities:




(1) To invest, manage, and control the Plan assets subject, however, to the direction of a
Participant with respect to Participant
Directed Accounts, the Employer, an Investment Manager or other agent appointed by the
Employer;




(2) At the direction of the Administrator, to pay benefits required under the Plan to be
paid to Participants, or, in the event of
their death, to their Beneficiaries; and




(3) To maintain records of receipts and disbursements and furnish to the Employer and/or
Administrator for each Plan Year a
written annual report pursuant to Section 7.8.




(b) In the event that the Trustee shall be directed by a Participant (pursuant to the
Participant Direction Procedures), the Employer,
an Investment Manager or other agent appointed by the Employer with respect to the investment of
any or all Plan assets, the Trustee
shall have no liability with respect to the investment of such assets, but shall be responsible
only to execute such investment
instructions as so directed.




(1) The Trustee shall be entitled to rely fully on the written (or other form acceptable to
the Administrator and the Trustee,
including, but not limited to, voice recorded) instructions of a Participant (pursuant to
the Participant Direction Procedures), the
Employer, or any Fiduciary or nonfiduciary agent of the Employer, in the discharge of such
duties, and shall not be liable for any
loss or other liability, resulting from such direction (or lack of direction) of the
investment of any part of the Plan assets.




(2) The Trustee may delegate the duty of executing such instructions to any nonfiduciary
agent, which may be an affiliate of the
Trustee or any Plan representative.




(3) The Trustee may refuse to comply with any direction from the Participant in the event
the Trustee, in its sole and absolute
discretion, deems such directions improper by virtue of applicable law. The Trustee shall
not be responsible or liable for any loss
or expense which may result from the Trustee’s refusal or failure to comply with any
directions from the Participant.




(4) Any costs and expenses related to compliance with the Participant’s directions shall be
borne by the Participant’s Directed
Account, unless paid by the Employer.




(c) The Trustee is accountable to the Employer for the funds contributed to the Plan by the
Employer, but the Trustee does not have
any duty to see that the contributions received comply with the provisions of the Plan. The
Trustee is not obligated to collect any
contributions from the Employer, nor is it under a duty to see that funds deposited with it are
deposited in accordance with the
provisions of the Plan.




(d) The Trustee will credit and distribute the Trust Fund as directed by the Administrator. The
Trustee is not obligated to inquire as
to whether any payee or distributee is entitled to any payment or whether the distribution is
proper or within the terms of the Plan, or
whether the manner of making any payment or distribution is proper. The Trustee is accountable
only to the Administrator for any
payment or distribution made by it in good faith on the order or direction of the Administrator.




(e) The Trustee may employ a bank or trust company pursuant to the terms of its usual and
customary bank agency agreement, under
which the duties of such bank or trust company shall be of a custodial, clerical and
record-keeping nature.




(f) The Trustee may employ and pay from the Trust Fund reasonable compensation to agents,
attorneys, accountants and other
persons to advise the Trustee as in its opinion may be necessary. The Trustee may delegate to
any agent, attorney, accountant or other
person selected by it any non-Trustee power or duty vested in it by the Plan, and the Trustee
may act or refrain from acting on the
advice or opinion of any such person.



7.2 INVESTMENT POWERS AND DUTIES OF THE TRUSTEE





(a) The Trustee shall invest and reinvest the Trust Fund to keep the Trust Fund invested
without distinction between principal and income and in such securities or property, real or
personal, wherever situated, as the Trustee shall deem advisable, including, but not limited
to, stocks, common or preferred, open-end or closed-end mutual funds, bonds and other evidences
of indebtedness or



34









 






ownership, and real estate or any interest therein. The Trustee shall at all times in making
investments of the Trust Fund consider, among other factors, the short and long-term financial
needs of the Plan on the basis of information furnished by the Employer. In making such
investments, the Trustee shall not be restricted to securities or other property of the
character expressly authorized by the applicable law for trust investments; however, the
Trustee shall give due regard to any limitations imposed by the Code or the Act so that at all
times the Plan may qualify as a qualified plan pursuant to Code Section 401(a). The Trustee
shall discharge its duties with respect to the Plan solely in the interest of the Participants
and Beneficiaries and with the care, skill, prudence, and diligence under the circumstances
then prevailing that a prudent person acting in a like capacity and familiar with such matters
would use in the conduct of an enterprise of a like character and with like aims.



7.3 OTHER POWERS OF THE TRUSTEE




     The Trustee, in addition to all powers and authorities under common law, statutory authority,
including the Act, and other provisions of the Plan, shall have the following powers and
authorities, to be exercised in the Trustee’s sole discretion:




(a) To purchase, or subscribe for, any securities or other property and to retain the same. In
conjunction with the purchase of
securities, margin accounts may be opened and maintained;




(b) To sell, exchange, convey, transfer, grant options to purchase, or otherwise dispose of any
securities or other property held by the
Trustee, by private contract or at public auction. No person dealing with the Trustee shall be
bound to see to the application of the
purchase money or to inquire into the validity, expediency, or propriety of any such sale or
other disposition, with or without
advertisement;




(c) To vote upon any stocks, bonds, or other securities; to give general or special proxies or
powers of attorney with or without
power of substitution; to exercise any conversion privileges, subscription rights or other
options, and to make any payments incidental
thereto; to oppose, or to consent to, or otherwise participate in, corporate reorganizations or
other changes affecting corporate
securities, and to delegate discretionary powers, and to pay any assessments or charges in
connection therewith; and generally to
exercise any of the powers of an owner with respect to stocks, bonds, securities, or other
property. However, the Trustee shall not vote
proxies relating to securities for which it has not been assigned full investment management
responsibilities. In those cases where
another party has such investment authority or discretion, the Trustee will deliver all proxies
to said party, who will then have full
responsibility for voting those proxies;




(d) To cause any securities or other property to be registered in the name of the Trust, and the
books and records of the Trustee shall
at all times show that all such investments are part of the Trust Fund, or to cause any
securities or other property to be registered in the
Trustee’s own name or in the name of a nominee or in a street name, provided such securities or
other property are held on behalf of
the Plan by (i) a bank or trust company, (ii) a broker or dealer registered under the Securities
Exchange Act of 1934, or a nominee of
such broker or dealer, or (iii) a clearing agency as defined in Section 3(a)(23) of the
Securities Exchange Act of 1934;




(e) To borrow or raise money for the purposes of the Plan in such amount, and upon such terms
and conditions, as the Trustee shall
deem advisable; and for any sum so borrowed, to issue a promissory note as Trustee, and to
secure the repayment thereof by pledging
all, or any part, of the Trust Fund; and no person lending money to the Trustee shall be bound
to see to the application of the money
lent or to inquire into the validity, expediency, or propriety of any borrowing;




(f) To keep such portion of the Trust Fund in cash or cash balances as the Trustee may, from
time to time, deem to be in the best
interests of the Plan, without liability for interest thereon;




(g) To accept and retain for such time as the Trustee may deem advisable any securities or other
property received or acquired as
Trustee hereunder, whether or not such securities or other property would normally be purchased
as investments hereunder;




(h) To make, execute, acknowledge, and deliver any and all documents of transfer and conveyance
and any and all other instruments that may be necessary or appropriate to carry out the powers
herein granted;




(i) To settle, compromise, or submit to arbitration any claims, debts, or damages due or owing
to or from the Plan (provided such arbitration does not apply to Participants or
Beneficiaries), to commence or defend suits or legal or administrative proceedings, and to
represent the Plan in all suits and legal and administrative proceedings;




(j) To employ suitable agents and counsel and to pay their reasonable expenses and
compensation, and such agent or counsel may also be agent or counsel for the Employer;




(k) To apply for and procure from responsible insurance companies, to be selected by the
Administrator, as an investment of the Trust Fund such annuity, or other Contracts (on the life
of any Participant, or on the life of any person in whom a Participant has an insurable
interest, or on the joint lives of a Participant and any person in whom the Participant has an
insurable interest) as the Administrator shall deem proper; to exercise, at the direction of
the person with the authority to do so, whatever rights and privileges may be granted under
such annuity or other Contracts; to collect, receive, and settle for the proceeds of all such
annuity or other Contracts as and when entitled to do so under the provisions thereof;



35









 






(l) To invest funds of the Trust in time deposits or savings accounts bearing a reasonable rate
of interest or in cash or cash balances without liability for interest thereon, including the
specific authority to invest in any type of deposit of the Trustee (or of a financial
institution related to a Trustee);




(m) To invest in Treasury Bills and other forms of United States government obligations;




(n) To invest in shares of investment companies registered under the Investment Company Act of
1940, including any money market fund advised by or offered through any corporate trustee or
affiliate thereof;




(o) To sell, purchase and acquire put or call options if the options are traded on and
purchased through a national securities exchange registered under the Securities Exchange Act
of 1934, as amended, or, if the options are not traded on a national securities exchange, are
guaranteed by a member firm of the New York Stock Exchange regardless of whether such options
are covered;




(p) To deposit monies in federally insured savings accounts or certificates of deposit in banks
or savings and loan associations including the specific authority to make deposit into any
savings accounts or certificates of deposit of any corporate trustee or affiliate thereof;




(q) To pool all or any of the Trust Fund, from time to time, with assets belonging to any other
qualified employee pension benefit trust created by the Employer or any Affiliated Employer,
and to commingle such assets and make joint or common investments and carry joint accounts on
behalf of this Plan and Trust and such other trust or trusts, allocating undivided shares or
interests in such investments or accounts or any pooled assets of the two or more trusts in
accordance with their respective interests; and




(r) To do all such acts and exercise all such rights and privileges, although not specifically
mentioned herein, as the Trustee may deem necessary to carry out the purposes of the Plan.



7.4 POWERS OF THE CUSTODIAN




     The Employer may appoint a custodian of the Plan assets. A custodian has the same powers,
rights and duties as a nondiscretionary Trustee. Any reference in the Plan to a Trustee also is a
reference to a custodian unless the context of the Plan indicates otherwise. A limitation of the
Trustee’s liability by Plan provision also acts as a limitation of the custodian’s liability. The
Custodian will be protected from any liability with respect to actions taken pursuant to the
direction of the Trustee, Plan Administrator, the Employer, an Investment Manager, a Named
Fiduciary or other third party with authority to provide direction to the Custodian. The
resignation or removal of the custodian shall be made in accordance with Section 7.10 as though
the custodian were a Trustee.



7.5 ALLOCATION AND DELEGATION OF RESPONSIBILITIES




     If more than one person is appointed as Trustee, the responsibilities of each Trustee may be
specified by the Employer and accepted in writing by each Trustee. In the event that no such
delegation is made by the Employer, the Trustees may allocate the responsibilities among themselves
in a written document signed by all Trustees, in which event the Trustees shall notify the Employer
and the Administrator in writing of such action and specify the responsibilities of each Trustee.
The Administrator thereafter shall accept and rely upon any documents executed by the appropriate
Trustee until such time as the Employer or the Trustees file with the Administrator a written
revocation of such designation.



7.6 MAJORITY ACTION




     Except where there has been an allocation and delegation of powers, if there shall be more
than one Trustee, they shall act by a majority of their number, but may authorize one or more of
them to sign papers on their behalf.



7.7 TRUSTEE’S COMPENSATION AND EXPENSES AND TAXES




     The Trustee shall be paid such reasonable compensation as set forth in the Trustee’s fee
schedule (if the Trustee has such a schedule) or as agreed upon in writing by the Employer and the
Trustee. However, an individual serving as Trustee who already receives full-time pay from the
Employer shall not receive compensation from the Plan. In addition, the Trustee shall be
reimbursed for any reasonable expenses, including reasonable counsel fees incurred by it as
Trustee. Such compensation and expenses shall be paid from the Trust Fund unless paid or advanced
by the Employer. All taxes of any kind whatsoever that may be levied or assessed under existing or
future laws upon, or in respect of, the Trust Fund or the income thereof, shall be paid from the
Trust Fund.



7.8 ANNUAL REPORT OF THE TRUSTEE





(a) Annual report. Within a reasonable period of time after the later of the Anniversary Date
or receipt of the Employer contribution for each Plan Year, the Trustee, or its agent, shall
furnish to the Employer and Administrator a written statement of account with respect to the
Plan Year for which such contribution was made setting forth:




(1) the net income, or loss, of the Trust Fund;




(2) the gains, or losses, realized by the Trust Fund upon sales or other disposition of the
assets;



36









 






(3) the increase, or decrease, in the value of the Trust Fund;




(4) all payments and distributions made from the Trust Fund; and




(5) such further information as the Trustee and/or Administrator deems appropriate.




(b) Employer approval of report. The Employer, promptly upon its receipt of each such statement
of account, shall acknowledge receipt thereof in writing and advise the Trustee and/or
Administrator of its approval or disapproval thereof. Failure by the Employer to disapprove any
such statement of account within thirty (30) days after its receipt thereof shall be deemed an
approval thereof. The approval by the Employer of any statement of account shall be binding on
the Employer and the Trustee as to all matters contained in the statement to the same extent as
if the account of the Trustee had been settled by judgment or decree in an action for a
judicial settlement of its account in a court of competent jurisdiction in which the Trustee,
the Employer and all persons having or claiming an interest in the Plan were parties. However,
nothing contained in this Section shall deprive the Trustee of its right to have its accounts
judicially settled if the Trustee so desires.



7.9 AUDIT





(a) Duty to engage accountant. If an audit of the Plan’s records shall be required by the Act
and the regulations thereunder for any
Plan Year, the Administrator shall engage on behalf of all Participants an independent qualified
public accountant for that purpose.
Such accountant shall, after an audit of the books and records of the Plan in accordance with
generally accepted auditing standards,
within a reasonable period after the close of the Plan Year, furnish to the Administrator and
the Trustee a report of the audit setting
forth the accountant’s opinion as to whether any statements, schedules or lists that are
required by Act Section 103 or the Secretary of
Labor to be filed with the Plan’s annual report, are presented fairly in conformity with
generally accepted accounting principles
applied consistently.




(b)Payment of fees. All auditing and accounting fees shall be an expense of and may, at the election of the Employer, be paid from
the Trust Fund.




(c)Information to be provided to Administrator. If some or all of the information necessary to enable the Administrator to
comply with Act Section 103 is maintained by a bank, insurance company, or similar institution, regulated, supervised, and subject to
periodic examination by a state or federal agency, then it shall transmit and certify the accuracy of that information to the
Administrator as provided in Act Section 103(b) within one hundred twenty (120) days after the end of the Plan Year or such other
date as may be prescribed under regulations of the Secretary of Labor.



7.10 RESIGNATION, REMOVAL AND SUCCESSION OF TRUSTEE





(a) Trustee resignation. Unless otherwise agreed to by both the Trustee and the Employer, a
Trustee may resign at any time by
delivering to the Employer, at least thirty (30) days before its effective date, a written
notice of resignation.




(b) Trustee removal. Unless otherwise agreed to by both the Trustee and the Employer, the
Employer may remove a Trustee at any
time by delivering to the Trustee, at least thirty (30) days before its effective date, a
written notice of such Trustee’s removal.




(c) Appointment of successor. Upon the death, resignation, incapacity, or removal of any
Trustee, a successor may be appointed by
the Employer; and such successor, upon accepting such appointment in writing and delivering same
to the Employer, shall, without
further act, become vested with all the powers and responsibilities of the predecessor as if
such successor had been originally named
as a Trustee herein. Until such a successor is appointed, the remaining Trustee or Trustees
shall have full authority to act under the
terms of the Plan.




(d) Appointment of successor prior to removal of predecessor. The Employer may designate one or
more successors prior to the
death, resignation, incapacity, or removal of a Trustee. In the event a successor is so
designated by the Employer and accepts such
designation, the successor shall, without further act, become vested with all the powers and
responsibilities of the predecessor as if
such successor had been originally named as Trustee herein immediately upon the death,
resignation, incapacity, or removal of the
predecessor.




(e) Trustee’s statement upon cessation of being Trustee. Whenever any Trustee hereunder ceases
to serve as such, the Trustee
shall furnish to the Employer and Administrator a written statement of account with respect to
the portion of the Plan Year during
which the individual or entity served as Trustee. This statement shall be either (i) included as
part of the annual statement of account
for the Plan Year required under Section 7.8 or (ii) set forth in a special statement. Any such
special statement of account should be
rendered to the Employer no later than the due date of the annual statement of account for the
Plan Year. The procedures set forth in
Section 7.8 for the approval by the Employer of annual statements of account shall apply to any
special statement of account rendered
hereunder and approval by the Employer of any such special statement in the manner provided in
Section 7.8 shall have the same
effect upon the statement as the Employer’s approval of an annual statement of account. No
successor to the Trustee shall have any
duty or responsibility to investigate the acts or transactions of any predecessor who has
rendered all statements of account required by
Section 7.8 and this subparagraph.



37









 





7.11 TRANSFER OF INTEREST




     Notwithstanding any other provision contained in this Plan, the Trustee at the direction of
the Administrator shall transfer the Vested interest, if any, of a Participant to another trust
forming part of a pension, profit sharing or stock bonus plan maintained by such Participant’s new
employer and represented by said employer in writing as meeting the requirements of Code Section
401(a), provided that the trust to which such transfers are made permits the transfer to be made.



7.12 TRUSTEE INDEMNIFICATION




     The Employer agrees to indemnify and hold harmless the Trustee against any and all claims,
losses, damages, expenses and liabilities the Trustee may incur in the exercise and performance of
the Trustee’s power and duties hereunder, unless the same are determined to be due to gross
negligence or willful misconduct.



ARTICLE VIII

AMENDMENT, TERMINATION AND MERGERS




8.1 AMENDMENT





(a) General rule on Employer amendment. The Employer shall have the right at any time to amend
this Plan, subject to the
limitations of this Section. However, any amendment which affects the rights, duties or
responsibilities of the Trustee or Administrator
may only be made with the Trustee’s or Administrator’s written consent. Any such amendment shall
become effective as provided
therein upon its execution. The Trustee shall not be required to execute any such amendment
unless the amendment affects the duties
of the Trustee hereunder.




(b) Permissible amendments without affecting reliance. The Employer may make the modifications
described below without
affecting reliance on the terms of the Plan. An Employer that amends the Plan for any other
reason may not rely on the advisory letter
that the terms of the Plan meet the qualification requirements of the Code. Permitted changes
include: adding options permitted by the
Plan; adding or deleting provisions that are optional under the volume submitter specimen plan;
changing effective dates within the
parameters of the volume submitter specimen plan; correcting obvious and unambiguous
typographical errors; correcting
cross-references that do not in any way change the original intended meaning of the provisions;
adding a list of benefits that must be
preserved as protected benefits within the meaning of Code Section 411(d)(6) and the regulations
thereunder; amending provisions
dealing with the administration of the Trust; a change to the name of the Plan, Employer,
Trustee, custodian, Plan Administrator or
any other fiduciary, the Plan Year; and any sample or model amendment published by the IRS (or
other required good-faith
amendments) which specifically provide that their adoption will not cause the plan to be treated
as an individually designed plan.




(c) Sponsoring practitioner amendments. Effective March 31, 2008, the Employer (and every
Participating Employer) expressly
delegates authority to the sponsoring organization of this Volume Submitter Plan the right to
amend the Plan by submitting a copy of
the amendment to each Employer (and Participating Employer) who has adopted this Volume
Submitter Plan, after first having
received a ruling or favorable determination from the Internal Revenue Service that the Volume
Submitter Plan as amended qualifies
under Code Section 401(a) (unless a ruling or determination is not required by the IRS).
However, the volume submitter practitioner
shall cease to have the authority to amend on behalf of an Employer that adopts an impermissible
plan type or impermissible plan
provision (as described in IRS Announcement 2005-37 and any subsequent guidance). The volume
submitter practitioner will
maintain a record of the Employers that have adopted the Plan, and the practitioner will make
reasonable and diligent efforts to ensure
that adopting Employers adopt new documents when necessary. This subsection supersedes other
provisions of the Plan to the extent
those other provisions are inconsistent with this subsection.




(d) Impermissible amendments. No amendment to the Plan shall be effective if it authorizes or
permits any part of the Trust Fund
(other than such part as is required to pay taxes and administration expenses) to be used for or
diverted to any purpose other than for
the exclusive benefit of the Participants or their Beneficiaries or estates, or causes any
reduction in the amount credited to the account
of any Participant, or causes or permits any portion of the Trust Fund to revert to or become
property of the Employer.




(e) Anti-cutback restrictions. Except as permitted by Regulations (including Regulation 1.411(d)-4)
or other IRS guidance, no Plan
amendment or transaction having the effect of a Plan amendment (such as a merger, plan transfer
or similar transaction) shall be
effective if it eliminates or reduces any Section 411(d)(6) protected benefit or adds
or modifies conditions relating to
Section 411(d)(6) protected benefits which results in a further restriction on such benefits
unless such “Section 411(d)(6) protected
benefits” are preserved with respect to benefits accrued as of the later of the adoption date or
effective date of the amendment. The
term “Section 411(d)(6) protected benefits” means benefits described in Code Section
411(d)(6)(A), early retirement benefits and
retirement-type subsidies, and optional forms of benefit. An amendment which has the effect of
decreasing a Participant’s Account
balance with respect to benefits attributable to service before the amendment shall be treated
as reducing an accrued benefit. The
preceding shall not apply to a Plan amendment that eliminates or restricts the ability of a
Participant to receive payment of his or her
Account under a particular optional form of benefit if the amendment provides a single-sum
distribution form that is otherwise
identical to the optional form of benefit being eliminated or restricted. For this purpose, a
single-sum distribution form is otherwise
identical only if the single-sum distribution form is identical in all respects to the
eliminated or restricted optional form of benefit (or
would be identical except that it provides greater rights to the Participant) except with
respect to the timing of payments after
commencement.



38









 





8.2 TERMINATION





(a) Termination of Plan. The Employer shall have the right at any time to terminate the Plan by
delivering to the Trustee and
Administrator written notice of such termination. Upon any full or partial termination, all
amounts credited to the affected Participants’
Accounts shall become 100% Vested as provided in Section 6.4 and shall not thereafter be subject
to forfeiture.




(b) Distribution of assets. Upon the full termination of the Plan, the Employer shall direct the
distribution of the assets of the Plan to
Participants in a manner which is consistent with the provisions of Section 6.5 except that no
Participant or spousal consent is
required. Distributions to a Participant shall be made in cash or in property allocated to the
Participant’s Account or through the
purchase of irrevocable nontransferable deferred commitments from an insurer. Except as
permitted by Regulations, the termination of
the Plan shall not result in the reduction of Section 411(d)(6) protected benefits in
accordance with Section 8.1(e).




(c) Abandoned plan. If the Employer, in accordance with DOL guidance, abandons the Plan, then
the Trustee (or Insurer) or other
party permitted to take action as a qualified terminal administrator (QTA), may terminate the
Plan in accordance with applicable Department of Labor and IRS regulations and other guidance.



8.3 MERGER, CONSOLIDATION OR TRANSFER OF ASSETS




     This Plan may be merged or consolidated with, or its assets and/or liabilities may be
transferred to any other plan and trust, only if the benefits which would be received by a
Participant of this Plan, in the event of a termination of the Plan immediately after such
transfer, merger or consolidation, are at least equal to the benefits the Participant would have
received if the Plan had terminated immediately before the transfer, merger or consolidation, and
such transfer, merger or consolidation does not otherwise result in the elimination or reduction of
any Section 411(d)(6) protected benefits in accordance with Section 8.1(e).



ARTICLE IX

TOP-HEAVY




9.1 TOP-HEAVY PLAN REQUIREMENTS





(a) Top-Heavy requirements. For any Top-Heavy Plan Year, the Plan shall provide the special
vesting requirements of Code 
Section 416(b) pursuant to Section 6.4 of the Plan and the minimum
required allocation of Code Section 416(c) pursuant to Section 4.4 of the Plan.



9.2 DETERMINATION OF TOP-HEAVY STATUS





(a) Definition of Top-Heavy Plan. This Plan shall be a Top-Heavy Plan if any of the following
conditions exists:




(1) if the “top-heavy ratio” for this Plan exceeds sixty percent (60%) and this Plan is not
part of any “required aggregation
group” or “permissive aggregation group”;




(2) if this Plan is a part of a “required aggregation group” but not part of a “permissive
aggregation group” and the “top-heavy
ratio” for the group of plans exceeds sixty percent (60%); or




(3) if this Plan is a part of a “required aggregation group” and part of a “permissive
aggregation group” and the “top-heavy
ratio” for the “permissive aggregation group” exceeds sixty percent (60%).




(b) Top-heavy ratio. “Top-heavy ratio” means, with respect to a “determination date”:




(1) If the Employer maintains one or more defined contribution plans (including any
simplified employee pension plan (as
defined in Code Section 408(k)) and the Employer has not maintained any defined benefit plan
which during the 5-year period
ending on the “determination date” has or has had accrued benefits, the top-heavy ratio for
this plan alone or for the “required
aggregation group” or “permissive aggregation group” as appropriate is a fraction, the
numerator of which is the sum of the
account balances of all Key Employees as of the “determination date” (including any part of
any account balance distributed in
the 1-year period ending on the “determination date”) (5-year period ending on the
“determination date” in the case of a
distribution made for a reason other than severance from employment, death or disability and
in determining whether the Plan is
top-heavy for Plan Years beginning before January 1, 2002), and the denominator of which is
the sum of all account balances
(including any part of any account balance distributed in the 1-year period ending on the
“determination date”) (5-year period
ending on the “determination date” in the case of a distribution made for a reason other
than severance from employment, death
or disability and in determining whether the Plan is top-heavy for Plan Years beginning
before January 1, 2002), both computed
in accordance with Code Section 416 and the Regulations thereunder.




     Both the numerator and denominator of the top-heavy ratio are increased to reflect any
contribution not actually made as of the “determination date,” but which is required to be
taken into account on that date under Code Section 416 and the Regulations thereunder.




(2) If the Employer maintains one or more defined contribution plans (including any
simplified employee pension plan) and the
Employer maintains or has maintained one or more defined benefit plans which during the
5-year period ending on the



39









 






“determination date” has or has had any accrued benefits, the top-heavy ratio for any
“required aggregation group” or “permissive aggregation group” as appropriate is a fraction,
the numerator of which is the sum of account balances under the aggregated defined
contribution plan or plans for all Key Employees, determined in accordance with (1) above,
and the present value of accrued benefits under the aggregated defined benefit plan or plans
for all Key Employees as of the “determination date,” and the denominator of which is the
sum of the account balances under the aggregated defined contribution plan or plans for all
participants, determined in accordance with (1) above, and the present value of accrued
benefits under the defined benefit plan or plans for all participants as of the
“determination date,” all determined in accordance with Code Section 416 and the Regulations
thereunder. The accrued benefits under a defined benefit plan in both the numerator and
denominator of the top-heavy ratio are increased for any distribution of an accrued benefit
made in the 1-year period ending on the “determination date” (5-year period ending on the
“determination date” in the case of a distribution made for a reason other than severance
from employment, death or disability and in determining whether the Plan is top-heavy for
Plan Years beginning before January 1, 2002).




(3) For purposes of (1) and (2) above, the value of account balances and the present value
of accrued benefits will be
determined as of the most recent “valuation date” that falls within or ends with the
12-month period ending on the “determination
date,” except as provided in Code Section 416 and the Regulations thereunder for the first
and second plan years of a defined
benefit plan. The account balances and accrued benefits of a participant (i) who is not a
Key Employee but who was a Key
Employee in a prior year, or (ii) who has not been credited with at least one Hour of
Service with any Employer maintaining the
plan at any time during the 1-year period (5-year period in determining whether the Plan is
top-heavy for Plan Years beginning
before January 1, 2002) ending on the “determination date” will be disregarded. The
calculation of the top-heavy ratio, and the
extent to which distributions, rollovers, and transfers are taken into account will be made
in accordance with Code Section 416
and the Regulations thereunder. Deductible employee contributions will not be taken into
account for purposes of computing the
top-heavy ratio. When aggregating plans the value of account balances and accrued benefits
will be calculated with reference to
the “determination dates” that fall within the same calendar year.




     The accrued benefit of a participant other than a Key Employee shall be determined
under (i) the method, if any, that uniformly applies for accrual purposes under all defined
benefit plans maintained by the employer, or (ii) if there is no such method, as if such
benefit accrued not more rapidly than the slowest accrual rate permitted under the
fractional rule of Code Section 411(b)(1)(C).




(4) The calculation of top-heavy ratio, and the extent to which distributions, rollovers,
and transfers are taken into account, will
be made in accordance with Code Section 416 and the regulations thereunder.




(c) Determination date. “Determination date” means, for any Plan Year subsequent to the first
Plan Year, the last day of the
preceding Plan Year. For the first Plan Year of the Plan, “determination date” means the last
day of that Plan Year.




(d) Permissive aggregation group. “Permissive aggregation group” means the “required aggregation
group” of plans plus any other
plan or plans of the Employer or any Affiliated Employer which, when considered as a group with
the required aggregation group,
would continue to satisfy the requirements of Code Sections 401(a)(4) and 410.




(e) Required aggregation group. “Required aggregation group” means: (1) each qualified plan of
the Employer or any Affiliated
Employer in which at least one Key Employee participates or participated at any time during the
Plan Year containing the
determination date or any of the four preceding plan years (regardless of whether the plan has
terminated), and (2) any other qualified
plan of the Employer or any Affiliated Employer which enables a plan described in (1) to meet
the requirements of Code Sections
401(a)(4) or 410.




(f) Valuation Date. “Valuation date” means the date elected by the Employer as of which account
balances or accrued benefits are
valued for purposes of calculating the “top-heavy ratio.”



ARTICLE X

MISCELLANEOUS




10.1 PARTICIPANT’S RIGHTS




     This Plan shall not be deemed to constitute a contract between the Employer and any
Participant or to be a consideration or an inducement for the employment of any Participant or
Employee. Nothing contained in this Plan shall be deemed to give any Participant or Employee the
right to be retained in the service of the Employer or to interfere with the right of the Employer
to discharge any Participant or Employee at any time regardless of the effect which such discharge
shall have upon the Employee as a Participant of this Plan.



10.2 ALIENATION OF BENEFITS





(a) General rule. Subject to the exceptions provided below, and as otherwise permitted by the
Code and the Act, no benefit which shall be payable to any person (including a Participant or
the Participant’s Beneficiary) shall be subject in any manner to anticipation, alienation,
sale, transfer, assignment, pledge, encumbrance, or charge, and any attempt to anticipate,
alienate, sell, transfer, assign, pledge, encumber, or charge the same shall be void; and no
such benefit shall in any manner be liable for, or subject to, the debts, contracts,
liabilities, engagements, or torts of any such person, nor shall it be subject to attachment or
legal process for or against such person, and the same shall not be recognized, except to such
extent as may be required by law.



40









 






(b) Exception for QDRO. Subsection (a) shall not apply to a qualified domestic relations order
defined in Code Section 414(p), and
those other domestic relations orders permitted to be so treated by the Administrator under the
provisions of the Retirement Equity Act
of 1984. The Administrator shall establish a written procedure to determine the qualified status
of domestic relations orders and to
administer distributions under such qualified orders. Further, to the extent provided under a
qualified domestic relations order, a
former spouse of a Participant shall be treated as the spouse or surviving spouse for all
purposes under the Plan.




(c) Exception for certain debts to Plan. Subsection (a) shall not apply to an offset to a
Participant’s accrued benefit against an
amount that the Participant is ordered or required to pay the Plan with respect to a judgment,
order, or decree issued, or a settlement
entered into in accordance with Code Sections 401(a)(13)(C) and (D).



10.3 CONSTRUCTION AND INTERPRETATION OF PLAN





(a) Applicable state laws. This Plan and Trust shall be construed and enforced according to the
Code, the Act and the laws of the
State of Colorado, other than its laws respecting choice of law, to the extent not pre-empted by
Federal law.




(b) Single subsections. This Plan and Trust may contain single subsections. The existence of
such single subsections shall not
constitute scrivener’s errors.




(c) Separate Accounts. Unless otherwise specified by a particular provision, the term “separate
account” does not require a separate
fund, only a notational entry in a recordkeeping system.



10.4 GENDER AND NUMBER





(a) Masculine and feminine. Wherever any words are used herein in the masculine, feminine or
neuter gender, they shall be
construed as though they were also used in another gender in all cases where they would so
apply.




(b) Singular and plural. Whenever any words are used herein in the singular or plural form, they
shall be construed as though they
were also used in the other form in all cases where they would so apply.



10.5 LEGAL ACTION




     In the event any claim, suit, or proceeding is brought regarding the Trust and/or Plan
established hereunder to which the Trustee, the Employer or the Administrator may be a party, and
such claim, suit, or proceeding is resolved in favor of the Trustee, the Employer or the
Administrator, they shall be entitled to be reimbursed from the Trust Fund for any and all costs,
attorney’s fees, and other expenses pertaining thereto incurred by them for which they shall have
become liable.



10.6 PROHIBITION AGAINST DIVERSION OF FUNDS





(a) General rule. Except as provided below and otherwise specifically permitted by law, it shall
be impossible by operation of the
Plan or of the Trust, by termination of either, by power of revocation or amendment, by the
happening of any contingency, by
collateral arrangement or by any other means, for any part of the corpus or income of any Trust
Fund maintained pursuant to the Plan
or any funds contributed thereto to be used for, or diverted to, purposes other than the
exclusive benefit of Participants or their
Beneficiaries.




(b) Mistake of fact. In the event the Employer shall make an excessive contribution under a
mistake of fact pursuant to Act Section

403(c)(2)(A), the Employer may demand repayment of such excessive contribution at any time
within one (1) year following the time
of payment and the Trustees shall return such amount to the Employer within the one (1) year
period. Earnings of the Plan attributable
to the contributions may not be returned to the Employer but any losses attributable thereto
must reduce the amount so returned.




(c) Contribution conditioned on deductibility. Except as otherwise provided by a particular Plan
provision, any contribution made
by the Employer to the Plan is conditioned upon the deductibility of the contribution by the
Employer under the Code and, to the
extent any such deduction is disallowed, the Employer may, within one (1) year following the
final determination of the disallowance,
whether by agreement with the Internal Revenue Service or by final decision of a competent
jurisdiction, demand repayment of such
disallowed contribution and the Trustee shall return such contribution within one (1) year
following the disallowance. Earnings of the
Plan attributable to the contribution may not be returned to the Employer, but any losses
attributable thereto must reduce the amount
so returned.



10.7 EMPLOYER’S AND TRUSTEE’S PROTECTIVE CLAUSE




     The Employer, Administrator and Trustee, and their successors, shall not be responsible for
the validity of any Contract issued hereunder or for the failure on the part of the insurer to
make payments provided by any such Contract, or for the action of any person which may delay
payment or render a Contract null and void or unenforceable in whole or in part.



10.8 INSURER’S PROTECTIVE CLAUSE




     Except as otherwise agreed upon in writing between the Employer and the insurer, an insurer
which issues any Contracts hereunder shall not have any responsibility for the validity of this
Plan or for the tax or legal aspects of this Plan. The insurer shall be protected and




41









 







held harmless in acting in accordance with any written direction of the Trustee, and shall have no
duty to see to the application of any funds paid to the Trustee, nor be required to question any
actions directed by the Trustee. Regardless of any provision of this Plan, the insurer shall not
be required to take or permit any action or allow any benefit or privilege contrary to the terms
of any Contract which it issues hereunder, or the rules of the insurer.




10.9 RECEIPT AND RELEASE FOR PAYMENTS




     Any payment to any Participant, the Participant’s legal representative, Beneficiary, or to
any guardian or committee appointed for such Participant or Beneficiary in accordance with the
provisions of the Plan, shall, to the extent thereof, be in full satisfaction of all claims
hereunder against the Trustee and the Employer.



10.10 ACTION BY THE EMPLOYER




     Whenever the Employer under the terms of the Plan is permitted or required to do or perform
any act or matter or thing, it shall be done and performed by a person duly authorized by its
legally constituted authority.



10.11 NAMED FIDUCIARIES AND ALLOCATION OF RESPONSIBILITY




     The named Fiduciaries of this Plan are (1) the Employer, (2) the Administrator, (3) the
Trustee and (4) any Investment Manager appointed hereunder. The named Fiduciaries shall have only
those specific powers, duties, responsibilities, and obligations as are specifically given them
under the Plan including, but not limited to, any agreement allocating or delegating their
responsibilities, the terms of which are incorporated herein by reference. In general, the
Employer shall have the sole responsibility for making the contributions provided for under
Section 4.1; and shall have the authority to appoint and remove the Trustee and the Administrator;
to formulate the Plan’s funding policy and method; and to amend or terminate, in whole or in part,
the Plan. The Administrator shall have the sole responsibility for the administration of the Plan,
including, but not limited to, the items specified in Article II of the Plan, as the same may be
allocated or delegated thereunder. The Administrator shall act as the named Fiduciary responsible
for communicating with the Participant according to the Participant Direction Procedures. The
Trustee shall have the sole responsibility of management of the assets held under the Trust,
except to the extent directed pursuant to Article II or with respect to those assets, the
management of which has been assigned to an Investment Manager, who shall be solely responsible
for the management of the assets assigned to it, all as specifically provided in the Plan. Each
named Fiduciary warrants that any directions given, information furnished, or action taken by it
shall be in accordance with the provisions of the Plan, authorizing or providing for such
direction, information or action. Furthermore, each named Fiduciary may rely upon any such
direction, information or action of another named Fiduciary as being proper under the Plan, and is
not required under the Plan to inquire into the propriety of any such direction, information or
action. It is intended under the Plan that each named Fiduciary shall be responsible for the
proper exercise of its own powers, duties, responsibilities and obligations under the Plan as
specified or allocated herein. No named Fiduciary shall guarantee the Trust Fund in any manner
against investment loss or depreciation in asset value. Any person or group may serve in more than
one Fiduciary capacity.



10.12 HEADINGS




     The headings and subheadings of this Plan have been inserted for convenience of reference and
are to be ignored in any construction of the provisions hereof.



10.13 APPROVAL BY INTERNAL REVENUE SERVICE




     Notwithstanding anything herein to the contrary, if, pursuant to an application for
qualification filed by or on behalf of the Plan by the time prescribed by law for filing the
Employer’s return for the taxable year in which the Plan is adopted, or such later date that the
Secretary of the Treasury may prescribe, the Commissioner of Internal Revenue Service or the
Commissioner’s delegate should determine that the Plan does not initially qualify as a tax-exempt
plan under Code Sections 401 and 501, and such determination is not contested, or if contested, is
finally upheld, then if the Plan is a new plan, it shall be void ab initio and all amounts
contributed to the Plan by the Employer, less expenses paid, shall be returned within one (1) year
after the date the initial qualification is denied, and the Plan shall terminate, and the Trustee
shall be discharged from all further obligations. If the disqualification relates to an amended
plan, then the Plan shall operate as if it had not been amended.



10.14 ELECTRONIC MEDIA




     The Administrator may use telephonic or electronic media to satisfy any notice requirements
required by this Plan, to the extent permissible under regulations (or other generally applicable
guidance). In addition, a Participant’s consent to an immediate distribution may be provided
through telephonic or electronic means, to the extent permissible under regulations (or other
generally applicable guidance). The Administrator also may use telephonic or electronic media to
conduct plan transactions such as enrolling Participants, making (and changing) deferral
elections, electing (and changing) investment allocations, applying for Plan loans, and other
transactions, to the extent permissible under regulations (or other generally applicable
guidance).



10.15 PLAN CORRECTION




     The Administrator in conjunction with the Employer may undertake such correction of Plan
errors as the Administrator deems necessary, including correction to preserve tax qualification of
the Plan under Code Section 401(a) or to correct a fiduciary breach under the Act. Without
limiting the Administrator’s authority under the prior sentence, the Administrator, as it
determines to be reasonable and




42









 







appropriate, may undertake correction of Plan document, operational, demographic and employer
eligibility failures under a method described in the Plan or under the IRS Employee Plans
Compliance Resolution System (“EPCRS”) or any successor program to EPCRS. The Administrator, as it
determines to be reasonable and appropriate, also may undertake or assist the appropriate Fiduciary
or Plan official in undertaking correction of a fiduciary breach, including correction under the
DOL Voluntary Fiduciary Correction Program (“VFC”) or any successor program to VFC. For example, to
correct an operational error, the Administrator may require the Trustee to distribute Elective
Deferrals, including earnings, from the Plan where such amounts result from an operational error
other than a failure of Code Section 415, Code Section 402(g), or a failure of the ADP Test.




10.16 UNIFORMITY




     All provisions of this Plan shall be interpreted and applied in a uniform, nondiscriminatory
manner. In the event of any conflict between the terms of this Plan and any Contract purchased
hereunder, the Plan provisions shall control.



ARTICLE XI

PARTICIPATING EMPLOYERS




11.1 ADOPTION BY OTHER EMPLOYERS




     Notwithstanding anything herein to the contrary, with the consent of the Employer and
Trustee, any other corporation or entity, whether an Affiliated Employer or not, may adopt this
Plan and all of the provisions hereof, and participate herein and be known as a Participating
Employer, by a properly executed document evidencing said intent and will of such Participating
Employer.



11.2 REQUIREMENTS OF PARTICIPATING EMPLOYERS





(a) Same Trustee for all. Each such Participating Employer shall be required to use the same
Trustee as provided in this Plan.




(b) Holding and Investing assets. The Trustee may, but shall not be required to, commingle, hold
and invest as one Trust Fund all
contributions made by Participating Employers, as well as all increments thereof.




(c) Payment of expenses. Unless the Employer otherwise directs, any expenses of the Plan which
are to be paid by the Employer or
borne by the Trust Fund shall be paid by each Participating Employer in the same proportion that
the total amount standing to the
credit of all Participants employed by such Employer bears to the total standing to the credit of all Participants.



11.3 DESIGNATION OF AGENT




     Each Participating Employer shall be deemed to be a party to this Plan; provided, however,
that with respect to all of its relations with the Trustee and Administrator for the purpose of
this Plan, each Participating Employer shall be deemed to have designated irrevocably the Employer
as its agent. Unless the context of the Plan clearly indicates the contrary, the word “Employer”
shall be deemed to include each Participating Employer as related to its adoption of the Plan.



11.4 EMPLOYEE TRANSFERS




     In the event an Employee is transferred between Participating Employers, accumulated service
and eligibility shall be carried with the Employee involved. No such transfer shall effect a
termination of employment hereunder, and the Participating Employer to which the Employee is
transferred shall thereupon become obligated hereunder with respect to such Employee in the same
manner as was the Participating Employer from whom the Employee was transferred.



11.5 PARTICIPATING EMPLOYER CONTRIBUTION AND FORFEITURES




     Any contribution or Forfeiture subject to allocation during each Plan Year shall be
determined and allocated separately by each Participating Employer, and shall be allocated only
among the Participants eligible to share of the Employer or Participating Employer making the
contribution or by which the forfeiting Participant was employed. On the basis of the information
furnished by the Administrator, the Trustee shall keep separate books and records concerning the
affairs of each Participating Employer hereunder and as to the accounts and credits of the
Employees of each Participating Employer. The Trustee may, but need not, register Contracts so as
to evidence that a particular Participating Employer is the interested Employer hereunder, but in
the event of an Employee transfer from one Participating Employer to another, the employing
Employer shall immediately notify the Trustee thereof.



11.6 AMENDMENT




     Any Participating Employer that is an Affiliated Employer hereby authorizes the Employer to
make amendments on its behalf, unless otherwise agreed among all affected parties. If a
Participating Employer is not an Affiliated Employer, then amendment of this Plan by the Employer
at any time when there shall be a Participating Employer shall, unless otherwise agreed to by the
affected parties, only be by the written action of each and every Participating Employer and with
the consent of the Trustee where such consent is necessary in accordance with the terms of this
Plan.




43









 








11.7 DISCONTINUANCE OF PARTICIPATION




     Any Participating Employer shall be permitted to discontinue or revoke its participation in
the Plan at any time. At the time of any such discontinuance or revocation, satisfactory evidence
thereof and of any applicable conditions imposed shall be delivered to the Trustee. The Employer
shall have the right to discontinue or revoke the participation in the Plan of any Participating
Employer by providing 45 days notice to such Participating Employer. The Trustee shall thereafter
transfer, deliver and assign Contracts and other Trust Fund assets allocable to the Participants
of such Participating Employer to such new Trustee as shall have been designated by such
Participating Employer, in the event that it has established a separate qualified retirement plan
for its employees provided, however, that no such transfer shall be made if the result is the
elimination or reduction of any Section 411(d)(6) protected benefits as described in Section
8.1(e). If a separate plan has not been established, at the time of such continuance or revocation
for whatever reason, the assets and liabilities, Contracts and other Trust Fund assets allocable
to such Participating Employer’s participation in this Plan shall be spun off pursuant to Code
Section 414(1) and such spun off assets shall constitute a retirement plan of the Participating
Employer with such Participating Employer becoming sponsor and the individual who has signed the
Supplemental Participation Agreement on behalf of the Participating Employer becoming Trustee for
this purpose. Such individual shall agree to this appointment by virtue of signing the
Supplemental Participation Agreement. If such individual is no longer an Employee of the
Participating Employer, then the Participating Employer shall appoint a Trustee. If no successor
is designated, the Trustee shall retain such assets for the Employees of said Participating
Employer pursuant to the provisions of Article VII hereof. In no such event shall any part of the
corpus or income of the Trust Fund as it relates to such Participating Employer be used for or
diverted for purposes other than for the exclusive benefit of the Employees of such Participating
Employer.



11.8 ADMINISTRATOR’S AUTHORITY




     The Administrator shall have authority to make any and all necessary rules or regulations,
binding upon all Participating Employers and all Participants, to effectuate the purpose of this
Article.



11.9 PROVISIONS APPLIED SEPARATELY (OR JOINTLY) FOR PARTICIPATING NON-AFFILIATED EMPLOYERS





(a) Separate status. The Plan Administrator will apply the definition of Compensation and
perform the tests listed in this Section,
separately for each Participating Employer other than an Affiliated Employer of such
Participating Employer. For this purpose, the
Employees of each Participating Employer (and its Affiliated Employers), and their allocations
and accounts, shall be treated as
though they were in separate plan. Any correction action, such as additional contributions or
corrective distributions, shall only affect
the Employees of the Participating Employer (and its Affiliated Employers, if any). The tests
subject to this separate treatment are:




(1) The ADP Test.




(2) The ACP Test.




(3) Nondiscrimination testing as described in Code Section 401(a)(4) and the applicable
Regulations.




(4) Coverage testing as described in Code Section 410(b) and the Regulations.




(5) Status as a Highly Compensated Employee under Section 1.36.




(b) Joint status. The following tests shall be performed for the plan as whole, without regard
to employment by a particular
Participating Employer:




(1) Applying the annual addition limitation in Section 4.7, including the related
Compensation definition.




(2) Applying the Code Section 402(g) limitation in Section 4.2.




(3) Applying the limit on Catch-Up Contributions in Section 4.2.



11.10 TOP-HEAVY APPLIED SEPARATELY FOR PARTICIPATING NON-AFFILIATED EMPLOYERS




     The Plan will apply the Top-Heavy Plan provisions separately to each Participating Employer
other than an Affiliated Employer of such Participating Employer. The Plan will be considered
separate plans for each Participating Employer and its Employees for purposes of determining
whether such a separate plan is top-heavy under Section 9.1 or is entitled to the exemption
described in such Section. For purposes of applying this Article to a Participating Employer, the
Participating Employer and any entity which is an Affiliated Employer to that Participating
Employer shall be the “Employer” for purposes of Section 9.1, and the terms “Key Employee” and
“Non-Key Employee” shall refer only to the Employees of that Participating Employer and/or its
Affiliated Employers. If such a Participating Employer’s separate plan is top-heavy, then:




(a) Highest contribution rate. The Plan Administrator shall determine the highest Key Employee
contribution rate under
Section 4.4(f) by reference to the Key Employees and their allocations in the separate plan of
that Participating Employer;




(b) Top-Heavy minimum allocation. The Plan Administrator shall determine the amount of any
required top-heavy minimum
allocation separately for that separate plan under Section 4.4(f); and



44









 






(c) Plan which will satisfy. The Participating Employer shall make any additional
contributions Section 4.4(f) requires.



11.11 HIGHLY COMPENSATED EMPLOYEE STATUS




     Status as a Highly Compensated Employee under Section 1.36 shall be determined separately
with respect to each Participating Employer (and all its Affiliated Employers).



11.12 SERVICE




     An Employee’s service includes all Hours of Service and Years of Service with any and all
Participating Employers and their Affiliated Employers. An Employee who terminates employment with
one Participating Employer and immediately commences employment with another Participating
Employer has not separated from service and has not had a severance from employment.



11.13 REQUIRED MINIMUM DISTRIBUTIONS




     If a Participant is a 5-percent owner (under Section 6.8(e)(6)) of any Participating Employer
for which the Participant is an Employee in the Plan Year the Participant attains age 70 1/2, then
the Participant’s required beginning date under Section 6.8 shall be the April 1 of the calendar
year following the close of the calendar year in which the Participant attains age 70 1/2.




45