exv10w4






EXHIBIT 10.4




PROTOTYPE DEFINED CONTRIBUTION PLAN




Sponsored By




PENTEGRA SERVICES, INC.




BASIC PLAN DOCUMENT #01





 









 







THIS DOCUMENT IS COPYRIGHTED UNDER THE LAWS OF THE UNITED STATES. ITS USE, DUPLICATION OR
REPRODUCTION, INCLUDING THE USE OF ELECTRONIC MEANS, IS PROHIBITED BY LAW WITHOUT THE EXPRESS
CONSENT OF THE AUTHOR.




TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 
	ARTICLE I	 	 	1	 
	 	 	 	 	 
	 	 	 	 
	DEFINITIONS	 	 	1	 
	 	 	 	 	 
	 	 	 	 
	 	1.1	 	 	Actual Contribution Percentage (ACP)
	 	 	  1	 
	 	1.2	 	 	Actual Deferral Percentage (ADP)
	 	 	  1	 
	 	1.3	 	 	Adoption Agreement
	 	 	  2	 
	 	1.4	 	 	Aggregate Limit
	 	 	  2	 
	 	1.5	 	 	Allocation Date(s)
	 	 	  2	 
	 	1.6	 	 	Annual Additions
	 	 	  2	 
	 	1.7	 	 	Annuity Starting Date
	 	 	  3	 
	 	1.8	 	 	Applicable Calendar Year
	 	 	  3	 
	 	1.9	 	 	Applicable Life Expectancy
	 	 	  3	 
	 	1.10	 	 	Average Annual Compensation
	 	 	  3	 
	 	1.11	 	 	Average Contribution Percentage (ACP)
	 	 	  3	 
	 	1.12	 	 	Average Deferral Percentage (ADP)
	 	 	  3	 
	 	1.13	 	 	Beneficiary
	 	 	  3	 
	 	1.14	 	 	Break In Service
	 	 	  3	 
	 	1.15	 	 	Catch-Up Contributions
	 	 	  4	 
	 	1.16	 	 	Code
	 	 	  4	 
	 	1.17	 	 	Compensation
	 	 	  4	 
	 	1.18	 	 	Custodian
	 	 	  7	 
	 	1.19	 	 	Davis-Bacon Act
	 	 	  7	 
	 	1.20	 	 	Days of Service
	 	 	  7	 
	 	1.21	 	 	Defined Benefit Plan
	 	 	  8	 
	 	1.22	 	 	Defined Benefit (Plan) Fraction
	 	 	  8	 
	 	1.23	 	 	Defined Contribution Dollar Limitation
	 	 	  8	 
	 	1.24	 	 	Defined Contribution Plan
	 	 	  8	 
	 	1.25	 	 	Defined Contribution (Plan) Fraction
	 	 	  8	 
	 	1.26	 	 	Designated Beneficiary
	 	 	  8	 
	 	1.27	 	 	Direct Rollover
	 	 	  8	 
	 	1.28	 	 	Disability
	 	 	  9	 
	 	1.29	 	 	Distribution Calendar Year (Valuation Calendar Year)
	 	 	  9	 
	 	1.30	 	 	Early Retirement Age
	 	 	  9	 
	 	1.31	 	 	Early Retirement Date
	 	 	  9	 
	 	1.32	 	 	Earned Income
	 	 	  9	 
	 	1.33	 	 	Effective Date
	 	 	  9	 
	 	1.34	 	 	Elapsed Time
	 	 	  9	 
	 	1.35	 	 	Election Period
	 	 	 10	 
	 	1.36	 	 	Elective Deferrals
	 	 	 10	 
	 	1.37	 	 	Eligible Employee
	 	 	 10	 
	 	1.38	 	 	Eligible Employer
	 	 	 10	 
	 	1.39	 	 	Eligible Participant
	 	 	 11	 
	 	1.40	 	 	Eligible Retirement Plan
	 	 	 11	 
	 	1.41	 	 	Eligible Rollover Distribution
	 	 	 11	 
	 	1.42	 	 	Employee
	 	 	 11	 
	 	1.43	 	 	Employer
	 	 	 12	 
	 	1.44	 	 	Entry Date
	 	 	 12	 
	 	1.45	 	 	ERISA
	 	 	 12	 
	 	1.46	 	 	Excess Aggregate Contributions
	 	 	 12	 
	 	1.47	 	 	Excess Annual Additions
	 	 	 12	 
	 	1.48	 	 	Excess Contributions
	 	 	 13	 
	 	1.49	 	 	Excess Elective Deferrals
	 	 	 13	 
	 	1.50	 	 	Expected Year Of Service
	 	 	 13	 
	 	1.51	 	 	Fiduciary
	 	 	 13	 
	 	1.52	 	 	First Distribution Calendar Year
	 	 	 13	 
	 	1.53	 	 	Former Participant
	 	 	 13	 
	 	1.54	 	 	Hardship
	 	 	 13	 
	 	1.55	 	 	Highest Average Compensation
	 	 	 13	 
	 	1.56	 	 	Highly Compensated Employee
	 	 	 14	 
	 	1.57	 	 	Hour Of Service
	 	 	 14	 






i 









 






	 	 	 	 	 	 	 	 	 
	 	1.58	 	 	Integration Level
	 	 	 15	 
	 	1.59	 	 	Key Employee
	 	 	 15	 
	 	1.60	 	 	Leased Employee
	 	 	 15	 
	 	1.61	 	 	Life Expectancy
	 	 	 15	 
	 	1.62	 	 	Limitation Year
	 	 	 15	 
	 	1.63	 	 	Master Or Prototype Plan
	 	 	 16	 
	 	1.64	 	 	Matching Contribution
	 	 	 16	 
	 	1.65	 	 	Maximum Permissible Amount
	 	 	 16	 
	 	1.66	 	 	Named Investment Fiduciary
	 	 	 16	 
	 	1.67	 	 	Net Profit
	 	 	 16	 
	 	1.68	 	 	Normal Retirement Age
	 	 	 16	 
	 	1.69	 	 	Normal Retirement Date
	 	 	 16	 
	 	1.70	 	 	Owner-Employee
	 	 	 16	 
	 	1.71	 	 	Participant
	 	 	 16	 
	 	1.72	 	 	Participant’s Account Balance
	 	 	 16	 
	 	1.73	 	 	Participant’s Benefit
	 	 	 17	 
	 	1.74	 	 	Period Of Severance
	 	 	 17	 
	 	1.75	 	 	Permissive Aggregation Group
	 	 	 17	 
	 	1.76	 	 	Plan
	 	 	 17	 
	 	1.77	 	 	Plan Administrator
	 	 	 17	 
	 	1.78	 	 	Plan Sponsor
	 	 	 17	 
	 	1.79	 	 	Plan Year
	 	 	 17	 
	 	1.80	 	 	Predecessor Organization
	 	 	 17	 
	 	1.81	 	 	Present Value
	 	 	 17	 
	 	1.82	 	 	Prior Plan Year
	 	 	 17	 
	 	1.83	 	 	Projected Annual Benefit
	 	 	 18	 
	 	1.84	 	 	Qualified Domestic Relations Order (QDRO)
	 	 	 18	 
	 	1.85	 	 	Qualified Early Retirement Age
	 	 	 18	 
	 	1.86	 	 	Qualified Joint And Survivor Annuity (QJSA)
	 	 	 18	 
	 	1.87	 	 	Qualified Matching Contributions (QMACs)
	 	 	 18	 
	 	1.88	 	 	Qualified Non-Elective Contributions (QNECs)
	 	 	 18	 
	 	1.89	 	 	Qualified Plan
	 	 	 18	 
	 	1.90	 	 	Qualified Pre-Retirement Survivor Annuity
	 	 	 18	 
	 	1.91	 	 	Qualified Voluntary Contribution
	 	 	 19	 
	 	1.92	 	 	Required After-tax Contributions
	 	 	 19	 
	 	1.93	 	 	Required Aggregation Group
	 	 	 19	 
	 	1.94	 	 	Required Beginning Date
	 	 	 19	 
	 	1.95	 	 	Rollover Contribution
	 	 	 19	 
	 	1.96	 	 	Roth Elective Deferrals
	 	 	 20	 
	 	1.97	 	 	Salary Deferral Agreement
	 	 	 20	 
	 	1.98	 	 	Savings Incentive Match Plan For Employees (SIMPLE)
	 	 	 20	 
	 	1.99	 	 	Self-Employed Individual
	 	 	 20	 
	 	1.100	 	 	Service
	 	 	 20	 
	 	1.101	 	 	Service Provider
	 	 	 21	 
	 	1.102	 	 	Severance Date
	 	 	 21	 
	 	1.103	 	 	Severance Period
	 	 	 21	 
	 	1.104	 	 	Shareholder Employee
	 	 	 21	 
	 	1.105	 	 	Simplified Employee Pension Plan
	 	 	 21	 
	 	1.106	 	 	Sponsor
	 	 	 21	 
	 	1.107	 	 	Spouse (Surviving Spouse)
	 	 	 21	 
	 	1.108	 	 	Super Top-Heavy Plan
	 	 	 21	 
	 	1.109	 	 	Taxable Wage Base
	 	 	 21	 
	 	1.110	 	 	Top-Heavy Determination Date
	 	 	 21	 
	 	1.111	 	 	Top-Heavy Plan
	 	 	 21	 
	 	1.112	 	 	Top-Heavy Ratio
	 	 	 22	 
	 	1.113	 	 	Top-Paid Group
	 	 	 22	 
	 	1.114	 	 	Transfer Contribution
	 	 	 23	 
	 	1.115	 	 	Trust
	 	 	 23	 
	 	1.116	 	 	Trustee
	 	 	 23	 
	 	1.117	 	 	Uniformed Services Employment And Reemployment Rights Act Of 1994 (USERRA)
	 	 	 23	 
	 	1.118	 	 	Valuation Date
	 	 	 23	 
	 	1.119	 	 	Vested Account Balance
	 	 	 23	 
	 	1.120	 	 	Voluntary After-tax Contribution
	 	 	 23	 
	 	1.121	 	 	Welfare Benefit Fund
	 	 	 23	 
	 	1.122	 	 	Year Of Service
	 	 	 23	 






ii 









 






	 	 	 	 	 	 	 	 	 
	ARTICLE II	 	 	26	 
	 	 	 	 	 
	 	 	 	 
	ELIGIBILITY REQUIREMENTS	 	 	26	 
	 	 	 	 	 
	 	 	 	 
	 	2.1	 	 	Eligibility
	 	 	 26	 
	 	2.2	 	 	Determination Of Eligibility
	 	 	 26	 
	 	2.3	 	 	Change In Classification Of Employment
	 	 	 26	 
	 	2.4	 	 	Participation
	 	 	 27	 
	 	2.5	 	 	Employment Rights
	 	 	 27	 
	 	2.6	 	 	Service With Controlled Groups
	 	 	 27	 
	 	2.7	 	 	Leased Employees
	 	 	 27	 
	 	2.8	 	 	Thrift Plan
	 	 	 27	 
	 	2.9	 	 	Target Benefit Plan
	 	 	 28	 
	 	2.10	 	 	Davis-Bacon Plan
	 	 	 28	 
	 	2.11	 	 	Waiver Of Participation
	 	 	 28	 
	 	2.12	 	 	Omission Of Eligible Employee
	 	 	 28	 
	 	2.13	 	 	Inclusion Of Ineligible Employee
	 	 	 28	 
	 	2.14	 	 	Participating Employer
	 	 	 28	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE III	 	 	30	 
	 	 	 	 	 
	 	 	 	 
	EMPLOYER CONTRIBUTIONS	 	 	30	 
	 	 	 	 	 
	 	 	 	 
	 	3.1	 	 	Contribution Amount
	 	 	 30	 
	 	3.2	 	 	Overall Permitted Disparity Limits
	 	 	 31	 
	 	3.3	 	 	Contribution Amount For A SIMPLE 401(k) Plan
	 	 	 31	 
	 	3.4	 	 	Responsibility For Contributions
	 	 	 32	 
	 	3.5	 	 	Return Of Contributions
	 	 	 32	 
	 	3.6	 	 	Merger Of Assets From Another Plan
	 	 	 32	 
	 	3.7	 	 	Coverage Requirements
	 	 	 32	 
	 	3.8	 	 	Eligibility For Contribution
	 	 	 33	 
	 	3.9	 	 	Cross-Tested Allocation Formula
	 	 	 33	 
	 	3.10	 	 	Target Benefit Plan Contribution
	 	 	 35	 
	 	3.11	 	 	Davis-Bacon Plan Contribution
	 	 	 35	 
	 	3.12	 	 	Uniform Dollar Contribution
	 	 	 35	 
	 	3.13	 	 	Uniform Points Contribution
	 	 	 35	 
	 	3.14	 	 	403(b) Matching Contribution
	 	 	 35	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE IV	 	 	36	 
	 	 	 	 	 
	 	 	 	 
	EMPLOYEE CONTRIBUTIONS	 	 	36	 
	 	 	 	 	 
	 	 	 	 
	 	4.1	 	 	Voluntary After-tax Contributions
	 	 	 36	 
	 	4.2	 	 	Required After-tax Contributions
	 	 	 36	 
	 	4.3	 	 	Qualified Voluntary Contributions
	 	 	 36	 
	 	4.4	 	 	Rollover Contributions
	 	 	 36	 
	 	4.5	 	 	Voluntary Direct Transfers Between Plans
	 	 	 37	 
	 	4.6	 	 	Elective Deferrals In A 401(k) Plan
	 	 	 38	 
	 	4.7	 	 	Catch-Up Contributions
	 	 	 39	 
	 	4.8	 	 	Elective Deferrals In A SIMPLE 401(k) Plan
	 	 	 39	 
	 	4.9	 	 	Roth Elective Deferrals In A 401(k) Plan
	 	 	 40	 
	 	4.10	 	 	Automatic Enrollment
	 	 	 41	 
	 	4.11	 	 	RESERVED
	 	 	 42	 
	 	4.12	 	 	Make-Up Contributions Under USERRA
	 	 	 42	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE V	 	 	43	 
	 	 	 	 	 
	 	 	 	 
	PARTICIPANT ACCOUNTS	 	 	43	 
	 	 	 	 	 
	 	 	 	 
	 	5.1	 	 	Separate Accounts
	 	 	 43	 
	 	5.2	 	 	Valuation Date
	 	 	 43	 
	 	5.3	 	 	Allocations To Participant Accounts
	 	 	 44	 
	 	5.4	 	 	Allocating Employer Contributions
	 	 	 44	 
	 	5.5	 	 	Allocating Investment Earnings And Losses
	 	 	 44	 
	 	5.6	 	 	Allocation Adjustments
	 	 	 45	 
	 	5.7	 	 	Participant Statements
	 	 	 45	 
	 	5.8	 	 	Changes In Method And Timing Of Valuing Participants’ Accounts
	 	 	 45	 






iii 









 






	 	 	 	 	 	 	 	 	 
	ARTICLE VI	 	 	46	 
	 	 	 	 	 
	 	 	 	 
	RETIREMENT BENEFITS AND DISTRIBUTIONS	 	 	46	 
	 	 	 	 	 
	 	 	 	 
	 	6.1	 	 	Normal Retirement Benefits
	 	 	 46	 
	 	6.2	 	 	Early Retirement Benefits
	 	 	 46	 
	 	6.3	 	 	Benefit Upon Death
	 	 	 46	 
	 	6.4	 	 	Benefit Upon Disability
	 	 	 46	 
	 	6.5	 	 	Benefits On Termination Of Employment
	 	 	 46	 
	 	6.6	 	 	Restrictions On Immediate Distributions
	 	 	 48	 
	 	6.7	 	 	Normal And Optional Forms Of Payment
	 	 	 49	 
	 	6.8	 	 	Distribution In Event Of Incapacity
	 	 	 49	 
	 	6.9	 	 	Commencement Of Benefits
	 	 	 50	 
	 	6.10	 	 	In-Service Withdrawals
	 	 	 50	 
	 	6.11	 	 	Hardship Withdrawals
	 	 	 52	 
	 	6.12	 	 	Direct Rollovers
	 	 	 53	 
	 	6.13	 	 	Participant’s Notice
	 	 	 54	 
	 	6.14	 	 	Assets Transferred From Money Purchase Pension Plans
	 	 	 55	 
	 	6.15	 	 	Assets Transferred From A Code Section 401(k) Plan
	 	 	 55	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE VII	 	 	56	 
	 	 	 	 	 
	 	 	 	 
	DISTRIBUTION REQUIREMENTS	 	 	56	 
	 	 	 	 	 
	 	 	 	 
	 	7.1	 	 	Joint And Survivor Annuity Requirements
	 	 	 56	 
	 	7.2	 	 	Designation Of Beneficiary
	 	 	 56	 
	 	7.3	 	 	Minimum Distribution Requirements
	 	 	 56	 
	 	7.4	 	 	Limits On Distribution Periods
	 	 	 57	 
	 	7.5	 	 	Required Beginning Date
	 	 	 57	 
	 	7.6	 	 	Death Of Participant Before Distributions Begin
	 	 	 57	 
	 	7.7	 	 	Forms Of Distributions
	 	 	 57	 
	 	7.8	 	 	Amount Of Required Minimum Distribution For Each Distribution Calendar Year
	 	 	 57	 
	 	7.9	 	 	Lifetime Required Minimum Distributions Continue Through Year Of Participant’s Death
	 	 	 58	 
	 	7.10	 	 	Death On Or After Required Distributions Begin
	 	 	 58	 
	 	7.11	 	 	Death Before Date Required Distributions Begin
	 	 	 58	 
	 	7.12	 	 	Prior Pre-Retirement Distribution Options
	 	 	 58	 
	 	7.13	 	 	Transitional Rules
	 	 	 59	 
	 	7.14	 	 	Distributions To Minors And Individuals Who Are Legally Incompetent
	 	 	 60	 
	 	7.15	 	 	Unclaimed Benefits
	 	 	 60	 
	 	7.16	 	 	TEFRA 242(b) Election
	 	 	 60	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE VIII	 	 	61	 
	 	 	 	 	 
	 	 	 	 
	JOINT AND SURVIVOR ANNUITY REQUIREMENTS	 	 	61	 
	 	 	 	 	 
	 	 	 	 
	 	8.1	 	 	Applicability Of Provisions
	 	 	 61	 
	 	8.2	 	 	Payment Of Qualified Joint And Survivor Annuity
	 	 	 61	 
	 	8.3	 	 	Payment Of Qualified Pre-Retirement Survivor Annuity
	 	 	 61	 
	 	8.4	 	 	Qualified Election
	 	 	 61	 
	 	8.5	 	 	Notice Requirements For Qualified Joint And Survivor Annuity
	 	 	 61	 
	 	8.6	 	 	Notice Requirements For Qualified Pre-Retirement Survivor Annuity
	 	 	 62	 
	 	8.7	 	 	Special Safe Harbor Exception For Certain Profit-Sharing Or 401(k) Plans
	 	 	 62	 
	 	8.8	 	 	Transitional Rule
	 	 	 63	 
	 	8.9	 	 	Automatic Joint And Survivor Annuity And Early Survivor Annuity
	 	 	 64	 
	 	8.10	 	 	Annuity Contracts
	 	 	 64	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE IX	 	 	65	 
	 	 	 	 	 
	 	 	 	 
	VESTING	 	 	65	 
	 	 	 	 	 
	 	 	 	 
	 	9.1	 	 	Employee Contributions
	 	 	 65	 
	 	9.2	 	 	Employer Contributions
	 	 	 65	 
	 	9.3	 	 	Vesting Of Employer Contributions In A SIMPLE 401(k) Plan
	 	 	 65	 
	 	9.4	 	 	Computation Period
	 	 	 65	 
	 	9.5	 	 	Requalification Prior To Five Consecutive One-Year Breaks In Service
	 	 	 65	 
	 	9.6	 	 	Requalification After Five Consecutive One-Year Breaks In Service
	 	 	 65	 
	 	9.7	 	 	Calculating Vested Interest
	 	 	 65	 
	 	9.8	 	 	Forfeitures
	 	 	 66	 
	 	9.9	 	 	Amendment Of Vesting Schedule
	 	 	 66	 
	 	9.10	 	 	Service With Controlled Groups
	 	 	 67	 
	 	9.11	 	 	Compliance With Uniformed Services Employment And Reemployment Rights Act Of 1994
	 	 	 67	 






iv 









 






	 	 	 	 	 	 	 	 	 
	ARTICLE X	 	 	68	 
	 	 	 	 	 
	 	 	 	 
	LIMITATIONS ON ALLOCATIONS	 	 	68	 
	 	 	 	 	 
	 	 	 	 
	 	10.1	 	 	Maximum Annual Additions
	 	 	 68	 
	 	10.2	 	 	Participation In This Plan Only
	 	 	 68	 
	 	10.3	 	 	Disposition Of Excess Annual Additions
	 	 	 68	 
	 	10.4	 	 	Participation In Multiple Defined Contribution Plans
	 	 	 69	 
	 	10.5	 	 	Disposition Of Excess Annual Additions Under Two Plans
	 	 	 69	 
	 	10.6	 	 	Participation In This Plan And A Defined Benefit Plan Prior To January 1, 2000
	 	 	 70	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE XI	 	 	71	 
	 	 	 	 	 
	 	 	 	 
	NONDISCRIMINATION TESTING	 	 	71	 
	 	 	 	 	 
	 	 	 	 
	 	11.1	 	 	General Testing Requirements
	 	 	 71	 
	 	11.2	 	 	ADP Testing Limitations
	 	 	 71	 
	 	11.3	 	 	Special Rules Relating To Application Of The ADP Test
	 	 	 71	 
	 	11.4	 	 	ACP Testing Limitations
	 	 	 72	 
	 	11.5	 	 	Special Rules Relating To The Application Of The ACP Test
	 	 	 73	 
	 	11.6	 	 	Recharacterization
	 	 	 74	 
	 	11.7	 	 	Calculation And Distribution Of Excess Contributions And Excess Aggregate Contributions
	 	 	 74	 
	 	11.8	 	 	Distribution Of Excess Elective Deferrals
	 	 	 75	 
	 	11.9	 	 	Distribution Of Excess Contributions
	 	 	 75	 
	 	11.10	 	 	Distribution Of Excess Aggregate Contributions
	 	 	 76	 
	 	11.11	 	 	Qualified Non-Elective And/Or Matching Contributions
	 	 	 77	 
	 	11.12	 	 	Nondiscrimination Tests In A SIMPLE 401(k) Plan
	 	 	 78	 
	 	11.13	 	 	Safe Harbor 401(k) Plan Rules Of Application
	 	 	 79	 
	 	11.14	 	 	Safe Harbor 401(k) Plan Definitions
	 	 	 79	 
	 	11.15	 	 	Required Restrictions On Safe Harbor 401(k) Contributions
	 	 	 80	 
	 	11.16	 	 	ADP Test Safe Harbor
	 	 	 81	 
	 	11.17	 	 	ACP Test Safe Harbor
	 	 	 81	 
	 	11.18	 	 	Safe Harbor 401(k) Status
	 	 	 82	 
	 	11.19	 	 	Safe Harbor 401(k) Notice Requirement
	 	 	 82	 
	 	11.20	 	 	Satisfying Safe Harbor 401(k) Contribution Requirements Under Another Defined Contribution Plan
	 	 	 83	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE XII	 	 	85	 
	 	 	 	 	 
	 	 	 	 
	ADMINISTRATION	 	 	85	 
	 	 	 	 	 
	 	 	 	 
	 	12.1	 	 	Plan Administrator
	 	 	 85	 
	 	12.2	 	 	Persons Serving As Plan Administrator
	 	 	 85	 
	 	12.3	 	 	Action By Employer
	 	 	 86	 
	 	12.4	 	 	Responsibilities Of The Parties
	 	 	 86	 
	 	12.5	 	 	Promulgating Notices And Procedures
	 	 	 86	 
	 	12.6	 	 	Appointment Of Investment Manager
	 	 	 86	 
	 	12.7	 	 	Participant Investment Direction
	 	 	 87	 
	 	12.8	 	 	Application Of ERISA Section 404(c)
	 	 	 88	 
	 	12.9	 	 	Participant Loans
	 	 	 88	 
	 	12.10	 	 	Insurance Policies
	 	 	 89	 
	 	12.11	 	 	Determination Of Qualified Domestic Relations Order (QDRO Or Order)
	 	 	 91	 
	 	12.12	 	 	Receipt And Release For Payments
	 	 	 92	 
	 	12.13	 	 	Resignation And Removal
	 	 	 92	 
	 	12.14	 	 	Claims And Claims Review Procedure
	 	 	 92	 
	 	12.15	 	 	Bonding
	 	 	 93	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE XIII	 	 	94	 
	 	 	 	 	 
	 	 	 	 
	TRUST PROVISIONS	 	 	94	 
	 	 	 	 	 
	 	 	 	 
	 	13.1	 	 	Establishment Of The Trust
	 	 	 94	 
	 	13.2	 	 	Control Of Plan Assets
	 	 	 94	 
	 	13.3	 	 	Discretionary Trustee
	 	 	 94	 
	 	13.4	 	 	Nondiscretionary Trustee
	 	 	 94	 
	 	13.5	 	 	Provisions Relating To Individual Trustees
	 	 	 94	 
	 	13.6	 	 	Investment Instructions
	 	 	 95	 
	 	13.7	 	 	Fiduciary Standards
	 	 	 95	 
	 	13.8	 	 	Powers Of The Trustee
	 	 	 95	 
	 	13.9	 	 	Appointment Of Additional Trustee And Allocation Of Responsibilities
	 	 	 97	 
	 	13.10	 	 	Compensation, Administrative Fees And Expenses
	 	 	 98	 
	 	13.11	 	 	Records
	 	 	 98	 






v 









 






	 	 	 	 	 	 	 	 	 
	 	13.12	 	 	Limitation On Liability And Indemnification
	 	 	 99	 
	 	13.13	 	 	Responsibilities Of A Named Custodian
	 	 	100	 
	 	13.14	 	 	Investment Alternatives Of The Custodian
	 	 	101	 
	 	13.15	 	 	Prohibited Transactions
	 	 	101	 
	 	13.16	 	 	Exclusive Benefit Rules
	 	 	101	 
	 	13.17	 	 	Assignment And Alienation Of Benefits
	 	 	101	 
	 	13.18	 	 	Liquidation Of Assets
	 	 	101	 
	 	13.19	 	 	Resignation And Removal Of The Trustee and/or Custodian
	 	 	101	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE XIV	 	 	103	 
	 	 	 	 	 
	 	 	 	 
	TOP-HEAVY PROVISIONS	 	 	103	 
	 	 	 	 	 
	 	 	 	 
	 	14.1	 	 	Applicability Of Rules
	 	 	103	 
	 	14.2	 	 	Determination Of Top-Heavy Status
	 	 	103	 
	 	14.3	 	 	Minimum Contribution
	 	 	104	 
	 	14.4	 	 	Minimum Vesting
	 	 	105	 
	 	14.5	 	 	Limitations On Allocations
	 	 	105	 
	 	14.6	 	 	Use Of Safe Harbor Contributions To Satisfy Top-Heavy Contribution Rules
	 	 	105	 
	 	14.7	 	 	Top-Heavy Rules For SIMPLE 401(k) Plans
	 	 	105	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE XV	 	 	106	 
	 	 	 	 	 
	 	 	 	 
	AMENDMENT AND TERMINATION	 	 	106	 
	 	 	 	 	 
	 	 	 	 
	 	15.1	 	 	Amendment By Sponsor
	 	 	106	 
	 	15.2	 	 	Amendment By Employer
	 	 	106	 
	 	15.3	 	 	Protected Benefits
	 	 	106	 
	 	15.4	 	 	Permitted Plan Amendments Affecting Alternative Forms Of Payment
	 	 	106	 
	 	15.5	 	 	Plan Termination
	 	 	107	 
	 	15.6	 	 	Involuntary Termination
	 	 	107	 
	 	15.7	 	 	Termination Of Participation By Participating Employer
	 	 	107	 
	 	15.8	 	 	Distribution Restrictions Under A Code Section 401(k) Plan
	 	 	107	 
	 	15.9	 	 	Qualification Of Employer’s Plan
	 	 	108	 
	 	15.10	 	 	Mergers And Consolidations
	 	 	110	 
	 	15.11	 	 	Qualification Of Prototype
	 	 	110	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE XVI	 	 	111	 
	 	 	 	 	 
	 	 	 	 
	GOVERNING LAW	 	 	111	 
	 	 	 	 	 
	 	 	 	 
	 	16.1	 	 	Governing Law
	 	 	111	 
	 	16.2	 	 	State Community Property Laws
	 	 	111	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE XVII	 	 	112	 
	 	 	 	 	 
	 	 	 	 
	RESERVED	 	 	112	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE XVII	 	 	113	 
	 	 	 	 	 
	 	 	 	 
	DEEMED IRAS	 	 	113	 
	 	 	 	 	 
	 	 	 	 
	 	17.1	 	 	Deemed IRAs
	 	 	113	 
	 	17.2	 	 	Individual
	 	 	113	 
	 	17.3	 	 	Investment In Collectibles
	 	 	113	 
	 	17.4	 	 	Restrictions On Directing Investments
	 	 	113	 
	 	17.5	 	 	Prohibition Against Investing In Life Insurance
	 	 	113	 
	 	17.6	 	 	Commingling Of Assets
	 	 	113	 
	 	17.7	 	 	Nonforfeitability
	 	 	113	 
	 	17.8	 	 	Separate Accounting
	 	 	113	 
	 	17.9	 	 	Separate Trusts
	 	 	113	 
	 	17.10	 	 	Separate Annuities
	 	 	114	 
	 	17.11	 	 	Reporting Duties
	 	 	114	 
	 	17.12	 	 	Distributions
	 	 	114	 
	 	17.13	 	 	Voluntary Employee Contributions
	 	 	114	 
	 	17.14	 	 	Substitution Of Non-Bank Trustee
	 	 	114	 
	 	17.15	 	 	Disqualification
	 	 	114	 






vi 









 






	 	 	 	 	 	 	 	 	 
	ARTICLE XVIII	 	 	115	 
	 	 	 	 	 
	 	 	 	 
	DEEMED TRADITIONAL INDIVIDUAL RETIREMENT ACCOUNT PROVISIONS	 	 	115	 
	 	 	 	 	 
	 	 	 	 
	RESERVEDARTICLE XVIII	 	 	115	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE XVIII	 	 	116	 
	 	 	 	 	 
	 	 	 	 
	DEEMED TRADITIONAL INDIVIDUAL RETIREMENT ACCOUNT PROVISIONS	 	 	116	 
	 	 	 	 	 
	 	 	 	 
	 	18.1	 	 	Deemed IRA
	 	 	116	 
	 	18.2	 	 	Maximum Annual Contribution
	 	 	116	 
	 	18.3	 	 	Catch-Up Contribution
	 	 	116	 
	 	18.4	 	 	Required Beginning Date
	 	 	116	 
	 	18.5	 	 	Tax Year
	 	 	116	 
	 	18.6	 	 	Trustee
	 	 	116	 
	 	18.7	 	 	Traditional IRA Contributions
	 	 	116	 
	 	18.8	 	 	Excess Contributions
	 	 	117	 
	 	18.9	 	 	Maintenance Of An Individual’s IRA
	 	 	117	 
	 	18.10	 	 	Methods Of Payment
	 	 	117	 
	 	18.11	 	 	Requirements Of Income Tax Regulations
	 	 	117	 
	 	18.12	 	 	Required Beginning Date
	 	 	117	 
	 	18.13	 	 	Forms Of Distributions
	 	 	117	 
	 	18.14	 	 	Distributions Upon Death
	 	 	117	 
	 	18.15	 	 	Designated Beneficiary
	 	 	118	 
	 	18.16	 	 	Remainder Beneficiary
	 	 	118	 
	 	18.17	 	 	Distribution Calendar Year
	 	 	118	 
	 	18.18	 	 	Life Expectancy
	 	 	118	 
	 	18.19	 	 	Individual’s Account Balance
	 	 	119	 
	 	18.20	 	 	Duties Of The Trustee
	 	 	119	 
	 	18.21	 	 	Duties Of The Individual
	 	 	119	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE XIX	 	 	120	 
	 	 	 	 	 
	 	 	 	 
	DEEMED ROTH INDIVIDUAL RETIREMENT ACCOUNT PROVISIONS	 	 	120	 
	 	 	 	 	 
	 	 	 	 
	RESERVED	 	 	120	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE XIX	 	 	121	 
	 	 	 	 	 
	 	 	 	 
	DEEMED ROTH INDIVIDUAL RETIREMENT ACCOUNT PROVISIONS	 	 	121	 
	 	 	 	 	 
	 	 	 	 
	 	19.1	 	 	Deemed Roth IRA
	 	 	121	 
	 	19.3	 	 	Age  Requirements
	 	 	121	 
	 	19.4	 	 	Plan Year
	 	 	121	 
	 	19.5	 	 	Timing Of Contributions
	 	 	121	 
	 	19.6	 	 	Adjusted Gross Income (AGI)
	 	 	121	 
	 	19.7	 	 	Modified AGI
	 	 	121	 
	 	19.8	 	 	Applicable Dollar Amount
	 	 	121	 
	 	19.9	 	 	Maximum Permissible Amount
	 	 	121	 
	 	19.10	 	 	Roth IRA Contributions
	 	 	122	 
	 	19.11	 	 	Excess Contribution
	 	 	123	 
	 	19.12	 	 	Qualified Distributions
	 	 	123	 
	 	19.13	 	 	Qualified Special Purpose Distribution
	 	 	123	 
	 	19.14	 	 	Nonqualified Distributions
	 	 	123	 
	 	19.15	 	 	Form Of Payment
	 	 	123	 
	 	19.16	 	 	Rollover From A Qualified Retirement Plan
	 	 	123	 
	 	19.17	 	 	Life Expectancy
	 	 	123	 
	 	19.18	 	 	Distributions Commencing Prior To Death
	 	 	124	 
	 	19.19	 	 	Distributions After Death
	 	 	124	 
	 	19.20	 	 	Ordering Rules Upon Death Of Individual
	 	 	124	 
	 	19.21	 	 	Minimum Payment
	 	 	124	 
	 	19.22	 	 	Duties Of Trustee
	 	 	124	 
	 	19.23	 	 	Duties Of Individual
	 	 	125	 







vii 









 








PROTOTYPE DEFINED CONTRIBUTION PLAN




Sponsored By




PENTEGRA SERVICES, INC.



The Sponsor hereby establishes this Plan for use by its clients who wish to adopt a qualified
retirement plan. This Plan shall be interpreted in a manner consistent with the intention of the
adopting Employer that this Plan satisfies Internal Revenue Code Sections 401 and 501. Any Plan
and Trust established hereunder shall be so established for the exclusive benefit of Plan
Participants and their Beneficiaries and shall be administered under the following terms and
conditions:




ARTICLE I

DEFINITIONS




1.1 Actual Contribution Percentage (ACP)



The average of the Contribution Percentage of the eligible Participants in a specific group of
Participants (either Highly Compensated Employees or Non-Highly Compensated Employees) for a Plan
Year. The Actual Contribution Percentage shall mean the ratio (expressed as a percentage and
calculated separately for each Participant) of:




     (a) the Participant’s Contribution Percentage Amounts [as defined at (c)-(f)] for a Plan Year,
to



     (b) the Participant’s Compensation for such Plan Year. [Unless otherwise specified in the
Adoption Agreement, Compensation will only include amounts for the period during which the Employee
was eligible to participate.]



Contribution Percentage Amounts on behalf of any Participant shall include:



     (c) the amount of Voluntary After-tax Contributions, Required After-tax Contributions,
Matching Contributions (except to the extent such Matching Contributions may be disregarded in
accordance with IRS Notice 98-1), and Qualified Matching Contributions (to the extent not taken
into account for purposes of the ADP test) made under the Plan on behalf of the Participant for the
Plan Year,



     (d) forfeitures of Excess Aggregate Contributions or Matching Contributions allocated to the
Participant’s account which shall be taken into account in the year in which such forfeiture is
allocated,



     (e) at the election of the Employer, Qualified Non-Elective Contributions, and



     (f) the Employer may elect to use Elective Deferrals or Roth Elective Deferrals in the
Contribution Percentage Amounts as long as the ADP test is met before the Elective Deferrals or
Roth Elective Deferrals are used in the ACP test and continues to be met following the exclusion of
those Elective Deferrals or Roth Elective Deferrals that are used to meet the ACP test.


Contribution amounts shall not include Matching Contributions, whether or not Qualified, that are
forfeited either to correct Excess Aggregate Contributions, or because the contributions to which
they relate are Excess Deferrals, Excess Contributions, or Excess Aggregate Contributions.




1.2 Actual Deferral Percentage (ADP)



For a specified group of Participants (either Highly Compensated Employees or Non-Highly
Compensated Employees) for a Plan Year, the average of the ratios (calculated separately for each
Participant in such group) of:




     (a) the amount of Employer contributions [as defined at (c) – (d)] actually contributed to the
Trust on behalf of such Participant for the Plan Year, to



     (b) the Participant’s Compensation for such Plan Year. [Unless otherwise specified in the
Adoption Agreement, Compensation will only include amounts received for the period during which the
Employee was eligible to participate.]


Employer contributions on behalf of any Participant shall include:




     (c) any Elective Deferrals or Roth Elective Deferrals (other than Catch-Up Contributions) made
pursuant to the Participant’s Salary Deferral Agreement, including Excess Elective Deferrals or
Roth Elective Deferrals of Highly Compensated Employees, but excluding Excess Elective Deferrals or
Roth Elective Deferrals



1









 







distributed to Non-Highly Compensated Employees and Elective Deferrals or Roth Elective Deferrals
that are either taken into account in the Actual Contribution Percentage test (provided the ADP
test is satisfied both with and without exclusion of these Elective Deferrals) or are returned as
excess Annual Additions, and



     (d) at the election of the Employer, Qualified Non-Elective Contributions and Qualified
Matching Contributions.



For purposes of computing Actual Deferral Percentages, an eligible Employee who fails to make
Elective Deferrals shall be treated as a Participant on whose behalf no Elective Deferrals are
made.



1.3 Adoption Agreement



The document attached to this Plan by which an Employer elects the terms and conditions of a
Qualified Plan established under this Basic Plan Document #01. A Standardized Adoption Agreement
used in conjunction with this Basic Plan Document #01 establishes a Plan that meets the
requirements of Section 4.10 of Revenue Procedure 2005-16. A Nonstandardized Adoption Agreement
used in conjunction with this Basic Plan Document #01 establishes a Plan that does not meet the
definition of a Standardized Plan.




1.4 Aggregate Limit




For Plan Years beginning before 2002 only, the sum of:



     (a) 125% of the greater of the Average Deferral Percentage of the Non-Highly Compensated
Employees for the Prior Plan Year or the Average Contribution Percentage of Non-Highly Compensated
Employees under the Plan subject to Code Section 401(m) for the Plan Year beginning with or within
the Prior Plan Year, and



     (b) the lesser of 200% or two percent plus the lesser of such ADP or ACP.


Alternatively, the Aggregate Limit can be determined by substituting “the lesser of 200% or two
percent plus“ for “125% of” in (a) above, and substituting “125% of” for “the lesser of 200% or two
percent plus” in (b) above if it would result in a larger Aggregate Limit.



If the Employer has elected in the Adoption Agreement to use the Current Year Testing Method, then,
in calculating the Aggregate Limit for a particular Plan Year, the Non-Highly Compensated
Employees’ ADP and ACP for that Plan Year, instead of the prior Plan Year, is used.




1.5 Allocation Date(s)



The date or dates on which Participant recordkeeping accounts are adjusted to reflect account
activity including but not limited to contributions, loan distributions, Hardship withdrawals, as
well as earnings activity including but not limited to income, capital gains or market fluctuations
in accordance with Article V hereof. Unless the Plan Administrator in a uniform and
nondiscriminatory manner designates otherwise, all allocations for a particular Plan Year will be
made as of the Valuation Date of that Plan Year.




1.6 Annual Additions



The sum of the following amounts credited to a Participant’s account for the Limitation Year:




     (a) Employer contributions (under Article III),



     (b) Employee contributions (under Article IV),



     (c) forfeitures,



     (d) Employer allocations under a Simplified Employee Pension Plan,



     (e) amounts allocated after March 31, 1984, to an individual medical account as defined in
Code Section 415(l)(2), which is part of a pension or annuity plan maintained by the Employer
(these amounts are treated as Annual Additions to a Defined Contribution Plan though they arise
under a Defined Benefit Plan), and



     (f) amounts derived from contributions paid or accrued after 1985, in taxable years ending
after 1985, which are either attributable to post-retirement medical benefits allocated to the
separate account of a Key Employee or to a Welfare Benefit Fund [as defined in Code Section 419(e)]
maintained by the Employer. For purposes of this paragraph, an Employee is a Key Employee if he or
she meets the requirements of paragraph 1.59 at any time during the Plan Year or any preceding Plan
Year.


For purposes of applying the limitations of Code Section 415, the transfer of funds from one
Qualified Plan to another is not considered an Annual Addition. The following are not Employee
contributions for the purposes of Annual Additions:




2









 








     (g) Rollover Contributions [as defined in Code Sections 402(e)(6), 403(a)(4), 403(b)(8) and
408(d)(3)];



     (h) repayments of loans made to a Participant from the Plan;



     (i) repayments of distributions received by an Employee pursuant to Code Section 411(a)(7)(B)
(cash-outs);



     (j) repayments of distributions received by an Employee pursuant to Code Section 411(a)(3)(D)
(mandatory contributions); and



     (k) Employee contributions to a Simplified Employee Pension Plan excludible from gross income
under Code Section 408(k)(6).


Employee and Employer make-up contributions under USERRA received during the current Limitation
Year shall be treated as Annual Additions with respect to the Limitation Year to which the make-up
contributions are attributable. Excess Amounts applied in a Limitation Year to reduce Employer
contributions will be considered Annual Additions for such Limitation Year, pursuant to the
provisions of Article X.




1.7 Annuity Starting Date



The first day of the first period for which an amount is paid as an annuity or in the case of a
benefit not payable as an annuity, the first day all events have occurred which entitle the
Participant to such benefit.




1.8 Applicable Calendar Year



The First Distribution Calendar Year and each such succeeding calendar year. If payments commence
in accordance with paragraph 7.6 before the Required Beginning Date, the Applicable Calendar Year
is the year such payments commence. If distribution is in the form of an immediate annuity
purchased after the Participant’s death with the Participant’s remaining interest, the Applicable
Calendar Year is the year of purchase.




1.9 Applicable Life Expectancy



The life expectancy or joint and last survivor expectancy calculated using the attained age of the
Participant or Beneficiary as of the Participant’s or Beneficiary’s birthday in the Applicable
Calendar Year, reduced by one for each calendar year which has elapsed since the date life
expectancy was first calculated.




1.10 Average Annual Compensation



Compensation as defined in paragraph 1.17, as elected in Section II(A) of either the Standardized
and Nonstandardized Target Benefit Adoption Agreement. If the Participant has fewer than three
(3) years of participation in the Plan, Compensation is averaged over the Participant’s total
period of participation.




1.11 Average Contribution Percentage (ACP) 



The average of the Actual Contribution Percentages for the eligible Participants in a specified
group of Participants for a Plan Year.




1.12 Average Deferral Percentage (ADP)



The average of the Actual Deferral Percentages for Participants in a specified group of
Participants for a Plan Year.




1.13 Beneficiary



A “Beneficiary” is the recipient designated by the Participant to receive the Plan benefits payable
upon the death of the Participant, or the recipient designated by a Beneficiary to receive any
benefits which may be payable in the event of the Beneficiary’s death prior to receiving the entire
death benefit to which the Beneficiary is entitled. A “Designated Beneficiary” is any individual
designated or determined in accordance with Code Section 401(a)(9) and the Regulations issued
thereunder, except that it shall not include any person who becomes a beneficiary by virtue of the
laws of inheritance or intestate succession.




1.14 Break In Service




     (a) If the Hours of Service method is used in determining either an Employee’s initial or
continuing eligibility to participate in the Plan, or the nonforfeitable interest in the Employee’s
account balance derived from Employer contributions, a Break in Service is a twelve (12)
consecutive month period (during which the Employee has not completed more than five hundred (500)
Hours of Service.



     (b) For purposes of determining whether a Break in Service has occurred in a particular
computation period, an Employee who is absent from work for maternity or paternity reasons shall
receive credit for Hours of Service which would otherwise have been credited to such Employee but
for such absence, or in any case in which such hours cannot be determined, with eight (8) Hours of
Service per day of such absence. The Hours of Service to be so credited shall be credited in the
computation period in which the absence begins if the crediting is necessary to prevent a Break in
Service in that period or, in all other cases, in the following computation periods.



3









 





     (c) With respect to determinations based on the Elapsed Time method, a Break in Service is a
severance period of twelve (12) or more consecutive months. In the case of an Employee who is
absent from work for maternity or paternity reasons, the twelve (12) consecutive month period
beginning on the first anniversary of the first day of such absence shall not constitute a Break in
Service.



     (d) Notwithstanding the foregoing, in the case of an Employee who is absent from work beyond
the first anniversary of the first day of absence from work for maternity or paternity reasons,
such period begins on the second anniversary of the first day of such absence. The period between
the first and second anniversaries of said first day of absence from work is neither a Period of
Service for which the Employee will receive credit nor is such period a Break in Service. For
purposes of this paragraph, an absence from work for maternity or paternity reasons means an
absence (1) by reason of the pregnancy of the Employee, (2) by reason of the birth of a child of
the Employee, (3) by reason of the placement of a child with the Employee in connection with the
adoption of such child by such Employee, or (4) for purposes of caring for such child for a period
beginning immediately following such birth or placement.



     (e) An Employer adopting the Elapsed Time method is required to credit periods of Service and,
under the Service spanning rules, certain periods of severance of twelve (12) months or less.
Under the first Service spanning rule, if an Employee severs from Service as a result of
resignation, discharge or retirement and then returns to Service within twelve (12) months, the
Period of Severance is required to be taken into account. A situation may arise in which an
Employee is absent from Service for any reason other than resignation, discharge, retirement and
during the absence a resignation, discharge or retirement occurs. The second Service spanning rule
provides that, under such circumstances, the Plan is required to take into account the period of
time between the severance from Service date (i.e., the date of resignation, discharge or
retirement) and the first anniversary of the date on which the Employee was first absent, if the
Employee returns to Service on or before such first anniversary date.



1.15 Catch-Up Contributions



Catch-Up Contributions are Elective Deferrals made to the Plan that are in excess of any otherwise
applicable Plan limit that are made by Participants who are age fifty (50) or older (by the end of
their tax year). An otherwise applicable Plan limit is a limit in the Plan that applies to
Elective Deferrals or Roth Elective Deferrals without regard to Catch-Up Contributions, such as the
limit on Annual Additions, the dollar limitation on Elective Deferrals or Roth Elective Deferrals
under Code Section 402(g) (not counting Catch-Up Contributions) and the limit imposed by the Actual
Deferral Percentage (ADP) Test under Code Section 401(k)(3). Catch-Up Contributions for a
Participant for a taxable year may not exceed the dollar limit on Catch-Up Contributions under Code
Section 414(v)(2)(B)(i) for the taxable year or when added to other Elective Deferrals or Roth
Elective Deferrals, 75% of the Participant’s Compensation for the taxable year. The dollar limit
on Catch-Up Contributions under Code Section 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. Different limits apply to Catch-Up Contributions under SIMPLE 401(k) Plans. For
taxable years beginning in 2002, the limit is $500, and increases each year thereafter in $500
increments until it reaches $2,500 in 2006. After 2006, the $5,000 limit and $2,500 limit
respectively, will be adjusted by the Secretary of the Treasury for cost-of-living increases under
Code Section 414(v)(2)(C) in multiples of $500.



Catch-Up Contributions are not subject to the limit on Annual Additions, are not counted in the ADP
Test and are not counted in determining the minimum allocation under Code Section 416 (but Catch-Up
Contributions made in prior years are counted in determining whether the Plan is Top-Heavy).
Provisions in the Plan relating to Catch-Up Contributions apply to Elective Deferrals or Roth
Elective Deferrals made after 2001.




1.16 Code



The Internal Revenue Code of 1986, including any amendments thereto. Reference to any section or
subsection of the Code, includes reference to any comparable or succeeding provisions of any
legislation which amends, supplements or replaces such section or subsection, and also includes
reference to any Regulation issued pursuant to or with respect to such section or subsection.




1.17 Compensation



The Employer may select one of the following three safe harbor definitions of Compensation in the
Adoption Agreement. The definition of Compensation for Employers who adopt a plan established
under a Standardized Adoption Agreement, plans that provide permitted disparity (other than the
CODA portion of these plans), Target Benefit Plans, and for Employers determining top-heavy minimum
contributions, must be one of the three safe harbor definitions of Compensation. In a
Nonstandardized Adoption Agreement, the Employer may modify the definition of Compensation provided
that such definition, as modified, satisfies the provisions of Code Sections 414(s) and 401(a)(4).
Compensation will also include Compensation provided by the Employer through another employer or
entity under the provisions of Code Sections 3121 and 3306.




     (a) Code Section 3401(a) Wages — All remuneration received by an Employee for services
performed for the Employer which are subject to Federal income tax withholding at the source.
Unless elected otherwise in the Adoption Agreement, Compensation shall include any amount deferred
under a Salary Deferral Agreement which is not includible in the gross income of a Participant under Code Section 125 in connection with a
cafeteria plan, Code



4









 







Section 402(e)(3) in connection with a cash or deferred plan, Code Section
402(h)(1)(B) in connection with a Simplified Employee Pension Plan, Code Section 401(k) in
connection with a SIMPLE Retirement Account, Code Section 457 in connection with a Plan maintained
under said Section, and Code Section 403(b) in connection with a tax-sheltered annuity plan. Wages
are determined without regard to any rules that limit the remuneration included in wages based on
the nature or location of the employment or the services performed [such as the exception for
agricultural labor in Code Section 3401(a)(2)]. For Limitation Years beginning after December 31,
1997, for purposes of applying the limitations of this paragraph, Compensation paid or made
available during such Limitation Year shall include any Elective Deferral [as defined in Code
Section 402(g)(3)] or Roth Elective Deferrals, and any amount which is contributed or deferred by
the Employer at the election of the Employee and which is not includible in the gross income of the
Employee by reason of Code Sections 125, 132(f)(4), 402(e)(3), 402(h)(1), 403(b), or 457.



     (b) Code Sections 6041, 6051 And 6052 Reportable Wages — All remuneration received by an
Employee for services performed for the Employer that is required to be reported on Form W-2.
Unless otherwise elected in the Adoption Agreement, Compensation shall include any amount deferred
under a Salary Deferral Agreement which is not includible in the gross income of a Participant
under Code Section 125 in connection with a cafeteria plan, Code Section 402(e)(3) in connection
with a cash or deferred plan, Code Section 402(h)(1)(B) in connection with a Simplified Employee
Pension Plan, and Code Section 403(b) in connection with a tax-sheltered annuity plan. A
Participant’s wages include remuneration defined at subparagraph (a) above and all other
remuneration paid to an Employee by the Employer (in the course of the Employer’s trade or
business) for which the Employer is required to furnish the Employee a written statement under Code
Sections 6041(d), 6051(a)(3) and 6052. Such amount must be determined without regard to any rules
that limit the remuneration included in wages based on the nature or location of the employment or
the services performed [such as the exception for agricultural labor in Code Section 3401(a)(2)].
For Limitation Years beginning after December 31, 1997, for purposes of applying the limitations of
this paragraph, Compensation paid or made available during such Limitation Year shall include any
Elective Deferral [as defined in Code Section 402(g)(3)] or Roth Elective Deferrals, and any amount
which is contributed or deferred by the Employer at the election of the Employee and which is not
includible in the gross income of the Employee by reason of Code Sections 125, 132(f)(4),
402(e)(3), 402(h)(1), 403(b), or 457.



     (c) Code Section 415 Compensation — A Participant’s Earned Income, wages, salaries, and 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. Compensation includes, but is 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
non-accountable plan [as described in Regulation Section 1.62-2(c)]. Compensation excludes the
following:



          (1) Employer contributions made under the terms of a Salary Deferral Agreement between an
Employee and the Employer to a plan of deferred compensation which are not includible in the
Employee’s gross income for the taxable year in which contributed. Such contributions shall
include any amount deferred under Code Section 125 in connection with a cafeteria plan, Code
Section 402(e)(3) in connection with a cash or deferred plan [Elective Deferrals as defined in Code
Section 402(g) or Roth Elective Deferrals], Code Section 402(h)(1)(B) in connection with a
Simplified Employee Pension Plan, Code Section 402(k) in connection with a SIMPLE Retirement
Account, Code Section 132(f)(4) amounts (which prior to January 1, 1998 had been excluded), Code
Section 457 in connection with a Plan maintained under said Section, and Code Section 403(b) in
connection with a tax-sheltered annuity plan,



          (2) to a Plan of deferred Compensation which are not includible in the Employee’s gross income
for the taxable year in which contributed, or Employer contributions under a Simplified Employee
Pension Plan, or any distributions from a Plan of deferred Compensation,



          (3) amounts realized from the exercise of a non-qualified stock option, or when restricted
stock (or property) held by the Employee either becomes freely transferable or is no longer subject
to a substantial risk of forfeiture,



          (4) amounts realized from the sale, exchange or other disposition of stock acquired under a
qualified stock option,



          (5) other amounts which received special tax benefits, or contributions made by the Employer
(whether or not under a salary reduction agreement) towards the purchase of an annuity contract
described in Code Section 403(b) (whether or not the contributions are actually excludable from the
gross income of the Employee), and



          (6) amounts paid after severance from employment [as defined in Code Section 401(k)] generally
would not be treated as Code Section 415(c)(3) unless payment is made within 21/2 months following
the Participant’s severance and is payment that would otherwise have been made while the
Participant was employed such as regular, overtime, shift differential pay, commissions, bonuses
and other similar Compensation, and payments for accrued bona fide sick pay, vacation, or other leave (but only if the Participant
would have been able to



5









 







use the leave if employment had continued). This provision is applicable
no earlier than the 2005 Limitation Year. If elected by the Employer on the Adoption Agreement,
post-severance compensation may be excluded from the definition of Compensation.


Unless otherwise specified by the Employer in the Adoption Agreement, Compensation shall be
determined as provided in Code Section 3401(a) [paragraph (a) above]. Notwithstanding the
foregoing, the Compensation of a Participant who is a sole proprietor, partner or a member of a
limited liability corporation (LLC) shall be determined under Code Section 415. The definition of
Compensation used in nondiscrimination testing (ADP/ACP Testing) will be elected by the Employer in
the Adoption Agreement. Unless indicated otherwise in the Adoption Agreement, Code Section 3401(a)
Compensation paid during a Plan Year while a Participant will be used in the ADP/ACP Tests.
Notwithstanding any other provision to the contrary, if the Plan is an amendment and restatement of
a Qualified Plan, for Plan Years ending prior to the Plan Year in which the amendment or
restatement is adopted, Compensation shall have the meaning set forth in the Qualified Plan prior
to its amendment.



Exclusions From Compensation A Participant’s Compensation shall be determined in accordance with
paragraph (a), (b) or (c) above and shall not exclude any item of income unless provided in the
definition or elected by the Employer in the Adoption Agreement.



Annual Additions And Top-Heavy Rules For purposes of Article X and XIV, Compensation shall be Code
Section 415 Compensation as described in paragraph 1.17(c). Compensation includes amounts deferred
under a plan of deferred compensation as described at paragraph 1.17(c)(1). For purposes of
applying the limitations of Article X, Compensation for a Limitation Year is the Compensation
actually paid or made available during such Limitation Year. For Limitation Years beginning after
December 31, 1997, for purposes of applying the limitations of this paragraph, Compensation paid or
made available during such Limitation Year shall include any Elective Deferral [as defined in Code
Section 402(g)(3)] or Roth Elective Deferrals, and any amount which is contributed or deferred by
the Employer at the election of the Employee and which is not includible in the gross income of the
Employee by reason of Code Sections 125, 132(f)(4), 402(e)(3), 402(h)(1)(B), 403(b) or 457.



If the Plan is or becomes Top-Heavy in any Plan Year beginning after December 31, 1983, the
provisions of Article XIV will supersede any conflicting provisions in the Basic Plan Document #01
or Adoption Agreement. Earned Income means net earnings from self-employment in the trade or
business with respect to which the Plan is established for which 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 Employer to a Qualified Plan to the extent deductible under Code
Section 404.



Net earnings shall be determined with regard to the deduction allowed to the taxpayer by Code
Section 164(f) for taxable years beginning after December 31, 1989.



Contributions Made On Behalf Of Disabled Participants Compensation with respect to a Participant in
a Defined Contribution Plan who is permanently and totally disabled [as defined in Code Section
22(e)(3)] is the Compensation such Participant would have received for the Limitation Year if the
Participant had been paid at the rate of Compensation paid immediately before becoming permanently
and totally disabled; for Limitation Years beginning before January 1, 1997, but not for Limitation
Years beginning after December 31, 1996, such imputed Compensation for the disabled Participant may
be taken into account only if the Participant is not a Highly Compensated Employee (defined at
paragraph 1.56) and contributions made on behalf of such Participant are nonforfeitable when made.
Compensation will mean Compensation as that term is defined in this paragraph.



Highly Compensated And Key Employees For purposes of paragraphs 1.56 and 1.59, Compensation shall
be Code Section 415 Compensation as described in paragraph 1.17(c). Such definition shall include
any amount deferred under Code Section 125 in connection with a cafeteria plan, Code Section
132(f)(4) or Code Section 402(e)(3) in connection with a cash or deferred plan, Code Section
402(h)(1)(B) in connection with a Simplified Employee Pension Plan, Code Section 402(k) in
connection with a SIMPLE Retirement Account (SIMPLE), Code Section 457 in connection with a Plan
maintained under said Section, and Code Section 403(b) in connection with a tax-sheltered annuity
plan. The Employer, if elected in the Adoption Agreement, may limit Compensation considered for
purposes of the Plan for these Participants.



Computation Period The Plan Year, while eligible to participate, shall be the computation period
for purposes of determining a Participant’s Compensation, unless the Employer selects a different
computation period in the Adoption Agreement.



Limitation On Compensation The annual Compensation of each Participant which may be taken into
account for determining all benefits provided under the Plan for any year, shall not exceed the
limitation as imposed by Code Section 401(a)(17), as adjusted under Code Section 401(a)(17)(B). If
a Plan has a Plan Year that contains fewer than twelve (12) calendar months, the annual
Compensation limit for that period is an amount equal to the limitation as imposed by Code Section
401(a)(17) as adjusted for the calendar year in which the Compensation period begins,


6









 






multiplied by a fraction, the numerator of which is the number of full months in the short Plan
Year and the denominator of which is twelve (12).



For Plan Years beginning on or after January 1, 1994, and before January 1, 2002, the annual
Compensation of each Participant taken into account for determining all benefits provided under the
Plan for any Plan Year shall not exceed $150,000, as adjusted for increases in the cost-of-living
in accordance with Code Section 401(a)(17)(B) of the Internal Revenue Code, the cost-of-living
adjustment in effect for a calendar year applies to any determination period beginning in such
calendar year.



The annual Compensation of each Participant taken into account in determining allocations for any
Plan Year beginning after December 31, 2001, shall not exceed $200,000, as adjusted for
cost-of-living increases in accordance with Code Section 401(a)(17)(B). Annual Compensation means
Compensation during the Plan Year or such other consecutive twelve (12) month period over which
Compensation is otherwise determined under the Plan (the determination period). The cost-of-living
adjustment in effect for a calendar year applies to annual Compensation for the determination
period that begins with or within such calendar year.



USERRA For purposes of Employee and Employer make-up contributions, Compensation during the period
of military service shall be deemed to be the Compensation the Employee would have received during
such period if the Employee were not in qualified military service, based on the rate of pay the
Employee would have received from the Employer but for the absence due to military leave. If the
Compensation the Employee would have received during the leave is not reasonably certain,
Compensation will be equal to the Employee’s average Compensation from the Employer during the
twelve (12) month period immediately preceding the military leave or, if shorter, the Employee’s
actual period of employment with the Employer.



Definition of Compensation For Purposes Of Safe Harbor CODA Provisions Compensation for the
purposes of a Safe Harbor CODA is defined in this paragraph 1.17. No dollar limit other than the
limit imposed by Code Section 401(a)(17) applies to the Compensation of a Non-Highly Compensated
Employee. For purposes of determining the Compensation subject to a Participant’s salary deferral
election, the Employer may use an alternative definition to the one described above provided such
alternative definition is a reasonable definition of Compensation within the meaning of Section
1.414(s)-1(d)(2) of the Regulations and permits each Participant to contribute sufficient Elective
Deferrals or Roth Elective Deferrals to receive the maximum amount of Matching Contributions
(determined using the definition of Compensation described above) available to the Participant
under the Plan.



Definition Of Compensation For Purposes Of 401(k) SIMPLE Provisions For purposes of paragraphs
1.38, 3.3, and 4.8, Compensation is the sum of the wages, tips and other compensation from the
Employer subject to Federal income tax withholding [as described in Code Section 6051(a)(3)] and
the Employee’s salary reduction contributions made under Code Section 125 in connection with a
cafeteria plan, Code Section 402(e)(3) in connection with a cash or deferred plan, Code Section
402(h)(1)(B) in connection with a Simplified Employee Pension Plan, Code Section 402(k) in
connection with a SIMPLE Retirement Account, Code Section 457 in connection with a plan maintained
under said Section and Code Section 403(b) in connection with a tax-sheltered annuity plan,
required to be reported by the Employer on Form W-2 [as described in Code Section 6051(a)(8)]. For
self-employed individuals, Compensation means net earnings from self-employment determined under
Code Section 1402(a) prior to subtracting any contributions made to this Plan on behalf of any
Employee. The provisions of the Plan implementing the limit on Compensation under Code Section
401(a)(17) apply to the Compensation under paragraph 4.8.



Code Section 125 Arrangements If elected in the Adoption Agreement amounts under Code Section 125
include any amounts not available to a Participant in cash in lieu of group health coverage because
the Participant is unable to certify that he or she has other health coverage (deemed Code Section
125 Compensation). An amount will be treated as an amount under Code Section 125 only if 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. The use of this definition of Compensation
will generally also apply to the definition of Compensation for purposes of Code Section 414(s)
unless the Plan otherwise specifically excludes all amounts described in Code Section 414(s)(2).



If no election is made on the Adoption Agreement the Plan will exclude deemed Code Section 125
Compensation for purposes of the definition of Compensation.




1.18 Custodian



The institution or institutions (who may be the Sponsor or an affiliate) and any successors or
assigns thereto, named in the Adoption Agreement, to hold the assets of the Plan as provided at
paragraph 13.1 herein.




1.19 Davis-Bacon Act



The Davis-Bacon Act found at 40 U.S.C. Section 276(a) et seq., as may be amended from time to time.




1.20 Days of Service



A method of crediting Service with the Employer whereby an Employee receives credit for a Day of
Service for any calendar day in which he or she provides Service to the Employer.




7









 








1.21 Defined Benefit Plan



A plan under which a Participant’s benefit is determined by a formula contained in the plan and no
Employee accounts are maintained for Participants.




1.22 Defined Benefit (Plan) Fraction



For Limitation Years beginning before January 1, 2000, a fraction, the numerator of which is the
sum of the Participant’s Projected Annual Benefits under all the Defined Benefit Plans (whether or
not terminated) maintained by the Employer, and the denominator of which is the lesser of 125% of
the dollar limitation determined for the Limitation Year under Code Sections 415(b) and (d) or 140%
of the Highest Average Compensation, including any adjustments under Code Section 415(b).



Transitional Rule If an Employee was a Participant as of the first day of the first Limitation
Year beginning after 1986, in one or more Defined Benefit Plans maintained by the Employer which
were in existence on May 6, 1986, the denominator of this fraction will not be less than 125% of
the sum of the annual benefits under such Plans which the Participant had accrued as of the close
of the last Limitation Year beginning before 1987, disregarding any changes in the terms and
conditions of the Plan after May 5, 1986. The preceding sentence applies only if the Defined
Benefit Plans individually and in the aggregate satisfied the requirements of Code Section 415 for
all Limitation Years beginning before 1987.




1.23 Defined Contribution Dollar Limitation



This limit is forty thousand dollars ($40,000) as adjusted by the Secretary of the Treasury for
increases in the cost-of-living. This limitation shall be adjusted by the Secretary at the same
time and in the same manner as under Code Section 415(d). Such increases will be in multiples of
one thousand dollars ($1,000).




1.24 Defined Contribution Plan



A plan under which Employee accounts are maintained for each Participant to which all
contributions, forfeitures, investment income and gains or losses, and expenses are credited or
deducted. A Participant’s benefit under such plan is based solely on the fair market value of his
or her account balance.




1.25 Defined Contribution (Plan) Fraction



For Limitation Years beginning before January 1, 2000, a fraction, the numerator of which is the
sum of the Annual Additions to the Participant’s account under all the Defined Contribution Plans
(whether or not terminated) maintained by the Employer for the current and all prior Limitation
Years (including the Annual Additions attributable to the Participant’s nondeductible Employee
contributions to all Defined Benefit Plans, whether or not terminated, maintained by the Employer,
and the Annual Additions attributable to all Welfare Benefit Funds as defined in paragraph 1.121,
individual medical accounts as defined in Code Section 415(l)(2) and Simplified Employee Pension
Plans as defined in paragraph 1.105, maintained by the Employer), and the denominator of which is
the sum of the maximum aggregate amounts for the current and all prior Limitation Years of Service
with the Employer (regardless of whether a Defined Contribution Plan was maintained by the
Employer). The maximum aggregate amount in the Limitation Year is the lesser of 125% of the dollar
limitation determined under Code Sections 415(b) and (d) in effect under Code Section 415(c)(1)(A)
or 35% of the Participant’s Compensation for such year.



Transitional Rule If an Employee was a Participant as of the end of the first day of the first
Limitation Year beginning after 1986, in one or more Defined Contribution Plans maintained by the
Employer which were in existence on May 6, 1986, the numerator of this fraction will be adjusted if
the sum of this fraction and the Defined Benefit Fraction would otherwise exceed 1.0 under the
terms of this Plan. Under the adjustment, an amount equal to the product of the excess of the sum
of the fractions over 1.0 multiplied by the denominator of this fraction, will be permanently
subtracted from the numerator of this fraction. The adjustment is calculated using the fractions
as they would be computed as of the end of the last Limitation Year beginning before 1987, and
disregarding any changes in the terms and conditions of the Plan made after May 6, 1986, but using
the Code Section 415 limitation applicable to the first Limitation Year beginning on or after
January 1, 1987. The Annual Addition for any Limitation Year beginning before 1987, shall not be
re-computed to treat all Employee contributions as Annual Additions.




1.26 Designated Beneficiary



The individual who is designated as the Beneficiary under paragraph 1.13 and who is the Designated
Beneficiary under Code Section 401(a)(9) and Section 1.401(a)(9)-1 of the Treasury Regulations.




1.27 Direct Rollover



A payment made by the Plan to an Eligible Retirement Plan that is specified by the distributee or a
payment received by the Plan from an Eligible Retirement Plan on behalf of a Participant or an
Employee, if selected in the Adoption Agreement by the Employer. A Direct Rollover from a Roth
Elective Deferral account under a qualified cash or deferred arrangement may only be made to
another designated Roth account under an applicable retirement plan described in Code Section
402A(e)(1) or to a Roth IRA described in Code Section 408A, and only to the extent the rollover is
permitted under the rules of Code Section 402(c). Moreover, a Plan is permitted to treat the
balance of the Participant’s designated Roth account and the Participant’s other accounts under the
Plan as accounts held under two separate Plans [within the meaning of Section 414(I)] for purposes
of applying the special rule in A-11 of




8









 







§1.401(a)(31)-1 [under which a Plan will satisfy Code Section 401(a)(31) even though the Plan
Administrator does not permit any distributee to elect a Direct Rollover with respect to Eligible
Rollover Distributions during a year that are reasonably expected to total less than $200].




1.28 Disability



Unless the Employer has elected a different definition in the Adoption Agreement, Disability is
defined as an illness or injury of a potentially permanent nature, expected to last for a
continuous period of not less than twelve (12) months or can be expected to result in death, as
certified by a physician satisfactory to the Employer, which prevents the Participant from engaging
in any occupation for wage or profit for which the Employee is reasonably fitted by training,
education or experience. If elected by the Employer in the Adoption Agreement, nonforfeitable
contributions will be made to the Plan on behalf of each disabled Participant who is not a Highly
Compensated Employee (as defined at paragraph 1.56). Compensation for purposes of calculating the
contribution will mean Compensation as defined at paragraph 1.17 herein.




1.29 Distribution Calendar Year (Valuation Calendar Year)



A calendar year for which a minimum distribution is required. For distributions beginning before
the Participant’s death, the First Distribution Calendar Year is the calendar year immediately
preceding the calendar year which contains the Participant’s Required Beginning Date. For
distributions beginning after the Participant’s death, the First Distribution Calendar Year is the
calendar year in which distributions are required to begin under paragraph 7.6. 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.




1.30 Early Retirement Age



The age set by the Employer in the Adoption Agreement, not less than age fifty-five (55), at which
a Participant becomes fully vested and is eligible to retire and receive his or her benefits under
the Plan.




1.31 Early Retirement Date



The date as selected in the Adoption Agreement on which a Participant or former Participant has
satisfied the Early Retirement Age requirements. If no election is made on the Adoption Agreement,
it shall mean the date on which a Participant attains his or her Early Retirement Age.



A former Participant who has separated from Service after satisfying any service requirement but
before satisfying the Early Retirement Age and who thereafter reaches the age requirement elected
on the Adoption Agreement shall be entitled to receive benefits under the Plan (other than full
vesting and any allocation of Employer contributions) as though the requirements for Early
Retirement Age had been satisfied.




1.32 Earned Income



Net earnings from self-employment in the trade or business with respect to which the Plan is
established, determined without regard to items not included in gross income and the deductions
allocable to such items, provided that personal services of the individual are a material
income-producing factor. Earned Income shall be reduced by contributions made by an Employer to a
Qualified Plan to the extent deductible under Code Section 404. Net earnings shall be determined
taking into account the deduction for one-half of self-employment taxes allowed to the taxpayer
under Code Section 164(f), to the extent deductible for taxable years beginning after December 31,
1989.




1.33 Effective Date



The date on which the Employer’s Plan or amendment to such Plan becomes effective. For amendments
reflecting statutory and regulatory changes contained in the Economic Growth and Tax Relief
Reconciliation Act of 2001 (EGTRRA), the Effective Date(s) of the applicable provisions of this
legislation will be the earlier of the date upon which such amendment is first administratively
applied or the first day of the Plan Year following the date of adoption of such amendment or
adoption of the Prototype Plan.



The Effective Date for Elective Deferrals and Roth Elective Deferrals provisions is the date the
provisions are actually adopted. In no event may the Effective Date for Roth Elective Deferrals
be earlier than January 1, 2006.




1.34 Elapsed Time



For purposes of determining an Employee’s initial or continued eligibility to participate in the
Plan or the nonforfeitable interest in the Participant’s account balance derived from Employer
contributions, an Employee will receive credit for the aggregate of all time period(s) commencing
with the Employee’s first day of employment or reemployment and ending on the date a Break in
Service begins. The first day of employment or reemployment is the first day the Employee performs
an Hour of Service. An Employee will also receive credit for any Period of Severance of less than
twelve (12) consecutive months. Fractional periods of a year will be expressed in terms of days.



For purposes of this section, Hour of Service shall mean each hour for which an Employee is paid or
entitled to payment for the performance of duties for the Employer.




9









 







A Break in Service is a Period of Severance of at least twelve (12) consecutive months. A Period of
Severance is a continuous period of time during which the Employee is not employed by the Employer.
Such period begins on the date the Employee retires, quits or is discharged, or if earlier, the
twelve (12) month anniversary of the date on which the Employee was otherwise first absent from
service.



In the case of an individual who is absent from work for maternity or paternity reasons, the twelve
(12) consecutive month period beginning on the first anniversary of the first date of such absence
shall not constitute a Break in Service. For purposes of this paragraph, an absence from work for
maternity or paternity reasons means an absence:




     (a) by reason of the pregnancy of the individual,



     (b) by reason of the birth of a child of the individual,



     (c) by reason of the placement of a child with the individual in connection with the adoption
of such child by such individual, or



     (d) for purposes of caring for such child for a period beginning immediately following such
birth or placement.


Each Employee will share in Employer contributions for the period beginning on the date the
Employee commences participation under the Plan and ending on the date on which such Employee
severs employment with the Employer or is no longer a member of an eligible class of Employees.



If the Employer is a member of an affiliated service group [under Code Section 414(m)], a
controlled group of corporations [under Code Section 414(b)], a group of trades or business under
common control [under Code Section 414(c)] or any other entity required to be aggregated with the
Employer pursuant to Code Section 414(o), Service will be credited for any period of employment
with any other member of such group. Service will also be credited for any individual required
under Code Section 414(n) or Code Section 414(o) to be considered an Employee of any Employer
aggregated under Code Sections 414(b), (c) or (m).




1.35 Election Period



The period which begins on the first day of the Plan Year in which the Participant attains age
thirty-five (35) and ends on the date of the Participant’s death. If a Participant separates from
Service prior to the first day of the Plan Year in which age thirty-five (35) is attained, the
Election Period shall begin on the date of separation, with respect to the account balance as of
the date of separation.




1.36 Elective Deferrals



For taxable years beginning after 2005, the term “Elective Deferrals” includes pre-tax Elective
Deferrals and Roth Elective Deferrals. Pre-tax Elective Deferrals are a Participant’s Elective
Deferrals that are not includible in the Participant’s gross income at the time deferred. Elective
Deferrals are Employer contributions in lieu of cash Compensation made to the Plan on behalf of the
Participant pursuant to a Salary Deferral Agreement or other deferral mechanism. With respect to
any taxable year, a Participant’s Elective Deferral 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 as described in Code Section 401(k), any Simplified Employee Pension Plan with a cash
or deferred arrangement as described in Code Section 408(k)(6), any SIMPLE IRA Plan described in
Code Section 408(p), any plan as described under Code Section 501(c)(18), and any Employer
contributions made on behalf of a Participant for the purchase of an annuity contract under Code
Section 403(b) pursuant to a Salary Deferral Agreement. Elective Deferrals or Roth Elective
Deferrals shall not include any deferrals properly distributed as Excess Annual Additions.




1.37 Eligible Employee



For purposes of the SIMPLE 401(k) Plan provisions, any Employee who is entitled to make Elective
Deferrals under the terms of the SIMPLE 401(k) Plan.




1.38 Eligible Employer



For purposes of the SIMPLE 401(k) Plan provisions, an Eligible Employer means with respect to any
Plan Year, an Employer who had no more than one hundred (100) Employees who received at least
$5,000 of Compensation from the Employer for the preceding year. In applying the preceding
sentence, all Employees of controlled groups of corporations under Code Section 414(b), all
Employees of trades or businesses (whether incorporated or not) under common control under Code
Section 414(c), all Employees of affiliated service groups under Code Section 414(m), and Leased
Employees required to be treated as the Employer’s Employees under Code Section 414(n), are taken
into account.



An Eligible Employer who elects to have the SIMPLE 401(k) Plan provisions apply to the Plan and
fails to continue to qualify as an Eligible Employer for any subsequent year, is treated as an
Eligible Employer for the two (2) years following the last year during which the employer was an
Eligible Employer. If the failure is due to any acquisition,


10









 






disposition, or similar transaction involving an Eligible Employer, the preceding sentence shall
apply only if the provisions of Code Section 410(b)(6)(C)(i) are satisfied.




1.39 Eligible Participant



Any Employee who is eligible to make a Voluntary or Required After-tax Contribution or an Elective
Deferral or Roth Elective Deferral (if the Employer takes such contributions into account in the
calculation of the Actual Contribution Percentage), or to receive a Matching Contribution
(including forfeitures) or a Qualified Matching Contribution. If a Required After-tax Contribution
is required as a condition of participation in the Plan, any Employee who would be a Participant in
the Plan if such Employee made such a contribution shall be treated as an Eligible Participant even
though no Employee contributions are made.




1.40 Eligible Retirement Plan



An Eligible Retirement Plan is an eligible Plan under Code Section 457(b) that is maintained by a
state, political subdivision of a state, or any agency or instrumentality of a state or political
subdivision of a state and which agrees to separately account for amounts transferred into such
Plan from this Plan, an individual retirement account described in Code Section 408(a), an
individual retirement annuity described in Code Section 408(b) an annuity plan described in Code
Section 403(a), an annuity contract described in Code Section 403(b), or a Qualified Plan described
in Code Section 401(a), which 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 Relations Order, as defined in Code Section 414(p). If any portion of an Eligible
Rollover Distribution is attributable to payments or distributions from a designated Roth account,
an Eligible Retirement Plan with respect to such portion shall include only another designated Roth
account of the individual from whose account the payments or distributions were made, or a Roth IRA
of such individual.




1.41 Eligible Rollover Distribution



An Eligible Rollover Distribution is any distribution of all or any portion of the balance to the
credit of the Participant except that an Eligible Rollover Distribution does not include:




     (a) any distribution that is one of a series of substantially equal periodic payments made not
less frequently than annually for the life (or life expectancy) of the Participant or the joint
lives (or joint life expectancies) of the Participant and the Participant’s Beneficiary, or for a
specified period of ten (10) years or more,



     (b) any distribution to the extent such distribution is required under Code Section 401(a)(9),



     (c) any Hardship withdrawal distribution under Code Section 401(k)(2)(B)(i)(IV) received after
December 31, 1998, (or if elected by the Employer in accordance with IRS Notice 99-5, received
after December 31, 1999).



     (d) the portion of any distribution that would not be includible in gross income if paid to
the Participant (determined without regard to the exclusion for net unrealized appreciation with
respect to Employer securities),



     (e) any excess amounts that is returned to a Participant in accordance with paragraphs 10.3,
11.8, 11.9 and 11.10,



     (f) any other distribution(s) that is reasonably expected to total less than $200 during a
year,



     (g) any corrective distributions of Excess Elective Deferrals or Roth Elective Deferrals under
Code Section 402(g), and the income allocable thereto,



     (h) any corrective distributions of Excess Contributions and Excess Aggregate Contributions
under Code Section 401(k) and Code Section 401(m), and the income allocable thereto,



     (i) any PS 58 costs, and



     (j) any dividends paid on securities under Code Section 404(k).


A portion of a distribution shall not fail to be an Eligible Rollover Distribution merely because
the portion consists of after-tax Employee contributions which are not includible in gross income.
However, such portion may be transferred only to an individual retirement account or annuity
described in Code Section 408(a) or (b), or to a qualified defined contribution Plan described in
Code Section 401(a) or 403(a) that agrees to separately account for amounts so transferred,
including separately accounting for the portion of such distribution which is includible in gross
income and the portion of such distribution which is not so includible.




1.42 Employee



The term Employee means (a) any person reported on the payroll records of the Employer as an
Employee who is deemed by the Employer to be a common law Employee; (b) except for determining
eligibility to participate in this


11









 






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



The term Employee for these purposes, shall include all Employees of a member of an affiliated
service group [as defined in Code Section 414(m)], all Employees of a controlled group of
corporations [as defined in Code Section 414(b)], all Employees of any incorporated or
unincorporated trade or business which is under common control [as defined in Code Section 414(c)],
Leased Employees [as defined in Code Section 414(n)], and any Employee required to be aggregated by
Code Section 414(o). All such Employees shall be treated as employed by a single Employer.



Leased Employees [as defined in Code Section 414(n) or 414(o)] shall be considered Employees in a
Plan established under a Standardized Adoption Agreement except as otherwise provided in this
paragraph. Exclusion under a Standardized Adoption Agreement is available only if Leased Employees
do not constitute more than 20% of the recipient Employer’s non-highly compensated work force, and
the Employer complies with the requirements as outlined in paragraph 2.7.



The term does not include any other common law employee or any Leased Employee. It is expressly
intended that individuals not treated as common law employees by the Employer or a member of the
same controlled group or affiliated service group on their payroll records, as identified by a
specific job code or work status code, are to be excluded from Plan participation even if a court
or administrative agency subsequently determines that such individuals are common law Employees and
not independent contractors.




1.43 Employer



The Self-Employed Individual, partnership, corporation or other organization including any
participating Employer, which adopts this Plan including any entity that succeeds the Employer and
adopts this Plan. For purposes of Article X, Limitations on Allocations, Employer shall mean the
Employer that adopts or sponsors this Plan, and all members of a controlled group of corporations
[as defined in Code Section 414(b) as modified by Code Section 415(h)], all commonly controlled
trades or businesses [as defined in Code Section 414(c) as modified by Code Section 415(h)] or
affiliated service groups [as defined in Code Section 414(m)] of which the adopting Employer is a
part, and any other entity required to be aggregated with the Employer pursuant to Regulations
under Code Section 414(o).



In addition to such required treatment, the Plan Sponsor may, in its discretion, designate as an
Employer any business entity which is not such a “common control,” “affiliated service group” or
“predecessor” business entity which is otherwise affiliated with the Employer, subject to such
nondiscriminatory limitations as the Employer may impose.




1.44 Entry Date



The date as of which an Employee who has satisfied the Plan’s eligibility requirements enters or
reenters the Plan, as defined in the Adoption Agreement.




1.45 ERISA



The Employee Retirement Income Security Act of 1974, as amended and any successor statute thereto.




1.46 Excess Aggregate Contributions



The excess, with respect to any Plan Year, of:




     (a) the aggregate Contribution Percentage Amounts taken into account in computing the
numerator of the Contribution Percentage actually made on behalf of Highly Compensated Employees
for such Plan Year, over



     (b) the maximum Contribution Percentage Amounts permitted by the ACP test (determined
hypothetically by reducing contributions made on behalf of Highly Compensated Employees in order of
their Contribution Percentages beginning with the highest of such percentages).



     (c) Such determination shall be made after first determining Excess Elective Deferrals or Roth
Elective Deferrals pursuant to paragraph 1.49 and then determining Excess Contributions pursuant to
paragraph 1.48.



1.47 Excess Annual Additions



The excess of the Participant’s Annual Additions for the Limitation Year over the Maximum
Permissible Amount.




12









 








1.48 Excess Contributions



With respect to any Plan Year, the excess of:




     (a) the aggregate amount of Employer contributions actually taken into account in computing
the ADP of Highly Compensated Employees for such Plan Year, over



     (b) the maximum amount of such contributions permitted by the ADP Test (determined by
hypothetically reducing contributions made on behalf of Highly Compensated Employees in order of
the ADPs, beginning with the highest of such percentages).



1.49 Excess Elective Deferrals




Those Elective Deferrals or Roth Elective Deferrals that are includible in a Participant’s gross
income under Code Section 402(g) to the extent such Participant’s Elective Deferrals or Roth
Elective Deferrals for a taxable year exceed the dollar limitation under Code Section 402(g)
[including if applicable, the dollar limitation on such Catch-Up Contributions as defined in Code
Section 414(v)] for such year or 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 or Roth Elective Deferrals made under this Plan and any other
Plan, contract or arrangement maintained by the Employer. Excess Elective Deferrals or Roth
Elective Deferrals shall be treated as Annual Additions under the Plan, unless such amounts are
distributed no later than the first April 15 following the close of the Participant’s taxable year.
For taxable years beginning after December 31, 2005, unless the Participant specifies otherwise,
distribution of Excess Elective Deferrals or Roth Elective Deferrals for a year shall be made first
from the Participant’s pre-tax Elective Deferral account to the extent the pre-tax Elective
Deferrals were made for the year. Pre-tax Elective Deferrals are elective contributions under a
qualified cash or deferred arrangement that are not Roth Elective Deferrals.




1.50 Expected Year Of Service



An eligibility computation period during which an Employee is expected to complete a Year of
Service (as defined in the Adoption Agreement) based upon their employment schedule or position. If
an Employee who was not expected to complete a Year of Service actually completes the required
number of Hours of Service during an applicable computation period, such Employee shall be deemed
to have entered the plan as of the same date they would have had the Employee been originally
classified as expected to complete a Year of Service. In the event an Employee becomes a
Participant under such circumstances, the Employee shall be eligible for an allocation of all
contributions that would have been made on the Employee’s behalf had the Employee had been properly
classified. If an Employee who was originally classified not being expected to complete a Year of
Service has a subsequent change in employment schedule or position such that the Employee would be
considered as likely to complete a Year of Service, such Employee shall eligible to participate in
the Plan as of the earlier of the completion of the Service requirement specified in the Adoption
Agreement on the reclassified basis or the actual completion of a Year of Service as it is defined
in the Adoption Agreement. The Employee shall then enter the Plan as a Participant as of the next
Entry Date following satisfaction of the eligibility requirements specified above.




1.51 Fiduciary



Any individual or entity which exercises any discretionary authority or control over the management
of the Plan or over the disposition of the assets of the Plan; renders investment advice for a fee
or other compensation (direct, or indirect); has any discretionary authority or responsibility over
Plan administration; or acts to carry out a Fiduciary responsibility, when designated by a named
Fiduciary pursuant to authority granted by the Plan; subject, however, to any exception granted
directly or indirectly by the provisions of ERISA or any applicable Regulations. The Sponsor is
the “Named Fiduciary” for purposes of ERISA Section 402(a)(2).




1.52 First Distribution Calendar Year



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 pursuant to
paragraph 7.6.




1.53 Former Participant



A Participant who is no longer actively accruing benefits under the Plan.




1.54 Hardship



An immediate and heavy financial need of the Employee where such Employee lacks other available
financial resources to satisfy such financial need.




1.55 Highest Average Compensation



For Limitation Years beginning before January 1, 2000, the average Compensation for the three (3)
consecutive Years of Service with the Employer that produces the highest average. A Year of
Service with the Employer is the


13









 






twelve (12) consecutive month period defined in the Adoption Agreement, or, if not indicated in the
Adoption Agreement, as defined in paragraph 1.122.




1.56 Highly Compensated Employee



Effective for years after December 31, 1996, the term Highly Compensated Employee means any
Employee who: (1) is a 5% or more owner at any time during the year or preceding year, or (2) for
the preceding year had Compensation from the Employer in excess of $80,000 and if the Employer so
elects in the Adoption Agreement, is in the Top-Paid Group for the preceding 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.



For the determination of who is a Highly Compensated Employee, the applicable year of the Plan for
which a determination is being made is called a determination year and the preceding twelve (12)
month period is called a look-back year. Employees who do not meet the Highly Compensated Employee
definition are considered Non-Highly Compensated Employees.



A Highly Compensated former Employee is based on the rules applicable to determining Highly
Compensated Employee status in effect for that determination year, in accordance with Section
1.414(q)-1T, A-4 of the temporary Income Tax Regulations and IRS Notice 97-45.



In determining whether an Employee is a Highly Compensated Employee for years beginning in 1997,
the amendments to Code Section 414(q) stated above are treated as having been in effect for years
beginning in 1996. In order to be effective, a Top-Paid Group election or calendar year data
election must apply consistently to all plans of the Employer that begin with or within the same
calendar year.




1.57 Hour Of Service




     (a) Unless otherwise specified in the Adoption Agreement, each hour for which an Employee is
paid, or entitled to payment, for the performance of duties for the Employer. These hours shall be
credited to the Employee for the computation period in which the duties are performed, and



     (b) each hour for which an Employee is paid, or entitled to payment, by the Employer on
account of a period of time during which no duties are performed (irrespective of whether the
employment relationship has terminated) due to vacation, holiday, illness, incapacity (including
Disability), layoff, jury duty, military duty or leave of absence. No more than five hundred and
one (501) Hours of Service shall be credited under this paragraph for any single continuous period
(whether or not such period need occur in a single computation period). Hours under this paragraph
shall be calculated and credited pursuant to Section 2530.200b-2 of the Department of Labor
Regulations which are incorporated herein by this reference, and



     (c) each hour for which back pay, irrespective of mitigation of damages, is either awarded or
agreed to by the Employer. The same Hours of Service shall not be credited both under paragraph
(a) or paragraph (b), as the case may be, and under this paragraph (c). These hours shall 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.



     (d) Hours of Service shall be credited for employment with the Employer and with other members
of an affiliated service group [as defined in Code Section 414(m)], a controlled group of
corporations [as defined in Code Section 414(b)], or a group of trades or businesses under common
control [as defined in Code Section 414(c)] of which the adopting Employer is a member, and any
other entity required to be aggregated with the Employer pursuant to Code Section 414(o) and the
Regulations thereunder. Hours of Service shall also be credited for any individual considered an
Employee for purposes of this Plan under Code Section 414(n) or Code Section 414(o) and the
Regulations thereunder.



     (e) Solely for purposes of determining whether a Break in Service, as defined in paragraph
1.14, for participation and vesting purposes has occurred in a computation period, an individual
who is absent from work for maternity or paternity reasons shall receive credit for the Hours of
Service which would otherwise have been credited to such individual but for such absence, or in any
case in which such hours cannot be determined, eight (8) Hours of Service per day of such absence.
For purposes of this paragraph, an absence from work for maternity or paternity reasons means an
absence by reason of the pregnancy of the individual, by reason of a birth of a child of the
individual, by reason of the placement of a child with the individual in connection with the
adoption of such child by such individual, or for purposes of caring for such child for a period
beginning immediately following such birth or placement. The Hours of Service credited under this
paragraph shall be credited in the computation period in which the absence begins if the crediting
is necessary to prevent a Break in Service in that period, or in all other cases, in the following
computation period. No more than five hundred and one (501) hours will be credited under this
paragraph.



     (f) Notwithstanding paragraph (b), the Plan Administrator may elect for all Employees or for
one or more different classifications of Employees (provided such classifications are reasonable
and are consistently



14









 







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



     (g) Hours of Service shall be determined under the hours counting method as elected by the
Employer in the Adoption Agreement. If no election is made, actual hours under the hours counting
method will be used.



1.58 Integration Level



The amount of Compensation specified in the Adoption Agreement at or below which the rate of
contributions or benefits (expressed in each case as a percentage of such Compensation) provided
under the Plan is less than the rate of contributions or benefits (expressed in each case as a
percentage of such Compensation) provided under the Plan with respect to Compensation above such
level. The Adoption Agreement must specify an Integration Level in effect for the Plan Year. No
Integration Level in effect for a particular Plan Year may exceed the contribution and benefit base
(“Taxable Wage Base”) under Section 230 [Code Section 3121(a)(1)] of the Social Security Act in
effect on the first day of the Plan Year.




1.59 Key Employee



For Plan Years beginning after December 31, 2001, Key Employee means any Employee or former
Employee (including any deceased Employee) who at any time during the Plan Year that includes the
determination date was an officer of the Employer having annual Compensation greater than $130,000
[as adjusted under Code Section 416(i)(1) for Plan Years beginning after December 31, 2002], a five
percent (5%) or more owner of the Employer, or a more than one percent (1%) owner of the Employer
having annual Compensation of more than $150,000. In determining whether a Plan is Top-Heavy for
Plan Years beginning before January 1, 2002, Key Employee means any Employee or former Employer
(including any deceased Employee) who at the time during the five (5) year period ending on the
determination date, is an officer of the Employer having an annual Compensation that exceeds fifty
percent (50%) of the dollar limitation under Code Section 415(b)(1)(A), an owner (or considered an
owner under Code Section 318) of one of the ten largest interests in the Employer if such
Individual’s Compensation exceeds one-hundred percent (100%) of the dollar limitation under Code
Section 415(c)(1)(A), a five percent (5%) or more owner of the Employer, or a more than one percent
(1%) owner of the Employer who has an annual Compensation of more than $150,000. For this purpose,
annual Compensation means Compensation within the meaning of Code Section 415(c)(3). The
determination of who is a Key Employee will be made in accordance with Code Section 416(i)(1) and
the applicable Regulations and other guidance of general applicability issued thereunder.




1.60 Leased Employee



Any person (other than an Employee of the recipient) within the meaning of Code Section 414(n)(2)
and Section 414(o) who is not reported on the payroll records of the Employer as a common law
Employee and who provides services to the Employer if (a) the services are provided under an
agreement between the Employer and a leasing organization; (b) the person has performed services
for the Employer or for the Employer and related persons as determined under Code Section 414(n)(6)
on a substantially full time basis for a period of at least one year; and (c) the services are
performed under the primary direction and control of the Employer. Contributions or benefits
provided to a Leased Employee by the leasing organization attributable to services performed for
the Employer will be treated as provided by the Employer.



A Leased Employee will not be considered an Employee of the recipient if he is covered by a money
purchase plan providing (a) a non-integrated Employer contribution rate of at least ten percent
(10%) of Code Section 415 Compensation, including amounts contributed by the Employer pursuant to a
salary reduction agreement which are excludible from the Leased Employee’s gross income under a
cafeteria plan covered by Code Section 125, a cash or deferred Plan under Code Section 401(k), a
SEP under Code Section 408(k) or a tax-deferred annuity under Code Section 403(b) and also
including for Plan Years beginning on or after January 1, 2001, any elective amounts that are not
includible in the gross income of the Leased Employee because of Code Section 132(f)(4); (b)
immediate participation; and (c) full and immediate vesting. This exclusion is only available if
Leased Employees do not constitute more than twenty percent (20%) of the recipient’s non-highly
compensated work force.




1.61 Life Expectancy



Life expectancy as computed by use of one of the following tables, as appropriate: (1) Single Life
Table, (2) Uniform Life Table, or (3) Joint and Last Survivor Table found in Section 1.401(a)(9)-9
of the Regulations.




1.62 Limitation Year



The calendar year or such other twelve (12) consecutive month period designated by the Employer in
the Adoption Agreement for purposes of determining the maximum Annual Additions to a Participant’s
account. All Qualified Plans maintained by the Employer must use the same Limitation 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. If no
designation is made on the Adoption Agreement, the Limitation Year will


15









 






automatically default to the Plan Year. The Limitation Year under the SIMPLE 401(k) Adoption
Agreement shall be the calendar year.




1.63 Master Or Prototype Plan



A plan, the form of which is the subject of a favorable opinion letter from the Internal Revenue
Service.




1.64 Matching Contribution



An Employer contribution made to this or any other Defined Contribution Plan on behalf of a
Participant on account of a Voluntary or Required After-tax Contribution made by such Participant,
or on account of a Participant’s Elective Deferral, Roth Elective Deferral or Catch-Up Contribution
made by such Participant under a Plan maintained by the Employer.



A Plan established under a Cash or Deferred Adoption Agreement may allocate Matching Contributions
throughout the Plan Year, even though the amount of Matching Contributions is determined on the
basis of the Plan Year. If the Plan is calculating Matching Contributions on a Plan Year basis,
but Matching Contributions that are deposited during the Plan Year have been calculated on a
payroll period, an additional “true-up” contribution may be required to accurately calculate the
Matching Contributions as elected on the Adoption Agreement.




1.65 Maximum Permissible Amount



The maximum Annual Additions that may be contributed or allocated to a Participant’s account under
the Plan for any Limitation Year shall not exceed the lesser of:




     (a) the Defined Contribution Dollar Limitation, or



     (b) 100% of the Participant’s Compensation for the Limitation Year.


The Compensation limitation referred to in (b) shall not apply to any contribution for medical
benefits [within the meaning of Code Section 401(h) or Code Section 419A(f)(2)] which is otherwise
treated as an Annual Addition under Code Sections 415(l)(1) or 419(d)(2). If a short Limitation
Year is created because of an amendment changing the Limitation Year to a different twelve (12)
consecutive month period, the Maximum Permissible Amount will not exceed the Defined Contribution
Dollar Limitation multiplied by a fraction, the numerator of which is the number of months in the
short Limitation Year and the denominator of which is twelve (12).




1.66 Named Investment Fiduciary



One or more Fiduciaries who have the authority to control and manage the operation, management and
administration of the Plan as more fully described in Article XII. The Named Investment
Fiduciaries shall be selected through a procedure outlined by the Plan Sponsor.




1.67 Net Profit



The current and accumulated operating earnings of the Employer after Federal and state income
taxes, excluding nonrecurring or unusual items of income, and before contributions to this and any
other Qualified Plan of the Employer, unless the Employer has elected a different definition in the
Adoption Agreement. Unless elected otherwise in the Adoption Agreement, Employer contributions to
the Plan are not conditioned on profits.




1.68 Normal Retirement Age



The age set by the Employer in the Adoption Agreement, not to exceed age sixty-five (65), or if
later the number of years of participation elected in the Adoption Agreement, if any, at which a
Participant becomes fully vested and is eligible to retire and receive his or her benefits under
the Plan. If the Employer enforces a mandatory retirement age, the Normal Retirement Age is the
lesser of that mandatory age or the age specified in the Adoption Agreement. If no selection is
made, Normal Retirement Age will be defined as attainment of age sixty-five (65).




1.69 Normal Retirement Date



The date on which the Participant attains the Normal Retirement Age as elected in the Adoption
Agreement. If no election is made on the Adoption Agreement, it shall mean the date on which a
Participant attains his or her Normal Retirement Age.




1.70 Owner-Employee



A sole proprietor or a partner owning more than 10% of either the capital or profits interest of
the partnership.




1.71 Participant



Any current Employee who met the applicable eligibility requirements and reached his or her Entry
Date and, where the context so requires, pursuant to the terms of the Plan, any living former
Employee on whose behalf an Account is maintained or former Employee who has met the eligibility
requirements.




1.72 Participant’s Account Balance



The account balance as of the last Valuation Date in the calendar year immediately preceding the
Distribution Calendar Year (Valuation Calendar Year) increased by the amount of any contributions
made and allocated or forfeitures allocated to the account as of dates in the Valuation Calendar
Year after the Valuation Date and


16









 






decreased by distributions made in the Valuation Calendar Year after the Valuation Date. The
account balance for the Valuation Calendar Year includes any amounts rolled over or transferred to
the Plan either in the Valuation Calendar Year or in the Distribution Calendar Year if distributed
or transferred in the Valuation Calendar Year.




1.73 Participant’s Benefit



With respect to required distributions pursuant to paragraph 7.8, the account balance as of the
last Valuation Date in the calendar year immediately preceding the Distribution Calendar Year
increased by the amount of any contributions or forfeitures allocated to the account balance as of
the dates in the calendar year after the Valuation Date and decreased by distributions made in the
calendar year after the Valuation Date. A special exception exists for the second Distribution
Calendar Year. For purposes of this paragraph, if any portion of the minimum distribution for the
First Distribution Calendar Year is made in the second Distribution Calendar Year on or before the
Required Beginning Date, the amount of the minimum distribution made in the second Distribution
Calendar Year shall be treated as if it had been made in the immediately preceding Distribution
Calendar Year.




1.74 Period Of Severance



For Plans using Elapsed Time for purposes of crediting a Year of Service for eligibility, accrual
of benefits and/or vesting, Employees will receive credit for all periods of Service from their
date of hire (or rehire) until the next Period of Severance.



When using Elapsed Time:




     (a) a Break in Service shall mean a Period of Severance of at least twelve (12) months;



     (b) a Period of Severance is a continuous period of time during which the Employee is not
employed by the Employer;



     (c) a Period of Severance begins on the date the Employee retires, quits, or is discharged, or
if earlier, the twelve (12) month anniversary of the date on which the Employee was otherwise first
absent from Service.



1.75 Permissive Aggregation Group



The Required Aggregation Group of plans plus any other plan or plans of the 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.




1.76 Plan



The Defined Contribution Plan of the Employer in the form of this Prototype Plan and the applicable
Adoption Agreement executed by the Employer as may be amended from time to time (which includes any
addendum thereto). The Plan shall have the name specified in the Adoption Agreement.




1.77 Plan Administrator



The Employer or individual(s) or entity(ies) appointed by the Employer to administer the Plan as
provided at paragraph 12.1 herein.




1.78 Plan Sponsor



The Employer who adopts this Prototype Plan and accompanying Adoption Agreement.




1.79 Plan Year



The twelve (12) consecutive month period designated by the Employer in the Adoption Agreement. The
Plan Year under the SIMPLE 401(k) Adoption Agreement shall be the calendar year.




1.80 Predecessor Organization



An employer that previously employed the employees acquired by the current Employer. The
determination of whether a prior employer is a “predecessor organization” shall be determined in
accordance with Code Section 414. The Employer may grant optional crediting of predecessor service
pursuant to Code Section 414(a)(2) and the Regulations issued thereunder.




1.81 Present Value



The actuarial equivalent of a Participant’s accrued benefit under a Defined Benefit Plan maintained
by the Employer expressed in the form of a lump sum. Actuarial equivalence shall be based on
reasonable interest and mortality assumptions determined in accordance with the Top-Heavy
provisions of the respective plan. Present Value is used for the purposes of the Top-Heavy test
and the determination with respect thereto.




1.82 Prior Plan Year



The Plan Year immediately preceding the current Plan Year.




17









 








1.83 Projected Annual Benefit



For Limitation Years beginning before January 1, 2000, the annual retirement benefit (adjusted to
an actuarial equivalent straight life annuity if such benefit is expressed in a form other than a
straight life annuity or Qualified Joint and Survivor Annuity) to which the Participant would be
entitled under the terms of a Defined Benefit Plan or Plans, assuming:




     (a) the Participant will continue employment until Normal Retirement Age under the Plan (or
current age, if later), and



     (b) the Participant’s Compensation for the current Limitation Year and all other relevant
factors used to determine benefits under the Plan will remain constant for all future Limitation
Years.



1.84 Qualified Domestic Relations Order (QDRO)



A Qualified Domestic Relations Order (QDRO) is a signed domestic relations order issued by a state
court or agency which creates, recognizes or assigns to an alternate payee(s) the right to receive
all or part of a Participant’s Plan benefit and which meets the requirements of Code Section
414(p). An alternate payee is a Spouse, former Spouse, child, or other dependent who is treated as
a Beneficiary under the Plan as a result of the QDRO. Unless elected otherwise by the Employer in
the Adoption Agreement, the earliest date for payment of a QDRO to an alternate payee, is the date
upon which the order is deemed qualified.




1.85 Qualified Early Retirement Age



For purposes of paragraph 8.9, Qualified Early Retirement Age is the latest of:




     (a) the earliest date under the Plan on which the Participant may elect to receive retirement
benefits, or



     (b) the first day of the 120th month beginning before the Participant reaches Normal
Retirement Age, or



     (c) the date the Participant begins participation.



1.86 Qualified Joint And Survivor Annuity (QJSA)



An immediate annuity for the life of the Participant with a survivor annuity for the life of the
Participant’s Spouse which is at least 50%, but not more than 100%, of the annuity payable during
the joint lives of the Participant and the Participant’s Spouse. The exact amount of the survivor
annuity is to be specified by the Employer in the Adoption Agreement. If no election is made on
the Adoption Agreement, and the Plan is subject to the Qualified Joint and Survivor Annuity
provisions, the survivor annuity will be 50% of the amount paid to the Participant during his or
her lifetime. The Qualified Joint and Survivor Annuity will be the amount of benefit which can be
provided by the Participant’s Vested Account Balance.




1.87 Qualified Matching Contributions (QMACs)



Matching Contributions that are nonforfeitable when made to the Plan and that are distributable
only in accordance with the distribution provisions (other than for Hardships) applicable to
Elective Deferrals and Roth Elective Deferrals. Qualified Matching Contributions (QMACs) must
satisfy Regulations Section 1.401(k)-2(a)(6) if used for the ADP Test.




1.88 Qualified Non-Elective Contributions (QNECs)



Contributions (other than Matching Contributions or Qualified Matching Contributions) made by the
Employer and allocated to Participants’ accounts that the Participants may not elect to receive in
cash until distributed from the Plan, that are nonforfeitable when made, and that are distributable
only in accordance with the distribution provisions (other than for Hardships) that are applicable
to Elective Deferrals or Roth Elective Deferrals and Qualified Matching Contributions. If Qualified
Non-Elective Contributions (QNECs) or Elective Deferrals or Roth Elective Deferrals are used for
the ACP Test, they must satisfy Regulations Section 1.401(m)-2(a)(6).




1.89 Qualified Plan



Any pension, profit-sharing, stock bonus, or other plan which meets the requirements of Code
Section 401(a) and includes a trust exempt from tax under Code Section 501(a) or any annuity plan
described in Code Section 403(a).



Solely for the purposes of Rollover Contributions, for Plan Years beginning after December 31,
2001, the term “Qualified Plan” includes a governmental Code Section 457 Plan, and a Code Section
403(b) annuity or plan.




1.90 Qualified Pre-Retirement Survivor Annuity



An annuity for the life of the Surviving Spouse of a Participant the actuarial equivalent of which
is not less than 50% of the Participant’s Vested Account Balance as of the date of the
Participants’ death, as elected by Employer in the Adoption Agreement. If no selection is made on
the Adoption Agreement, and the Plan is subject to the Qualified Joint and Survivor Annuity
provisions, the Qualified Pre-Retirement Survivor Annuity shall be 50% of the Participant’s Vested
Account Balance as of the date of the death of the Participant, unless the Employer in a prior
version of the


18









 






Adoption Agreement or Plan, had elected that the Qualified Pre-Retirement Survivor Annuity be 100%
of the Account Balance.




1.91 Qualified Voluntary Contribution



A tax-deductible Voluntary Employee Contribution which was permitted to be made for the tax years
1982 through 1986. This type of contribution is no longer permitted to be made by a Participant.
This Plan shall accept such type of contribution if made in a prior plan and an appropriate
recordkeeping account will be established on behalf of the Participant.




1.92 Required After-tax Contributions



Employee after-tax contributions required as a condition of participation in the Plan.




1.93 Required Aggregation Group



A group of plans including:




     (a) each Qualified Plan of the Employer in which at least one (1) Key Employee participates or
participated at any time during the determination period (regardless of whether the plan has
terminated), and



     (b) any other Qualified Plan of the Employer which enables a plan described in (a) to meet the
requirements of Code Sections 401(a)(4) or 410.



1.94 Required Beginning Date



As elected in the Adoption Agreement, the Required Beginning Date will be defined in either
subparagraph (a) or (b) below:




     (a) The Required Beginning Date of a Participant is the April 1 of the calendar year following
the calendar year in which the Participant attains age 701/2.



     (b) The Required Beginning Date of a Participant is the April 1 of the calendar year following
the calendar year in which the Participant attains age 701/2, except that benefit distributions to a
Participant [other than a five percent (5%) or more owner] must commence by April 1 of the calendar
year following the later of the calendar year in which the Participant attains age 701/2 or the
calendar year in which the Participant retires.



     (c) Any participant attaining age 701/2 in years after 1995 may elect by April 1 of the calendar
year following the year in which the Participant attained age 701/2, to defer distributions until the
April 1 of the calendar year following the calendar year in which the Participant retires. If no
such election is made, the Participant will begin receiving distributions by the April 1 of the
calendar year following the year in which the Participant attained age 701/2.



     (d) A Participant is treated as a five percent (5%) or more owner for purposes of this section
if such Participant is a five percent (5%) or more 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 701/2.
Once distributions have begun to a five percent (5%) or more owner under this section, they must
continue to be distributed, even if the Participant ceases to be a five percent (5%) or more owner
in a subsequent year.



1.95 Rollover Contribution



A Qualified Plan may accept a Rollover Contribution from any Eligible Retirement Plan described in
Code Section 402(c)(8)(B). An Eligible Retirement Plan is:




     (a) another Qualified Plan;



     (b) an Individual Retirement Account or Annuity (IRA);



     (c) a Code Section 403(b) plan;



     (d) a governmental Code Section 457(b) plan.


If the distribution is from an IRA, it is eligible for rollover into a Qualified Plan, but only to
the extent it would be includible in gross income if it were not rolled over.



The term Rollover Contribution means an amount transferred to this Plan in a Trustee to
Trustee transfer from another Qualified Plan and transferred to this Plan within sixty (60) days of
receipt thereof. Any amount that is transferred to this Plan from another qualified retirement
plan which at the time of transfer was not subject to the Qualified Joint and Survivor Annuity and
Qualified Pre-retirement Survivor Annuity requirements of Code Section 401(a)(11), or which is
transferred to this Plan under subparagraph (b) above from a individual retirement account, will
not at any time be subject to the spousal consent requirements as set forth in Article VIII.




19









 








1.96 Roth Elective Deferrals



An Elective Deferral designated by a Participant as a Roth Elective Deferral that at the time the
deferral is made that is includible in the Participant’s gross income and has been irrevocably
designated as Roth Elective Deferrals by the Participant in his or her deferral election. A
Participant’s Roth Elective Deferrals will be maintained in a separate account containing only the
Participant’s Roth Elective Deferrals and gains and losses attributable to those Roth Elective
Deferrals.



Roth Elective Deferrals shall be treated in the same manner as a pre-tax Elective Deferrals under
the terms of the Plan. For purposes of interpreting the Plan, the term Elective Deferral shall
mean both pre-tax Elective Deferrals and Roth Elective Deferrals except in cases where the context
is clearly in violation of the requirements of this paragraph.



Roth Elective Deferrals are effective on the later of when the Plan is adopted or January 1, 2006.




1.97 Salary Deferral Agreement



An agreement between the Employer and an Employee where the Employee authorizes the Employer to
withhold a specified percentage or dollar amount of his or her Compensation (otherwise payable in
cash) for deposit to the Plan on behalf of such Employee.




1.98 Savings Incentive Match Plan For Employees (SIMPLE)



A plan adopted by an Eligible Employer under Code Section 401(k)(11) under which Eligible Employees
are permitted to make Elective Deferrals to a Qualified Plan established by the completion of the
SIMPLE 401(k) Plan Adoption Agreement. An Eligible Employer that elects to have the SIMPLE 401(k)
provisions apply to the Plan and that fails to continue to qualify an Eligible Employer for any
subsequent year, is treated as an Eligible Employer for the two (2) years following the last year
during which the Employer was an Eligible Employer. If the failure is due to any acquisition,
disposition, or similar transaction involving an Eligible Employer, the preceding sentence shall
apply only if the provisions of Code Section 410(h)(6)(c)(i) are satisfied.




1.99 Self-Employed Individual



An individual who has Earned Income for the taxable year from the trade or business for which the
Plan is established including an individual who would have had Earned Income but for the fact that
the trade or business had no Net Profit for the taxable year.




1.100 Service



The period of current or prior employment with the Employer including any imputed period of
employment which must be counted under USERRA. If the Employer maintains a plan of a predecessor
employer, service for such predecessor shall be treated as Service for the Employer for the
purpose(s) specified in the Adoption Agreement. Service is determined under an hours counting
method or Elapsed Time method as selected by the Employer in the Adoption Agreement.



If the Employer has elected to use the Elapsed Time method to determine eligibility and/or vesting
Service, the aggregate of the following (applied without duplication and except for periods of
Service that may be disregarded under paragraph 9.6):




     (a) Each period from an Employee’s date of hire (or reemployment date) to his next Severance
Date; and



     (b) If an Employee performs an Hour of Service within twelve (12) months of a Severance Date,
the period from such Severance Date to such Hour of Service. Service shall be credited for all
periods when the Employer or an Affiliated Employer employs the Employee.


Service shall be measured in whole years and fractions of a year in months. For this purpose, (a)
periods of less than a full year shall be aggregated on the basis that twelve (12) months or three
hundred and sixty five (365) days equals a year, and (b) in aggregating days into months, thirty
(30) days shall be rounded up to the nearest whole month. For purposes of determining Service,
“Date of Hire” means the date on which an Employee first completes an Hour of Service and
“Reemployment Date” means the date on which an Employee first completes an Hour of Service after a
Severance Date.



If the Employer is a member of an affiliated service group [under Code Section 414(m)], a
controlled group of corporations [under Code Section 414(b)], a group of trades or businesses under
common control [under Code Section 414(c)] or any other entity required to be aggregated with the
Employer pursuant to Code Section 414(o), Service will be credited for any employment for any
period of time for any other member of such group. Service will also be credited for any
individual required under Code Section 414(n) or Code Section 414(o) to be considered an Employee
of any Employer aggregated under Code Section 414(b), (c), or (m).



The timing of any Plan amendment that credits (or increases benefits attributable to) Years of
Service for a period in the past is deemed not to have the effect of discriminating significantly
in favor of Highly Compensated Employees or former Highly Compensated Employees if the period for
which the service credit (or benefit increase) is granted


20









 






under a standardized plan does not exceed the five (5) years immediately preceding the Plan Year in
which the amendment first becomes effective. The service credit (or benefit increase) is granted on
a reasonably uniform basis to all Employees, if benefits attributable to the period are determined
by applying the current Plan formula, and the service credited is Service (including
pre-participation or imputed Service) with the Employer or a previous employer that may be taken
into account under Regulations Section 1.401(a)(4)-11(d)(3) [without regard to Regulations Section
1.401(a)(4)-11(d)(3)(i)(B)]. This safe harbor is not available if the Plan amendment granting the
service credit (or increasing benefits) is part of a pattern of amendments that has the effect of
discriminating significantly in favor of Highly Compensated Employees or former Highly Compensated
Employees.



Service credit (or benefit increase) granted under a nonstandardized plan may exceed the five (5)
years immediately preceding the Plan Year in which the amendment first becomes effective. Any
credited Service shall be as elected on the Adoption Agreement.




1.101 Service Provider



An individual or business entity who is retained by the Plan Administrator on behalf of the Plan to
provide specified administrative services to the Plan.




1.102 Severance Date



The date which is the earlier of:




     (a) the date on which an Employee quits, retires, is discharged or dies; or



     (b) the first anniversary of the first date of a period in which an Employee remains
continuously absent from Service with an Employer or affiliate (with or without pay) for any reason
other than quit, retirement, discharge or death.



1.103 Severance Period



Each period from an Employee’s Severance Date to his next re-employment date for purposes of
USERRA.




1.104 Shareholder Employee



An Employee or officer who owns [or is considered as owning within the meaning of Code Section
318(a)(1)], on any day during the taxable year of an electing small business corporation
(S Corporation), more than 5% of such corporation’s outstanding stock.




1.105 Simplified Employee Pension Plan



A plan under which the Employer makes contributions for eligible Employees pursuant to a written
formula. Contributions are made to an individual retirement account which meets the requirements
of Code Section 408(k).




1.106 Sponsor  



The institution or entity and any of its affiliates or any successor or assigns thereto who makes
this Prototype Plan available to adopting Employers.




1.107 Spouse (Surviving Spouse)



The individual to whom a Participant is married, or was married in the case of a deceased
Participant who was married at the time of his or her death. A former Spouse will be treated in
the same manner as a Spouse to the extent provided under a Qualified Domestic Relations Order as
described in Code Section 414(p).




1.108 Super Top-Heavy Plan



A Plan described at paragraph 1.111 under which the Top-Heavy Ratio exceeds 90%.




1.109 Taxable Wage Base



For plans with an allocation formula which takes into account the Employer’s contribution under the
Federal Insurance Contributions Act (FICA), the contribution and benefit base in effect under the
Social Security Act (Section 203) at the beginning of the Plan Year.




1.110 Top-Heavy Determination Date



For the first Plan Year of the Plan, the last day of the first Plan Year. For any Plan Year
subsequent to the first Plan Year, the last day of the preceding Plan Year.




1.111 Top-Heavy Plan



For any Plan Year, the Employer’s Plan is Top-Heavy if any of the following conditions exist:




     (a) The Top-Heavy Ratio for the Employer’s Plan exceeds 60% and this Plan is not part of any
Required Aggregation Group or Permissive Aggregation Group of plans.



     (b) The Employer’s Plan is a part of a Required Aggregation Group of plans but not part of a
Permissive Aggregation Group and the Top-Heavy Ratio for the group of plans exceeds 60%.



21









 





     (c) The Employer’s Plan is a part of a Required Aggregation Group and part of a Permissive
Aggregation Group of plans and the Top-Heavy Ratio for the Permissive Aggregation Group exceeds
60%.



1.112 Top-Heavy Ratio  




     (a) If the Employer maintains one or more Defined Contribution Plans (including any Simplified
Employee Pension Plan) and the Employer has not maintained any Defined Benefit Plan which during
the five (5) year period ending on the Determination Date(s) has or has had accrued benefits, the
Top-Heavy Ratio for this Plan alone, or for the Required or Permissive Aggregation Group as
appropriate, is a fraction,



          (1) the numerator of which is the sum of the account balances of all Key Employees as of the
Determination Date(s) [including any part of any account balance distributed in the one (1) year
period ending on the Determination Date(s)], and



          (2) the denominator of which is the sum of all account balances [including any part of any
account balance distributed in the one (1) year period ending on the Determination Date(s)], 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. In the case of a
distribution made for a reason other than separation from Service, death or Disability, this
provision shall be applied by substituting “five (5) year period” for “one (1) year period”.



     (b) 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 five (5) year period ending on the Determination Date(s) has or has had any
accrued benefits, the Top-Heavy Ratio for any Required 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
(a) 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(s), 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 (a) above, and the Present Value of accrued benefits
under the Defined Benefit Plan or Plans for all Participants as of the Determination Date(s), 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 five (5) year period ending on
the Determination Date.



     (c) For purposes of (a) and (b) 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 twelve (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 who is not a Key Employee but who
was a Key Employee in a prior year, or who has not been credited with at least one (1) Hour of
Service with any Employer maintaining the Plan at any time during the five (5) year period 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. Qualified Voluntary 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 the method, if any, that
uniformly applies for accrual purposes under all Defined Benefit Plans maintained by the Employer,
or 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).



1.113 Top-Paid Group



The group consisting of the top 20% of Employees when ranked on the basis of Compensation paid
during such year. For purposes of determining the number of Employees in the group (but not who is
in it), Employees identified in (a) through (d) may be excluded and Employees identified in (e)
through (f) shall be excluded:




     (a) Employees who have not completed six (6) months of Service by the end of the year;



     (b) Employees who normally work less than seventeen and one-half (171/2) hours per week by the
end of the year;



     (c) Employees who normally work not more than six (6) months during any year;



     (d) Employees who have not attained age twenty-one (21) by the end of the year;



22









 





     (e) Employees included in a collective bargaining unit, covered by an agreement between
Employee representatives and the Employer, where retirement benefits were the subject of good faith
bargaining, if they constitute at least 90% of the Employer’s work force and the Plan covers only
non-union Employees; and



     (f) Employees who are nonresident aliens and who receive no Earned Income which constitutes
income from sources within the United States.



1.114 Transfer Contribution



A non-taxable transfer of a Participant’s benefit directly from a Qualified Plan to this Plan.
This type of transfer does not constitute constructive receipt of plan assets.




1.115 Trust



The trust established in conjunction with the Plan, together with any and all amendments thereto
which holds assets of the Plan held by or in the name of the Trustee or Custodian.




1.116 Trustee



An individual, individuals or corporation and any of its affiliates or any successor or assigns
(who may be the Sponsor or an affiliate) named in the Adoption Agreement or any duly appointed
successor or assigns as provided for in paragraph 13.19.




1.117 Uniformed Services Employment And Reemployment Rights Act Of 1994 (USERRA)



The Uniformed Services Employment and Reemployment Rights Act of 1994, as amended. Notwithstanding
any provision of the Plan to the contrary, contributions, benefits, Plan loan repayment,
suspensions and service credit with respect to qualified military service will be provided in
accordance with Code Section 414(u).




1.118 Valuation Date



The last day of the Plan Year and such other date(s) as specified in the Adoption Agreement on
which the fair market value of Plan assets is determined. The Trustee and/or Custodian may also
value all or any portion of the assets of the Trust on such other Valuation Dates as directed by
the Plan Administrator, including but not limited to semi-annually, quarterly, monthly, or daily
Valuation Dates.




1.119 Vested Account Balance



The aggregate value of the Participant’s Vested Account Balances derived from Employer and Employee
contributions (including Rollovers), whether vested before or upon death, including the proceeds of
insurance contracts, if any, on the Participant’s life. The provisions of Article IX shall apply
to a Participant who is vested in amounts attributable to Employer contributions, Employee
contributions (or both) at the time of death or distribution.




1.120 Voluntary After-tax Contribution



Any contribution (other than Roth Elective Deferrals) made to the Plan or any other Defined
Contribution Plan by or on behalf of a Participant that is included in the Participant’s gross
income in the year in which made and that is maintained under a separate account to which earnings
and losses are allocated.




1.121 Welfare Benefit Fund



Any fund that is part of a plan of the Employer, or has the effect of a plan, through which the
Employer provides welfare benefits to Employees or their Beneficiaries. For these purposes,
Welfare Benefit means any benefit other than those with respect to which Code Section 83(h)
(relating to transfers of property in connection with the performance of services), Code Section
404 (relating to deductions for contributions to an Employees’ trust or annuity and Compensation
under a deferred payment plan), Code Section 404A (relating to certain foreign deferred
compensation plans) apply. A “Fund” for purposes of this paragraph, is any social club, voluntary
employee benefit association, supplemental unemployment benefit trust or qualified group legal
service organization described in Code Section 501(c)(7), (9), (17) or (20); any trust,
corporation, or other organization not exempt from income tax, or to the extent provided in
regulations, any account held for an Employer by any person.




1.122 Year Of Service




     (a) If elected in the Adoption Agreement, the hours counting method will be used in
determining either an Employee’s initial or continuing eligibility to participate in the Plan, or
the nonforfeitable interest in the Participant’s account balance derived from Employer
contributions. A Year of Service is a twelve (12) consecutive month period in which an Employee
has completed 1,000 Hours of Service (or such lower number as is specified in the Adoption
Agreement).



          (1) The eligibility computation period begins on the date the Employee first performs an Hour
of Service (employment commencement date) and is a twelve (12) consecutive month period during
which the Employee has completed the number of Hours of Service (not to exceed 1,000) as elected in
the Adoption Agreement.



23









 





          (2) The vesting computation period is a twelve (12) consecutive month period as elected by the
Employer in the Adoption Agreement during which the Employee completed the number of Hours of
Service [not to exceed 1,000] as elected in the Adoption Agreement. If no election is made, the
Plan Year shall be used provided that in the event the Plan Year is changed, the “vesting
computation period” shall be the twelve (12) consecutive month period determined in accordance with
Department of Labor Regulation Section 2530.203-2(c), the provisions of which are incorporated
herein by reference.



     (b) Alternatively, if elected in the Adoption Agreement, the Elapsed Time method will be used
in determining an Employee’s initial or continuing eligibility to participate in the Plan, accrual
of benefits or the nonforfeitable interest in the Participant’s account balance derived from
Employer contributions. An Employee will receive credit for the aggregate of all time period(s)
commencing with the Employee’s first day of employment or reemployment and ending on the date a
Period of Severance begins. The first day of employment or reemployment is the first day the
Employee performs an Hour of Service for the Employer. An Employee will also receive credit for
any Period of Severance of less than twelve (12) consecutive months. Fractional periods of a year
will be expressed in terms of days. Years of Service will be determined in accordance with
paragraph 1.100.



          (1) A Break in Service under the Elapsed Time method as defined in paragraph 1.74 is a Period
of Severance of at least twelve (12) consecutive months. A Period of Severance is a continuous
period of time during which the Employee is not employed by the Employer. The continuous period
begins on the date the Employee retires, quits, is discharged or if earlier, the first twelve (12)
month anniversary of the date on which the Employee is first absent from Service.



          (2) In the case of an individual who is absent from work for maternity or paternity reasons,
the twelve (12) consecutive month period beginning on the first anniversary of the first date of
such absence from work for maternity or paternity reasons (i) by reason of the pregnancy of the
individual, (ii) by reason of the birth of the child of the individual, (iii) by reason of the
placement of a child with the individual in connection with the adoption of such child by such
individual, or (iv) for purposes of caring for such child for a period beginning immediately
following such birth or placement.



     (c) Each Employee will share in Employer contributions for the period beginning on the date
the Employee commences participation under the Plan and ending on the date on which such Employee
terminates employment with the Employer or is no longer a member of an eligible class of Employees.



     (d) If two (2) Years of Service are required as a condition of eligibility, a Participant will
only have completed two (2) Years of Service for eligibility purposes upon the actual completion of
two (2) consecutive Years of Service.



     (e) The Employer may elect in the Adoption Agreement for purposes of determining a
Participant’s vested interest to disregard Years of Service prior to the time the Employer or any
affiliate maintained the Plan or any predecessor plan, and/or an Employee’s attainment of a certain
age, not to exceed age eighteen (18).



     (f) An Employee’s Years of Service under this Plan may be determined using the hours counting
method or the Elapsed Time method or both. Unless otherwise elected in the Adoption Agreement,
Years of Service shall be determined using the hours counting method on the basis of actual hours
worked.



     (g) If the Plan determines Service for a given purpose on one basis and an Employee transfers
to Employment covered by this Plan from employment covered by another Qualified Plan which
determines Service for such purpose on the other basis, and if the Employee’s Service for the
period during which he was covered by such other plan is required to be taken into consideration
under this Plan for that purpose, then the following rules shall apply:



          (1) If such Service was determined under the other plan using the hours counting method, then
the period so taken into consideration through the close of the computation period in which such
transfer occurs shall be the number of Years of Service credited to the Employee for such purpose
under such other plan as of the start of such computation period, and for the computation period in
which such transfer occurs, the greater of (A) his Service for such period as of the date of
transfer determined under the rules of such other plan, or (B) his Service for such period
determined under the Elapsed Time rules of this Plan. Service after the close of that computation
period shall be determined for such purpose solely under the Elapsed Time rules of this Plan.



          (2) If such Service was determined under the other plan using the Elapsed Time method, then
the period taken into consideration shall be (i) the number of one-year periods of Service credited
to the Employee under such other plan as of the date of the transfer, and (ii) for the computation
period which includes the date of transfer, the Hours of Service equivalent to any fractional part
of a Year of Service credited to him under such other plan. In determining such equivalency, the
Employee shall be credited with one-hundred-ninety (190) Hours of Service for each month or
fraction thereof.



24









 





               If this Plan is an amendment and continuation of another Qualified Plan or if this Plan is
amended and an effect of the amendment is to change the basis on which Years of Service are
determined, the foregoing rules shall be applied as if each Employee had transferred employment on
the effective date of such amendment.


If no election is made on the Adoption Agreement, the Plan will define a Year of Service as a
twelve (12) consecutive month period in which an individual has completed 1,000 Hours of Service
under the hours counting method.




25









 








ARTICLE II

ELIGIBILITY REQUIREMENTS




2.1 Eligibility



Employees who meet the eligibility requirements in the Adoption Agreement on the Effective Date of
the Plan shall become Participants as of the Effective Date of the Plan. If elected in the Adoption
Agreement, all Employees employed on the Effective Date of the Plan may participate, even if they
have not satisfied the Plan’s specified eligibility requirements. Employees hired after the
Effective Date of the Plan, upon meeting the eligibility requirements, shall become Participants on
the applicable Entry Date. For amended and restated Plans, Employees who were Participants in the
Plan prior to the Effective Date will continue to participate in the Plan, regardless of whether
the Employee satisfies the eligibility requirements in the restated or amended Plan, unless
otherwise elected in the Adoption Agreement. If no age and Service requirement are elected in the
Adoption Agreement, an Employee will become a Participant on the date the individual first performs
an Hour of Service for the Employer. The Employee must satisfy the eligibility requirements
specified in the Adoption Agreement and be employed on the Entry Date to become a Participant in
the Plan.




     (a) In the event that an Employee has satisfied the eligibility requirements, but is not
employed on the applicable Entry Date, such Employee will become a Participant for the purpose(s)
for which an Employee had previously qualified upon his or her rehire.



     (b) Except as otherwise provided in the Adoption Agreement, all Years of Service will be
counted for purposes of determining whether an Employee has satisfied the Plan’s Service
eligibility requirement, if any. If a Participant has a Break in Service or Period of Severance,
Service before that Break in Service or Period of Severance shall be reinstated as of the date the
Employee is credited with an Hour of Service after incurring such Break in Service or Period of
Severance.



     (c) In the event an Employee who is not a member of an eligible class of Employees becomes a
member of an eligible class, such Employee shall participate immediately if such Employee has
satisfied the minimum age and Service requirements and would have previously become a Participant
had he or she been in an eligible class.



     (d) A former Participant shall be eligible to authorize Elective Deferrals or Roth Elective
Deferrals and may make other Employee Contributions as permitted under the Plan as of the date on
which the individual is rehired. Such contributions shall resume immediately (or as soon as
administratively feasible) on or after his or her date of rehire. A former Employee who had become
a Participant for the purpose of Employer contributions shall again become a Participant with
respect to Employer Contributions on the date on which the individual is rehired.



     (e) An Employee who has become a Participant under the Plan will remain a Participant for as
long as an account is maintained under the Plan for his or her benefit, or until his or her death,
if earlier.



     (f) Each Employee will share in Employer contributions for the period beginning on the date
the Employee commences participation under the Plan and ending on the date on which such Employee
terminates employment with the Employer or is no longer a member of an eligible class of Employees.



     (g) An Employee’s eligibility to make Elective Deferrals or Roth Elective Deferrals under a
cash or deferred arrangement may not be conditioned upon the completion of more than one (1) Year
of Service or the attainment of an age greater than twenty-one (21). An Employee’s eligibility to
receive Matching Contributions, Qualified Matching Contributions, or Qualified Non-Elective
Contributions may be conditioned upon the completion of up to two (2) Years of Service. No
contributions or benefits (other than Matching Contributions or Qualified Matching Contributions)
may be conditioned upon an Employee’s Elective Deferrals or Roth Elective Deferrals.



2.2 Determination Of Eligibility



The Plan Administrator shall determine the eligibility of each Employee for participation in the
Plan based upon information provided by the Employer. Such determination shall be conclusive and
binding on all Employees except as otherwise provided herein or by operation of law.




2.3 Change In Classification Of Employment



In the event a Participant becomes ineligible to participate because he or she is no longer a
member of an eligible class of Employees (as elected by the Employer in the Adoption Agreement),
Elective Deferrals, Roth Elective Deferrals and/or other Employee contributions will cease as soon
as administratively practicable after the Participant becomes ineligible. Such Participant shall
participate for the purpose(s) for which the Participant had previously qualified immediately (or
as soon as administratively feasible) upon his or her return to an eligible class of Employees.




26









 








2.4 Participation



A Year of Service for participation in the Plan is an eligibility computation period during which
an Employee completes the Hours of Service requirement (1,000 hours or less) elected by the
Employer in the Adoption Agreement. If the Plan utilizes the Elapsed Time method of crediting
Service, an eligibility computation period for which the Employee receives credit for a Year of
Service will be determined under the Service crediting rules of paragraph 1.100. Plans that
require Employees to complete more than one (1) Year of Service in order to become a Participant
must fully vest such Employee upon becoming a Participant in the Plan.



The initial eligibility computation period shall be the twelve (12) consecutive month period
beginning on the Employee’s employment commencement date (the first day an Employee completes an
Hour of Service for the Employer). The Plan will measure succeeding eligibility computation
periods based on the Plan Year, unless otherwise elected in the Adoption Agreement. Where the
subsequent computation periods are calculated on the basis of the Plan Year, an Employee who
receives credit for the required number of Hours of Service during the initial computation period
and then earns an additional Year of Service credit during the Plan Year commencing during the
subsequent twelve (12) month period will be credited with two (2) Years of Service for purposes of
eligibility to participate. Years of Service and Breaks in Service shall be measured on the same
eligibility computation period.



An Employer may specify in the Adoption Agreement a Service requirement for eligibility for
participation in the Plan after completion of a specified number of months or Hours of Service.
Any Service requirement based on months of Service may not require an Employee to complete more
than one (1) Year of Service (1,000 Hours of Service) in a twelve (12) consecutive month period, or
if applicable, two (2) Years of Service.




2.5 Employment Rights



Participation in the Plan shall not confer upon a Participant any employment rights, nor shall it
interfere with the Employer’s right to terminate the employment of any Employee at any time.




2.6 Service With Controlled Groups



All Years of Service with other members of a controlled group of corporations [as defined in Code
Section 414(b)], trades or businesses under common control [as defined in Code Section 414(c)], or
members of an affiliated service group [as defined in Code Section 414(m)] and any other entity
required to be aggregated with the Employer pursuant to Code Section 414(o) shall be credited for
purposes of determining an Employee’s eligibility to participate.




2.7 Leased Employees



A Leased Employee shall be treated as an Employee of the recipient Employer in any Plan established
under a Standardized Adoption Agreement, unless specifically excluded under the provisions of the
next subparagraph. A Leased Employee will be considered an Employee of the recipient Employer for
purposes of participation in any Plan established under a Nonstandardized Adoption Agreement,
unless otherwise elected by the Employer in the Adoption Agreement. Contributions or benefits
provided by the leasing organization that are attributable to services performed for the recipient
Employer shall be treated as provided by the recipient Employer.



A Leased Employee shall not be considered an Employee of the recipient if such Employee is covered
by a money purchase pension plan sponsored by the leasing organization providing:




     (a) a non-integrated Employer contribution rate of at least 10% of Compensation [as defined in
Code Section 415(c)(3)], but including amounts contributed pursuant to a salary reduction agreement
which are excludable from the Employee’s gross income under Code Sections 125, 132(f)(4),
402(e)(3), 402(h)(1)(B), or 403(b),



     (b) immediate participation, and



     (c) full and immediate vesting.


This exclusion is only available if Leased Employees do not constitute more than 20% of the
recipient’s Non-Highly Compensated work force. The Plan Administrator must apply this paragraph
consistent with Code Sections 414(n) and 414(o) and the Regulations issued thereunder. The
Employer must specify in an addendum to the Adoption Agreement the manner in which the Plan will
determine the allocation of Employer contributions and Participant forfeitures on behalf of a
Participant if the Participant is a Leased Employee covered by a plan maintained by the leasing
organization.




2.8 Thrift Plan



The Employer may make an election in the Adoption Agreement to require Employee after-tax
contributions (Required After-tax Contributions) as a condition of participation in the Plan. The
Employer shall notify each eligible Employee of his or her eligibility for participation prior to
the appropriate Entry Date. The Employee shall indicate his or her intention to join the Plan by
authorizing the Employer to withhold a percentage of his or her Compensation as provided in the
Plan. Such authorization shall be returned to the Employer within the time prescribed. The
Employee may decline participation by so indicating in accordance with the procedures prescribed by
the Employer. If the


27









 






Employee declines to participate, such Employee shall be given the opportunity to join the Plan on
any subsequent Entry Date.




2.9 Target Benefit Plan



A Target Benefit Plan may be established by executing a Target Benefit Plan Adoption Agreement.
The Employer shall notify each eligible Employee of his or her eligibility for participation prior
to the appropriate Entry Date. The Employer will make contributions for each Participant in level
annual contributions that will fund the Participant’s target benefit at the Plan’s Normal
Retirement Age.




2.10 Davis-Bacon Plan



A Davis-Bacon Plan may be established by executing a Davis-Bacon Plan Adoption Agreement. The
Employer shall notify each Employee covered by any Davis-Bacon or prevailing wage contract of his
or her eligibility for participation prior to the appropriate Entry Date. The Employer will make
contributions for each Participant in accordance with the formula or any public contract subject to
the Davis-Bacon Act or to any other Federal, state or municipal prevailing wage law as specified in
the Adoption Agreement or any schedule attached thereto. The contribution schedule shall take into
account each Participant’s hourly rate, employment category, employment classification, and such
other factors the Davis-Bacon contract may specify.



For the purposes of this paragraph, Employees covered by a Davis-Bacon or prevailing wage contract
will be those who are not included in a unit of Employees covered by a collective bargaining
agreement between the Employer and Employee representatives.




2.11 Waiver Of Participation



Effective with the initial adoption or upon the amendment or restatement of this Plan, otherwise
eligible Employees may not execute a waiver of participation. Any properly executed waivers of
participation executed prior to the adoption of the Plan shall be grandfathered and such waiver
shall be valid in full force and effect.



An Employee or Participant will continue to earn credit for each Year of Service for eligibility or
vesting purposes he or she completes and his or her account (if any) will share in the gains or
losses of the Plan during the periods he or she elects not to participate.




2.12 Omission Of Eligible Employee



If, in any Plan Year, an 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 his or
her Employer for the Plan Year has been made, the Employer shall make any such correction regarding
the Employee’s eligibility under one of the IRS approved correction programs.




2.13 Inclusion Of Ineligible Employee



If, in any Plan Year, any person who should not have been included as a Participant in the Plan is
erroneously included, the Employer shall make any such correction regarding the Employee’s
eligibility under one of the IRS approved correction programs.




2.14 Participating Employer



The term Participating Employer means any entity which is part of a controlled group or affiliated
service group, as those terms are defined in Code Sections 414(b), (c) and (m),or is otherwise
required to be aggregated under Code Section 414(o) that adopts this Plan with the consent of the
Employer. An Employee’s transfer to or from any Employer or Participating Employer will not affect
his or her Participant’s Account Balance, total Years of Service (Periods of Service) and total
Years of Service as a Participant (Periods of Service as a Participant). A Participating Employer
shall be subject to the following provisions:




     (a) Whenever a right or obligation is imposed upon the Employer by the terms of the Plan, the
same shall extend to the Participating Employer as the “Employer” under the Plan and shall be
separate and distinct from that imposed upon the Employer. It is the intention of the parties that
the Participating Employer shall be a party to the Plan and treated in all respects as the Employer
thereunder, with its employees to be considered as the Employees or Participants as the case may
be, thereunder. However, the participation of the Participating Employer in the Plan shall in no
way diminish, augment, modify or in any way affect the rights and duties of the Employer, its
Employees and Participants under the Plan.



     (b) The Trustee(s) and/or Custodian(s) agree to receive and allocate contributions made to the
Plan by the Employer and by the Participating Employer, as well as to do and perform all acts that
are necessary to keep records and accounts of all funds held for Participants who are employees.



     (c) The Participating Employer shall be construed as having adopted the Plan in every respect
as if said Plan had this date been executed between the Participating Employer and the Trustee
and/or Custodian, except as otherwise expressly provided herein or in any amendment that may
subsequently be adopted hereto.



28









 





     (d) All actions required by the Plan to be taken by the Employer shall be effective with
respect to the Participating Employer. The Participating Employer hereby irrevocably designates the
Employer as its agent for such purposes.



     (e) Contributions made by any such Participating Employer will be held in a common Trust Fund
with contributions made by the Employer, and contributions shall be available to pay the benefits
of a Participant or Beneficiary who is an Employee of the Plan Sponsor or any such Participating
Employer.



29









 





ARTICLE III

EMPLOYER CONTRIBUTIONS




3.1 Contribution Amount



The Employer shall make periodic contributions to the Plan in accordance with the contribution
formula or formulas elected in the Adoption Agreement.



The Employer’s contribution (if any) may consist of (1) cash; (2) qualifying Employer securities or
qualifying Employer real property as defined in Section 407(d) of ERISA, provided the acquisition
of such qualifying Employer securities or qualifying real property securities satisfies the
requirements of Section 408(e) of ERISA; or (3) any other unencumbered property that is permitted
under Code Section 4975 and is subject to the consent of the Trustee and/or the Custodian made to
the Plan on a discretionary basis. No contribution of property may be made to any Plan established
hereunder which would result in a prohibited transaction.



The Employer shall also make Matching Contributions, Top-Heavy minimum contributions and any other
Employer contribution for the benefit of Participants who are covered by USERRA. Employer Matching
Contributions under USERRA shall be made in the Plan Year for which the Participant exercises his
or her right to make-up Elective Deferrals, Roth Elective Deferrals and/or other Employee
contributions for prior years. Top-Heavy minimum contributions and other Employer contributions
for USERRA protected Service shall be made during the Plan Year in which the individual returns to
employment with the Employer. Employer contributions required under USERRA are not increased or
decreased with respect to Plan investment earnings for the period to which such contributions
relate. The Employer’s contribution for any Plan Year shall be subject to the limitations on
allocations contained in Article X.



If the Employer’s Non-Elective Contribution utilizes permitted disparity the following rules shall
apply, as determined by the election made by the Employer in the Adoption Agreement. Only one plan
maintained by the Employer may provide for permitted disparity. Any Plan utilizing a Safe Harbor
formula may not apply the Safe Harbor Contribution to the integrated allocation formula.




     (a) Excess Integrated Allocation Formula — If the Plan is not Top-Heavy or if the Top-Heavy
minimum contribution or benefit is provided under another plan covering the same Employees,
paragraphs (1) and (2) below may be disregarded and 5.7%, 5.4% or 4.3% may be substituted for 2.7%,
2.4% or 1.3% where it appears in paragraph (3) below.



          (1) Step One: Contributions and Forfeitures will be allocated to each Participant’s account
in the ratio that each Participant’s total Compensation bears to all Participants’ total
Compensation but not in excess of 3% of each Participants Compensation Participants will receive an
allocation not to exceed 3% of their Compensation.



          (2) Step Two: Any remaining Employer contributions will be allocated up to a maximum of 3% of
excess Compensation of all Participants to Participants who have Compensation in excess of the
Integration Level (excess Compensation) as defined in the Adoption Agreement. Each such
Participant will receive an allocation in the ratio that his or her excess Compensation bears to
the excess Compensation of all Participants. If Employer contributions are insufficient to fund
to this level, the Employer must determine the uniform allocation percentage to allocate to those
Participants who have Compensation in excess of the Integration Level. To determine this uniform
allocation percentage, the Employer must take the remaining contribution and divide that amount by
the total excess Compensation of Participants.



          (3) Step Three: Any remaining Employer contributions will be allocated to all Participants in
the ratio that their Compensation plus excess Compensation bears to the total Compensation plus
excess Compensation of all Participants. . Participants may only receive an allocation of up to
2.7% of their Compensation plus Excess Compensation, under this allocation step. If the Integration
Level defined in the Adoption Agreement is less than or equal to the greater of $10,000 or 20%
of the maximum, the 2.7% need not be reduced. If the amount specified is greater than the greater
of $10,000 or 20% of the Taxable Wage Base, but not more than 80%, 2.7% must be reduced to 1.3%.
If the amount specified is greater than 80% but less than 100% of the maximum Taxable Wage Base,
the 2.7% must be reduced to 2.4%. If Employer contributions are insufficient to fund to this
level, the Employer must determined the uniform allocation percentage to allocate to those
Participants who have Compensation up to the Integration Level and Excess Compensation. To
determine this uniform allocation percentage, the Employer must take the remaining contributions
and divide that amount by the total Compensation including Excess Compensation of Participants.



          (4) Step Four: Any remaining Employer contributions will be allocated to all Participants in
the ratio that each Participant’s Compensation bears to all Participants’ Compensation.



     (b) Base Integrated Allocation Formula — To the extent that such contributions are sufficient
they shall be allocated first, as a designated percentage of each eligible Participant’s
Compensation, plus a designated percentage of Compensation in excess of the Integration Level (as
defined in the Adoption Agreement). The



30









 







percentage of excess Compensation may not exceed the lesser of (i) the amount first specified
in this paragraph or (ii) the greater of 5.7% or the percentage rate of tax under Code Section
3111(a) as in effect on the first day of the Plan Year attributable to the Old Age (OA) portion of
the OASDI provisions of the Social Security Act. If the Employer specifies an Integration Level in
the Adoption Agreement which is lower than the Taxable Wage Base (for Social Security purposes
(SSTWB) in effect as of the first day of the Plan Year, the percentage contributed with respect to
excess Compensation must be adjusted. If the Plan’s Integration Level is greater than the larger
of $10,000 or 20% of the SSTWB but not more than 80% of the TWB, the excess percentage is 4.3%. If
the Plan’s Integration Level is greater than 80% of the TWB but less than 100% of the TWB, the
excess percentage is 5.4%.



3.2 Overall Permitted Disparity Limits




     (a) Annual Overall Permitted Disparity Limits — Notwithstanding the preceding paragraphs, for
any Plan Year this Plan benefits any Participant who benefits under another Qualified Plan or
Simplified Employee Pension Plan, as defined in Code Section 408(k), maintained by the Employer
that provides for permitted disparity (or imputes disparity), Employer contributions and
forfeitures under a Plan established under a Standardized Adoption Agreement will be allocated to
the account of each Participant who either completes more than 500 Hours or Service during the Plan
Year or who is employed on the last day of the Plan Year in the ratio that each Participant’s total
Compensation bears to the total Compensation of all Participants.



     (b) Cumulative Permitted Disparity Limits — Effective for Plan Years beginning on or after
January 1, 1995, the cumulative permitted disparity limit for a Participant is thirty five (35)
total cumulative permitted disparity years. Total cumulative permitted years means the number of
years credited to the Participant for allocation or accrual purposes under this Plan, and any other
Qualified Plan or Simplified Employee Pension Plan (whether or not terminated) ever maintained by
the Employer. For purposes of determining the Participant’s cumulative permitted disparity limit,
all years ending in the same calendar year are treated as the same year. If the Participant has
not benefited under a Defined Benefit or Target Benefit Plan for any year beginning on or after
January 1, 1994, the Participant has no cumulative disparity limit.


Compensation for purposes of this paragraph shall mean Compensation as elected in the Adoption
Agreement.




3.3 Contribution Amount For A SIMPLE 401(k) Plan



If the Employer has executed the SIMPLE 401(k) Adoption Agreement, the provisions of the following
paragraphs shall apply for a Plan Year if the Employer is an Eligible Employer and no contributions
are made or benefits accrued for services during the Plan Year on behalf of any Eligible Employee
under any other plan, contract, pension or trust described in Code Section 219(g)(5)(A) or (B)
maintained by the Employer. To the extent that other provisions of the Plan are inconsistent with
the SIMPLE 401(k) provisions, the SIMPLE 401(k) provisions shall govern.




     (a) SIMPLE 401(k) Matching Contribution Formula — For each Plan Year, the Employer shall
contribute and allocate to each Eligible Employee’s account an amount equal to the Employee’s
Elective Deferral contribution up to a limit of 3% of the Employee’s Compensation for the full Plan
Year. If the Employer elects in the Adoption Agreement to make the Non-Elective Contribution as
specified in paragraph 3.3(b) below, this Matching Contribution will not be made.



     (b) SIMPLE 401(k) Non-Elective Contribution Formula — For any Plan Year, the Employer may
elect to contribute a Non-Elective Contribution of 2% of Compensation for the full Plan Year for
each Eligible Employee who received at least $5,000 of Compensation (or such lesser amount as
elected by the Employer in the SIMPLE 401(k) Plan Adoption Agreement) for the Plan Year. The
allocation thereof shall be unrelated to any Participant Elective Deferral contributions made
hereunder. If the Employer elects in the Adoption Agreement to make the Non-Elective Contribution
for a Plan Year, the Employer shall not make the Matching Contribution described in paragraph
3.3(a) above with respect to the same Plan Year. The Employer shall notify Eligible Employees
within a reasonable period of time (before the sixtieth day) prior to the beginning of each Plan
Year of its election to make the 2% Non-Elective Contribution in lieu of the Matching Contribution.



     (c) The provisions of the Plan implementing the limitations of Code Section 415 apply to
contributions made pursuant to paragraphs 3.3(a) (other than Catch-Up Contributions) and 3.3(b).



     (d) In the event that the contribution and allocation formula above results in an Excess
Annual Addition, such excess shall be corrected as provided for at paragraph 10.3. The Employer’s
contribution for any Plan Year shall be subject to the overall limitations on allocations contained
in Article X.



     (e) No other Employer or Employee contributions may be made to the SIMPLE 401(k) Plan for the
Plan Year other than Elective Deferrals described in paragraph 4.8, Matching or Non-Elective
Contributions described in paragraphs 3.3(a) and (b), and Rollover Contributions described in
Regulations Section 1.402(c)-2, Q&A-1(a).



     (f) In the event the deduction of a contribution made by the Employer is disallowed under Code
Section 404, such contribution (to the extent disallowed) must be returned to the Employer within
one year of the disallowance of the deduction.



31









 





     (g) All benefits attributable to contributions described in paragraphs 3.3(a) and (b) are
nonforfeitable at all times, and all previous contributions made under the Plan provisions are
nonforfeitable as of the beginning of the Plan Year the SIMPLE 401(k) provisions apply.



3.4 Responsibility For Contributions



Neither the Trustee (or the Custodian, if this is a Custodial Plan), nor the Sponsor shall be
required to determine if the Employer has made a contribution or if the amount contributed from its
general assets is in accordance with the Code and the provisions elected in the Adoption Agreement.
The Employer shall have sole responsibility in this regard. The Trustee, or Custodian if this is
a Custodial Plan, shall be accountable solely for contributions actually received. The Employer
shall have the responsibility to determine whether the Contribution is within the limits of Article
X.




3.5 Return Of Contributions



Contributions made to the Plan by the Employer shall be irrevocable except as provided below:




     (a) Any contribution forwarded to the Trustee and/or Custodian due to a mistake of fact,
provided that the contribution is returned to the Employer within one (1) year of the date of the
contribution. The Trustee and/or Custodian will not increase the amount of the Employer
contribution returnable under this paragraph 3.5 for any earnings attributable to the contribution
but the Trustee and/or Custodian will reduce the amount returned to the Employer for any losses
incurred attributable to the excess contribution.



     (b) In the event that the Commissioner of Internal Revenue determines that the Plan is not
initially qualified under the Internal Revenue Code, any contribution dependent on the initial
qualification by the Employer must be returned to the Employer within one (1) year after the date
the initial qualification is denied, but only if the application for the qualification is made 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 as the Secretary of the Treasury may prescribe.



     (c) Contributions forwarded to the Trustee or Custodian are presumed to be deductible and are
conditioned on their deductibility. Contributions that are determined by the Internal Revenue
Service to not be deductible will be returned to the Employer within one (1) year after the
disallowance and reduced by any losses.



3.6 Merger Of Assets From Another Plan  




     (a) The Employer may in its sole discretion direct the Trustee or Custodian to accept assets
from another Defined Contribution Plan, or to transfer assets to another Defined Contribution Plan,
provided that such transfer satisfies the requirements of Code Section 414(l) and the Regulations
thereunder. The Employer, Plan Administrator, Trustee or Custodian shall have the right to refuse
to accept or transfer assets for any reason, provided that nothing in this paragraph 3.6 shall give
the Trustee or Custodian the right to refuse to make a direct transfer of an Eligible Rollover
Distribution if requested to do so by a Participant in accordance with paragraph 6.12.



     (b) When the transferor plan is a money purchase pension plan and the transferee plan (the
Plan established under this document), is not a money purchase pension plan as set forth in Code
Section 401(a)(11)(B)(iii)(III), the Qualified Joint and Survivor Annuity option may not be
eliminated at least with respect to the benefits which are transferred.


When the transferor plan is a profit-sharing, stock bonus or cash or deferred arrangement [401(k)
plan] which included the Qualified Joint and Survivor Annuity provisions but was not required to do
so, upon the transfer of those assets, the transferee plan may be amended to entirely eliminate the
annuity option.




3.7 Coverage Requirements



For purposes of coverage testing, a Participant is treated as benefiting under the Plan for any
Plan Year during which the Participant received or is deemed to receive an allocation in accordance
with Regulation Section 1.410(b)-3(a). If during the Plan Year, the number of Participants who are
eligible to share in any contribution for a Plan Year is such that the Plan established under a
Nonstandardized Adoption Agreement would fail to meet the requirements of Regulation Section
410(b)(1) or 410(b)(2)(A)(i), then the group of Participants eligible to share in the contribution
for the Plan Year will be increased to include such minimum number of Participants who did not meet
the hours requirement, as may be necessary to satisfy the applicable tests under the Code Sections
referenced above. The Participants who will become eligible to share in the contribution will be
those active Participants when compared to Participants who are similarly situated, are those who
have completed the greatest number of Hours of Service in the Plan Year. If after such allocation,
the coverage requirements of the Code are still not satisfied, allocation shall continue to be made
to Participants with decreasing Hours of Service until the coverage requirements of the ratio
percentage test of Code Section 410(b)(1)(A) are satisfied.



If after the application of the correction procedure in the preceding paragraph the coverage
requirements are still not satisfied, the Employer may apply the same correction procedure first
to those Participants who are not employed by the Employer on the last day of the Plan Year and did
not meet the hours requirements and then an otherwise excludable class of Employees until the
coverage requirements of the ratio percentage test of Code Section 410(b)(1)(A) are satisfied.




32









 







The preceding paragraph will not be construed to permit the reduction of any Participant’s account
balance, and any amounts which were allocated to Participants whose eligibility to share in the
contribution did not result from the application of the preceding paragraph will not be reallocated
to satisfy such requirements. Instead, the Employer shall make an additional contribution equal to
the amount which the affected Participants would have received had they been included initially in
the allocation of the Employer’s contribution, even if it would cause the contributions of the
Employer for the applicable Plan Year to exceed the amount which is deductible by the Employer for
such Plan Year under Code Section 404. Any adjustments pursuant to this paragraph will be
considered a retroactive amendment of the Plan that was adopted by the last day of the Plan Year.



Specifically excluded from the Code Section 410(b) coverage tests are those Employees who are
excluded from participation in the Plan for the entire Plan Year which includes those Employees
whose retirement benefits are subject to a collective bargaining agreement, nonresident aliens,
those Employees excluded from Plan participation by age and Service requirements imposed by the
Plan and those Employees who incur a Separation from Service during the applicable Plan Year and
for the Plan Year fail to complete more than five hundred (500) Hours of Service or three (3)
consecutive calendar months under the Elapsed Time method.



After the end of the Plan Year, the correction method for any coverage failure must be done in
accordance with the requirements of the Employee Plans Compliance Resolution System (EPCRS) program
for which they are eligible. EPCRS is currently described in Revenue Procedure 2006-27.




3.8 Eligibility For Contribution



The Employer will determine in the Adoption Agreement the conditions that Participants must meet in
order to receive an allocation of an Employer contribution and any forfeitures, subject to the
following:




     (a) In a Plan established under a Standardized Adoption Agreement, a Participant who is
employed on the last day of the Plan Year will share in the allocation of the Employer contribution
in that Plan Year without regard to the Participant’s Hours of Service.



          A Participant in a Plan established under a Standardized Adoption Agreement, who completed
more than five hundred (500) Hours of Service, ninety-one (91) consecutive calendar days, or three
(3) consecutive calendar months under the Elapsed Time method will share in the allocation of
Employer contributions for the Plan Year, regardless of whether employed on the last day of the
Plan Year.



     (b) In a Plan established under a Nonstandardized Adoption Agreement, the Employer will elect
in the Adoption Agreement whether any Employer contribution shall be allocated to any Participant
who does not complete the necessary Hours of Service, requisite number of days, or consecutive
calendar months requirement elected in the Adoption Agreement, subject to the Top-Heavy minimum
contribution requirements, if applicable.



          In a Plan established under a Nonstandardized Adoption Agreement, the Employer will elect in
the Adoption Agreement whether a Participant will receive an allocation of the Employer’s
contribution if not employed on the last day of the Plan Year, or if applicable, the end of the
Plan Year quarter.



     (c) The Employer may elect in the Standardized or Nonstandardized Adoption Agreement any other
conditions a Participant must meet to receive an allocation of a contribution under the Plan
established hereunder.



     (d) The Adoption Agreements that accompany this Basic Plan Document #01 have been generally
designed to satisfy Code Section 401(a)(4) as a designed-based safe harbor. Designed-based safe
harbor contribution formulas include those that provide a uniform allocation as either a percentage
of Compensation or a dollar amount. Non-designed-based safe harbor contribution formulas include a
uniform points and age-based allocation formulas. The Target Benefit Plan formulas have been
designed to comply with Treasury Regulations Section 1.401(a)(4)-8(b)(3).



3.9 Cross-Tested Allocation Formula



Unless otherwise elected in the Adoption Agreement, when a cross-testing formula has been elected,
Employer contributions for a Plan Year will be allocated to each Employee of the Employer who has
met the allocation accrual requirements as specified in the Adoption Agreement. The general
nondiscrimination test under Regulations Section 1.401(a)(4)-2(c)(1) must be satisfied using
equivalent accrual rates [within the meaning of Regulations Section 1.401(a)(4)-8(b)(2)] that are
substituted for each Employee’s allocation rate in the determination of rate groups. The
allocation rate for any Employee is equal to the sum of Employer Non-Elective Contributions and any
forfeitures allocated to the Employee’s account, divided by the Employee’s Compensation as defined
in paragraph 1.17. When calculating equivalent accrual rates for purposes of nondiscrimination
testing, a standard interest rate and standard mortality table [within the meaning of the
definitions in Regulations Section 1.401(a)(4)-12] must be used.



As elected by the Employer in the Adoption Agreement, the Employer will determine the total amount
of contributions for each Plan Year and either (1) allocate such total amount to participant groups
(the “Participant Group Allocation Method”) or (2) allocate such total amount using age weighted
allocation rates (the “Age Weighted Allocation Method”). Employer contributions will be allocated
to each eligible Participant.




33









 








     (a) Participant Group Allocation Method —  If the Employer has elected the Participant Group
Allocation method in the Adoption Agreement, each eligible Participant of the Employer will
constitute a “separate allocation group” for purposes of allocating contributions. Only a limited
number of allocation rates are permitted, and the number of allocation rates cannot be greater than
the maximum allowable number of allocation rates. The maximum allowable number of allocation rates
is equal to the sum of the allowable number of allocation rates for eligible Non-Highly Compensated
Employees (eligible NHCEs) and the allowable number of allocation rates for eligible Highly
Compensated Employees (eligible HCEs). The allowable number of allocation rates for eligible HCEs
is equal to the number of eligible HCEs, limited to twenty-five (25). The allowable number of
eligible NHCEs is equal to the number of eligible HCEs, limited to twenty-five (25). The allowable
number of NHCE allocation rates depends on the number of eligible NHCEs, limited to twenty-five
(25). The allocation will be made as follows:



          (1) First, the total amount of contributions is allocated among the deemed aggregated
allocation groups in portions determined by the Employer. A deemed aggregated allocation group
consists of all of the separate allocation groups that have the same allocation rate. Second,
within each deemed aggregated allocation group, the allocated portion is allocated to each
Participant in the ratio that such Participant’s Compensation as defined in paragraph 1.17, bears
to the total Compensation of all Participants in the group. An allocation rate is the amount of
contributions allocated to a Participant for a Plan Year expressed as a percentage of Compensation,
as defined in paragraph 1.17. The number of eligible NHCEs to which a particular allocation rate
applies must reflect a reasonable classification of Participants, and no Participant can be
assigned to more than one (1) deemed aggregated allocation group for a Plan Year.



          (2) For Plans with only one (1) or two (2) eligible NHCEs, the allowable number of NHCE
allocation rates is one (1). For Plans with three (3) to eight (8) eligible NHCEs, the allowable
number of NHCE allocation rates cannot exceed two (2). For Plans with nine (9) to eleven (11)
eligible NHCEs, the allowable number of NHCE allocation rates cannot exceed three (3). For Plans
with twelve (12) to nineteen (19) eligible NHCEs, the allowable number of NHCE allocation rates
cannot exceed four (4). For Plans with twenty (20) to twenty-nine (29) eligible NHCEs, the
allowable number of NHCE allocation rates cannot exceed five (5). For Plans with thirty (30) or
more eligible NHCEs, the allowable number of NHCE allocation rates cannot exceed the number of
eligible NHCEs divided by five (5) (rounded down to the next whole number if the result of dividing
is not a whole number), but shall not exceed twenty-five (25).



     (b) Age Weighted Allocation Method — If the Age Weighted Allocation Method is selected in the
Adoption Agreement, the total Employer contribution will be allocated to each eligible Participant
such that the equivalent benefit accrual rate for each Participant is identical. The equivalent
benefit accrual rate is the annual annuity commencing at the Participant’s testing age, expressed
as a percentage of the Participant’s Compensation as defined in paragraph 1.17 which is provided
from the allocation of Employer contributions and forfeitures for the Plan Year, using standardized
actuarial assumptions that satisfy 1.401(a)(4)-12 of the Income Tax Regulations. The Participant’s
testing age is the later of Normal Retirement Age, or the Participant’s current age.


The allocation methodology used in determining a Participant’s individual allocation must satisfy
one of the following three allocation rules:




     (c) Minimum Allocation Gateway — Each eligible Non-Highly Compensated Employee has an
allocation rate that is equal to the lesser of five percent (5%) of the Employee’s Compensation (as
defined in paragraph 1.17), or one-third of the allocation rate of the Highly Compensated Employee
with the highest allocation rate. The allocation rate for each group of Highly Compensated
Employees will be as stated in an addendum to the Adoption Agreement.



     (d) Broadly Available Allocation Rates — Each allocation rate will be currently available
[within the meaning of Regulations Section 1.401(a)(4)-4(b)(2)] to a group of Employees that
satisfies Code Section 410(b) without regard to the average benefit percentage test. If two
allocation rates are permissively aggregated under Regulations Section 1.401(a)(4)-4(d)(4), they
are aggregated and treated as a single allocation rate. The ability to disregard the age and
service conditions of Regulations Section 1.401(a)(4)-4(b)(2)(ii)(A) does not apply for purposes of
this paragraph. The allocation rate for each group of Employees will be as stated in the addendum
to either the new comparability cash or deferred profit sharing or new comparability profit sharing
Adoption Agreement(s) (whichever is applicable).



     (e) Gradually Increasing Age Or Service Schedule — Each allocation rate increases smoothly at
regular intervals within a series of bands based solely on age, based solely on Years of Service,
or based on the number of points representing the sum of age and Service (age and Service points),
as designated in the Adoption Agreement, such that the same allocation rate applies to all
Employees whose age, Years of Service, or age and Service points are within each band. If age-only
bands are used, all Participants younger than age twenty-five (25) are deemed to be in the first
band. If the age and Service point band is used, all Participants with a sum of age and Service
that is less than twenty-five (25) are deemed to be in the first band.



34









 




The specific categories of Participant should be such that resulting allocations are provided in a
definite predetermined formula that complies with Regulations Section 1.401-1(b)(1)(ii). The
number of allocation rates must not exceed the maximum allowable number of allocation rates.
Highly Compensated Employees may each be in separate allocation groups. Eligible Non-Highly
Compensated Employees must be grouped using allocation rates specified in the Adoption Agreement,
or as stated in an addendum to the new comparability cash or deferred or new comparability profit
sharing Adoption Agreement (whichever is applicable). The grouping of eligible Non-Highly
Compensated Employees must be done in a reasonable manner and should reflect a reasonable
classification in accordance with Regulations Section 1.410(b)(4)-4(b). Standard interest rates
and standard mortality table assumptions in accordance with Regulations Section 1.401(a)(4)-12 must
be used when testing the Plan for satisfaction of nondiscrimination requirements. In the case of
self-employed individuals (i.e., sole proprietorships or partnerships), the requirements of
Regulations Section 1.401(k)-1(a)(6) continue to apply, and the allocation method should not be
such that a cash or deferred election is created for a self-employed individual as a result of
application of the allocation method.



Standard interest rates and mortality table assumptions in accordance with Regulations Section
1.401(a)(4)-12 must be used when testing the Plan for satisfaction of the nondiscrimination
requirements. A table of age-weighted factors that comply with the previous sentence may also be
used.




3.10 Target Benefit Plan Contribution



The Employer’s annual contribution to a Target Benefit Plan shall be determined by a Stated Benefit
Formula and corresponding factor tables contained in the Adoption Agreement and shall be allocated
to Participants as provided in paragraph 5.3. This notwithstanding, the Employer’s contribution
for any Plan Year shall be subject to the limitations on allocations contained in Article X and
shall not be less than the minimum contribution required at Article XIV for Top-Heavy Plans.




3.11 Davis-Bacon Plan Contribution



The Employer will irrevocably contribute the amount determined in accordance with the contribution
formula or formulas elected on the Davis-Bacon Adoption Agreement. An Employer may take credit for
purposes of the Davis-Bacon Act or any other Federal, state or municipal Davis-Bacon prevailing
wage law at the hourly rate specified in an addendum attached to the Davis-Bacon Adoption
Agreement. Contributions made by the Employer to the Plan for the Davis-Bacon work performed by
the Employer’s covered Employees during the Plan Year may be used as an offset for any Employer
contributions to be made to another Defined Contribution Plan sponsored by the Employer.
“Davis-Bacon or Prevailing Wage Contributions” may be treated as Qualified Non-Elective
Contributions, which become nonforfeitable and that are distributable only in accordance with the
distribution provisions (other than Hardships) that are applicable to Elective Deferrals, Roth
Elective Deferrals and Qualified Matching Contributions. Contributions made on behalf of
Participants who do not perform prevailing wage work cannot be used as a credit towards meeting the
Employer’s obligation under the prevailing wage or Davis-Bacon plan.




3.12 Uniform Dollar Contribution



The Employer’s contribution to a Plan utilizing a uniform dollar allocation formula for a Plan Year
shall be the same dollar amount to each Participant regardless of Compensation, Years of Service,
age or any other variable set forth in the Adoption Agreement.




3.13 Uniform Points Contribution



The Employer’s contribution to a Plan utilizing a uniform points allocation formula for a Plan Year
shall be in the same ratio that each Participant’s points, as elected in the Adoption Agreement,
bears to the total points awarded to all Participants for the Plan Year.




3.14 403(b) Matching Contribution



If a tax-exempt Employer elects in the 401(k) Adoption Agreement to make a Matching Contribution
based on the Employee’s Elective Deferral or Roth Elective Deferral contributions under the Code
Section 403(b) Plan, the Employer shall make a Matching Contribution to the Matching Contribution
Account of those Participants who make Elective Deferrals or Roth Elective Deferrals (while an
Employee and a Participant in the Plan) and who are eligible under the Adoption Agreement to
receive the Matching Contribution. Any such Matching Contribution made to the Plan will be
allocated under the formula elected in the Adoption Agreement. In the event the rate of Matching
Contribution is determined to be discriminatory in favor of one or more Highly Compensated
Employees, that part of the Matching Contribution as is necessary to make such rate
nondiscriminatory shall be forfeited. Any such amount forfeited shall be disregarded under the
Plan’s provisions relating to Code Sections 401(k)(3) and 401(m)(2).




35









 








ARTICLE IV

EMPLOYEE CONTRIBUTIONS




4.1 Voluntary After-tax Contributions



If elected by an Employer in the Adoption Agreement, a Participant may make Voluntary After-tax
Contributions to the Plan. These contributions are not excludable from the Participant’s gross
income. Such contributions must be made in a uniform and nondiscriminatory manner. Such
contributions are subject to the limitations on Annual Additions and are subject to ACP
nondiscrimination testing. Any Voluntary After-tax Contribution shall not be a condition precedent
to the contribution or allocation of any Employer contribution to the Participant. Under any Plan
established hereunder and if permitted in the Plan’s loan policy document, a Participant may repay
a defaulted loan from the Plan with voluntary after-tax dollars. The Employer may permit buy-back
of amounts previously forfeited with after-tax dollars even if Voluntary After-tax Contributions
are not permitted in the Plan. Any buy-back of amounts previously forfeited must be subject to
uniform and nondiscriminatory rules that do not operate in favor of Highly Compensated Employees.
Repayment of loans made to a Participant and buy-backs of cash-outs as described in Code Section
411(a)(7)(B) will not be considered Annual Additions as described in Regulations Section
1.415-6(b)(6). These amounts are not subject to the limitation contained in Code Section 401(m) in
the year in which made, as they are not considered Annual Additions pursuant to Code Section 415.




4.2 Required After-tax Contributions



If elected by the Employer in the Adoption Agreement, each Eligible Participant shall be required
to make Required After-tax Contributions to the Plan as a condition of participation in the Plan.
Such contributions shall be withheld from the Employee’s Compensation and shall be transmitted by
the Employer to the Trustee and/or Custodian. A Participant may discontinue participation or
change his or her contribution percentage in accordance with either an election on the Adoption
Agreement or uniform and nondiscriminatory rules established by the Employer. If a Participant
discontinues his or her contributions, such Participant may not again authorize such contributions
until a change is permitted in accordance with uniform and nondiscriminatory rules established by
the Employer. The Employer may reduce a Participant’s contribution percentage if required to
satisfy the ACP Test described in Article XI.




4.3 Qualified Voluntary Contributions




A Participant may no longer make Qualified Voluntary Contributions to the Plan for taxable years
beginning after December 31, 1986. Amounts already contributed may remain in the Plan until
distributed to the Participant. Such amounts will be maintained in a separate account that will be
nonforfeitable at all times. The account will share in the gains and losses of the Trust in the
same manner as described at paragraph 5.5. No part of the Qualified Voluntary Contribution Plan
account will be used to purchase life insurance. Subject to Article VIII, Joint and Survivor
Annuity Requirements (if applicable), the Participant may withdraw any part of the Qualified
Voluntary Contribution account by making written application to the Plan Administrator.




4.4 Rollover Contributions



Unless elected otherwise in the Adoption Agreement, a Participant/Employee may make a Rollover
Contribution to a Defined Contribution Plan established hereunder of all or any part of an amount
distributed or distributable to him or her from a Qualified Plan or an individual retirement
account (IRA) qualified under Code Section 408 where the IRA was used as a conduit from a Qualified
Plan provided:




     (a) the amount distributed to the Participant/Employee is deposited to the Plan no later than
the sixtieth day after such distribution was received by the Participant/Employee,



     (b) the amount distributed is not one of a series of substantially equal periodic payments
made for the life (or life expectancy) of the Participant/Employee or the joint lives (or joint
life expectancies) of the Participant/Employee and the Participant’s/Employee’s Beneficiary, or for
a specified period of ten (10) years or more,



     (c) the amount distributed is not a required minimum distribution under Code Section
401(a)(9),



     (d) if the amount distributed included property, such property is rolled over only upon the
Trustee, Custodian and/or Employer’s approval, or if sold, the proceeds of such property may be
rolled over,



     (e) the amount distributed would otherwise be includible in gross income (determined without
regard to the exclusion for net unrealized appreciation with respect to Employer securities), and



     (f) unless otherwise elected in the Adoption Agreement, the amount rolled over does not
include any amounts contributed on an after-tax basis by the Participant to the Qualified Plan.



     (g) If elected by the Employer in the Adoption Agreement, the Plan will accept Participant
Rollover Contributions and/or Direct Rollovers of distributions made after December 31, 2001, from
the types of plans specified in the Adoption Agreement.



36









 





     (h) The Plan Administrator shall be held solely responsible for determining the tax-free
status of any Rollover Contribution made to this Plan, and the Trustee and/or Custodian shall have
no responsibility for any such determination.



     (i) A Participant or an Employee may arrange for the direct transfer of his or her entire
benefit from another Qualified Plan to the Plan established hereunder. Such transfer shall be made
for any reason and may be in cash and/or in-kind. The Employer, the Trustee and/or Custodian, if
applicable, in their sole discretion shall have the right to refuse to accept a transfer for any
reason including but not limited to the following reasons: that such assets do not comply
operationally; the proposed transfer would result in a prohibited transaction; the assets are not
readily marketable; or they are not compatible with the Employer’s investment policy objectives.
If necessary, for accounting and recordkeeping purposes, Transfer Contributions shall be treated in
the same manner as Rollover Contributions.



     (j) In the event the Employer accepts a Transfer Contribution from a Plan in which the
Participant or Employee was directing the investment of his or her account, the Employer may, if
the Employer determines that it is appropriate and not in violation of the nondiscrimination rules
under Regulation Section 1.401(a)(4)-4, permit the Participant or Employee to continue to direct
his or her investments in accordance with paragraph 12.7 with respect only to such Transfer
Contribution.



     (k) Notwithstanding any provision of this Plan to the contrary, to the extent that any
optional form of benefit under the Plan established hereunder permits a distribution prior to the
Employee’s 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, to this Plan from a money purchase pension
plan qualified under Code Section 401(a) (other than any portion of those assets and liabilities
attributable to Voluntary After-tax Contributions).



     (l) Unless otherwise elected in the Adoption Agreement, an Employee is not required to be a
Participant in order to make a Rollover or Transfer Contribution.



     (m) If elected in the Adoption Agreement, the Plan shall accept a Direct Rollover from another
Roth Elective Deferral Account under a retirement plan as described in Code Section 402A(e)(1).
When a portion of a distribution is from a Roth Elective Deferral Account, the rollover of any such
distribution pursuant to Code Section 402A(c)(3) must be accomplished through a Direct Rollover and
can only be made to a plan qualified under Code Section 401(a) which agrees to separately account
for the amount not includible in income. The transferring Plan shall report the amount of the
investment in the contract (contributions as well as associated earnings) and the first year of the
five (5) year period to the plan established hereunder. For purposes of this paragraph, the five
(5) taxable year period of Plan participation is the period of five (5) consecutive taxable years
that begins with the first day of the first taxable year in which the Participant makes a
designated Roth Elective Deferral to any designated Roth Elective Deferral Account established for
the Participant under the plan and ends when five (5) consecutive taxable years have been
completed. For this purpose, the first taxable year in which a Participant makes a designated Roth
Elective Deferral is the year in which the amount is first includible in the Participant’s gross
income.



4.5 Voluntary Direct Transfers Between Plans



A Participant or Employee shall be able to transfer amounts up to his or her entire benefit between
qualified Defined Contribution Plans [other than a direct transfer described in Code Section
401(a)(31)] without regard to whether the Participant’s benefit is immediately distributable or
results in the elimination or reduction of Code Section 411(d)(6) protected benefits. Such a
transfer does not violate Code Section 411(d)(6) if the following requirements are met:




     (a) The plan from which the benefits are transferred must provide that the transfer is
conditioned upon a voluntary, fully informed election by the Participant to transfer his or her
entire benefit to another qualified Defined Contribution Plan. As an alternative to the transfer,
the Participant must be offered the opportunity to retain the Participant’s Code Section 411(d)(6)
protected benefits under the Plan [or if the Plan is terminating, to receive any optional form of
benefit for which the Participant is eligible under the Plan as required by Code Section
411(d)(6)].



     (b) The transferring plan must be the same plan type as the Plan sponsored by the Employer.
When benefits are being transferred from a qualified cash or deferred arrangement under Code
Section 401(k), the benefits must be transferred to a qualified cash or deferred arrangement under
Code Section 401(k). Money purchase pension plans must be transferred to money purchase pension
plans. Benefits transferred from a profit-sharing plan other than a 401(k) plan or employee stock
ownership plan may be transferred to any type of Defined Contribution Plan, even if the event is
not one that allows a distribution.



     (c) This type of elective transfer is only available for transfers made on or after September
6, 2000, even if the transaction or change of employment occurred prior to that date.



     (d) If the conditions outlined in (a), (b), and (c) above are met, the Employer’s Plan is not
required to protect optional forms of benefits available under the prior plan with respect to any
benefit transferred [except as required by the Qualified Joint and Survivor Annuity requirements
under Code Sections 401(a)(11) and 417]. Such a



37









 







transfer is not a protected optional form of benefit, but rather is a “right or feature” under
Regulation Section 1.401(a)(4)-4(e).



4.6 Elective Deferrals In A 401(k) Plan




     (a) Elective Deferrals are Employer contributions made to the Plan at the election of the
Participant in lieu of cash compensation. With respect to any taxable year, a Participant’s
Elective Deferrals are 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), 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. For Plan Years beginning after 2005, the term “Elective Deferrals” includes both
pre-tax Elective Deferrals and Roth Elective Deferrals. Pre-tax Elective Deferrals are a
Participant’s Elective Deferrals that are not includible in the Participant’s gross income at the
time deferred. Elective Deferrals or Roth Elective Deferrals shall not include any deferrals
properly distributed as Excess Annual Additions.



     (b) A Participant may enter into a Salary Deferral Agreement with the Employer authorizing the
Employer to withhold a portion of such Participant’s Compensation not to exceed the dollar limit
under Code Section 402(g), as adjusted under Code Section 415(d), for the Applicable Calendar Year,
or the percentage or dollar amount of Compensation specified in the Adoption Agreement except to
the extent permitted under paragraph 4.7 and Code Section 414(v), if applicable. 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.



     (c) Any Salary Deferral Agreement may not be effective earlier than the latest date of the
following:



          (1) The date of the Participant’s entry (or reentry) into the Plan;



          (2) the execution of the Participant’s Salary Deferral Agreement;



          (3) the date the Employer adopts the 401(k) Plan by executing the Adoption Agreement;



          (4) the Effective Date of the Elective Deferral or Roth Elective Deferral provisions as
specified in the Adoption Agreement;



          (5) The first Entry Date after the Participant becomes subject to the Plan’s Automatic
Enrollment Provisions.



     (d) Any such contribution shall be credited to the Employee’s Elective Deferral or Roth
Elective Deferral account, whichever is applicable. A Participant may terminate deferrals at any
time. A Participant may amend his or her Salary Deferral Agreement to increase or decrease his or
her deferral percentage upon notice in accordance with the provisions in the Adoption Agreement or
such other uniform and nondiscriminatory procedures. The Employer shall determine the permitted
frequency of such changes, which shall be no less frequently than once each calendar year. Any
such election will be effective as soon as practicable following the receipt of the notification by
the Employer in accordance with uniform and nondiscriminatory procedures established and
communicated to the Participants. The Participant shall notify the Employer of any change in his
or her deferral election in writing or in such other form or manner as permitted. The Employer
may, notwithstanding any limit to the contrary in the Adoption Agreement, limit the maximum
deferral percentage for any Employee including but not limited to Highly Compensated Employees. If
a Participant terminates his or her agreement, such Participant shall be permitted to put a new
Salary Deferral Agreement into effect as provided in the Adoption Agreement or any other uniform
and nondiscriminatory procedures established. The Employer may also amend or terminate said
agreement on notice to the affected Participant, if required to maintain the qualified status of
the Plan.



     (e) If permitted by the Employer, a Participant who has not authorized the Employer to
withhold the maximum annual deferral amount pursuant to Code Section 402(g) and who desires to
increase the total amount withheld for a Plan Year may authorize the Employer to withhold a
supplemental amount up to 100% of his or her Compensation for one or more pay periods. In no event
may the amounts withheld under the Salary Deferral Agreement plus any additional amount deferred
pursuant to this paragraph, exceed the lesser of 100% of a Participant’s Compensation or any other
limitation elected in the Adoption Agreement by the Employer.



     (f) If the Plan permits Voluntary After-tax Contributions and the Employer has elected in the
Adoption Agreement that all or any portion of amounts previously withheld under any Salary Deferral
Agreement may be



38









 







recharacterized as Voluntary After-tax Contributions within the Plan Year, such Elective
Deferrals may be so recharacterized.



     (g) Elective Deferrals and Roth Elective Deferrals shall be deposited in the Plan’s Trust as
soon as administratively feasible after being withheld from the Participant’s Compensation at the
earliest date on which the contributions can reasonably be segregated from the Employer’s general
assets, but no later than the time prescribed by the Code, ERISA or by applicable Treasury or
Department of Labor Regulations.



     (h) Elective Deferrals contributed to the Plan as either pre-tax Elective Deferrals or Roth
Elective Deferrals may not be reclassified as the other type of deferral.



     (i) Roth Elective Deferrals may be treated as Catch-Up Contributions.



     (j) Employer Contributions generally may not be deemed as Elective Deferrals or Roth Elective
Deferrals if they are remitted to the Trust before the payroll date associated with services
rendered or before the services have been performed. An exception to the foregoing timing rule on
deposits to the Trust is available where the earlier remittance of Elective Deferral or Roth
Elective Deferral amounts is on account of bona fide administrative considerations (as more fully
described in the Income Tax regulations), and that the timing of such remittance is not made for
the principal purpose of accelerating deductions.



4.7 Catch-Up Contributions



Employees who are eligible to make Elective Deferrals or Roth Elective Deferrals under this Plan
and who have attained age fifty (50) before the end of their taxable year shall be eligible to make
Catch-Up Contributions in accordance with, and subject to the limitations of, Code Section 414(v).
Such Catch-Up Contributions shall not be taken into account for purposes of the provisions of the
Plan implementing the required limitations of Code Sections 402(g) and 415. The Plan shall not be
treated as failing to satisfy the provisions of the Plan implementing the requirements of Code
Section 401(k)(3), 401(k)(11), 401(k)(12), 410(b), or 416, as applicable, by reason of the making
of such Catch-Up Contributions. “Catch-Up Contributions” are Elective Deferrals or Roth Elective
Deferrals made to the Plan that are in excess of an otherwise applicable Plan limit and that are
made by Participants who are age fifty (50) or over by the end of their taxable years. An
otherwise applicable Plan limit is a limit in the Plan that applies to Elective Deferrals or Roth
Elective Deferrals without regard to Catch-Up Contributions, such as the limits on annual
additions, the dollar limitation on Elective Deferrals or Roth Elective Deferrals under Code
Section 402(g) (not counting Catch-Up Contributions) and the limit imposed by the Actual Deferral
Percentage (ADP) test under Code Section 401(k)(3). Catch-Up Contributions for a Participant for a
taxable year may not exceed:




     (a) the dollar limit on Catch-Up Contributions under Code Section 414(v)(2)(B)(i) for the
taxable year, or



     (b) when added to other Elective Deferrals or Roth Elective Deferrals, seventy-five percent
(75%) of the Participant’s Compensation for the taxable year.


The dollar limit on Catch-Up Contributions under Code Section 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. Different limits apply to Catch-Up Contibutions under
SIMPLE 401(k) Plans. Catch-Up Contributions are not subject to the limit on Annual Additions, are
not counted in the ADP test and are not counted in determining the minimum allocation under Code
Section 416 (but Catch-Up Contributions made in prior years are counted in determining whether the
Plan is Top-Heavy). Provisions in the Plan relating to Catch-Up Contributions apply to Elective
Deferrals or Roth Elective Deferrals made after 2001.




4.8 Elective Deferrals In A SIMPLE 401(k) Plan



If the Employer has executed a SIMPLE 401(k) Adoption Agreement, the following provisions shall
apply:




     (a) An Eligible Employee may enter into a Salary Deferral Agreement with the Employer
authorizing the Employer to withhold a portion of such Eligible Employee’s Compensation, not to
exceed the limitation on Elective Deferrals in effect for the calendar year. The limitation on
Elective Deferrals is $6,000 for 2000, $6,500 for 2001, $7,000 for 2002 and increasing by $1,000
for each year thereafter up to $10,000 for 2005 and later years. After 2005, the $10,000 limit
will be adjusted by the Secretary of the Treasury for cost-of-living increases under Code Section
408(p)(2)(E). Any such adjustments will be in multiples of $500. No Eligible Employee shall be
permitted to make Elective Deferrals under this Plan, or any other Qualified Plan maintained by the
Employer, during any taxable year in excess of the dollar limitation contained in Code Section
402(g) in effect in at the beginning of such taxable year. The $6,000 limit may be reduced if an
Eligible Employee contributes pre-tax contributions to Qualified Plans of other employers.



39









 





     (b) In addition to any other election periods provided, each Participant may make or modify
his Salary Deferral Agreement during the sixty (60) day election period immediately preceding each
January 1.



     (c) For the Plan Year in which an Eligible Employee becomes eligible to make Elective
Deferrals under the SIMPLE 401(k) Plan provisions, the sixty (60) day election period requirement
of paragraph 4.8(b) above is deemed satisfied if the Eligible Employee may make or modify a Salary
Deferral Agreement election during a sixty (60) day period that includes either the date the
Employee becomes eligible, or the day before.



     (d) An Eligible Employee may amend his or her Salary Deferral Agreement to increase or
decrease the percentage upon proper and timely notice to the Employer. The Employer shall determine
the permitted frequency of such changes. An Eligible Employee may terminate his or her Salary
Deferral Agreement at any time during the Plan Year upon notice to the Employer. If an Eligible
Employee terminates his or her Salary Deferral Agreement, such Eligible Employee will be permitted
to execute a new Salary Deferral Agreement in accordance with the provisions elected in the
Adoption Agreement or any other uniform and nondiscriminatory procedure. The Employer may also
amend or terminate any Salary Deferral Agreement on notice to the affected Eligible Employee, if
required to maintain the qualified status of the Plan.



     (e) If permitted by the Employer, a Participant who has not authorized the Employer to
withhold at the maximum annual deferral amount and desires to increase the total amount withheld
for a Plan Year, such Participant may authorize the Employer to withhold an amount up to 100% of
his or her Compensation for one or more pay periods. In no such event may the amounts withheld
under the Salary Deferral Agreement, plus any additional amount deferred pursuant to this
paragraph, exceed the lesser of 100% of a Participant’s Compensation. A Participant may terminate
their Salary Deferral Agreement at any time.



     (f) Elective Deferrals shall be deposited in the Plan’s Trust as soon as administratively
feasible after being withheld from the Participant’s Compensation at the earliest date on which the
contributions can reasonably be segregated from the Employer’s general assets but no later than the
time prescribed by the Code, ERISA or by applicable Treasury or Department of Labor Regulations.



     (g) The Employer will notify each Eligible Employee prior to the sixty (60) day election
period described in paragraph 4.8(b) that he or she can make an Elective Deferral or modify a prior
election during that period.



     (h) The notification described in this subparagraph will indicate whether the Employer will
provide a Matching Contribution described in paragraph 3.3(a) or a 2% Non-Elective Contribution
described in paragraph 3.3(b).



     (i) The Plan is not treated as a Top-Heavy Plan under Code Section 416 for any Plan Year for
which the SIMPLE 401(k) Plan provisions apply.



     (j) Except to the extent permitted under subparagraph (k) below, the Adoption Agreement,
EGTRRA §631 and Code Section 414(v), the maximum salary reduction contribution that can be made to
this Plan is the amount determined under Code Section 408(p)(2)(A)(ii) for the calendar year.



     (k) Beginning in 2002, if elected by the Employer in the Adoption Agreement, all Employees who
are eligible to make Elective Deferrals under this Plan and who have attained age fifty (50) before
the end of the calendar year shall be eligible to make Catch-Up Contributions in accordance with,
and subject to the limitations of, Code Section 414(v). Allowable Catch-Up Contributions are $500
for 2002, increasing by $500 for each year thereafter up to $2,500 for 2006. After 2006, the
$2,500 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. Catch-Up
Contributions are otherwise treated the same as other Elective Deferrals. Such Catch-Up
Contributions shall not be taken into account for purposes of the provisions of the Plan
implementing the required limitations of Code Sections 401(k)(11), 408(p)(2)(A)(ii), 410(b) and
415(c) as applicable, by reason of the making of such Catch-Up Contributions.



     (l) The ADP and ACP tests described in Article XI are treated as satisfied for any Plan Year
in which this paragraph applies.



4.9 Roth Elective Deferrals In A 401(k) Plan



If elected by the Employer in the Adoption Agreement, eligible Employees (“Participants”) may make
a designated Roth contribution to a 401(k) Plan as described in Code Section 402A. The term
designated Roth contribution (which for purposes of this Plan shall also be referred to as a “Roth
Elective Deferral”) shall mean an Elective Deferral made under a qualified cash or deferred
arrangement that qualifies as a “qualified” Roth contribution Plan pursuant to Code Section 402A(b)
and, to the extent permitted under the Plan, is:




     (a) designated irrevocably by the Participant at the time of the cash or deferred election as
a Roth Elective Deferral;



40









 





     (b) treated by the Employer as includible in the Participant’s income at the time the Employee
would have received the amount in cash if the Participant had not made the cash or deferred
election (i.e., by treating the contributions as wages subject to applicable withholding
requirements); and



     (c) maintained by the Plan in a separate account.


Under the separate accounting requirement of this paragraph, contributions and withdrawals of Roth
Elective Deferrals must be credited and debited to a Roth Elective Deferral Account maintained for
the Participant who made the designation and the Plan must maintain a record of the Participant’s
investment in the contract (i.e., Roth Elective Deferrals that have not been distributed) with
respect to the Participant’s Roth Elective Deferral Account. In addition, gains, losses, and other
credits or charges must be separately allocated on a reasonable and consistent basis to the Roth
Elective Deferral Account and other accounts under the Plan. Forfeitures may not be allocated to
the Roth Elective Deferral Account. The separate accounting requirement applies at the time the
Roth Elective Deferral is contributed to the Plan and must continue to apply until the Roth
Elective Deferral Account is completely distributed. No contributions other than designated Roth
Elective Deferrals and Rollover Contributions described in Code Section 402A(c)(3)(B) are permitted
to be allocated to a designated Roth Elective Deferral account.



A Roth Elective Deferral must satisfy the requirements applicable to Elective Deferrals made under
a qualified cash or deferred arrangement. A Roth Elective Deferral must satisfy the requirements
of Regulations Section 1.401(k)-1(c) and (d) and is treated as an Employer Contribution for
purposes of Code Sections 401(a), 401(k), 402, 404, 409, 411, 412, 415, 416 and 417. Additionally,
Roth Elective Deferrals are treated as Elective Deferrals for purposes of the ADP Test and are
subject to the rules of Code Section 401(a)(9)(A) and (B) in the same manner as an account that
contains pre-tax Elective Deferrals. The rules regarding the frequency of elections apply in the
same manner to both pre-tax Elective Deferrals and designated Roth Elective Deferrals. Thus, an
Employee must have an effective opportunity to make (or change) an election to make Roth Elective
Deferrals at least once during each Plan Year.



The Employer may make Matching Contributions based on a Participant’s Roth Elective Deferrals based
on a formula elected in the Adoption Agreement. Matching Contributions shall not be allocated to
any Roth Elective Deferral account. Any Matching Contribution shall be allocated to the
Participant’s Matching Contribution Account. Roth Elective Deferrals may be treated as Catch-Up
Contributions.




4.10 Automatic Enrollment




     (a) If the Employer so elects in the Adoption Agreement, each Employee eligible under the
Employer’s Code Section 401(k) cash or deferred arrangement shall automatically become a
Participant in the Plan as of the first Entry Date after satisfying the Plan’s eligibility
requirements. The default deferral contributions are to be treated as pre-tax Elective Deferrals.
The Employer may elect in the Nonstandardized Adoption Agreement to apply the automatic enrollment
provisions to current Employees and Participants or only to Employees hired on or after the
Effective Date of the adoption of or the amendment to the Plan providing for the automatic
enrollment provisions. If the Employer elects the provision to apply to current Employees, the
Employer will apply the automatic enrollment provision to Employees who have not made an
affirmative election to defer an amount to the Plan, including a zero (0) amount.



     (b) After satisfying the Plan’s eligibility requirements, each Employee will have his or her
Compensation automatically reduced by the percentage elected in the Adoption Agreement. These
amounts will be contributed to the Plan. An election by the Employee not to make Elective
Deferrals or to contribute a different percentage may be made at any time. The election is
effective for the first pay period and subsequent pay periods (until superseded by a subsequent
election) if filed when the Employee is hired, or within a reasonable period thereafter ending
before the Compensation for the first pay period is currently made available. In the event an
Employee has Elective Deferrals withheld pursuant to this provision and no investment directive has
been received, any cash received shall be invested as provided for in paragraph 13.6 herein or
another appropriate vehicle. If an Employee elects to receive cash in lieu of Elective Deferrals
and the election is made when the Employee is hired or within a reasonable period thereafter ending
before the Compensation is currently available, then no Elective Deferrals for the first pay period
or subsequent pay periods are made on the Employee’s behalf to the Plan until the Employee makes a
subsequent affirmative election to reduce his or her Compensation. Elections filed at a later date
are effective as soon as administratively feasible pursuant to the election in the Adoption
Agreement.



     (c) If so elected in the Adoption Agreement, for those current Participants who are deferring
at a percentage or dollar amount less than the amount elected on the Adoption Agreement, the
Employer will in the first payroll period after the effective date of the amendment reduce the
Participant’s Compensation by the difference between the Participant’s current deferral election
and the election as stated on the Adoption Agreement.



     (d) At the time an Employee is hired, the Plan Administrator shall provide the Employee a
notice that explains the automatic enrollment provision. This notice will also explain the
Employee’s right to elect to have no such Elective Deferrals made to the Plan or to alter the
amount of those contributions. This notice will include the procedure for exercising the right and
the timing for implementation of any such election. The Plan Administrator



41









 







shall provide each Participant in the Plan with an annual notice of his or her Elective Deferral
percentage and each Participant’s right to change the percentage, including the procedure for
exercising that right and the timing for implementation of any such election. Prior to an
Employee’s automatic enrollment becoming effective, the Plan Administrator will provide such
Employee with appropriate guidance as to the procedures then in effect, for the Employee to make
alternative elections referenced above. Each Employee deferring Compensation pursuant to this
paragraph shall be deemed to have consented to an Elective Deferral contribution in the amount
specified by the Employer in the Adoption Agreement, unless he/she has filed an election to the
contrary with the Plan Administrator pursuant to the Plan’s administrative procedures.



     (e) The Employer who has adopted the automatic enrollment provisions may adopt an
administrative policy that increases the automatic deferral default amount each year in which the
automatic enrollment provision is in effect. Unless the Employer specifies a different incremental
amount, the automatic deferral default amount shall be no less than 3% in the first full year of a
Participant’s participation in the Plan, increasing to no less than 4% in the next following Plan
Year, no less than 5% in the second following Plan Year, and no less than 6% in all subsequent
years.



4.11 RESERVED




4.12 Make-Up Contributions Under USERRA



A Participant who has the right to make-up Elective Deferrals, Roth Elective Deferrals, Voluntary
After-tax Contributions and/or Required After-tax Contributions under USERRA shall be permitted to
increase his or her Elective Deferral with respect to a make-up year without regard to any
provision limiting contributions for such Plan Year. Make-up contributions shall be limited to the
maximum amount permitted under the Plan and the statutory limitations applicable with respect to
the make-up year. Employee-related make-up contributions must be made within the time period
beginning on the date of reemployment and continuing for the lesser of five (5) years or three (3)
times the period of military service.




42









 








ARTICLE V

PARTICIPANT ACCOUNTS




5.1 Separate Accounts



The Plan Administrator or its agent shall establish a separate recordkeeping account for each
Participant showing the fair market value of his or her Plan benefits. Each Participant’s account
may be separated for recordkeeping purposes into the following sub-accounts:




     (a) Employer contributions:



               (1) Non Safe-Harbor Matching Contribution Formula 1 Contributions



               (2) Non Safe-Harbor Matching Contribution Formula 2 Contributions



               (3) Qualified Matching Contributions



               (4) Qualified Non-Elective Contributions



               (5) Non-Elective Contributions Formula 1 Contributions



               (6) Non-Elective Contributions Formula 2 Contributions



               (7) Safe Harbor Matching Contributions



               (8) Safe Harbor Non-Elective Contributions



               (9) Davis-Bacon Contributions



               (10) Target Benefit Contributions



               (11) SIMPLE 401(k) Matching Contributions



               (12) SIMPLE 401(k) Non-Elective Contributions



               (13) Money Purchase Pension Plan Contributions



     (b) Employee contributions:



               (1) Voluntary After-tax Contributions



               (2) Qualified Voluntary Contributions



               (3) Elective Deferrals [other than Roth Elective Deferrals]



               (4) Roth Elective Deferrals



               (5) Required After-tax Contributions



               (6) Rollover Contributions



               (7) Transfer Contributions



               (8) Elective Deferrals in a SIMPLE 401(k) Plan



               (9) Deemed Traditional IRA Contributions



               (10) Deemed Roth IRA Contributions



5.2 Valuation Date



The Trustee shall value the Trust at the fair market value as of each Valuation Date and those
Valuation Dates elected in the Adoption Agreement or as directed in writing by the Plan
Administrator.



The fair market value of securities listed on a registered stock exchange will be the prices at
which they were last traded on such exchange preceding the close of business on the Valuation Date.
If the securities were not traded on the Valuation Date, or if the exchange on which they are
traded was not open for business on the Valuation Date, then the securities will be valued at the
prices at which they were last traded prior to the Valuation Date. Any unlisted


43









 






security will be valued at its bid price next preceding the close of business on the Valuation
Date, which bid price will be obtained from a registered broker or an investment banker. To
determine the fair market value of assets other than securities for which trading or bid prices can
be obtained, the Trustee may use any reasonable method to determine the value of such assets, or
may elect to employ one or more appraisers for that purpose and rely on the values established by
such appraiser or appraisers.



All allocations for a particular Plan Year will be made as of the last Valuation Date(s) of that
Plan Year or such other dates determined by the Plan Administrator.




5.3 Allocations To Participant Accounts  



As of each Valuation Date elected by the Employer in the Adoption Agreement and/or on any date
within the allocation period selected in writing by the Plan Administrator, each Participant’s
account shall be adjusted to reflect:




     (a) the Participant’s share of the Employer’s contribution and forfeitures as determined in
the Adoption Agreement,



     (b) any Employee contributions,



     (c) any repayment of amounts previously distributed to a Participant upon a separation from
Service and repaid by the Participant since the last Allocation Date,



     (d) the Participant’s proportionate share of any investment earnings and increase in the fair
market value of the Trust since the last Allocation Date, and



     (e) loan repayments of principal and interest.


The Employer shall deduct from each account:




     (f) any withdrawals or payments made from the Participant’s account since the last Allocation
Date,



     (g) the Participant’s proportionate share of any decrease in the fair market value of the
Trust since the last allocation Date, and



     (h) the Participant’s proportionate or “per capita” share of any fees and expenses paid from
the Plan.



5.4 Allocating Employer Contributions




     (a) The Employer must specify in the Adoption Agreement the manner in which the Employer’s
contribution shall be allocated to Participants including any minimum contribution for Top-Heavy
Plans. Employer contributions shall be allocated to all Participants eligible to receive a
contribution as provided in the Adoption Agreement.



     (b) Notwithstanding any provision of this Plan to the contrary, Participants will accrue the
right to share in allocations of Employer contributions with respect to periods of qualified
military service as provided in Code Section 414(u).



     (c) At the end of each Plan Year the Plan Administrator shall re-determine any Matching
Contribution for each Participant based on his or her eligible annual Compensation in accordance
with the Matching Contribution formula elected by the Employer in the Adoption Agreement. Any
Participant for whom any Matching Contribution has not been sufficiently made in accordance with
the Matching Contribution formula elected by the Employer shall receive an additional Matching
Contribution so that the total annual deferrals (whether pre-tax or after-tax) reflected as a
percentage of eligible annual Compensation are matched in accordance with the Matching Contribution
formula (“true-up” of Matching Contributions) selected by the Employer in the Adoption Agreement.
If no election is made in the Adoption Agreement, no true-up of Matching Contributions will occur.



5.5 Allocating Investment Earnings And Losses



Account balances are adjusted to reflect actual income and investment gains and losses from the
period beginning on the day following the last Valuation Date and ending on the current Valuation
Date. Each Participant’s account shall receive a proportionate share of the actual income and
investment gains and losses during the period. The value of accounts for allocation purposes shall
be based on the value of all Participant accounts (without regard to any portion of any such
account attributable to segregated investments) as of the last Valuation Date less withdrawals,
distributions and expenses plus any contributions including deferrals (whether pre-tax or
after-tax) if any, paid from the Trust since the last Valuation Date. Investment gains and losses
shall be credited to all Participant accounts having a balance on the Valuation Date regardless of
the vested status of such account and regardless of the Participant’s employment status. The Plan
Administrator shall also have the right to adopt an alternative procedure for allocating income and
investment gains and losses provided that such alternative procedure is uniform


44









 






and does not discriminate in favor of Highly Compensated Employees. Any change in procedure shall
be effective as of the next following Valuation Date or such other date as agreed to by the
Employer and the Plan Administrator. Accounts with segregated investments shall receive the income
or loss on such segregated investments. Investment gains or losses are determined separately for
each investment alternative offered under the Plan.




     (a) The value of a Participant’s account invested in a mutual fund (Registered Investment
Company) will equal the value of a share in such fund multiplied by the number of shares credited
to the Participant’s account.



     (b) In the case of any pooled investment vehicle, earnings, gains or losses on the pooled
investment vehicle will be allocated among the Participant’s accounts in proportion to the value of
each Participant’s account invested in that investment vehicle immediately prior to the Valuation
Date. The gain or loss attributed to each investment vehicle will be credited to or charged
against the Participants’ account. Alternatively, the Plan Administrator or his designate may
establish unit values for each pooled investment vehicle offered under the Plan in accordance with
uniform procedures established by the Plan Administrator for this purpose. The value of the
portion of a Participant’s account invested in a pooled investment vehicle will equal the value of
a unit in such investment vehicle multiplied by the number of units credited to the account.



     (c) In the case of any investment that is held specifically for a Participant’s account, any
gain or loss on such investment will be charged or credited to that Participant’s account.



5.6 Allocation Adjustments  



The Plan Administrator or his designate, if applicable, shall have the right to re-determine the
value of Participant accounts if a previous allocation or valuation was performed incorrectly.
Such re-determination shall be made without regard to the reason for the incorrect allocation.
Such reasons may include, but are not limited to, incorrect contribution or Employee information
provided by the Employer or representative of the Employer, incorrect valuation of Plan assets,
incorrect determination of investment income and gains or losses, improper interpretation of the
Plan’s allocation formulas or procedures, erroneous omission of Top-Heavy minimum contributions and
failure to transmit, receive or interpret amendments to the allocation formulas, methods or
procedures. Subject to express limits that may be imposed under the Code, the Plan Administrator
reserves the right to delay the processing of any contribution, distribution or other transaction
for any legitimate business reason (including, but not limited to, failure of systems or computer
programs, failure of means of transmission of data, force majeure, the failure of any Service
Provider to timely receive values or prices, or to correct for its errors omissions or the errors
or omissions of any Service Provider). After having made any necessary adjustments, the Plan
Administrator or his designate, if applicable, may issue either revised or adjusted statements to
Participants with an explanation of the allocation adjustments.




5.7 Participant Statements  



The Plan Administrator shall prepare a statement for each Participant not less frequently than
annually. Statements may be prepared more frequently, as may be agreed between the Plan
Administrator and the Service Provider or other entity responsible for the maintenance of Plan
records or for valuing Plan assets. Each statement shall show the additions to and subtractions
from the Participant’s account for the period since the last such statement and shall show the fair
market value of the Participant’s account as of the current statement date.




5.8 Changes In Method And Timing Of Valuing Participants’ Accounts



If necessary or appropriate, the Plan Administrator may establish different or additional uniform
and nondiscriminatory procedures for determining the fair market value of Participant’s accounts
under the Plan.




5.9 Roth Elective Deferral Account



The Roth Elective Deferral account is the required separate account maintained to record the
contribution and withdrawal of a Participant’s Roth Contributions and other adjustments as required
by the Plan. Forfeitures may not be allocated to a Roth Elective Deferral Account and no
contributions other than designated Roth Elective Deferrals will be allocated. If elected in the
Adoption Agreement, Direct Rollover contributions described in Code Section 402A(c)(3) are
permitted to be allocated to the Roth Elective Deferral Account. Each Participant’s Roth Elective
Deferral Account shall continue to be maintained and administered separately until it is completely
distributed. Income, losses and other credits or charges must be separately allocated on a
reasonable and consistent basis to the Participant’s Roth Elective Deferral Account and other
accounts under the Plan to ensure that the Roth Elective Deferral account maintains a record of the
Participant’s interest in the Plan.




45









 








ARTICLE VI

RETIREMENT BENEFITS AND DISTRIBUTIONS




6.1 Normal Retirement Benefits



A Participant shall be entitled to receive the balance held in his or her account upon attaining
his or her Normal Retirement Age or at such earlier dates as the provisions of this Article VI and
the Adoption Agreement may permit. If a Participant elects to continue working past his or her
Normal Retirement Age, he or she will continue as an active Participant. If the Employer elects
otherwise in the Adoption Agreement, distribution shall be made to such Participant at his or her
request prior to his or her actual retirement. Distribution shall be made in the normal form, or
if elected, in one of the optional forms of payment provided in the Adoption Agreement.




6.2 Early Retirement Benefits  



If elected in the Adoption Agreement, an Early Retirement benefit may be available to individuals
who meet the age and Service requirements that are specified in the Adoption Agreement. A
Participant who attains his or her Early Retirement Date will become fully vested, regardless of
any vesting schedule which otherwise might apply. If a Participant separates from Service with a
nonforfeitable benefit before satisfying the age requirements, but after having satisfied the
Service requirement, the Participant will be entitled to elect an Early Retirement benefit upon
satisfaction of the age requirement.




6.3 Benefit Upon Death



Upon the death of a Participant prior to termination of employment, or upon the death of a
terminated Participant prior to distribution of his or her Vested Account Balance, his or her
Beneficiary will be entitled to the Participant’s Vested Account Balance determined as of the most
recent Valuation Date coinciding with or immediately preceding the date of distribution. A
Participant who dies prior to attainment of Normal Retirement Age but before termination of
employment will become fully vested, regardless of any vesting schedule which otherwise might
apply. If any Beneficiary who is alive on the date of the Participant’s death dies before
receiving the entire death benefit to which he or she is entitled, the balance of the death benefit
will be distributed to the Beneficiary’s Beneficiary in accordance with paragraph 7.6. The Plan
Administrator’s determination that a Participant has died and that a particular person has a right
to receive a death benefit will be final. Distribution will be made in accordance with paragraph
7.6.




6.4 Benefit Upon Disability



If a Participant suffers a Disability prior to termination of employment and terminates employment
with the Employer as a result of that Disability, or if a terminated Participant suffers a
Disability prior to a distribution of his or her Vested Account Balance, he or she will be entitled
to his or her Vested Account Balance determined as of the most recent Valuation Date coinciding
with or immediately preceding the date of distribution. A Participant who retires prior to
attainment of Normal Retirement Age but before termination of employment on account of a Disability
will become fully vested, regardless of any vesting schedule which otherwise might apply.




6.5 Benefits On Termination Of Employment




     (a) If a Participant terminates employment prior to Normal Retirement Age, such Participant
shall be entitled to receive the vested balance held in his or her account payable at Normal
Retirement Age in the normal form, or if elected, in one of the other forms of payment provided
hereunder and by the Employer in the Adoption Agreement. If applicable, the Early Retirement
benefit provisions may be elected. Notwithstanding the preceding, a former Participant may, if
allowed in the Adoption Agreement, make application to the Employer requesting early payment of any
deferred vested and nonforfeitable benefit due.



     (b) For purposes of this Article, if the value of a Participant’s Vested Account Balance is
zero, the Participant shall be deemed to have received a distribution of such Vested Account
Balance immediately following termination. If the Participant is reemployed prior to incurring
five (5) consecutive one (1) year Breaks in Service or Periods of Severance, he or she will be
deemed to have immediately repaid such distribution. Notwithstanding the above, if the Employer
maintains or has maintained a policy of not distributing any amounts until the Participant’s Normal
Retirement Age, the Employer can continue to uniformly apply such policy.



     (c) If a Participant who is not 100% vested receives or is deemed to receive a distribution
pursuant to this paragraph and resumes employment covered under this Plan, the Participant shall
have the right to repay to the Plan the full amount of the distribution attributable to both
Employer Contributions and Employee Contributions including Elective Deferrals and/or Roth Elective
Deferrals on or before the earlier of the date the Participant incurs five (5) consecutive one (1)
year Breaks in-Service following the date of distribution or five (5) years after the first date on
which the Participant is subsequently reemployed. In such event, the Participant’s account shall
be restored to the value thereof at the time the distribution was made. The account may be further
increased by the Plan’s income and investment gains and/or losses on the undistributed amount from
the date of the distribution to the date of repayment.



     (d) If a Participant terminates employment with a Vested Account Balance greater than $5,000,
and elects (with his or her Spouse’s consent, if required) to receive 100% of the value of his or
her Vested Account



46









 







Balance in a lump sum, the non-vested portion will be treated as a forfeiture. The
Participant (and his or her Spouse, if required) must consent to any distribution when the Vested
Account Balance described above exceeds $5,000.



     (e) A Participant whose Vested Account Balance is greater than $5,000 shall have the option to
postpone payment of his or her Plan benefits until his or her Required Beginning Date. If elected
in the Adoption Agreement, any balance in a Participant’s account resulting from his or her
Employee contributions listed at paragraph 5.1(b), not previously withdrawn, may be withdrawn by
the Participant immediately following separation from Service.



     (f) Unless elected otherwise in the Adoption Agreement, if a Participant’s Vested Account
Balance is $1,000 or less, after the Participant’s termination of employment, the distributions
shall be in a lump sum and any non-vested amounts shall be immediately forfeited. Such distribution
shall be paid to the Participant as soon as practicable after complying with the Federal tax
withholding rules without the need for spousal consent. Terminated Participants receiving an
involuntary distribution of $200 or more must be notified of their right to have such amounts
directly rolled over to an IRA or Qualified Plan of their choosing.



          If elected in the Adoption Agreement, when a terminating Participant or Employee does not make
a timely election with respect to the cash-out distribution of amounts greater than $1,000 but less
than or equal to $5,000, [pursuant to Code Sections 411(a)(7), 411(a)(11) and 417(e)(7)], the Plan
Administrator shall make a Direct Rollover into an individual retirement account or annuity
(“IRA”). The Plan Administrator will select the IRA trustee or custodian, establish the IRA, and
make the initial IRA investment selection.



          If elected in the Adoption Agreement, when the Participant does not elect to have such
distribution paid directly to an Eligible Retirement Plan, as specified by the Participant, or does
not elect to receive the distribution directly, the Plan Administrator shall pay the distribution
in a Direct Rollover to an individual retirement plan that is designated by the Plan Administrator
and is communicated to the Plan Participant. The extent to which Rollover Contributions will be
included or excluded in determining the value of the Participant’s Vested Account Balance for
purposes of the Plan’s involuntary cash-out rules will be governed by the election made in the
Adoption Agreement. Rollover Contributions will always be considered in determining if the $1,000
automatic rollover threshold has been exceeded.



          If elected in the Adoption Agreement, the value of a Participant’s nonforfeitable account
balance shall be determined without regard to that portion of the account balance that is
attributable to Rollover Contributions (and the earnings allocable thereto) within the meaning of
Code Sections 402(c), 403(a)(4), 403(b)(8), 408(d)(3)(A)(ii) and 457(e)(16). If the value of the
Participant‘s nonforfeitable account balance as so determined is $5,000 or less, the Plan shall
immediately distribute the Participant’s entire nonforfeitable account balance, subject to this
paragraph. Eligible Rollover Distributions from a Participant’s Roth Elective Deferral Account are
taken into consideration in determining whether the total amount of the Participant’s account
balances under the Plan exceeds the $1,000 threshold for purposes of mandatory distributions from
the Plan.



     (g) If elected by the Employer in the Adoption Agreement, this paragraph shall apply for
distributions and severances from employment occurring after the dates specified in the Adoption
Agreement.



          A Participant’s Elective Deferrals, Roth Elective Deferrals, Qualified Non-Elective
Contributions, Qualified Matching Contributions, and earnings attributable to these contributions
shall be distributed on account of the Participant’s severance from employment. However, such a
distribution shall be subject to the other provisions of the Plan regarding distributions, other
than provisions that require a separation from Service before such amounts may be distributed.



     (h) A Direct Rollover of a distribution from a Roth Elective Deferral Account under this Plan
will be made to another Roth Elective Deferral Account under an applicable retirement plan
described in Code Section 402A(e)(1) or to a Roth IRA described in Code Section 408A, and only to
the extent the rollover is permitted under Code Section 402(c).



          The Plan shall not provide for a Direct Rollover (including an automatic rollover) of
distributions from a Participant’s Roth Elective Deferral Account if the amount of the
distributions that are Eligible Rollover Distributions are reasonably expected to total less than
$200 during a year. In addition, any distribution from a Participant’s Roth Elective Deferral
Account are not taken into consideration in determining whether distributions from a Participant’s
other accounts are reasonably expected to total less than $200 during a year.



     (i) If the Plan permits partial distributions, a Participant shall be permitted to designate
all or any portion of such distribution to be from the Roth Elective Deferral Account. This
provision does not apply to a return of Excess Contribution or a distribution of Excess Elective
Deferrals.



47









 





6.6 Restrictions On Immediate Distributions




     (a) An account balance is immediately distributable if any part of the account balance could
be distributed to the Participant (or Surviving Spouse) before the Participant attains (or would
have attained if not deceased) the later of the Normal Retirement Age or age sixty-two (62).



     (b) If payment in the form of a Qualified Joint and Survivor Annuity is required and the value
of a Participant’s Vested Account Balance exceeds $5,000, or there are remaining payments to be
made with respect to a particular distribution option that previously commenced, and the account
balance is immediately distributable, the Participant and his or her Spouse (or where either the
Participant or the Spouse has died, the survivor) must consent to any distribution of such account
balance.



     (c) If payment in the form of a Qualified Joint and Survivor Annuity is not required with
respect to a Participant and the value of a Participant’s Vested Account Balance exceeds $5,000,
and the account balance is immediately distributable, only the Participant must consent to any
distribution of such account balance.



     (d) The consent of the Participant and/or the Spouse shall be obtained in writing or in such
other form accepted by the Plan Administrator within the ninety (90) day period ending on the
Annuity Starting Date, which is the first day of the first period for which an amount is paid as an
annuity or in any other form. The Plan Administrator shall notify the Participant and the
Participant’s Spouse of the right to defer any distribution until the Participant’s account balance
is no longer immediately distributable. Such notification shall include a general description of
the material features, and an explanation of the relative values of, the optional forms of benefit
available under the Plan in a manner that would satisfy the notice requirements of Code Section
417(a)(3), and shall be provided no less than thirty (30) days and no more than ninety (90) days
prior to the Annuity Starting Date.



     (e) If the distribution is one to which Code Sections 401(a)(11) and 417 do not apply, such
distribution may commence less than thirty (30) days after the notice required under Regulations
Section 1.411(a)-11(c) is given provided that:



          (1) the Plan Administrator clearly informs the Participant that the Participant has the 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.



          If a distribution is one to which Code Section 417 does apply, the distribution may commence
less than thirty (30) days, but not less than seven (7) days after the notice required under
Regulations Section 1.411(a)-11(c) is given, provided that the conditions of sub-paragraphs (1) and
(2) above are satisfied with regard to both the Participant and the Participant’s Spouse.



     (f) Notwithstanding the foregoing, only the consent of the Participant to the commencement of
a distribution in the form of a Qualified Joint and Survivor Annuity is required while the account
balance is immediately distributable. Furthermore, if payment in the form of a Qualified Joint and
Survivor Annuity is not required with respect to the Participant pursuant to paragraph 8.7 of the
Plan, only the Participant must consent to the distribution of an account balance that is
immediately distributable. Neither the consent of the Participant nor the Participant’s Spouse
shall be required to the extent that a distribution is required to satisfy Code Section 401(a)(9)
or Code Section 415 or constitutes Excess Deferrals, Excess Contributions or Excess Aggregate
Contributions. In addition, upon termination of this Plan if the Plan does not offer an annuity
option (purchased from a commercial provider), the Participant’s account balance may, without the
Participant’s consent, be distributed to the Participant or transferred to another Defined
Contribution Plan [other than an employee stock ownership plan as defined in Code Section
4975(e)(7)] within the same controlled group.



     (g) For purposes of determining the applicability of the foregoing consent requirements to
distributions made before the first day of the first Plan Year beginning after December 31, 1988,
the Participant’s Vested Account Balance shall not include amounts attributable to accumulated
deductible employee contributions within the meaning of Code Section 72(o)(5)(B).



     (h) Any Plan established hereunder which is making distributions to any former Employee,
Participant or surviving Spouse may charge reasonable Plan administrative expenses to the account
of that former Employee, Participant or surviving Spouse, but only if the administrative expenses
are apportioned on a pro-rata basis, i.e., the expenses are based on the amount in each account of
a former Employer, Participant or surviving Spouse receiving benefits from the Plan, (or another
reasonable basis that complies with the requirements of Title I of ERISA). However, the allocation
of Plan expenses still must meet the nondiscrimination rules of Code Section 401(a)(4).



48









 





6.7 Normal And Optional Forms Of Payment




     (a) The normal form of payment for a profit sharing, 401(k) or SIMPLE 401(k) plan shall be
designated in the Adoption Agreement. If no election is made in the Adoption Agreement, the Plan
will default to the normal form of benefit being a lump sum, and the safe harbor provisions of
paragraph 8.7 shall apply.



     (b) A Plan other than a money purchase pension plan, a target benefit plan or a profit-sharing
plan required to provide a Joint and Survivor benefit may be amended to eliminate or restrict
optional payment forms provided that a single lump sum payment option remains available. The
remaining lump sum must have the same (or less restrictive) timing of distribution, medium of
distribution and eligibility conditions that were available for the eliminated forms of payment.



          Each optional form of benefit provided under a Prototype Plan (other than any that have been
prospectively eliminated) must be currently available to all Employees benefiting under the Plan.
This is the case regardless of whether a particular form of benefit is the actuarial equivalent of
any other optional form of benefit under the Plan. Code Section 411(d)(6) prevents a Plan from
being amended to eliminate or restrict optional forms of benefits and any other Code Section
411(d)(6) protected benefits with respect to benefits attributable to Service before the amendments
except as expressly provided under the Regulations Section 1.411(d)-4.



     (c) For money purchase and target benefit plans, the normal form of payment hereunder shall be
a Qualified Joint and Survivor Annuity as provided under Article VIII. Effective January 1, 2002,
the Employer may elect in the Adoption Agreement to eliminate any periodic payment options that are
not required by the Qualified Joint and Survivor Annuity rules such as but not limited to
installment payments.



     (d) The normal form of payment shall be automatic, unless the Participant files a written
request with the Employer prior to the date on which the benefit is automatically payable, electing
another option available under the Plan.



     (e) As elected in the Adoption Agreement, a Participant shall (with the consent of his or her
Spouse, if applicable) have the right to receive his or her benefit in a single lump sum or in
installment payments. Installment payments need not be equal or substantially equal until such
time as the individual reaches his or her Required Beginning Date. Installment payments which are
intended to be equal or substantially equal can be made monthly, quarterly, semi-annually or
annually based on any period not extending beyond the joint and survivor life expectancy of the
Participant and his or her Beneficiary.



     (f) Benefits payable under the Plan may be distributed in cash or in-kind as elected in the
Adoption Agreement. The Employer may also elect on the Adoption Agreement to limit a Participant’s
right to receive distributions in the form of marketable securities (other than Employer
securities) and to require distributions in the form of cash only. Only the right to receive a
distribution in the form of cash, Employer securities and/or other property that is not marketable
is protected.



     (g) A Plan that permits its Participants to receive in-kind distributions may limit the
available in-kind distributions to the investments listed in the Adoption Agreement and only to the
extent the investments are held in the Participant’s account at the time of the distribution. A
Plan may be amended to limit the investments that may be distributed in-kind. The amendment must
include all investments (other than marketable securities for which cash may be substituted) that
are held in a Participant’s account at the time of the amendment and for which the Plan, prior to
such amendment, allowed for distribution of those investments in kind. The right to an in-kind
distribution for investments held at the time of the distribution would only have to be protected
to the extent such investment was in the Participant’s account at the time the amendment was
adopted or effective, if later.



     (h) Promissory notes of Participants may be distributed in-kind pursuant to the Employer’s
loan policy document.



     (i) Distribution of benefits payable in the form of installments shall be paid in cash.



     (j) The Plan Administrator shall have the sole responsibility to determine the propriety,
amount, and form of any distribution made under the terms of this Plan and such determination will
be final. Upon such determination, the Plan Administrator shall direct the Trustee and/or
Custodian in writing or by any such other means as expressly agreed upon, to make such a
distribution.



6.8 Distribution In Event Of Incapacity



If any person who is entitled to receive a distribution of benefits (the “Payee”) suffers from a
Disability or is under a legal incapacity, payments may be made in one or more of the following
ways as directed by the Plan Administrator:




     (a) to the Payee directly; or



     (b) to the guardian or legal representative of the Payee’s person or estate.



49









 




The Plan Administrator’s determination of the minority or incapacity of any Payee will be final.




6.9 Commencement Of Benefits




     (a) Unless the Participant elects otherwise, distribution of benefits will begin no later than
the sixtieth day after the close of the Plan Year in which the latest of the following events
occurs:



          (1) the Participant attains age sixty-five (65) (or Normal Retirement Age if earlier),



          (2) the tenth anniversary of the year in which the Participant commenced participation in the
Plan, or



          (3) the Participant terminates Service with the Employer.



     (b) Notwithstanding the foregoing, the failure of a Participant and Spouse (if necessary) to
consent to a distribution while a benefit is immediately distributable within the meaning of
paragraph 6.6 hereof, shall be deemed an election to defer commencement of payment of any benefit
sufficient to satisfy this paragraph.



6.10 In-Service Withdrawals



If elected in the Adoption Agreement, an Employer may elect to permit a Participant in the Plan to
make an in-service withdrawal, subject to any limitation(s) specified in the Adoption Agreement.




     (a) Unless indicated otherwise on the Adoption Agreement, a Participant may withdraw all or
any part of the fair market value of his or her Voluntary or Required After-tax Contributions as
described in Article IV, other than Elective Deferrals or Roth Elective Deferrals, upon request to
the Plan Administrator. No amount of the Employer’s Contribution will be forfeited solely as a
result of a Participant’s withdrawal of an amount pursuant to this paragraph 6.10. Unless
indicated otherwise in the Adoption Agreement, Rollover and Transfer Contributions, and the income
allocable to each, may be withdrawn at any time.



     (b) Subject to Article VIII, Joint and Survivor Annuity Requirements (if applicable) and
pursuant to the Employer’s election in the Adoption Agreement, a Participant may be eligible to
withdraw any part of his or her Qualified Voluntary Contribution account by making application to
the Plan Administrator. A request to withdraw amounts pursuant to this paragraph must be consented
to by the Participant’s Spouse, unless the Plan satisfies the safe harbor under paragraph 8.7
hereof. Spousal consent, if required, shall comply with the requirements of paragraph 6.6 relating
to immediate distributions.



     (c) A Participant may withdraw all or any part of the fair market value of his or her pre-1987
Voluntary Contributions with or without withdrawing the earnings attributable thereto. Post-1986
Voluntary Contributions may only be withdrawn along with a portion of the earnings thereon. The
amount of the earnings to be withdrawn is determined by using the formula: DA [1-(V ÷ V+E)], where
DA is the distribution amount, V is the amount of Voluntary Contributions and V+E is the amount of
Voluntary Contributions plus the earnings attributable thereto. The aggregate value of the
Participant’s Vested Account Balance derived from Employer and Employee contributions (including
Rollovers), whether vested before or upon death, includes the proceeds of insurance contracts, if
any, on the Participant’s life. The provisions of this Article shall apply to a Participant who is
vested in amounts attributable to Employer contributions, Employee contributions (or both) at the
time of death or distribution.



     (d) Under a Profit Sharing Plan and to the extent that the Employer elects in the Adoption
Agreement, the Participant is required to satisfy at least one of the following conditions to make
an in-service withdrawal of all or any part of the Participant’s vested Non-Safe Harbor Matching
Contributions and Non-Elective Contributions.



          (1) An Employee who has been a Participant in the Plan for at least five (5) years may, prior
to separating from Service with the Employer, elect to withdraw all or any part of the vested
Non-Safe Harbor Matching Contributions and Non-Elective contributions.



          (2) Vested Non-Safe Harbor Matching and Non-Elective Contributions which have been in the Plan
for at least two (2) years may be withdrawn.



          (3) A Participant who has attained age 591/2 may, prior to separation from Service, elect to
withdraw all or any part of their vested Non-Safe Harbor Matching Contributions and Non-Elective
contributions.



          (4) A Participant may only withdraw amounts which are 100% vested.



          (5) The Employer may require any or all of these conditions to be satisfied prior to an
in-service distribution being made from the Plan.



50









 





     (e) Unless otherwise elected by the Employer in the Adoption Agreement, Elective Deferrals,
Roth Elective Deferrals, Qualified Non-Elective Contributions, Safe Harbor Matching and
Non-Elective Contributions, and Qualified Matching Contributions, and income allocable to each, are
not distributable to a Participant earlier than upon severance of employment (separation from
Service for Plan Years beginning before 2002), death, or Disability. Such amounts may also be
distributed upon:



          (1) termination of the Plan without the establishment of another Defined Contribution Plan
other than an employee stock ownership plan [as defined in Code Section 4975(e)(7)] or a Simplified
Employee Pension Plan [as defined in Code Section 408(k)], or a SIMPLE IRA plan [as defined in Code
Section 408(p)], a Plan or contract described in Code Section 403(b) or a Plan described in Code
Section 457(b) or (f) at any time during the period beginning on the date of Plan termination and
ending twelve (12) months after all assets have been distributed from the Plan. Such distribution
must be made in a lump sum;



          (2) the attainment of age 591/2 in the case of a profit-sharing plan; or



          (3) the Hardship of a Participant as described in paragraph 6.11.



     (f) An in-service withdrawal shall not be eligible for redeposit to the Trust. A withdrawal
under this paragraph shall not prohibit such Participant from sharing in any future Employer
contribution he or she would otherwise be eligible to receive. Payment will be made in accordance
with the administrative policy set by the Employer.



     (g) Money purchase pension plans and target benefit plans shall allow in-service withdrawals
only after the Participant’s attainment of the Normal Retirement Age provided it is so specified in
the Adoption Agreement.



     (h) Notwithstanding any provisions of the Plan to the contrary, to the extent that any
optional form of benefit under this Plan permits a distribution prior to the Participant’s
retirement, death, Disability, or separation from Service, and prior to Plan termination, the
optional form of benefit shall not be 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(l), to this Plan from a money purchase pension plan qualified under
Code Section 401(a) (other than any portion of those assets and liabilities attributable to
Voluntary After-tax Contributions).



     (i) If elected in the Adoption Agreement, a Participant may withdraw any amount not in excess
of the vested amount of Non-Elective Contributions, Elective Deferrals, Roth Elective Deferrals and
Matching Contributions, if the withdrawal is made after the Participant attains age 591/2.



     (j) If a distribution is made at a time when a Participant has a nonforfeitable right to less
than 100% of the account balance derived from Employer contributions and the Participant may
increase the nonforfeitable percentage in the account:



          (1) a separate account will be established for the Participant’s interest in the Plan as of
the time of the distribution, and



          (2) at any relevant time the Participant’s nonforfeitable portion of the separate account will
be equal to an amount (“X”) determined by the formula: X = P [AB + D] – D. For purposes of
applying the formula: “P” is the nonforfeitable percentage at the relevant time, “AB” is the
account balance at the relevant time, “D” is the amount of the distribution.



     (k) Effective August 17, 2006, a Participant who is ordered or called to active duty after
September 11, 2001 and prior to December 31, 2007 may take a Qualified Reservist Distribution if
the following are satisfied:



          (1) the distribution consists solely of Elective Deferrals in a
Code Section 401(k) Plan;



          (2) the Participant was ordered or called to active duty for a period in excess of one hundred
and seventy nine (179) days or for an indefinite period; and



          (3) the distribution from the Plan is made during the period which begins on the date of such
order or call and ends at the close of the active duty period.



          The ten percent (10%) early withdrawal penalty tax will not apply to a Qualified Reservist
Distribution, which meets requirements stated above.



     (l) Unless elected otherwise on the Adoption Agreement, the Plan Administrator may implement
on a uniform and nondiscriminatory basis an ordering rule for in-service withdrawals from a
Participant’s account attributable to pre-tax Elective Deferrals or Roth Elective Deferrals.



51









 





6.11 Hardship Withdrawals



If elected in the Adoption Agreement, a Participant may request a Hardship withdrawal as provided
in this paragraph. If applicable, Hardship withdrawals are subject to the spousal consent
requirements in Code Sections 401(a)(11) and 417. A request to make a withdrawal on account of
Hardship must be consented to by the Participant’s Spouse unless the Plan satisfies the safe harbor
provisions under paragraph 8.7 hereof. Spousal consent, if required, shall comply with the
requirements of paragraph 6.6 relating to immediate distributions.



If elected in the Adoption Agreement, a Participant shall be permitted to make a Hardship
withdrawal of any amount attributable to the vested portion of Elective Deferrals or Roth Elective
Deferrals (and any earnings credited to a Participant’s account as of the later of December 31,
1988, and the end of the last Plan Year ending before July 1, 1989). Unless elected otherwise in
the Adoption Agreement, vested Non-Elective Contributions, Matching Contributions, Rollover
Contributions, Transfer Contributions and the income allocable to each (without regard to
attainment of age 591/2 or Disability) may be available for Hardship withdrawal if the Participant
establishes that an immediate and heavy financial need exists and the withdrawal is necessary to
satisfy such financial need. A Participant may withdraw all or any part of the fair market value of
his or her Voluntary or Required After-tax Contributions due to a Hardship upon request to the Plan
Administrator. Such request shall be made in accordance with procedures adopted by the Plan
Administrator or his or her designate, who shall have sole authority to authorize and direct a
Hardship withdrawal pursuant to the following rules:




     (a) For purposes of this paragraph, an immediate and heavy financial need of the Employee is
one which cannot reasonably be relieved by borrowing from commercial sources on reasonable
commercial terms in an amount sufficient to satisfy the need. In any event, a Hardship
distribution may not be requested in excess of the amount of the immediate and heavy financial need
described at paragraph (b) including amounts necessary to pay any Federal, state or local income
taxes or penalties reasonably anticipated to result from the distribution.



     (b) An immediate and heavy financial need exists when the Hardship withdrawal will be used to
pay the following:



          (1) expenses incurred or necessary for medical care that would be deductible under Code
Section 213(d) (determined without regard to whether the expenses exceed 7.5% of adjusted gross
income) of the Participant, his or her Spouse, children and other dependents;



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



          (3) payment of tuition and related educational expenses (including but not limited to expenses
associated with room and board) for up to the next twelve (12) months of post-secondary education
for the Participant, his or her Spouse, children or other dependents [as defined in Code Section
152, and for the taxable years beginning or after January 1, 2005, without regard to Code Sections
152(b)(1), (b)(2) and (d)(1)(B)];



          (4) the need to prevent eviction of the Participant from, or a foreclosure on the mortgage of,
the Participant’s principal residence;



          The following reasons constituting an immediate and heavy financial need that permit a
Hardship Withdrawal application shall apply for Plan Years beginning after December 31, 2005,
unless adopted earlier by the Employer:



          (5) payments for burial or funeral expenses for the Participant’s deceased parent, Spouse,
child or dependent [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)]; or



          (6) 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).



     (c) A distribution is not treated as necessary to satisfy an immediate and heavy financial
need of a Participant to the extent the need may be relieved from other resources that are
reasonably available to the Participant. For purposes of this paragraph, the Participant’s
resources are deemed to include those assets of the Participant’s Spouse and minor children that
are reasonably available to the Participant. However, property held for the Participant’s child
under an irrevocable trust or under the Uniform Gifts to Minors Act (or comparable state law) is
not treated as a resource of the Participant.



          If the Plan Administrator approves a request for a Hardship withdrawal, funds shall be
withdrawn from the contribution sources as elected in the Adoption Agreement unless provided
otherwise by the Plan Administrator in an administrative procedure. Liquidation of a Participant’s
assets for the purpose of a Hardship withdrawal will be allocated on a pro-rata basis across all
the investment alternatives in a Participant’s account,



52









 







unless otherwise provided by a directive from the Plan Administrator or by the Plan Participant.



          If Elective Deferrals (including Roth Elective Deferrals, if any), Voluntary After-tax, or
Required After-tax Contributions are suspended under 6.11(a)(3) above, such amounts will be
suspended for all plans maintained by the Employer (other than benefits under Code Section 125
plans) for six (6) months after the receipt of the Hardship distribution. The Code Section 402(g)
limit for 2002 does not have to be reduced with respect to a Participant who has received a
Hardship distribution in calendar year 2001.



     (d) The Plan Administrator may implement on a uniform and nondiscriminatory basis an ordering
rule for Hardship withdrawals from a Participant’s account attributable to pre-tax Elective
Deferrals or Roth Elective Deferrals.



     (e) Effective August 17, 2006, if Hardship withdrawals are permitted in the Plan, the Plan’s
Hardship withdrawal provisions shall apply to the Participant’s Beneficiary in addition to the
Participant’s Spouse or dependent. The Beneficiary to which this applies must have an
unconditional right to all or a portion of the Participant’s account balance under the Plan upon
the Participant’s death.



6.12 Direct Rollovers




     (a) This paragraph applies to distributions made after December 31, 2001. Notwithstanding any
provision of the Plan to the contrary that would otherwise limit a Distributee’s election under
this part, a Distributee may elect, at the time and in the manner prescribed by the Plan
Administrator, to have any portion of an Eligible Rollover Distribution that is equal to at least
$500 paid directly to an Eligible Retirement Plan specified by the Distributee in a Direct
Rollover. If an Eligible Rollover Distribution is less than $500, a Distributee may not make the
election described in the preceding sentence to rollover a portion of the Eligible Rollover
Distribution.



     (b) This paragraph applies to distributions made on or after January 1, 1993, and prior to
January 1, 2002. Notwithstanding any provision of the Plan to the contrary that would otherwise
limit a Distributee’s election under this part, a Distributee may elect, at the time and in the
manner prescribed by the Plan Administrator, to have any portion of an Eligible Rollover
Distribution that is equal to at least $500 paid directly to an Eligible Retirement Plan specified
by the Distributee in a Direct Rollover.



     (c) Definitions



          (1) Eligible Rollover Distribution — An Eligible Rollover Distribution is any distribution of
all or any portion of the balance to the credit of the Distributee, except that an Eligible
Rollover Distribution does not include: 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); any Hardship
distribution described in Code Section 401(k)(2)(B)(i)(IV) received after December 31, 1998, 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(s) that is reasonably expected to total less than $200 during a year. For
purposes of this paragraph, 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) Eligible Retirement Plan — 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), an annuity plan described in Code Section 403(a), or a Qualified Plan described Code
Section 401(a), that accepts the Distributee’s Eligible Rollover Distribution. However, in the
case of an Eligible Rollover Distribution to the surviving Spouse, an Eligible Retirement Plan is
an individual retirement account or individual retirement annuity.



          (3) Distributee — 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) Direct Rollover — A Direct Rollover is a payment by the Plan to the Eligible Retirement
Plan specified by the Distributee.



     (d) Notwithstanding any provision of the Plan to the contrary that would otherwise limit a
Participant’s election under this paragraph, for distributions made on or after January 1, 1993, a
Participant may elect, at the time and in the manner prescribed by the Plan Administrator, to have
any portion of an Eligible Rollover Distribution paid directly to an Eligible Retirement Plan or
individual retirement account specified by the Participant in a Direct Rollover. Any portion of a
distribution that is not paid directly to an Eligible Retirement Plan or individual retirement



53









 







account, pursuant to such Participant’s direction shall be distributed to the Participant.
For purposes of this paragraph, a surviving Spouse or a Spouse or former Spouse who is an alternate
payee under a Qualified Domestic Relations Order as defined in Code Section 414(p), will be
permitted to elect to have any Eligible Rollover Distribution paid directly to an individual
retirement account (IRA) or an individual retirement annuity (IRA) or to another Qualified Plan in
which the alternate payee is a participant.



     (e) If the entire Vested Account Balance is not eligible for a Direct Rollover of benefits as
described in (a) above, the Participant may either make an elective transfer of the entire Vested
Account Balance pursuant to the procedure described at paragraph 4.5 or a Direct Rollover of the
portion which can be rolled over as described in (a) above and an elective transfer of the rest as
described in paragraph 4.5 herein.



     (f) After December 31, 2001, the elective transfer of distributable benefits will be available
only if the Direct Rollover provisions of Code Section 401(a)(31) would not be available to
transfer the Participant’s entire Vested Account Balance to the transferee plan. This elective
transfer option will only be available in the following circumstances:



          (1) The Plan does not have a single sum distribution option available. The benefits are
distributable only in a periodic payment method.



          (2) The distribution includes benefits that are not eligible for rollover treatment, including
benefits attributable to after-tax contributions, required minimum distributions or other amounts
that have previously been included in income.



          For purposes of this paragraph, a portion of the distribution shall not fail to be an Eligible
Rollover Distribution merely because the portion consists of Voluntary After-tax Contributions that
are not includible in gross income. However, such portion may be transferred only to an individual
retirement account or annuity described in Code Section 408(a) or (b), or to a qualified Defined
Contribution Plan described in Code Section 401(a) or 403(a) that agrees to separately account for
amounts so transferred, including separately accounting for the portion of such distribution which
is includible in gross income and the portion of such distribution which is not so includible.



     (g) When a portion of a distribution is from a Roth Elective Deferral account, the rollover of
any such distribution pursuant to Code Section 402A(c)(3) must be accomplished through a Direct
Rollover and can only be made to a plan qualified under Code Section 401(a) which agrees to
separately account for the amount not includible in income. The transferring Plan shall report the
amount of the investment in the contract (contributions as well as associated earnings) and the
first year of the five (5) year period to the recipient plan so that the recipient plan will not
need to rely on the information from the Distributee.



          For purposes of this paragraph, the five (5) taxable year period of Plan participation is the
period of five (5) consecutive taxable years that begins with the first day of the first taxable
year in which the Participant makes a designated Roth Elective Deferral to any designated Roth
Elective Deferral Account established for the Participant under the same plan and ends when five
(5) consecutive taxable years have been completed. For this purpose, the first taxable year in
which a Participant makes a designated Roth Elective Deferral is the year in which the amount is
first includible in the Participant’s gross income.




     (h) A Direct Rollover of a distribution from a Roth Elective Deferral Account under this Plan
will be made to another Roth Elective Deferral Account under an applicable retirement plan
described in Code Section 402A(e)(1) or to a Roth IRA described in Code Section 408A, and only to
the extent the rollover is permitted under Code Section 402(c). The Plan shall not provide for a
Direct Rollover (including an automatic rollover) of distributions from a Participant’s Roth
Elective Deferral Account if the amount of the distributions that are Eligible Rollover
Distributions are reasonably expected to total less than $200 during a year. In addition, any
distribution from a Participant’s Roth Elective Deferral Account are not taken into consideration
in determining whether distributions from a Participant’s other accounts are reasonably expected to
total less than $200 during a year.



6.13 Participant’s Notice



In the event that a Participant’s benefit becomes payable under Plan terms or if a Participant
requests distribution of his or her benefit, the Plan Administrator shall provide such Participant
with a notice regarding distribution of such benefit. The notice shall describe any Plan related
information regarding the distribution including the Joint and Survivor Annuity requirements
provided at paragraph 6.6(d), if applicable, the normal and optional forms of payment provided at
paragraph 6.7, and the information required in connection with an Eligible Rollover Distribution.
Information in connection with an Eligible Rollover Distribution shall include the right to have
the funds transferred directly to another Qualified Plan or individual retirement account, the
income tax withholding requirements, the rollover rules with respect to amounts distributed to the
Participant, the default Direct Rollover provisions of Vested Account Balances greater than $1,000
but less than or equal to $5,000 (including any other appropriate information such as the name and
address, and telephone number of the IRA Trustee and information regarding IRA maintenance and
withdrawal fees and how the IRA funds will be invested), and the general tax rules which apply to
such distributions. Such notice shall be provided to the Participant within the time period
prescribed at paragraph




54









 







6.6(d) hereof or, if the safe harbor provisions of paragraph 8.7 are applicable, not less than
thirty (30) days prior to the Annuity Starting Date, subject to a waiver period of a lesser number
of days if elected by the Participant and if applicable, their Spouse. A default Direct Rollover
will occur not less than thirty (30) days and not more than ninety (90) days after such notice with
the explanation of the default Direct Rollover is provided to the separating Participant.




6.14 Assets Transferred From Money Purchase Pension Plans



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 retirement, death,
Disability, or severance from employment, and prior to Plan termination, the optional form of
benefit shall not be available with respect to benefits attributable to assets (including the
associated post-transfer earnings) and liabilities that are transferred, within the meaning of Code
Section 414(l), to this Plan from a money purchase pension plan qualified under Code Section 401(a)
(other than any portion of those assets and liabilities attributable to Voluntary After-tax
Contributions).




6.15 Assets Transferred From A Code Section 401(k) Plan



If the Plan receives a direct transfer (by merger or otherwise) of Elective Deferrals or Roth
Elective Deferrals (or amounts treated as Elective Deferrals) under a Plan with a Code Section
401(k) arrangement, the distribution restrictions of Code Sections 401(k)(2) and 401(k)(10)
continue to apply to those transferred Elective Deferrals.




55









 








ARTICLE VII

DISTRIBUTION REQUIREMENTS




7.1 Joint And Survivor Annuity Requirements



All distributions made under the terms of this Plan must comply with the provisions of Article VIII
including, if applicable, the safe harbor provisions thereunder.




7.2 Designation Of Beneficiary



If a Participant completes or has completed a Beneficiary designation in which the Participant
designates his or her Spouse as the Beneficiary, and the Participant and the Participant’s Spouse
are legally divorced subsequent to the date of such designation, then the designation of such
Spouse as a Beneficiary hereunder will be deemed null and void unless the Participant, subsequent
to the legal divorce, reaffirms the designation by completing a new Beneficiary designation form.




     (a) For purposes of the Plan, a Beneficiary is the person or persons designated as such in
accordance with Code Section 401(a)(9) and the Regulations thereunder by the Participant or by the
Participant’s surviving Spouse if the Participant’s surviving Spouse is entitled to receive
distributions under the Plan. Such a designation by the Participant’s surviving Spouse, however,
shall relate solely to the distributions to be made under the Plan after the death of both the
Participant and the surviving Spouse. A Beneficiary designation shall be communicated to the Plan
Administrator on a form or other type of communication acceptable to the Plan Administrator for use
in connection with the Plan, signed by the designating person, and subject to the last sentence of
this subparagraph (a), filed with the Plan Administrator in accordance with this paragraph not
later than thirty (30) days after the designating person’s death. The form may name individuals,
trusts or estates to take upon the contingency of survival and may specify or limit the manner of
distribution thereto. In the event a Participant or the Participant’s surviving Spouse, as the
case may be, fails to properly designate a Beneficiary (including, as improper, a designation to
which the Participant’s surviving Spouse did not properly consent) or in the event that no properly
designated Beneficiary survives the Participant or the Participant’s surviving Spouse, as
applicable, then the Beneficiary of such person shall be his surviving Spouse or, if none, his
issue per stirpes or, if no issue, the Participant’s surviving parents in equal shares, or if no
surviving parents, then to the Participant’s estate.



          The Beneficiary designation last accepted by the Plan Administrator during the designating
person’s lifetime before such distribution is to commence shall be controlling and, whether or not
fully dispositive of the vested portion of the account of the Participant involved, thereupon shall
revoke all such forms previously filed by that person.




     (b) Notwithstanding subparagraph (a), the designation by a married Participant of any
Beneficiary other than the Participant’s Spouse, or the change of any such Beneficiary to a new
Beneficiary other than the Participant’s Spouse, shall not be valid unless made in writing and
consented to by the Participant’s Spouse. The Spouse’s consent to such designation must be made in
the manner described in this paragraph.



     (c) Any Beneficiary designation made and in effect under a Qualified Plan immediately prior to
that Plan’s amendment and continuation in the form of this Plan shall be deemed to be a valid
Beneficiary designation filed under this Plan to the extent consistent with this Plan. If such
Beneficiary designation was made with respect to a Qualified Plan that permitted the Participant to
designate without spousal consent a Beneficiary to receive 50% of the Participant’s account balance
in the event of the Participant’s death, with respect to such Beneficiary designation under this
Plan, this paragraph shall be applied by application of 50% of the vested portion of the
Participant’s account toward the purchase of a Qualified Pre-Retirement Survivor Annuity and the
balance of the Participant’s account shall be paid to the Designated Beneficiary pursuant to the
provisions of Article VIII. In such event, the amount of Voluntary After-tax Contributions applied
to the purchase of the annuity shall be in the same proportion as the Voluntary After-tax
Contributions bear to the entire Participant’s account.



     (d) In the absence of a Beneficiary designation or other directive from the deceased
Participant to the contrary, any Beneficiary may name his or her own Beneficiary to receive any
benefits which may be payable in the event of the Beneficiary’s death prior to the receipt of all
the Participant’s death benefits to which the Beneficiary was entitled.



     (e) Notwithstanding any provision in this section, any Beneficiary named hereunder will be
considered a contingent Beneficiary until the death of the Participant (or Beneficiary, as the case
may be), and until such time will have no rights granted to Beneficiaries under the Plan.



7.3 Minimum Distribution Requirements



All distributions required under this Article shall be determined and made in accordance with the
minimum distribution requirements of Code Section 401(a)(9) and the Regulations issued thereunder,
including the minimum distribution incidental benefit rules found at Regulations Section
1.401(a)(9)-(G). The entire interest of a Participant must be distributed or begin to be
distributed no later than the Participant’s Required Beginning Date. Life Expectancy and joint and
last survivor life expectancies are computed by using the expected return multiples found in
Regulations


56









 






Section 1.72-9. The provisions of this Article will apply for purposes of determining required
minimum distributions for calendar years beginning with the 2003 calendar year. Notwithstanding the
other provisions of this Article, distributions may be made under a designation made before January
1, 1984, in accordance with Section 242(b)(2) of the Tax Equity and Fiscal Responsibility Act
(“TEFRA”) and the provisions of the Plan that relate to Section 242(b)(2) of TEFRA.




7.4 Limits On Distribution Periods



As of the First Distribution Calendar Year, distributions, if not made in a single sum, may only be
made over one of the following periods (or a combination thereof):




     (a) the life of the Participant,



     (b) the life of the Participant and a Designated Beneficiary,



     (c) a period certain not extending beyond the life expectancy of the Participant,
or



     (d) a period certain not extending beyond the joint and last survivor life expectancy of the
Participant and a Designated Beneficiary.



7.5 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 as defined at paragraph 1.94.




7.6 Death Of Participant Before Distributions Begin



If the Participant dies before required distributions begin, the Participant’s entire interest will
be distributed, or begin to be distributed, no later than as follows:




     (a) If the Participant’s surviving Spouse is the Participant’s sole designated Beneficiary,
then, except as provided in the Adoption Agreement, distributions to the surviving Spouse will
begin by December 31 of the calendar year immediately following the calendar year in which the
Participant died, or by December 31 of the calendar year in which the Participant would have
attained age 701/2, if later.



     (b) If the Participant’s surviving Spouse is not the Participant’s sole Designated
Beneficiary, then, except as provided in the Adoption Agreement, distributions to the Designated
Beneficiary will begin by December 31 of the calendar year immediately following the calendar year
in which the Participant died.



     (c) If there is no Designated Beneficiary as of the date of the Participant’s death who
remains a Beneficiary as of September 30 of the year immediately following the year of the
Participant’s death, the Participant’s entire interest will be distributed by December 31 of the
calendar year containing the fifth anniversary of the Participant’s death.



     (d) 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 paragraph 7.6, with the exception of paragraph 7.6(a), will apply as if the surviving
Spouse were the Participant.


For purposes of this paragraph and paragraphs 7.10 and 7.11, unless subparagraph 7.6(d) applies,
distributions are considered to begin on the Participant’s Required Beginning Date. If
subparagraph 7.6(d) applies, distributions are considered to begin on the date distributions are
required to begin to the surviving Spouse under paragraph 7.6(a). If distributions under an
annuity purchased from an insurance company irrevocably commence to the Participant before the
Participant’s Required Beginning Date [or to the Participant’s surviving Spouse before the date
distributions are required to begin to the surviving Spouse under paragraph 7.6(a)], the date
distributions are considered to begin is the date distributions actually commence.




7.7 Forms Of Distributions



Unless the Participant’s interest is distributed in the form of an annuity purchased from an
insurance company or in a single sum on or before the Required Beginning Date, as of the First
Distribution Calendar Year distributions will be made in accordance with paragraph 7.8 through
paragraph 7.11. If the Participant’s interest is distributed in the form of an annuity purchased
from an insurance company, distributions thereunder will be made in accordance with the
requirements of Code Section 401(a)(9) and the corresponding Treasury Regulations.




7.8 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:




     (a) the quotient obtained by dividing the Participant’s account balance including Roth
Elective Deferrals by the distribution period set forth in the Uniform Lifetime Table found in
Regulations Section 1.401(a)(9)-9, Q&A-2, using the Participant’s age as of the Participant’s
birthday in the Distribution Calendar Year; or



57









 





     (b) if the Participant’s sole Designated Beneficiary for the Distribution Calendar Year is the
Participant’s Spouse, the quotient obtained by dividing the Participant’s account balance by the
number in the Joint and Last Survivor Table set forth in Regulations Section 1.401(a)(9)-9, Q&A-3,
using the Participant’s and Spouse’s attained ages as of the Participant’s and Spouse’s birthdays
in the Distribution Calendar Year.



7.9 Lifetime Required Minimum Distributions Continue Through Year Of Participant’s Death



Required minimum distributions will be determined under this paragraph and paragraph 7.8 beginning
with the first Distribution Calendar Year and continuing up to and including the Distribution
Calendar Year that includes the Participant’s date of death.




7.10 Death On Or After Required Distributions Begin




     (a) 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:



          (1) The Participant’s remaining life expectancy is calculated in accordance with the Single
Life Table found in Regulations Section 1.401(a)(9)-9, Q&A-1, using the age of the Participant in
the year of death, reduced by one (1) for each subsequent year.



          (2) If the Participant’s surviving Spouse is the Participant’s sole Designated Beneficiary,
the remaining life expectancy of the surviving Spouse is calculated in accordance with the Single
Life Table found in Regulations Section 1.401(a)(9)-9, Q&A-1, 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 (1) for each subsequent calendar year.



          (3) If the Participant’s surviving Spouse is not the Participant’s sole Designated
Beneficiary, the Designated Beneficiary’s remaining life expectancy is calculated under the Single
Life Table using the age of the Beneficiary in the year following the year of the Participant’s
death, reduced by one (1) for each subsequent year.



     (b) No Designated Beneficiary — If the Participant dies on or after the date required
distributions begin and there is no Designated Beneficiary as of the Participant’s death who
remains a 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 under the Single Life Table, using the age of
the Participant in the year of death, reduced by one (1) for each subsequent year.



7.11 Death Before Date Required Distributions Begin




     (a) Participant Survived By Designated Beneficiary — If the Participant dies before the date
required 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 paragraph 7.10.



     (b) No Designated Beneficiary — If the Participant dies before the date distributions begin
and there is no Designated Beneficiary as of the date of death of the Participant who remains a
Beneficiary as of September 30 of the year following the year of the Participant’s death,
distribution of the Participant’s entire interest must be completed by December 31 of the calendar
year containing the fifth anniversary of the Participant’s death.



     (c) 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 paragraph 7.6(a), this paragraph shall apply as
if the surviving Spouse were the Participant.



7.12 Prior Pre-Retirement Distribution Options




     (a) Elimination of Pre-Retirement Age 701/2 Distribution Option — The pre-retirement age 701/2
distribution option will only be eliminated for Employees who reach age 701/2 in or after a calendar
year that begins after the later of December 31, 1998, or the date of adoption of this amended
Plan. The pre-retirement age 701/2 distribution option is an optional form of benefit under which
benefits payable in a particular distribution form



58









 





(including any modifications that may be elected after benefit commencement) begin at a time
during the period that begins on or after January 1 of the calendar year in which an Employee
reaches age 701/2 and ends April 1 of the immediately following calendar year.



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



     (c) Election to Suspend — If the Plan Administrator offered an election to suspend
distributions, a Participant who is not a 5% owner who reached age 701/2 prior to 1997 and who made
the election may stop distributions and recommence by April 1 of the calendar year following the
year in which the Participant actually retires. In such an event, the Plan Administrator may elect
that a new Annuity Starting Date will begin upon the distribution recommencement date.



7.13 Transitional Rules




     (a) Notwithstanding the other requirements of this Article and subject to the requirements of
Article VIII, Joint and Survivor Annuity Requirements, distribution on behalf of any Employee,
including a 5% owner may be made in accordance with all of the following requirements, regardless
of when such distribution commences:



          (1) 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,



          (2) 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,



          (3) such designation was in writing, was signed by the Participant or the Beneficiary, and was
made before January 1, 1984,



          (4) the Participant had accrued a benefit under the Plan as of December 31, 1983, and



          (5) 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.



     (b) A distribution upon death will not be covered by this transitional rule 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.



     (c) 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 subparagraphs (a)(1) through (5) above.



     (d) 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 Code Section 242(b)(2) election of the Tax
Equity and Fiscal Responsibility Act of 1982. For calendar years beginning after 1988, such
distributions must meet the minimum distribution incidental benefit requirements in Regulations
Section 1.401(a)(9)-2. 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). In the case in which an amount is transferred or rolled
over from one plan to another plan, the rules in Regulations Section 1.401(a)(9)-8, Q&A-14 and
Q&A-15 shall apply.



59









 





7.14 Distributions To Minors And Individuals Who Are Legally Incompetent



Benefits payable to either a minor or an individual who has been declared legally incompetent shall
be paid, at the direction of the conservator appointed either under a court order or applicable
state law that permits such an individual to be a court appointed guardian for the benefit of said
minor or incompetent.




7.15 Unclaimed Benefits




     (a) The Plan Administrator shall notify Participants or Beneficiaries by certified or
registered mail sent to his or her last known address of record with the Employer when their
benefits become distributable as provided at paragraph 6.10 hereof. If a Participant or
Beneficiary does not respond to the notice within ninety (90) days of the date of the notice, the
Plan Administrator may take reasonable steps to locate the Participant or Beneficiary including,
but not limited to, requesting assistance from the Employer, Employees, Social Security
Administration and/or the Internal Revenue Service.



     (b) If the Participant cannot be located after a period of twelve (12) months, or such other
period determined by the Plan Administrator, the Plan Administrator shall treat the benefit as a
forfeiture pursuant to paragraph 9.8. The forfeiture provisions of this subparagraph 7.15(b) apply
only to the Participant’s or Beneficiary’s account balance which is less than $1,000. If the
Employer does not make a contribution for the Plan Year during which the forfeiture takes place,
such amount shall first be applied to pay Plan expenses and, if there are no such expenses, it
shall then be allocated to eligible Participant accounts as if the amount were the Employer’s
contribution for such Plan Year.



     (c) If a Participant or Beneficiary later makes a claim for such benefit, the Plan
Administrator shall validate such claim and provide the Participant or Beneficiary with all notices
and other information necessary for the Participant or Beneficiary to perfect the claim. If the
Plan Administrator validates the claim for benefits, the Participant’s account balance shall be
restored to the benefit amount treated as a forfeiture. Such benefit shall not be adjusted for
investment earnings or losses during the period beginning on the date of forfeiture and ending on
the date of restoration. The funds necessary to restore the Participant’s account will first be
taken from amounts eligible for reallocation or other disposition as forfeitures with respect to
the Plan Year. If such funds do not exist or if such funds are insufficient, the Employer will
make a contribution prior to the date on which the benefit is payable to restore such Participant’s
account. Such benefit shall be paid or commence to be paid in the same manner as if the benefit
was eligible for distribution on the date the claim for benefit is validated.



     (d) The Plan Administrator shall follow the same procedure in locating and subsequently
treating as a forfeiture the benefit of a Participant or Beneficiary whose benefit has been
properly paid under Plan terms but where the Participant or Beneficiary has not negotiated the
benefit check(s).



     (e) Notwithstanding the foregoing, the Plan Administrator may establish alternative procedures
for locating and administering the benefits of missing Plan Participants, including but not limited
to re-establishing the Participant’s account.



     (f) In the event of a Plan termination, the Plan Administrator shall apply such search methods
for locating missing Participants as described in the Department of Labor Field Assistance Bulletin
2004-02 as it considers in its sole discretion appropriate under the circumstances.



     (g) In making distributions from a terminating Plan on behalf of Participants who are either
determined to be missing or who otherwise fail to elect a method of distribution in connection with
the termination of the Plan, the Plan Administrator shall comply with the relevant requirements of
proposed Treasury Regulation §2550.404a-2, without regard to the amount involved in the rollover
distribution.



     (h) Unless elected otherwise in the Adoption Agreement, if a terminated Participant cannot be
located, the Participant’s Vested Account Balance is in excess of $1,000 but not greater than
$5,000, and no Participant election has been made regarding the disposition of his or her Vested
Account Balance, the automatic rollover provisions of Code Section 401(a)(31)(B) as contained in
paragraph 6.5 shall be applied to said account.



7.16 TEFRA 242(b) Election



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




60









 








ARTICLE VIII

JOINT AND SURVIVOR ANNUITY REQUIREMENTS




8.1 Applicability Of Provisions



The provisions of this Article shall apply to any Participant who is credited with at least one (1)
Hour of Service with the Employer and such other Participants as provided in paragraph 8.8.




8.2 Payment Of Qualified Joint And Survivor Annuity



Unless an optional form of benefit is selected pursuant to a Qualified Election within the ninety
(90) day period ending on the Annuity Starting Date, a Participant’s Vested Account Balance will be
paid in the form of a Qualified Joint and Survivor Annuity. For this purpose, a Qualified Joint
and Survivor Annuity with respect to an unmarried Participant’s Vested Account Balance will be paid
in the form of a straight life annuity. A straight life annuity means an annuity payable in equal
installments for the life of the Participant that terminates upon the Participant’s death. The
Participant may elect to have such annuity distributed upon attainment of the Early Retirement Age
under the Plan, if any.




8.3 Payment Of Qualified Pre-Retirement Survivor Annuity



Unless an optional form of benefit has been elected within the Election Period pursuant to a
Qualified Election, if a Participant dies before benefits have commenced then the Participant’s
Vested Account Balance shall be paid in the form of a life annuity for the life of the surviving
Spouse. The surviving Spouse may elect to have such annuity distributed within a reasonable period
after the Participant’s death. If no election has been made within the Election Period prior to
the Participant’s death, the surviving Spouse shall have the right to select an optional form of
benefit after the Participant’s death. Such election will only be permitted if the surviving
Spouse is provided with a notice similar to that required under paragraph 8.5 except that the
notice will be modified to explain a life annuity rather than a Qualified Joint and Survivor
Annuity.



A Participant who does not meet the age thirty-five (35) requirement set forth in the Election
Period as of the end of any current Plan Year may make a special Qualified Election to waive the
Qualified Pre-Retirement Survivor Annuity for the period beginning on the date of such election and
ending on the first day of the Plan Year in which the Participant will attain age thirty-five (35).
Such election shall not be valid unless the Participant receives a written explanation of the
Qualified Pre-Retirement Survivor Annuity in such terms as are comparable to the explanation
required under paragraph 8.5. Qualified Pre-Retirement Survivor Annuity coverage will be
automatically reinstated as of the first day of the Plan Year in which the Participant attains age
thirty-five (35). Any new waiver on or after such date shall be subject to the full requirements
of this Article.




8.4 Qualified Election



A Qualified Election is an election to either waive a Qualified Joint and Survivor Annuity or a
Qualified Pre-Retirement Survivor Annuity. Any such election shall not be effective unless:




     (a) the Participant’s Spouse consents in writing to the election,



     (b) the election designates a specific Beneficiary, including any class of Beneficiaries or
any contingent Beneficiaries, which may not be changed without spousal consent unless the Spouse
expressly permits designations by the Participant without any further spousal consent,



     (c) the Spouse’s consent acknowledges the effect of the election, and



     (d) the Spouse’s consent is witnessed by a Plan representative or notary public.


A Participant’s waiver of the Qualified Joint and Survivor Annuity shall not be effective unless
the election designates a form of benefit payment that may not be changed without spousal consent
unless the Spouse expressly permits designations by the Participant without any further spousal
consent. If it is established to the satisfaction of the Plan Administrator that the Participant
is unmarried or that the Spouse cannot be located, a waiver will be deemed a Qualified Election.
Any consent by a Spouse obtained under this provision (or establishment that the consent of a
Spouse cannot be obtained) shall be effective only with respect to such Spouse. A consent that
permits designations by the Participant without any requirement of further consent by such Spouse
must acknowledge that the Spouse has the right to limit consent to a specific Beneficiary, and a
specific form of benefit where applicable, and that the Spouse voluntarily elects to relinquish
either or both of such rights. A Participant may revoke a prior waiver without the consent of the
Spouse at any time before the commencement of benefits. The number of revocations shall not be
limited. No consent obtained under this provision shall be valid unless the Participant has
received notice as provided in paragraphs 8.5 and 8.6 below.




8.5 Notice Requirements For Qualified Joint And Survivor Annuity



In the case of a Qualified Joint and Survivor Annuity, the Plan Administrator shall, no less than
thirty (30) days and no more than ninety (90) days prior to the Annuity Starting Date, provide each
Participant a written explanation of:




61









 








     (a) the terms and conditions of a Qualified Joint and Survivor Annuity,



     (b) the Participant’s right to make and the effect of an election to waive the Qualified Joint
and Survivor Annuity form of benefit,



     (c) the rights of a Participant’s Spouse, and



     (d) the right to make and the effect of a revocation of a previous election to waive the
Qualified Joint and Survivor Annuity.


The Annuity Starting Date may be less than thirty (30) days after and may be before receipt of the
written explanation described in the preceding paragraph provided that:




     (e) the Plan Administrator clearly informs the Participant and the Participant’s Spouse that
they have a right to a period of at least thirty (30) days after receiving the notice to consider
the decision of whether to waive the Qualified Joint and Survivor Annuity and elect (with spousal
consent) a form of distribution other than a Qualified Joint and Survivor Annuity; and



     (f) the Participant is permitted to revoke any affirmative distribution election at least
until the Annuity Starting Date or, if later, at any time prior to the expiration to the seven (7)
day period that begins the day after the explanation of the Qualified Joint and Survivor Annuity is
provided to the Participant.



8.6 Notice Requirements For Qualified Pre-Retirement Survivor Annuity



In the case of a Qualified Pre-Retirement Survivor Annuity as described in paragraph 8.3, the Plan
Administrator shall provide each Participant within the applicable period for such Participant a
written explanation of the Qualified Pre-Retirement Survivor Annuity in such terms and in such
manner as would be comparable to the explanation provided for meeting the requirements of paragraph
8.5 applicable to a Qualified Joint and Survivor Annuity. The applicable period for a Participant
is whichever of the following periods ends at the latest date:




     (a) the period beginning with the first day of the Plan Year in which the Participant attains
age thirty-two (32) and ending with the close of the Plan Year preceding the Plan Year in which the
Participant attains age thirty-five (35),



     (b) a reasonable period ending after the individual becomes a Participant, or



     (c) a reasonable period ending after this Article first applies to the Participant.


Notwithstanding the foregoing, notice must be provided within a reasonable period ending after
separation from Service in the case of a Participant who separates from Service before attaining
age thirty-five (35). If such a Participant subsequently returns to employment with the Employer,
the applicable period for such Participant shall be redetermined.



For purposes of applying the preceding paragraph, a reasonable period ending after the events
described in (b) and (c) is the end of the two (2) year period beginning one (1) year prior to the
date the applicable event occurs, and ending one (1) year after that date. In the case of a
Participant who separates from Service before the Plan Year in which age thirty-five (35) is
attained, notice shall be provided within the two (2) year period beginning one (1) year prior to
separation and ending one (1) year after separation.




8.7 Special Safe Harbor Exception For Certain Profit-Sharing Or 401(k) Plans



This paragraph shall apply to a Participant in a profit-sharing or 401(k) plan, and to any
distribution, made on or after the first day of the first Plan Year beginning after 1988, from or
under a separate account attributable solely to Qualified Voluntary Contributions, as maintained on
behalf of a Participant in a money purchase pension plan or target benefit plan, if the following
conditions are satisfied:




     (a) the Participant does not elect payments in the form of a life annuity, and



     (b) on the death of a Participant, the Participant’s Vested Account Balance will be paid to
the Participant’s Surviving Spouse, but if there is no surviving Spouse, or if the Surviving Spouse
has consented to, in a manner conforming to a Qualified Election, then to the Participant’s
Beneficiary.



     (c) The surviving Spouse may elect to have distribution of the Vested Account Balance commence
within the ninety (90) day period following the date of the Participant’s death. The account
balance shall be adjusted for gains or losses occurring after the Participant’s death in accordance
with the provisions of the Plan governing the adjustment of account balances for other types of
distributions.



62









 





     (d) If a Plan is otherwise exempt from the Qualified Joint and Survivor Annuity requirements,
the Qualified Joint and Survivor Annuity requirements are not triggered unless the Participant in
the Plan actually elects a life annuity as a distribution option.



     (e) These safe harbor rules shall not be applicable to a Participant in a profit-sharing or
401(k) plan if the Plan is the recipient of assets as the result of a merger with a plan which was
subject to the survivor annuity requirements of Code Sections 401(a)(11) and 417, and would
therefore have a Qualified Joint and Survivor Annuity as its normal form of benefit, unless
separate accounts or separate accounting was monitored for the assets of the merged plan.



     (f) Money purchase and target benefit plans are required to include the Qualified Joint and
Survivor Annuity option. These Plans may eliminate any periodic payment options that are not
required by the Qualified Joint and Survivor Annuity rules such as installment payments.



     (g) The Participant may waive the spousal death benefit described in this paragraph at any
time provided that no such waiver shall be effective unless it satisfies the conditions (described
in paragraph 8.4) that would apply to the Participant’s waiver of the Qualified Pre-Retirement
Survivor Annuity.



     (h) Profit-sharing plans that satisfy all of the requirements of this paragraph so that the
Plan is not required to provide a Qualified Joint and Survivor Annuity for the Participant, but do
provide such annuity (even if the annuity is the normal form), may replace the Qualified Joint and
Survivor Annuity with payment in a single-sum distribution form that is otherwise identical to such
annuity in accordance with the requirements under the Regulations Section 1.411(d)-4.



     (i) For purposes of this paragraph, Vested Account Balance shall mean, in the case of a money
purchase pension plan or a target benefit plan, the Participant’s separate account balance
attributable solely to accumulated deductible employee contributions within the meaning of Code
Section 72(o)(5)(b); in the case of a profit-sharing plan, Vested Account Balance shall have the
same meaning as provided in paragraph 1.119.



     (j) If this paragraph 8.7 is operative, then all other provisions of this Article VIII other
than paragraph 8.8 are inoperative.



8.8 Transitional Rule



Special transitional rules apply to Participants who were not receiving benefits on August 23,
1984.




     (a) Notwithstanding the other requirements of this Article and subject to the requirements of
Article VII, Distribution Requirements, distribution on behalf of any Employee, including a more
than 5% owner, may be made in accordance with all of the following requirements (regardless of when
such distribution commences):



          (1) 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.



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



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



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



          (5) The method of distribution designated by the Employee 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 Employee’s death, the Beneficiaries of the Employee listed in
order of priority.



     (b) A distribution upon death will not be covered by this transitional rule 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 Employee.



     (c) For any distribution which commences before January 1, 1984, but continues after December
31, 1983, the Employee, 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 subparagraphs 8.8(a) and (a)(5).



     (d) 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



63









 







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).



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



8.9 Automatic Joint And Survivor Annuity And Early Survivor Annuity



Any Participant who has elected pursuant to paragraph 8.8(b) and any Participant who does not elect
under paragraph 8.8(a) or who meets the requirements of paragraph 8.8(a), except that such
Participant does not have at least ten (10) years of vesting Service when he or she separates from
Service, shall have his or her benefits distributed in accordance with all of the following
requirements if benefits would have been payable in the form of a life annuity in accordance with
all of the following requirements:




     (a) If benefits in the form of a life annuity become payable to a married Participant who:



          (1) begins to receive payments under the Plan on or after Normal Retirement Age, or



          (2) dies on or after Normal Retirement Age while still working for the Employer, or



          (3) begins to receive payments on or after the Qualified Early Retirement Age, or



          (4) separates from Service on or after attaining Normal Retirement Age (or the Qualified Early
Retirement Age) and after satisfying the eligibility requirements for the payment of benefits under
the Plan and thereafter dies before beginning to receive such benefits, such benefits will be
received under this Plan in the form of a Qualified Joint and Survivor Annuity, unless the
Participant has elected otherwise during the Election Period. The Election Period must begin at
least six (6) months before the Participant attains Qualified Early Retirement Age and end not more
than ninety (90) days before the commencement of benefits. Any election will be in writing and may
be changed by the Participant at any time.



     (b) A Participant who is employed after attaining the Qualified Early Retirement Age will be
given the opportunity to elect, during the Election Period, to have a survivor annuity payable on
death. If the Participant elects the survivor annuity, payments under such annuity must not be
less than the payments which would have been made to the Spouse under the Qualified Joint and
Survivor Annuity if the Participant had retired on the day before his or her death. Any election
under this provision will be in writing and may be changed by the Participant at any time. The
Election Period begins on the later of:



          (1) the ninetieth day before the Participant attains the Qualified Early Retirement Age, or



          (2) the date on which participation begins, and ends on the date the Participant terminates
employment.


For purposes of this paragraph, Qualified Early Retirement Age is defined at paragraph 1.85 herein.




8.10 Annuity Contracts



Any annuity contract distributed under this Plan must be nontransferable. The terms of any annuity
contract purchased and distributed by the Plan to a Participant or Spouse shall comply with the
requirements of this Plan.




64









 








ARTICLE IX

VESTING




9.1 Employee Contributions



A Participant shall always have a 100% vested and nonforfeitable interest in his or her Elective
Deferrals, Roth Elective Deferrals, Catch-Up Contributions, Voluntary After-tax Contributions,
Required After-tax Contributions, Qualified Voluntary Contributions, Required After-tax
Contributions, Rollover and Transfer Contributions, plus the earnings thereon. No forfeiture of
Employer contributions (including any minimum contributions made under paragraph 14.2) will occur
solely as a result of a Participant’s withdrawal of any Employee contributions. Separate accounts
for each contribution source will be maintained for each Participant. Each account will be
credited with the applicable contributions and earnings thereon.




9.2 Employer Contributions



A Participant shall always have a 100% vested and nonforfeitable interest in any Qualified Matching
Contributions, Qualified Non-Elective Contributions, Safe Harbor Matching Contributions, and Safe
Harbor Non-Elective Contributions made by the Employer, plus the earnings thereon. Separate
accounts for each contribution source will be maintained. A Participant shall acquire a vested and
nonforfeitable interest in his or her account attributable to other Employer contributions in
accordance with the schedule selected in the Adoption Agreement, provided that if a Participant is
not already fully vested, he or she shall become so upon attaining Normal Retirement Age, Early
Retirement Age, on death prior to normal retirement (provided the Participant has not terminated
employment prior to death), on retirement due to Disability, or on termination of the Plan. Any
contributions made on behalf of a Participant with a Disability within the meaning of Code Section
22(e)(3) at the election of the Employer must be fully vested when made. Effective for Plan Years
beginning in 2002, Employer Matching Contributions are subject to the minimum vesting requirements
of Code Section 411 and must satisfy either a three (3) year cliff vesting schedule or a two (2) to
six (6) year graded vesting schedule as elected by the Employer.



Vested Matching Contributions (including Qualified Matching Contributions) will be subject to
forfeiture if the contributions to which they relate are determined to be Excess Deferrals (unless
the Excess Deferrals are for Non-Highly Compensated Employees), Excess Contributions, or Excess
Aggregate Contributions.




9.3 Vesting Of Employer Contributions In A SIMPLE 401(k) Plan



A Participant shall have a 100% vested and nonforfeitable interest in his or her account
attributable to any Employer contributions made under a SIMPLE 401(k) Plan. All previous
contributions made under the Plan shall become nonforfeitable as of the first day of the Plan Year
during which the SIMPLE 401(k) provisions first apply.




9.4 Computation Period



The vesting computation period used for determining Years of Service and Breaks in Service when
calculating the vesting of a Participant means any twelve (12) consecutive month period as elected
in the Adoption Agreement during which an Employee completes the number of Hours of Service (not to
exceed 1,000) as specified in the Adoption Agreement. Alternatively, if the Plan elects the
Elapsed Time method of crediting Service, the vesting computation period for which the Employee
receives credit for a Year of Service will be determined under the Service crediting rules of
paragraph 1.100.




9.5 Requalification Prior To Five Consecutive One-Year Breaks In Service



Subject to Article VI, the account balance of a Participant who is re-employed prior to incurring
five (5) consecutive one (1) year Breaks in Service or Periods of Severance shall consist of any
undistributed amount in his or her account as of the date of re-employment plus any future
contributions added to such account plus the investment earnings on the account. The Vested
Account Balance of such Participant shall be determined by multiplying the Participant’s account
balance (adjusted to include any distribution or redeposit made under paragraph 6.5) by such
Participant’s vested percentage. All Service of the Participant, both prior to and following the
break, shall be counted when computing the Participant’s vested percentage.




9.6 Requalification After Five Consecutive One-Year Breaks In Service



Subject to Article VI, if a Participant was not fully vested prior to termination of employment and
is re-employed after incurring five (5) consecutive one (1) year Breaks in Service or Periods of
Severance, a new account shall be established for such Participant to separate his or her deferred
vested and nonforfeitable account, if any, from the account to which new allocations will be made.
The Participant’s deferred account to the extent remaining shall be fully vested and shall continue
to share in earnings and losses of the Trust. When computing the Participant’s vested portion of
the new account, all pre-break and post-break Service shall be counted. However, notwithstanding
this provision, no such former Participant who has had five (5) consecutive one (1) year Breaks in
Service or Periods of Severance shall acquire a larger vested and nonforfeitable interest in his or
her prior account balance as a result of requalification hereunder.




9.7 Calculating Vested Interest



A Participant’s vested and nonforfeitable interest, as determined by the Plan Administrator shall
be calculated by multiplying the fair market value of his or her account attributable to Employer
contributions on the Valuation Date


65









 






concurrent with or preceding distribution by the decimal equivalent of the vested percentage as of
his or her termination date. The amount attributable to Employer contributions for purposes of the
calculation includes amounts previously paid out pursuant to paragraph 6.5 and not repaid. The
Participant’s vested and nonforfeitable interest, once calculated above, shall be reduced to
reflect those amounts previously paid out to the Participant and not repaid by the Participant.
The Participant’s vested and nonforfeitable interest so determined shall continue to share in the
investment earnings and any increase or decrease in the fair market value of the Trust up to the
Valuation Date preceding or coinciding with payment.




9.8 Forfeitures



Any balance in the account of a Participant who has separated from Service to which he or she is
not entitled under the foregoing provisions, shall be forfeited and applied as provided in the
Adoption Agreement or as set forth in an amendment in the form of an addendum to the Adoption
Agreement. The reallocation or other disposition of a non-vested benefit may only occur if the
Participant has received payment of his or her entire vested benefit from the Plan, if the
Participant has incurred five (5) consecutive one (1) year Breaks in Service, or a deemed cash-out
has occurred. A Participant who is zero percent (0%) vested shall have a deemed cash-out
distribution on the date of the Participant’s separation from Service and shall not be entitled to
an allocation of any forfeitures (if reallocated) of any portion of his account balance or of any
other Participant who has terminated Service in the same or prior Plan Year. A Participant who is
less than 100% vested who receives a distribution will in the year of his or her termination of
Employment receive an allocation of forfeitures unless the Participant fails to satisfy the
Allocation Requirements elected in the Adoption Agreement. If the vested portion of a
Participant’s account balance is not distributed by the end of the second Plan Year after such
Participant’s termination of employment, forfeiture of the non-vested portion of the Participant’s
account balance may not take place until such Participant has incurred five (5) consecutive one (1)
year Breaks in Service. While awaiting reallocation or other disposition, the Plan Administrator
or his designate, if applicable, shall have the right to leave the non-vested benefit in the
Participant’s account or may transfer the non-vested benefit to a forfeiture suspense account.
Amounts held in a forfeiture suspense account may share in any increase or decrease in fair market
value of the assets of the Trust in accordance with Article V of the Plan. The Plan Administrator
or his designate shall make such determination, if applicable.



If a Participant’s account balance is forfeited prior to five (5) consecutive one (1) year Breaks
in Service, the amount necessary to restore the account balance to a Participant will be obtained
from one of the following sources: current Plan Year’s forfeitures; an additional Employer
contribution; or earnings on investments for the applicable Plan Year, as determined by the Plan
Administrator. For purposes of this paragraph, if the value of a Participant’s Vested Account
Balance is zero (0), the Participant shall be deemed to have received a distribution of his or her
Vested Account Balance.



A Highly Compensated Employee’s Matching Contributions may be forfeited, even if vested, if the
contributions to which they relate are Excess Deferrals, Excess Contributions or Excess Aggregate
Contributions.



Benefits with respect to Participants who cannot be located as provided at paragraph 7.15 hereof
will be treated in the same manner as a forfeiture. If any Participant’s vested account balance is
forfeited because the Participant or Beneficiary cannot be found, such benefit will be reinstated
if a claim is made by the Participant or Beneficiary.




9.9 Amendment Of Vesting Schedule



No amendment to the Plan shall have the effect of decreasing a Participant’s Vested Account Balance
determined without regard to such amendment as of the later of the date such amendment is adopted
or the date it becomes effective. Further, if the vesting schedule of the Plan is amended, or the
Plan is amended in any way that directly or indirectly affects the computation of any Employee’s
nonforfeitable percentage or if the Plan is deemed amended by an automatic change to or from a
Top-Heavy vesting schedule, each Employee with at least three (3) Years of Service with the
Employer may elect, during the election period defined herein, to have his or her nonforfeitable
percentage computed under the Plan without regard to such amendment. For Participants who do not
have at least one (1) Hour of Service in any Plan Year beginning after 1988, the preceding sentence
shall be applied by substituting “five (5) Years of Service” for “three (3) Years of Service” where
such language appears. The period during which the election may be made shall commence with the
date the amendment is adopted and shall end on the later of:




     (a) sixty (60) days after the amendment is adopted,



     (b) sixty (60) days after the amendment becomes effective, or



     (c) sixty (60) days after the Participant is issued written notice of the amendment by the
Employer or the Trustee.


Should the Trustee notify the Participants involved, the Plan may be charged for the costs
incurred.



No amendment to the Plan shall be effective to the extent that it has the effect of decreasing a
Participant’s accrued benefit. Notwithstanding the preceding sentence, a Participant’s account
balance may be reduced to the extent permitted under Code Section 412(c)(8) relating to financial
Hardships. For purposes of this paragraph, a Plan


66









 






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.



Furthermore, if the vesting schedule of a Plan is amended, in the case of an Employee who is a
Participant as of the later of the date such amendment is adopted or the date it becomes effective,
the nonforfeitable percentage (determined as of such date) of such Employee’s Employer-derived
accrued benefit will not be less than the percentage computed under the Plan without regard to such
amendment.



No amendment to the Plan shall be effective to eliminate or restrict an optional form of benefit.
The preceding sentence shall not apply to a Plan amendment that eliminates or restricts the ability
of a Participant to receive payment of his or her account balance under a particular form of
benefit if the amendment satisfies the condition in (d) below:




     (d) The amendment provides a single sum distribution form that is otherwise identical to the
optional form of benefit restricted. For purposes of this condition, a single-sum distribution
form is otherwise identical only if it is identical in all respects to the eliminated or restricted
optional form of benefit (or would be identical except that it provides greater rights to the
Participant) except with respect to the timing of payments after commencement.



9.10 Service With Controlled Groups



All Years of Service with all members of a controlled group of corporations [as defined in Code
Section 414(b) as modified by Code Section 415(h)], all commonly controlled trades or businesses
[as defined in Code Section 414(c) as modified by Code Section 415(h)], or members of an affiliated
service group [as defined in Code Section 414(m)] of which the Employer is a part, and any other
entity required to be aggregated with the Employer pursuant to Regulations under Code Section
414(o), shall be considered for purposes of determining a Participant’s nonforfeitable percentage.




9.11 Compliance With Uniformed Services Employment And Reemployment Rights Act Of 1994



Notwithstanding any provision of this Plan to the contrary, Years of Service for vesting will be
credited to Participants with respect to periods of qualified military service as provided in Code
Section 414(u).




67









 








ARTICLE X

LIMITATIONS ON ALLOCATIONS




10.1 Maximum Annual Additions



In general, for purposes of applying the limitations in this Article, Compensation for a Limitation
Year is the Compensation actually paid or made available in gross income during such Limitation
Year. For Limitation Years beginning before January 1, 2002, the maximum Annual Addition that may
be contributed or allocated to a Participant’s Account under the Plan for any Limitation Year shall
not exceed the lesser of:




     (a) the Defined Contribution Dollar Limitation, or



     (b) twenty-five percent (25%) of the Participant’s Compensation (as elected in the Adoption
Agreement) for the Limitation Year.


For Limitation Years beginning on or after January 1, 2002, except to the extent permitted under
paragraph 4.7 and under Code Section 414(v), the Annual Addition that may be contributed or
allocated to a Participant’s account under the Plan for any Limitation Year beginning after
December 31, 2001 shall not exceed the lesser of:




     (c) $40,000, as adjusted for increases in the cost-of-living under Code Section 415(d), or



     (d) 100% of the Participant’s Compensation (as elected in the Adoption Agreement), within the
meaning of Code Section 415(c)(3), for the Limitation Year.


The Compensation limit referred to in (b) and (d) above shall not apply to any contribution for
medical benefits after separation from Service [within the meaning of Code Section 401(h) or Code
Section 419A(f)(2)] that is otherwise treated as an Annual Addition.



If a short Limitation Year is created because of an amendment changing the Limitation Year to a
different twelve (12) consecutive month period, the Maximum Permissible Amount will not exceed the
Defined Contribution Dollar Limitation multiplied by a fraction, the numerator of which is the
number of months in the short Limitation Year, and the denominator of which is twelve (12).




10.2 Participation In This Plan Only



If the Participant does not participate in and has never participated in another Qualified Plan, a
Welfare Benefit Fund, individual medical account as defined in Code Section 415(l)(2), or a
Simplified Employee Pension Plan as defined in Code Section 408(k) maintained by the adopting
Employer, which provides an Annual Addition, the amount of Annual Additions which may be credited
to the Participant’s account for any Limitation Year will not exceed the lesser of the Maximum
Permissible Amount or any other limitation contained in this Plan. If the Employer contribution
that would otherwise be contributed or allocated to the Participant’s account would cause the
Annual Additions for the Limitation Year to exceed the Maximum Permissible Amount, the amount
contributed or allocated will be reduced so that the Annual Additions for the Limitation Year will
equal the Maximum Permissible Amount. Prior to determining the Participant’s actual Compensation
for the Limitation Year, the Employer may determine the Maximum Permissible Amount for a
Participant on the basis of a reasonable estimate of the Participant’s 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 Compensation for
the Limitation Year.




10.3 Disposition Of Excess Annual Additions



If there is an Excess Annual Addition due to an error in estimating a Participant’s Compensation
for a Limitation Year under paragraph 10.1, an error in estimating the amount of Elective Deferrals
or Roth Elective Deferrals of the Participant, or as a result of the allocation of forfeitures, the
excess will be distributed to the affected Participant in the following order:




     (a) Any Voluntary or Required After-tax Contributions plus the investment earnings thereon, to
the extent they would reduce the excess, shall be returned to the Participant.



     (b) Simultaneously, with the return of any Voluntary or Required After-tax Contributions (plus
attributable earnings), any associated Employer Matching Contribution(s) plus the investment
earnings thereon that relate to the returned Voluntary or Required After-tax Contributions, to the
extent they would reduce the excess, will be held unallocated in a suspense account.



     (c) Elective Deferrals and/or Roth Elective Deferrals plus the investment earnings thereon
shall be returned to the Participant to the extent they would reduce the excess. Unless elected
otherwise in the Adoption Agreement, Roth Elective Deferrals will be returned next to the extent
they would reduce the excess.



     (d) Simultaneously with the return of the Elective Deferrals or Roth Elective Deferrals (plus
attributable earnings), any associated Employer Matching Contribution(s) plus the investment
earnings thereon that relate to the



68









 







returned Elective Deferrals or Roth Elective Deferrals, to the extent they would reduce the excess,
will be held unallocated in a suspense account. If the Participant is not covered by the Plan at
the end of the Limitation Year, the Plan Administrator will apply the suspense account to reduce
future Employer contributions for all remaining Participants in the next Limitation Year, and each
succeeding Limitation Year until the Excess Annual Addition is eliminated. If a suspense account is
in existence at any time during a Limitation Year, all amounts in the suspense account must be
allocated to Participant accounts before any Employer contributions or any Employee contributions
may be made to the Plan for that Limitation Year. If a suspense account is in existence at any time
during a Limitation Year pursuant to this paragraph, it will not participate in the allocation of
investment gains or losses.



     (e) If, after the application of subparagraphs (a) through (d) an excess still exists, the
excess will be held unallocated in a suspense account. If the Participant is not covered by the
Plan at the end of the Limitation Year, the Plan Administrator will apply the suspense account to
reduce future Employer contributions for all remaining Participants in the next Limitation Year,
and each succeeding Limitation Year until the Excess Annual Addition is eliminated. If a suspense
account is in existence at any time during a Limitation Year, all amounts in the suspense account
must be allocated to Participant accounts before any Employer contributions or any Employee
contributions may be made to the Plan for that Limitation Year. If a suspense account is in
existence at any time during a Limitation Year pursuant to this paragraph, it will not participate
in the allocation of investment gains or losses.



10.4 Participation In Multiple Defined Contribution Plans



The Annual Additions that may be credited to a Participant’s account under this Plan for any
Limitation Year will not exceed the Maximum Permissible Amount. With respect to this Plan, the
Maximum Permissible Amount is reduced by the Annual Additions credited to a Participant’s account
under any other qualified Master or Prototype Defined Contribution Plans, Welfare Benefit funds,
individual medical accounts as defined in Code Section 415(l)(2), Simplified Employee Pension
Plans, and Code Section 403(b) annuity contracts purchased for certain Employees that may be
maintained by the Employer which provide an Annual Addition for the same Limitation Year. If the
Annual Additions with respect to the Participant under other Defined Contribution Plans, Welfare
Benefit funds, individual medical accounts and Simplified Employee Pension Plans maintained by the
Employer are less than the Maximum Permissible Amount and the Employer contribution that would
otherwise be contributed or allocated to the Participant’s account under this Plan would cause the
Annual Additions for the Limitation Year to exceed this limitation, the amount contributed or
allocated under this Plan will be reduced so that the Annual Additions under all such plans and
funds for the Limitation Year will equal the Maximum Permissible Amount. If the Annual Additions
with respect to the Participant under such other Defined Contribution Plans and Welfare Benefit
funds in the aggregate are equal to or greater than the Maximum Permissible Amount, no amount will
be contributed or allocated to the Participant’s account under this Plan for the Limitation Year.
Prior to determining the Participant’s actual Compensation for the Limitation Year, the Employer
may determine the Maximum Permissible Amount for a Participant in the manner described in paragraph
10.1. As soon as 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 Compensation for the Limitation Year. If the Participant is covered under another qualified
Defined Contribution Plan maintained by the Employer which is not a Master or Prototype Plan,
Annual Additions which may be credited to the Participant’s account under this Plan for any
Limitation Year will be limited in accordance with this paragraph as though the other plan were a
Master or Prototype Plan unless the Employer specifies other limitations in the Adoption Agreement.




10.5 Disposition Of Excess Annual Additions Under Two Plans



If a Participant’s Annual Additions under this Plan and such other plans as described in the
preceding paragraph would result in an Excess Annual Additions for a Limitation Year due to an
error in estimating a Participant’s Compensation for a Limitation Year under paragraph 10.4 or as a
result of forfeitures, 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
Plan will be deemed to have been allocated first and then Annual Additions to a Welfare Benefit
Fund or individual medical account as defined in Code Section 415(l)(2) will be deemed to have been
allocated next regardless of the actual Allocation Date. If an Excess Annual Addition was
allocated to a Participant on a Valuation or Allocation Date of this Plan that coincides with a
valuation or allocation date of another plan, the Excess Annual Additions attributed to this Plan
will be the product of:




     (a) the total Excess Annual Additions allocated as of such date, times



     (b) the ratio of:



          (1) the Annual Additions allocated to the Participant for the Limitation Year as of such date
under this Plan, to



          (2) the total Annual Additions allocated to the Participant for the Limitation Year as of such
date under this and all the other qualified Master or Prototype Defined Contribution Plans.


Any Excess Annual Additions attributed to this Plan will be disposed of in the manner described in
paragraph 10.3.




69









 








10.6 Participation In This Plan And A Defined Benefit Plan Prior To January 1, 2000



For Limitation Years beginning prior to January 1, 2000, where the Employer maintained, or at any
time maintained, a qualified Defined Benefit Plan covering any Participant in this Plan, the sum of
the Participant’s Defined Benefit Plan Fraction and Defined Contribution Plan Fraction was limited
to 1.0 in any Limitation Year. For any Plan Year prior to January 1, 2000 during which the Plan
was Top-Heavy, the Defined Benefit and Defined Contribution Plan Fractions were calculated in
accordance with Code Section 416(h) and the Annual Additions that may have been credited to the
Participant’s account under this Plan for any Limitation Year were limited in accordance with the
Adoption Agreement in effect at the time.




70









 








ARTICLE XI

NONDISCRIMINATION TESTING




11.1 General Testing Requirements



With respect to each Plan Year, an Employer’s Plan which offers a Code Section 401(k) cash or
deferred arrangement and any contributions made thereunder must satisfy the Average Deferral
Percentage Test (“ADP Test”) and, if applicable, the Average Contribution Percentage Test (“ACP
Test”). Under each of these tests, the Average Deferral Percentage (ADP) and the Average
Contribution Percentage (ACP) for Highly Compensated Employees may not exceed the ADP and ACP for
Non-Highly Compensated Employees by more than the amount permitted by application of the basic
limit or the alternative limit. These limits are described at paragraphs 11.2 and 11.4 herein. If
the ADP or ACP for Highly Compensated Employees exceeds the basic limit or the alternative limit,
the applicable average for Highly Compensated Employees either must be reduced to the maximum
permitted under the most liberal limit or the average of the Non-Highly Compensated Employees must
be increased.



The reduction in the average is determined in accordance with paragraph 11.7 herein. In lieu of
reducing the applicable average for the Highly Compensated Employees, the Employer may elect to
make an additional Qualified Non-Elective Contribution (“QNEC”) and/or a Qualified Matching
Contribution (“QMAC”) for Non-Highly Compensated Employees to increase their ADP and/or ACP to the
point where the Plan satisfies the ADP and/or the ACP Test. These qualified contributions are
described at paragraph 11.11 herein. Any Plan established under this Basic Plan Document #01 and
associated Adoption Agreement may use different testing methods for the ADP and the ACP Tests
provided the Plan established hereunder does not permit the recharacterization of Excess
Contributions or Excess Elective Deferrals to be used in the ACP Test or permit the use of
Qualified Matching Contributions in the ADP Test.




11.2 ADP Testing Limitations




     (a) Prior Year Testing  — If elected by the Employer in the Adoption Agreement, the ADP for a
Plan Year for Participants who are Highly Compensated Employees for each Plan Year and the Prior
Plan Year’s ADP for Participants who were Non-Highly Compensated Employees for the Prior Plan Year
must satisfy the basic limit set forth in (1) or the alternative limit set forth at (2):



          (1) The ADP for the Plan Year for Participants who are Highly Compensated Employees for the
Plan Year shall not exceed the Prior Plan Year’s ADP for Participants who were Non-Highly
Compensated Employees for the Prior Plan Year multiplied by 1.25; or



          (2) The ADP for a Plan Year for Participants who are Highly Compensated Employees for the Plan
Year shall not exceed the Prior Plan Year’s ADP for Participants who were Non-Highly Compensated
Employees for the Prior Plan Year multiplied by 2.0, provided that the ADP for Participants who are
Highly Compensated Employees does not exceed the ADP for Participants who were Non-Highly
Compensated Employees in the Prior Plan Year by more than two (2) percentage points.



          For the first Plan Year of a Plan where the Plan permits a Participant to make Elective
Deferrals or Roth Elective Deferrals and the Plan is not a successor Plan, for purposes of the
foregoing limits, the Prior Plan Year’s Non-Highly Compensated Employees’ ADP shall be 3%, unless
the Employer has elected in the Adoption Agreement to use the current Plan Year’s ADP for these
Participants.



     (b) Current Year Testing  — If no election is made by the Employer in the Adoption Agreement,
or if so elected by the Employer in the Adoption Agreement, the ADP limits in (1) and (2), above,
will be applied by comparing the current Plan Year’s ADP for Participants who are Highly
Compensated Employees with the current Plan Year’s ADP for Participants who are Non-Highly
Compensated Employees. Once made, the Employer can switch to Prior Year Testing for a Plan Year
only if the Plan has used Current Year Testing for each of the preceding five (5) Plan Years (or if
lesser, the number of Plan Years 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 and a plan using Current Year Testing and the change is made within the
transition period described in Code Section 410(b)(6)(C)(ii).


Contributions taken into account for a Plan Year must be allocated to the Participant’s account on
a day within the Plan Year.




11.3 Special Rules Relating To Application Of The ADP Test




     (a) A Participant is a Highly Compensated Employee for a particular Plan Year if he or she
meets the definition of a Highly Compensated Employee in effect for that Plan Year. Similarly, a
Participant is a Non-Highly Compensated Employee for a particular Plan Year if he or she does not
meet the definition of a Highly Compensated Employee in effect for that Plan Year.



71









 





     (b) The Actual Deferral Percentage for any Participant who is a Highly Compensated Employee
for the Plan Year and who is eligible to have Elective Deferrals or Roth Elective Deferrals (and
QNEC or QMAC, or both, if treated as Elective Deferrals for purposes of the ADP Test) allocated to
his or her accounts under two (2) or more arrangements described in Code Section 401(k), that are
maintained by the Employer, shall be determined as if such Elective Deferrals (and, if applicable,
such QNECs or QMACs, or both) were made under a single arrangement. If a Highly Compensated
Employee participates in two (2) or more cash or deferred arrangements that have different Plan
Years, all Elective Deferrals made during the Plan Year under all such arrangements shall be
aggregated. For Plan Years beginning before 2006, 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 the Regulations issued under Code
Section 401(k) require mandatory disaggregation.



     (c) In the event that this Plan satisfies the requirements of Code Sections 401(k), 401(a)(4),
or 410(b) only if aggregated with one (1) or more other plans, or if one (1) 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 Actual Deferral Percentage of Participants as if all such plans
were a single plan. If more than 10% of the Employer’s Non-Highly Compensated Employees are
involved in a Plan coverage change as defined in Regulations Section 1.401(k)-2(c)(4), then any
adjustments to the Non-Highly Compensated Employee ADP for the Prior Plan Year will be made in
accordance with such Regulations, unless the Employer has elected in the Adoption Agreement 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.



     (d) The Employer shall maintain records sufficient to demonstrate satisfaction of the ADP Test
and the amount of QNECs or QMACs, or both, used in such test.



     (e) For purposes of the ADP Test, Elective Deferrals, Roth Elective Deferrals, QNECs and QMACs
must be made before the end of the twelve (12) month period immediately following the Plan Year to
which the contributions relate.



     (f) A Plan may adopt a uniform written administrative policy that permits a Highly Compensated
Employee who has made Elective Deferrals for a year where such Elective Deferrals includes both
pre-tax Elective Deferrals and Roth Elective Deferrals to elect whether the Excess Contributions
are to be attributed to pre-tax Elective Deferrals or Roth Elective Deferrals or a combination of
the two. In the event that no such administrative policy is adopted, Excess Contributions will be
first attributed to pre-tax Elective Deferrals, and, if such pre-tax contributions are not in an
amount sufficient to make full correction, will then be attributed to Roth Elective Deferrals.



11.4 ACP Testing Limitations



Employee contributions and Matching Contributions must meet the nondiscrimination requirements of
Code Section 401(a)(4) and the ACP Test of Code Section 401(m). Safe Harbor Contributions are
taken into account for a Plan Year under the ACP Test in accordance with Treasury Regulations
Section 1.401(m)-1(b)(4)(ii)(A). If Employee contributions (including any Elective Deferrals
recharacterized as Voluntary After-tax Contributions) or Matching Contributions are made in
connection with a cash or deferred arrangement, the ACP Test is in addition to the ADP Test under
Code Section 401(k). QMACs and QNECs used to satisfy the ADP Test may not be used to satisfy the
ACP Test.




     (a) Prior Year Testing — If elected by the Employer in the Adoption Agreement, the ACP for a
Plan Year for eligible Participants who are Highly Compensated Employees for each Plan Year and the
Prior Plan Year’s ACP for eligible Participants who were Non-Highly Compensated Employees for the
Prior Plan Year must satisfy one of the following tests:



          (1) The ACP for a Plan Year for Participants who are Highly Compensated Employees for the Plan
Year shall not exceed the Prior Plan Year’s ACP for eligible Participants who were Non-Highly
Compensated Employees for the Prior Plan Year multiplied by 1.25; or



          (2) The ACP for a Plan Year for Participants who are Highly Compensated Employees for the Plan
Year shall not exceed the Prior Plan Year’s ACP for eligible Participants who were Non-Highly
Compensated Employees for the Prior Plan Year multiplied by 2.0, provided that the ACP for eligible
Participants who are Highly Compensated Employees does not exceed the ACP for eligible Participants
who were Non-Highly Compensated Employees in the Prior Plan Year by more than two (2) percentage
points.



          For the first Plan Year of a Plan where this Plan permits any eligible Participant to make
Employee contributions, provides for Matching Contributions, or both, and the Plan is not a
successor Plan, for purposes of the foregoing limits, the Prior Plan Year’s Non-Highly Compensated
Employees’ ACP shall be 3% unless the Employer has elected in the Adoption Agreement to use the
current Plan Year’s ACP for these Participants.



     (b) Current Year Testing — If no election is made by the Employer in the Adoption Agreement,
or if so elected by the Employer in the Adoption Agreement, the ACP limits in (1) and (2), above,
will be applied by



72









 







comparing the current Plan Year’s ACP for eligible Participants who are Highly Compensated
Employees for the Plan Year with the current Plan Year’s ACP for eligible Participants who are
Non-Highly Compensated Employees. Once made, the Employer can elect Prior Year Testing for a Plan
Year only if the Plan has used Current Year Testing for each of the preceding five (5) Plan Years
(or if lesser, the number of Plan Years 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 and a plan using Current Year Testing and the change is made within the
transaction period described in Code Section 410(b)(6)(C)(ii).



11.5 Special Rules Relating To The Application Of The ACP Test




     (a) A Participant is a Highly Compensated Employee for a particular Plan Year if he or she
meets the definition of a Highly Compensated Employee in effect for that Plan Year. Similarly, a
Participant is a Non-Highly Compensated Employee for a particular Plan Year if he or she does not
meet the definition of a Highly Compensated Employee in effect for that Plan Year.



     (b) For Plan Years beginning before 2002, if one or more Highly Compensated Employees
participated in both a cash or deferred arrangement and a plan subject to the ACP Test maintained
by the Employer and the sum of the ADP and ACP of those Highly Compensated Employees subject to
either or both tests exceeded the Aggregate Limit, then the ADP or ACP of those Highly Compensated
Employees who also participated in a cash or deferred arrangement may have been reduced in
accordance with paragraph 11.7 so that the limit was not exceeded. The amount by which each Highly
Compensated Employee’s Contribution Percentage Amounts was reduced was treated as an Excess
Aggregate Contribution. The ADP and ACP of the Highly Compensated Employees was determined after
any corrections required to meet the ADP and ACP Tests and were deemed to be the maximum permitted
under such tests for the Plan Year. Multiple use of the Aggregate Limit did not occur if either
the ADP or ACP of the Highly Compensated employees did not exceed 1.25 multiplied by the ADP and
ACP of the Non-Highly Compensated Employees. The restrictions on multiple use of the Aggregate
Limit do not apply for Plan Years beginning after 2001.



     (c) For purposes of this paragraph, the ACP for any Participant who is a Highly Compensated
Employee and who is eligible to have Contribution Percentage Amounts allocated to his or her
account under two (2) or more plans described in Code Section 401(a) or arrangements described in
Code Section 401(k) that are maintained by the Employer, shall be determined as if the total of
such Contribution Percentage Amounts were made under a single plan or arrangement. If a Highly
Compensated Employee participates in two (2) or more such plans or arrangements that have different
Plan Years, all such plans and arrangements shall be aggregated. For Plan Years beginning before
2006, all such plans and 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 their disaggregation is mandatory under the Regulations issued under Code Section 401(m).



     (d) Notwithstanding paragraphs (b)(2)(vi)(A) and (B) of Regulations Section 1.401(m)-2, a
distribution of Excess Aggregate Contributions is not includible in gross income to the extent it
represents a distribution of Roth Elective Deferrals. However, the income allocable to a
corrective distribution of Excess Aggregate Contributions that are Roth Elective Deferrals is taxed
in the same manner as income allocable to a corrective distribution of Excess Aggregate
Contributions that are not Roth Elective Deferrals.



     (e) In the event that this Plan satisfies the requirements of Code Sections 401(a)(4), 401(m),
or 410(b) only if aggregated with one (1) or more other plans, or if one (1) 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 ACP of eligible Participants as if all such plans were a single
plan. If more than 10% of the Employer’s Non-Highly Compensated Employees are involved in a Plan
coverage change as defined in Regulations Section 1.401(m)-2(c)(4), then any adjustments to the
Non-Highly Compensated Employees ACP for the Prior Plan Year will be made in accordance with such
Regulations, unless the Employer has elected in the Adoption Agreement to use the Current Year
testing method. Plans may be aggregated in order to satisfy Code Section 401(m) only if the
aggregated plans have the same Plan Year and use the same ACP testing method.



     (f) For purposes of the ACP Test, Employee contributions are considered to have been made for
the Plan Year in which contributed to the Plan. Matching Contributions and QMACs and QNECs, if
applicable, will be considered made for a Plan Year if made no later than the end of the twelve
(12) month period beginning on the day after the close of the Plan Year.



     (g) The determination and treatment of the ACP of any Participant shall satisfy such other
requirements as may be prescribed by the Secretary of the Treasury.



     (h) Contribution Percentage Amounts shall mean the sum of the Employee contributions, Matching
Contributions and QMACs (to the extent not taken into account for the purposes of the ADP Test)
made under the Plan on behalf of the Participant for the Plan Year. Such Contribution Percentage
Amounts shall not include Matching Contributions that are forfeited either to correct Excess
Aggregate Contributions or because the contributions to which they relate are Excess Deferrals,
Excess Contributions, or Excess Aggregate Contributions. If



73









 







elected, the Employer may include QNECs in the contribution percentage amounts. The Employer
may also elect to use Elective Deferrals in the Contribution Percentage Amounts so long as the ADP
Test is met before the Elective Deferrals are used in the ACP Test and continues to be met
following the exclusion of those Elective Deferrals that are used to meet the ACP Test.



     (i) Employee contributions shall mean any contribution (other than Roth Elective Deferrals)
made to the Plan by or on behalf of a Participant that is included in the Participant’s gross
income in the year in which made and that is maintained under a separate account to which earnings
and losses are allocated.



     (j) Forfeitures Arising from Failure of the ADP Test. In the event the Plan fails the ADP Test
and Excess Contributions are returned to Highly Compensated Employees, any corresponding Matching
Contributions that are not returned because of a simultaneous failure of the ACP Test (Excess
Aggregate Contributions) shall be forfeited, even if vested, from the Matching Contribution Account
of the affected Highly Compensated Employees. Unless otherwise elected in the Adoption Agreement,
such forfeited amounts shall be first used to reduce Employer Contributions that otherwise would be
made for the Plan Year. If such forfeited amounts exceed the amount of the Employer’s intended
contribution, any such excess shall be allocated to the Matching Contribution Account of each
Non-Highly Compensated Employee who made an Elective Deferral (including Roth Elective Deferrals,
if applicable) or an Voluntary After-tax Contribution, in the ratio that each such Employee’s
Compensation bears to the total Compensation of all such Non-Highly Compensated Employees for that
Plan Year. Forfeitures of Excess Aggregate Contributions will be applied at the end of the Plan
Year in which they occurred and shall not be allocated to the account of any Highly Compensated
Employee.



11.6 Recharacterization



If elected by the Employer in the Adoption Agreement Elective Deferrals allocated to a Highly
Compensated Employee as excess Contributions will be recharacterized. Recharacterization is
permitted only when Voluntary After-tax Contributions are permitted. A Participant may treat his
or her Excess Contributions allocated to him or her as an amount distributed to the Participant and
then contributed by the Participant to the Plan. Recharacterized amounts will remain
nonforfeitable and subject to the same distribution requirements as Elective Deferrals. A Highly
Compensated Employee may not recharacterize an Excess Contribution to the extent that such amount
in combination with other Employee contributions made by that Employee would exceed any stated
limit under the Plan on Employee contributions. Roth Elective Deferrals may not be recharacterized
as Voluntary After-Tax Contributions.



The amount of recharacterization is determined using the ratio leveling method and the Excess
Contribution uses the dollars leveling method. Excess Contributions to be recharacterized are
reduced by Excess Deferrals previously distributed. Recharacterization must occur no later than
two and one-half (21/2) months after the last day of the Plan Year for which such Excess
Contributions arose and is deemed to occur no earlier than the date the last Highly Compensated
Employee is informed in writing of the amount recharacterized and the consequences thereof.
Recharacterized amounts will be taxable to the Participant for the Participant’s tax year in which
the Participant would have received them in cash.




11.7 Calculation And Distribution Of Excess Contributions And Excess Aggregate Contributions




     (a) Reducing The Average For Highly Compensated Employees — If necessary, the ADP and/or ACP
for Highly Compensated Employees must be reduced to the maximum allowed by the applicable limit at
paragraphs 11.2 and 11.4. Excess ACP amounts are determined after determining the amount of Excess
Contributions treated as Employee Contributions due to recharacterization. The average is reduced
on a step-by-step leveling basis beginning by reducing the ADP or the ACP for the Highly
Compensated Employee with the highest percentage until the average is reduced to the maximum
allowed or until the ADP or ACP for such Highly Compensated Employee is lowered to that of the
Highly Compensated Employee with the next highest percentage. This process continues until the ADP
and/or the ACP is lowered to the maximum allowed for the Plan Year. The excess dollar amount
attributable to each affected Highly Compensated Employee is then totaled for purposes of
corrective distributions determined at paragraph (b) below.



     (b) Corrective Distributions To Highly Compensated Employees — The total amount to be
distributed as determined under paragraph (a) is allocated to Highly Compensated Employees on the
basis of the dollar amount included for such Employee in the numerator of the ADP or ACP, as
applicable. The distribution for each affected Highly Compensated Employee is determined on a
leveling basis similar to that described at paragraph (a) except that the process is based on
dollars rather than percentages. Excess Contributions and Excess Aggregate Contributions are
allocated to the Highly Compensated Employees with the largest amount of Employer contributions
taken into account in calculating the ADP or ACP Test for the year in which the excess arose,
beginning with the Highly Compensated Employee with the largest amount of such Employer
contributions and continuing in descending order until all the Excess Contributions and Excess
Aggregate Contributions have been allocated. For purposes of the preceding sentence, the “largest
amount” is determined after distribution of any Excess Contribution and Excess Aggregate
Contributions. After correcting distributions are allocated, it is not necessary to recompute the
Highly Compensated Employee averages to determine if they satisfy the ADP Test and/or the ACP Test.
Distributions of



74









 







Excess Contributions and Excess Aggregate Contributions are to be made in accordance with
paragraphs 11.9 and 11.10.



     (c) Corrective Distributions Attributable To Roth Elective Deferrals — Notwithstanding
paragraphs (b)(2)(vi)(A) and (B) of Regulations Section 1.401(k)-2, a distribution of Excess
Contributions is not includible in gross income to the extent it represents a distribution of Roth
Elective Deferrals. However, the income allocable to a corrective distribution of Excess
Contributions that are Roth Elective Deferrals is included in gross income in the same manner as
income allocable to a corrective distribution of Excess Contributions that are pre-tax Elective
Deferrals.



11.8 Distribution Of Excess Elective Deferrals




     (a) No Participant shall be permitted to defer under this Plan with respect to a calendar year
more than the maximum dollar amount permitted under Code Section 402(g), as indexed, for such
calendar year. If a Participant defers more than the maximum allowed due to mistake of fact, such
Excess Elective Deferrals or Roth Elective Deferrals shall be distributed to the Participant no
later than April 15 following the calendar year to which the excess is attributable. If a
Participant who participates in this Plan and in another plan which permits Elective Deferrals or
Roth Elective Deferrals defers more than the Code Section 402(g) maximum, such Participant shall
have the right to notify one or both plans by March 1 of the calendar year following the year to
which the excess is attributable requesting a distribution of the Excess Elective Deferrals or Roth
Elective Deferrals. A Participant is deemed to notify the Plan Administrator of any Excess
Elective Deferrals that arise by taking into account only those Elective Deferrals made to the
Plan, contract, or arrangement of the Employer. If distribution is requested, the applicable
plan(s) shall make distribution of the Excess Elective Deferrals or Roth Elective Deferrals, plus
any income and minus any loss allocable thereto, no later than April 15 following the calendar year
to which the excess is attributable. Excess Elective Deferrals or Roth Elective Deferrals that are
distributed on a timely basis shall not be considered Annual Additions for the Limitation Year
during which such amounts are deferred.



     (b) Excess Elective Deferrals or Roth Elective Deferrals shall be adjusted for any income or
loss up to the date of distribution. The income or loss allocable to Excess Elective Deferrals or
Roth Elective Deferrals is the sum of (1) income or loss allocable to the Participant’s Elective
Deferral account or Roth Elective Deferral (and if applicable, the QNEC or QMAC account, or both)
for the Plan Year multiplied by a fraction, the numerator of which is such Participant’s Excess
Elective Deferrals or Roth Elective Deferrals for the year and the denominator is the Participant’s
account balance attributable to Elective Deferrals or Roth Elective Deferrals (and QNECs or QMACs,
or both, if any of such contributions are included in the ADP Test) without regard to any income or
loss occurring during such Plan Year; and (2) ten percent (10%) of the amount determined under (1)
multiplied by the number of whole calendar months between the end of the Plan Year and the date of
distribution, counting the month of the distribution if the distribution occurs after the fifteenth
(15th) of such month.



     (c) The amount a Participant receives as a distribution of his or her Excess Elective
Deferrals or Roth Elective Deferrals is includible in income with respect to the taxable year to
which the excess is attributable.



     (d) Any income attributable to the Excess Elective Deferrals or Roth Elective Deferrals
determined in (b) above shall be includible in income with respect to the taxable year in which the
excess is distributed.



     (e) Additionally, if so elected by the Employer in the Adoption Agreement, effective with the
Plan Year beginning with or after January 1, 2006, Excess Elective Deferrals may be recharacterized
as Catch-Up Contributions.



     (f) A distribution of Excess Elective Deferrals is not includible in gross income to the
extent it represents a distribution of designated Roth Elective Deferrals. However, the income
allocable to a corrective distribution of Excess Elective Deferrals that are designated Roth
Elective Deferrals is included in gross income in the same manner as income allocable to a
corrective distribution of Excess Elective Deferrals that are not designated as Roth Elective
Deferrals.



     (g) The Plan Administrator may adopt a uniform written administrative policy that permits a
Participant (including a Highly Compensated Employee) who has made Elective Deferrals for a year
where such Elective Deferrals includes both pre-tax Elective Deferrals and Roth Elective Deferrals
to elect whether the Excess Elective Deferrals, are to be attributed to pre-tax Elective Deferrals
or Roth Elective Deferrals or a combination of the two. In the event that no such administrative
policy is adopted, Excess Elective Deferrals will be first attributed to pre-tax Elective
Deferrals, and if such pre-tax contributions are not in an amount sufficient to make full
correction, will then be attributed to Roth Elective Deferrals.



11.9 Distribution Of Excess Contributions




     (a) Notwithstanding any other provision of the Plan, Excess Contributions plus any income and
minus any loss allocable thereto, shall be distributed to affected Participants no later than the
last day of the Plan Year



75









 







following the Plan Year to which the Excess Contributions are attributable except to the extent
such Excess Contributions are classified as Catch-Up Contributions. Excess Contributions are
allocated to the Highly Compensated Employees with the largest amounts of Employer contributions
taken into account in calculating the ADP Test for the year in which the excess arose, beginning
with the Highly Compensated Employee with the largest amount of such Employer contributions and
continuing in descending order until all the Excess Contributions have been allocated. To the
extent a Highly Compensated Employee has not reached his or her Catch-Up Contribution limit under
the Plan, Excess Contributions allocated to such Highly Compensated Employee are Catch-Up
Contributions and will not be treated as Excess Contributions. If such excess amounts (other than
Catch-Up Contributions) are distributed more than two and one-half (21/2) months after the last day
of the Plan Year to which the excess amounts are attributable, a 10% excise tax will be imposed on
the Employer maintaining the Plan with respect to such amounts.



     (b) Excess Contributions, including any amount recharacterized as a Voluntary After-tax
Contribution, shall be treated as Annual Additions with respect to the Plan Year to which the
excess is attributable, even if distributed.



     (c) Excess Contributions shall be adjusted for any income or loss up to the date of
distribution. The income or loss allocable to Excess Contributions allocated to each Participant
is the sum of (1) income or loss allocable to the Participant’s Elective Deferral or Roth Elective
Deferral Account (and, if applicable, the QNEC Account or the QMAC Account or both) for the Plan
Year multiplied by a fraction, the numerator of which is such Participant’s Excess Contributions
for the year and the denominator is the Participant’s account balance attributable to Elective
Deferrals or Roth Elective Deferrals (and QNECs or QMACs, or both, if any of such contributions are
included in the ADP test) without regard to any income or loss occurring during such Plan Year; and
(2) ten percent (10%) of the amount determined under (1) multiplied by the number of whole calendar
months between the end of the Plan Year and the date of distribution, counting the month of
distribution if the distribution occurs after the fifteenth (15th) of such month. A
Plan may use any reasonable method for computing the income or loss allocable to Excess
Contributions, provided such method is used consistently for all Participants and for all
corrective distributions under the Plan for the Plan Year, and is used by the Plan for allocating
income or loss to Participant’s accounts. For Plan Years beginning before 2006, income or loss
allocable to the period between the end of the Plan Year and the date of distribution could be
disregarded in determining income or loss.



     (d) Excess Contributions shall be distributed from the Participant’s Elective Deferral or Roth
Elective Deferral Account and QMAC Account (if applicable) in proportion to the Participant’s
Elective Deferrals or Roth Elective Deferral and QMACs (to the extent used in the ADP Test) for the
test year. Excess Contributions shall be distributed from the Participant’s QNEC Account only to
the extent that such Excess Contributions exceed the Participant’s Elective Deferrals or Roth
Elective Deferrals and QMACs Account for the applicable test year.



     (e) Under a Plan established under a Davis Bacon Adoption Agreement, the return of an Excess
Contribution which represents contributions made pursuant to a Davis Bacon or prevailing wage
contract shall be reported as additional wages paid to the affected Participant.



     (f) A distribution of Excess Contributions is not includible in gross income to the extent it
represents a distribution of designated Roth Elective Deferrals. However, the income allocable to
a corrective distribution of Excess Contributions that are designated Roth Elective Deferrals is
included in gross income in the same manner as income allocable to a corrective distribution of
Excess Contributions that are not designated as Roth Elective Deferrals.



     (g) A Participant (including a Highly Compensated Employee) who has made Elective Deferrals
for a year where such Elective Deferrals includes both pre-tax Elective Deferrals and Roth Elective
Deferrals to elect whether the, Excess Contributions are to be attributed to pre-tax Elective
Deferrals or Roth Elective Deferrals or a combination of the two. In the event that no election
is made by the Participant, Excess Contributions will be first attributed to pre-tax Elective
Deferrals, and if such pre-tax contributions are not in an amount sufficient to make full
correction, will then be attributed to Roth Elective Deferrals.



11.10 Distribution Of Excess Aggregate Contributions




     (a) Notwithstanding any other provisions of this Plan, Excess Aggregate Contributions, plus
any income and minus any loss allocable thereto, shall be forfeited, if forfeitable or if not
forfeitable, distributed no later than the last day of each Plan Year to Participants to whose
accounts such Excess Aggregate Contributions were allocated for the preceding Plan Year. Excess
Aggregate Contributions are allocated to the Highly Compensated Employees with the largest
Contribution Percentage Amounts taken into account in calculating the ACP Test for the year in
which the excess arose, beginning with the Highly Compensated Employee with the largest amount of
such Contribution Percentage and continuing in descending order until all the Excess Aggregate
Contributions have been allocated. For purposes of the preceding sentence, the “largest amount” is
determined after distribution of any Excess Aggregate Contributions.



76









 





     (b) If such Excess Aggregate Contributions are distributed more than two and one-half (21/2)
months after the last day of the Plan Year in which such excess amount arose, a 10% excise tax will
be imposed on the Employer maintaining the Plan with respect to those amounts. Excess Aggregate
Contributions shall be treated as Annual Additions for purposes of Article X, Limitations On
Allocations, even if distributed.



     (c) Excess Aggregate Contributions shall be adjusted for any income or loss up to the date of
the distribution. The income or loss allocable to the Excess Aggregate Contributions allocated to
each Participant is the sum of (1) income or loss allocable to each Participant’s Employee
contribution account, Matching Contribution Account, QMAC Account (if any, and if all amounts
therein are not used in the ADP Test) and, if applicable, QNEC Account and the Elective Deferral
Account of the Plan Year multiplied by a fraction, the numerator of which is such Participant’s
Excess Aggregate Contributions for the year end the denominator is the Participant’s account
balance(s) attributable to contribution percentage amounts without regard to any income or loss
occurring during such Plan Year; and (2) ten percent (10%) of the amount determined under (1)
multiplied by the number of whole calendar months between the end of the Plan Year and the date of
distribution, counting the month of distribution if distribution occurs after the fifteenth
(15th) of such month.



     (d) Excess Aggregate Contributions shall be forfeited, if forfeitable or distributed first
from the Participant’s Voluntary After-tax Contribution account, if any, then the Required
After-tax Contribution Account, if any, then the vested Matching Contribution Account and QMAC
Account (and if applicable the Participant’s QNEC Account, and/or Elective Deferral, Roth Elective
Deferral Account, or both).



     (e) Forfeitures of Excess Aggregate Contributions may be reallocated to the accounts of other
Participants or applied to reduce Employer contributions.



     (f) Notwithstanding paragraphs (b)(2)(vi)(A) and (B) of Regulations Section 1.401(m)-2, a
distribution of Excess Aggregate Contributions is not includible in gross income to the extent it
represents a distribution of Roth Elective Deferrals. However, the income allocable to a
corrective distribution of Excess Aggregate Contributions that are Roth Elective Deferrals is taxed
in the same manner as income allocable to a corrective distribution of Excess Aggregate
Contributions that are not Roth Elective Deferrals.



     (g) Employee Contributions shall mean any contribution (other than Roth Elective Deferrals)
made to the Plan by or on behalf of a Participant that is included in the Participant’s gross
income in the year in which made and that is maintained under a separate account to which earnings
and losses are allocated.



     (h) A Participant (including a Highly Compensated Employee) who has made Elective Deferrals
for a year where such Elective Deferrals includes both pre-tax Elective Deferrals and Roth Elective
Deferrals to elect whether the Excess Aggregate Contributions and Excess Annual Additions are to be
attributed to pre-tax Elective Deferrals or Roth Elective Deferrals or a combination of the two.
In the event that no election is made by the Participant, Excess Aggregate Contributions will be
first attributed to pre-tax Elective Deferrals, and if such pre-tax contributions are not in an
amount sufficient to make full correction, will then be attributed to Roth Elective Deferrals.



11.11 Qualified Non-Elective And/Or Matching Contributions



The Employer may make a QNEC or QMAC for Non-Highly Compensated Employees to increase the ADP
and/or ACP to the point where the Plan passes the ADP Test and/or the ACP Test. The following
rules apply with respect to such contributions:




     (a) A QNEC or QMAC used in the ADP Test may not also be included in the ACP Test.



     (b) If testing is done on the basis of Current Plan Year data, QNECs and/or QMACs must be made
and credited to Participant accounts not later than the last day of the twelve (12) consecutive
month period following the end of the Plan Year being tested.



     (c) If testing is done on the basis of Prior Plan Year data for Non-Highly Compensated
Employees, QNECs and/or QMACs for such Employees must be contributed not later than the last day of
the Plan Year being tested.



     (d) If the Employer makes Non-Elective Contributions which are not designated as Qualified
Non-Elective Contributions at the time of the contribution to the Plan, the Plan Administrator may
re-designate such contributions as Qualified Non-Elective Contributions if the contributions
otherwise satisfy the requirements of a Qualified Non-Elective Contribution.



     (e) The Employer’s QNEC or QMAC Contribution will be allocated to a group of Non-Highly
Compensated Participants. These contributions shall only be taken into account for a Plan Year for
such Non-Highly Compensated Participant only to the extent any such contribution does not exceed
the greater of:



               (1) 5% of the Participant’s 414(s) Compensation;



77









 





               (2) the Participant’s Elective Deferrals or Roth Elective Deferrals for that
year; and



               (3) the product of two (2) times the Plan’s representative Matching Contribution rate and the
Participant’s Elective Deferrals or Roth Elective Deferrals for that Plan Year.



          For purposes of this paragraph, the Plan’s representative Matching Contribution rate is the
lowest matching rate for any eligible Non-Highly Compensated Employee among a group of Non-Highly
Compensated Employees that consists of half of all eligible Non-Highly Compensated Employees in the
Plan for the Plan Year who make Elective Deferrals or Roth Elective Deferrals for the Plan Year
(or, if greater, the lowest matching rate for all eligible Non-Highly Compensated Employees in the
Plan who are employed by the Employer on the last day of the Plan Year and who make Elective
Deferrals or Roth Elective Deferrals for the Plan Year).



          For purposes of this paragraph, the Matching Contribution rate for a Participant generally is
the Matching Contributions made for such Participant divided by the Participant’s Elective
Deferrals or Roth Elective Deferrals for the Plan Year. If the Matching Contribution rate is not
the same for all levels of Elective Deferrals pr Roth Elective Deferrals or a Participant, the
Participant’s Matching Contribution rate is determined assuming that a Participant’s Elective
Deferrals or Roth Elective Deferrals are equal to 6% of Compensation.



          If a Plan provides a Matching Contribution with respect to the sum of the Participant’s
Employee contributions and Elective Deferrals or Roth Elective Deferrals, that sum is substituted
for the amount of the Participants Elective Deferrals or Roth Elective Deferrals of this paragraph
and Participants who make either Employee Contributions or Elective Deferrals or Roth Elective
Deferrals are taken into account under this paragraph. Similarly, if a Plan provides a Matching
Contribution with respect to the Participant’s Employee contributions, but not to the Participant’s
Elective Deferrals or Roth Elective Deferrals, the Participant’s Employee contributions are
substituted for the amount of the Participant’s Elective Deferrals or Roth Elective Deferrals and
Participants who make Employee contributions are taken into account.



     (f) For purposes of this paragraph, the applicable contribution rate for an eligible
Non-Highly Compensated Participant is the sum of the Qualified Matching Contributions taken into
account under this paragraph for the eligible Non-Highly Compensated Participant for the Plan Year
and the Qualified Non-Elective Contributions made for the eligible Non-Highly Compensated
Participant for the Plan Year, divided by the eligible Non-Highly Compensated Participant’s
Compensation for the same period.



     (g) Notwithstanding anything herein to the contrary, Qualified Non-Elective Contributions that
are made in connection an Employer’s obligation to pay prevailing wages under the Davis-Bacon Act
(45 Stat. 1494), Public Law 71-798, Service Contract Act of 1965 (79 Stat. 1965), Public Law
89-286, or similar legislation can be taken into account for a Plan Year for a Non-Highly
Compensated Participant to the extent such contributions do not exceed 10% of that Non-Highly
Compensated Employee’s Compensation. This exception applies to both the ADP and ACP Test.



     (h) Qualified Matching Contributions satisfy this paragraph only to the extent that such
Qualified Matching Contributions are Matching Contributions that are not precluded from being taken
into account under the ACP Test for the Plan Year under the rules of Regulations Section
1.401(m)-2(a)(5)(ii).



     (i) Qualified Non-Elective Contributions and Qualified Matching Contributions cannot be taken
into account under this paragraph where such contributions are taken into account for purposes of
satisfying any other ADP Test, any ACP Test, or the requirements of Regulations Section 1.401(k)-4.
Matching Contributions that are made pursuant to Regulations 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 Regulations Sections 1.401(k)-2(c), Qualified
Non-Elective Contributions that are taken into account under the Current Year testing method for a
Plan Year may not be taken into account under the Prior Year testing method for the next Plan Year.



     (j) If the Employer has elected in the Adoption Agreement to use the Current Year Testing
method, in lieu of distributing Excess Contributions as provided in paragraph 11.6, or Excess
Aggregate Contributions as provided in paragraph 11.7, and to the extent elected by the Employer in
the Adoption Agreement, the Employer will make a QNEC on behalf of Participants that is sufficient
to satisfy the ADP Test and the ACP Test. QNECs will be allocated either to all Participants or
only to Participants who are Non-Highly Compensated Employees, as elected by the Employer in the
Adoption Agreement, in the ratio in which each such Participant’s Compensation for the Plan Year
bears to the total Compensation of all such Participants for such Plan Year.



11.12 Nondiscrimination Tests In A SIMPLE 401(k) Plan



The ADP/ACP Tests described this Article XI are treated as satisfied for any Plan Year for which
the Employer has adopted and complied with the provisions of the SIMPLE 401(k) Adoption Agreement.




78









 








11.13 Safe Harbor 401(k) Plan Rules Of Application




     (a) The Employer may elect in a cash or deferred adoption agreement to apply the safe harbor
401(k) plan provisions found in paragraphs 11.13 through 11.19. Except as otherwise permitted, an
Employer must elect the Safe Harbor Plan provisions and must satisfy the notice requirements of
paragraph 11.19 prior to the beginning of the Plan Year to which the Safe Harbor provisions will be
applied. The Employer must apply the Safe Harbor provisions for the entire Plan Year [which shall
be at least twelve (12) months long], including any short Plan Year. An Employer who elects in the
Adoption Agreement and operationally satisfies the Safe Harbor provisions of paragraphs 11.13
through 11.19 is not subject to the nondiscrimination requirements of paragraph 11.2. An Employer
who elects to provide additional Matching Contributions as set forth in paragraph 11.17 will be
subject to the nondiscrimination provisions of paragraph 11.4, unless the additional Matching
Contributions satisfy the ACP Test safe harbor provisions in paragraph 11.17.



     (b) The Employer may elect in the Adoption Agreement either to make a Safe Harbor Non-Elective
Contribution on behalf of each eligible Employee who is eligible to participate in the Plan, or to
make a Safe Harbor Matching Contribution on behalf of each eligible Employee who is eligible to
participate in the Plan and who is making Elective Deferrals or Roth Elective Deferrals. A Plan
intending to satisfy the requirements of Code Sections 401(k)(12) and 401(m)(11) (a “Safe Harbor
CODA”) generally must satisfy such requirements, including the notice requirement, for the entire
Plan Year.



     (c) The Safe Harbor Non-Elective Contribution that will be made on behalf of each eligible
Employee who is eligible to participate in the Plan will be equal to at least 3% of the Employee’s
Compensation.



     (d) The Safe Harbor Matching Contribution shall be made under the Basic Matching Formula or an
Enhanced Matching Formula as described below.



          (1) Basic Matching Contribution Formula — The Basic Matching Formula provides a Matching
Contribution on behalf of each eligible Employee who is making Elective Deferrals or Roth Elective
Deferrals to the Plan in an amount equal to 100% of the amount of the Employee’s Elective
Deferrals or Roth Elective Deferrals that do not exceed 3% of the Employee’s Compensation and 50%
of the amount of the Employee’s Elective Deferrals or Roth Elective Deferrals that exceed 3% of the
Employee’s Compensation but do not exceed 5% of the Employee’s Compensation. A Plan satisfying the
ADP Safe Harbor using the Basic Matching Formula automatically satisfies the ACP Test, if no
Voluntary After-tax Contributions or other Matching Contribution is made under the Plan.



          (2) Enhanced Matching Formula — The Enhanced Matching Formula provides a Matching Contribution
on behalf of each Eligible Employee who is making Elective Deferrals or Roth Elective Deferrals to
the Plan under a formula that, at any rate of Elective Deferrals or Roth Elective Deferrals
provides an aggregate amount of Matching Contributions at least equal to the aggregate amount of
Matching Contributions that would have been provided under the Basic Matching Formula. In no event
shall the aggregate amount of Matching Contributions under an Enhanced Matching Formula exceed 6%
of an eligible Employee’s Compensation. Under the Enhanced Matching Formula, the rate of Matching
Contributions may not increase as a Participant’s rate of Elective Deferrals or Roth Elective
Deferrals increases. A Plan satisfying the ADP Safe Harbor using the Enhanced Matching Formula
under which Matching Contributions made with respect to Elective Deferrals or Roth Elective
Deferrals that are not made in excess of 6% of the eligible Employee’s Compensation, automatically
satisfies the ACP Test if no Voluntary After-tax Contributions or other Matching Contribution is
made under the Plan.



          (3) Additional Discretionary Matching Contribution — An Employer may elect in the Adoption
Agreement to provide an additional discretionary Matching Contribution. Any such contribution
cannot exceed 4% of a Participant’s Compensation. This is a limit on the total Matching
Contribution formula, and is not a limit on the percentage of Compensation which is deferred and
taken into account under the matching formula.



          (4) Limitation On Matching Contributions To Highly Compensated Employees — The Matching
Contribution requirement will not be satisfied if, at any rate of Elective Deferrals or Roth
Elective Deferrals, the rate of Matching Contributions that would apply with respect to any Highly
Compensated Employee who is making Elective Deferrals or Roth Elective Deferrals under the Plan is
greater than the rate of Matching Contributions that would apply with respect to any Non-Highly
Compensated Employee who is making Elective Deferrals or Roth Elective Deferrals to the Plan and
who has the same rate of Elective Deferrals or Roth Elective Deferrals.



11.14 Safe Harbor 401(k) Plan Definitions




     (a) “ACP Test Safe Harbor” is the method described in paragraph 11.17 for satisfying the ACP
Test of Code Section 401(m)(2).



     (b) “ACP Test Safe Harbor Matching Contributions” are Matching Contributions described in
paragraph 11.15.



79









 





     (c) “ADP Test Safe Harbor” is the method described in paragraph 11.16 for satisfying the ADP
Test of Code Section 401(k)(3).



     (d) “ADP Test Safe Harbor Contributions” are Matching Contributions and Non-Elective
Contributions described in paragraph 11.15.



     (e) “Compensation” is defined in paragraph 1.17 with no dollar limit other than the limit
imposed by Code Section 401(a)(17) as it applies to the Compensation of a Non-Highly Compensated
Employee. Solely for purposes of determining the Compensation subject to a Participant’s Salary
Deferral Agreement, the Employer may use an alternative definition to the one described in the
preceding sentence, provided such alternate definition is a reasonable definition with the meaning
of Regulations Section 1.414(s)-1(d)(2), and permits each Participant to elect sufficient Elective
Deferrals or Roth Elective Deferrals to receive the maximum amount of Matching Contributions
(determined using the definition of Compensation described in the preceding sentence) available to
the Participant under this Plan.



     (f) “Eligible Employee” means an Employee eligible to make Elective Deferrals or Roth Elective
Deferrals under the Plan for any part of the Plan Year or who would be eligible to make Elective
Deferrals or Roth Elective Deferrals but for a suspension due to a Hardship distribution described
in paragraph 6.11 or to statutory limitations, such as Code Sections 402(g) and 415.



     (g) “Matching Contributions” are contributions made by the Employer on account of an Eligible
Employee’s Elective Deferrals or Roth Elective Deferrals.



11.15 Required Restrictions On Safe Harbor 401(k) Contributions




     (a) Safe Harbor Matching Contributions and Safe Harbor Non-Elective Contributions are Matching
and Non-Elective Contributions respectively, that are:



          (1) nonforfeitable within the meaning of Treasury Regulations Section 1.401(k)-1(c),



          (2) subject to the distribution restrictions of Code Section 401(k)(2)(B) and Treasury
Regulations Section 1.401(k)-1(d), and



          (3) used to satisfy the Safe Harbor 401(k) Contribution requirements.



     (b) Pursuant to Code Section 401(k)(2)(B) and Treasury Regulations Section 1.401(k)-1(d), such
contributions (and earnings thereon) must not be distributable earlier than severance from
employment (separation from Service for Plan Years beginning before 2002), death, Disability, an
event described in Code Section 401(k)(10), or in the case of a profit-sharing or stock bonus plan,
the attainment of age 591/2. Pursuant to Code Section 401(k)(2)(B) and Treasury Regulations Section
1.401(k)-1(d)(2)(ii), these contributions shall not be eligible for distribution for reasons of
Hardship. A Plan electing to use either of the Safe Harbor Matching or the Safe Harbor
Non-Elective Contribution provisions shall not require that an Employee be employed on the last day
of the Plan Year or impose an hourly requirement in order for the Employee to be eligible to
receive a Safe Harbor Matching Contribution or a Safe Harbor Non-Elective Contribution.



     (c) Such contributions must satisfy the ADP Test Safe Harbor without regard to permitted
disparity under Code Section 401(l).



     (d) Safe Harbor Matching or Safe Harbor Non-Elective Contributions cannot be used to satisfy
the Safe Harbor Contribution requirements with respect to more than one (1) Plan. Similarly, a
cash or deferred arrangement will not fail to satisfy the requirement of this paragraph (d) if it
is added to an existing profit-sharing, stock bonus, or pre-ERISA money purchase pension plan for
the first time during that year provided that:



          (1) The plan is not a successor plan; and



          (2) The cash or deferred arrangement is made effective no later than three (3) months prior to
the end of the Plan Year.



     (e) A Plan will fail to satisfy the ADP Test Safe Harbor or the ACP Test Safe Harbor for a
Plan Year unless the Plan Year is twelve (12) months in duration or in the case of the first Plan
Year of a newly established Plan (other than a successor Plan), the Plan Year is at least three (3)
months in duration (or any shorter period in the case of a newly established Employer that
establishes the Plan as soon as administratively feasible after the Employer came into existence).
If the Employer amends an existing Defined Contribution Plan to offer the Safe Harbor provisions,
the 401(k) arrangement of the Plan must be at least three (3) months in duration.



80









 





     (f) If the Safe Harbor provisions are an amendment and restatement of an existing Plan, any
contributions made prior to the adoption of the Safe Harbor provisions which are subject to a
vesting schedule will continue to vest according to the vesting schedule in effect prior to the
amendment or restatement of the Plan.



     (g) A Plan that has a short Plan Year as a result of changing its Plan Year will not fail to
satisfy the requirements of this paragraph section merely because the Plan Year has less than
twelve (12) months, provided that:



          (1) The Plan would satisfy the requirements of this section for the immediately preceding Plan
Year; and



          (2) The Plan satisfies the requirements of this section [determined without regard to the
notice requirement for the immediately following Plan Year or for the immediately following twelve
(12) months if the immediately following Plan Year is less then twelve (12) months].



     (h) A Plan that terminates during a Plan Year will not fail to satisfy the requirements of
this paragraph merely because the final Plan Year is less than twelve (12) months, provided that
the Plan satisfies the requirement of this section through the date of termination and either:



          (1) The Plan satisfied the notice requirements of this paragraph treating the termination of
the Plan as a reduction or suspension of Safe Harbor Matching Contributions, other than the
requirement that Employees have a reasonable opportunity to change their cash or deferred elections
and, if applicable, Employee contribution elections; or



          (2) The Plan termination is in connection with a transaction described in Code Section
410(b)(6)(C) or the Employer incurs a substantial business hardship comparable to a substantial
business hardship described in Code Section 412(d).



11.16 ADP Test Safe Harbor




     (a) The Employer may elect in the Adoption Agreement to make Basic Safe Harbor Matching
Contributions, Enhanced Safe Harbor Matching Contributions or Safe Harbor Non-Elective
Contributions to this Plan or to another Defined Contribution Plan as indicated in the Adoption
Agreement.



     (b) Notwithstanding the requirement in subparagraph 11.16(a) above that the Employer make the
ADP Test Safe Harbor Contributions to the Defined Contribution Plan indicated in the Adoption
Agreement, such Safe Harbor Contributions will be made to this Plan unless each Employee eligible
under this Plan is also eligible under the other Plan and the other Plan has the same Plan Year as
this Plan, this Plan is established under a Nonstandardized Adoption Agreement, and complies with
the requirements of paragraph 11.20.



     (c) The Participant’s accrued benefit derived from ADP Test Safe Harbor Contributions is
nonforfeitable and may not be distributed earlier than severance from employment (separation from
service, for Plan Years beginning before 2002), death, Disability, an event described in Code
Section 401(k)(10), or, in the case of a profit-sharing plan, the attainment of age 591/2.



11.17 ACP Test Safe Harbor



The Employer maintaining a 401(k) Plan may elect in the Adoption Agreement to make additional
Matching Contributions in addition to the Safe Harbor Matching Contributions made to the Plan.
These additional Matching Contributions will be subject to the ACP Test Safe Harbor requirements
instead of testing the contributions under paragraph 11.4. The ACP Test Safe Harbor will be
satisfied if the following conditions are met:




     (a) no Matching Contribution may be made with respect to a Participant’s Elective Deferrals or
Roth Elective Deferrals and/or Voluntary After-tax Contributions which exceed 6% of Compensation;



     (b) the amount of any discretionary Matching Contribution made after the 1999 Plan Year shall
not exceed 4% of the Participant’s Compensation;



     (c) the rate of Matching Contributions made to the Plan may not increase as the rate of
Elective Deferrals or Roth Elective Deferrals increase;



     (d) no Highly Compensated Employee may receive a greater rate of match than a Non-Highly
Compensated Employee;



     (e) Matching Contributions used in the ACP Test Safe Harbor will be vested as indicated in the
Adoption Agreement, but, in any event, such contributions shall be fully vested at Death,
attainment of Normal Retirement or Early Retirement, if applicable, upon the complete or partial
termination of the Plan, or upon the complete discontinuance of Employer contributions.
Forfeitures of nonvested ACP Test Safe Harbor Matching



81









 







Contributions will be used to reduce the Employer’s contribution of such ACP Test Safe Harbor
Matching Contributions; and



     (f) Matching Contributions used in the ACP Test Safe Harbor will be vested accordance with a
vesting schedule that complies with Code Section 411(a)(12) as elected in the Adoption Agreement.
For Plan Years beginning before 2002, Matching Contributions could be vested according to any
vesting schedule that satisfied Section 411(a)(2) [Code Section 416(b), if the Plan was top-heavy].


The Participant’s accrued benefit derived from ACP Test Safe Harbor Contributions is nonforfeitable
and may not be distributed earlier than severance from employment (separation from Service for Plan
Years beginning before 2002), death, Disability, an event described in Code Section 401(k)(10), or
in the case of a profit-sharing plan, the attainment of age 591/2. In addition, such contributions
must satisfy the ACP Test Safe Harbor without regard to permitted disparity under Code Section
401(l).



Effective as of the first day of the 2006 Plan Year, if the Employer has elected in the Adoption
Agreement other eligibility requirements, any additional Matching Contributions may be subject to
the testing requirements of paragraph 11.4 rather than the Safe Harbor rules of paragraph 11.13.
The testing requirements of paragraph 11.4 will apply in any year that a Non-Highly Compensated
Employee fails to receive the required Matching Contribution.




11.18 Safe Harbor 401(k) Status



The Employer may amend a profit-sharing or Code Section 401(k) plan during a Plan Year to comply
with the Safe Harbor provisions of this Article for a Plan Year. In order to comply with these
provisions, the Employer must:




     (a) use the Current Year testing method;



     (b) amend the Plan to add the Safe Harbor provisions no later than thirty (30) days prior to
the end of the Plan Year and apply the Safe Harbor provisions for the entire Plan Year;



     (c) satisfy the Safe Harbor contribution requirements using the Safe Harbor Non-Elective
Contribution;



     (d) provide the Safe Harbor notice to Participants prior to the beginning of the Plan Year for
which the Plan amendment applies which indicates the Employer will provide Basic or Enhanced
Matching Contributions or indicates that the Employer may later amend the Plan to comply with the
Safe Harbor provisions by use of the Safe Harbor Non-Elective Contribution;



     (e) provide an additional notice to Participants at least thirty (30) days prior to the end of
the Plan Year only in the case of Safe Harbor Non-Elective Contribution advising Participants of
the amendment; and



     (f) actually provide the notice described in (e) above, should the Employer amend the Plan to
comply with the Safe Harbor requirements.


A Safe Harbor 401(k) Plan may be amended during a Plan Year to reduce or entirely eliminate on a
prospective basis any Safe Harbor Contribution which is either a Basic or Enhanced Matching
Contribution conditioned on the Employer providing a notice to the Participants which explains the
effect of the amendment and specifies the following:




     (g) informs the Participants they will have the opportunity to amend their Salary Deferral
Agreements;



     (h) the Effective Date of the amendment is specified;



     (i) Participants are given the opportunity prior to the Effective Date of the amendment to
amend their Salary Deferral Agreement; and



     (j) the amendment to the Plan does not take effect until the later of thirty (30) days after
the notice of the amendment is provided to the Participant or the date the Employer adopts the
amendment.


An Employer who amends a Safe Harbor Plan to either reduce or eliminate the Safe Harbor Matching
Contribution under this paragraph or terminates the Plan during the Plan Year, must continue to
comply with all of the Safe Harbor requirements of this paragraph until the amendment or Plan
termination becomes effective. The Plan must continue to use the Current Year testing method for
the entire Plan Year and satisfy the nondiscrimination test under paragraph 11.2, and if applicable
the nondiscrimination tests under paragraph 11.4.



11.19 Safe Harbor 401(k) Notice Requirement



The notice requirement is satisfied if each Eligible Employee is given an annual written notice of
the Employee’s rights and obligations under the Plan and the notice provided to the Employee
satisfies the content requirement and the timing requirement as follows:



82









 










     (a) The notice shall be sufficiently accurate and comprehensive to inform the Employee of the
Employee’s rights and obligations under the Plan and written in a manner calculated to be
understood by the average Employee eligible to participate in the Plan. The notice shall
accurately describe:



          (1) the Safe Harbor Matching or Non-Elective Contribution Formula (including a description of
the levels of Matching Contributions, if any, available under the Plan);



          (2) any other contributions under the Plan (including the potential for discretionary Matching
Contributions) and the conditions under which such contributions are made;



          (3) the Plan to which the Safe Harbor Contributions will be made (if different than the Plan
containing the cash or deferred arrangement);



          (4) the type and amount of Compensation that may be deferred under the Plan;



          (5) how to make cash or deferred elections, including any administrative requirements that
apply to such elections;



          (6) the periods available under the Plan for making cash or deferred elections; and



          (7) withdrawal and vesting provisions applicable to contributions under the Plan.



     (b) If the notice is provided to eligible Employees within a reasonable period before the
beginning of each Plan Year (or in the Plan Year an Employee becomes eligible within a reasonable
period before the Employee becomes eligible), the Plan shall satisfy the Safe Harbor notice
requirements. Notwithstanding the foregoing general rule, a notice shall be deemed to have been
provided in timely manner if the notice is provided to each Employee who is eligible to participate
in the Plan for the Plan Year at least thirty (30) days [but no more than ninety (90) days] before
the beginning of the Plan Year. If an Employee does not receive the notice because he or she only
becomes eligible to participate in the Plan after the ninetieth day before the beginning of the
Plan Year, the requirement to give the notice will be satisfied if the notice is provided not more
than ninety (90) days before the Employee becomes eligible to participate, but in no event later
than the date the Employee becomes eligible. The preceding sentence shall apply in the case of any
Employee eligible for the first Plan Year in which an Employee becomes eligible under an existing
Code Section 401(k) cash or deferred arrangement.



     (c) In addition to any other election periods provided under the Plan, each eligible Employee
may make or modify a deferral election during the thirty (30) day period immediately following
receipt of the notice described above.



     (d) The Plan may provide the Safe Harbor notice in writing or by electronic means. If
provided electronically, the notice must be no less understandable than a written paper document
and at the time of delivery of the electronic notice, the Employee is advised that he or she may
request to receive the notice in writing at no additional charge. Supplemental notices may also be
given electronically under the same conditions.



     (e) The Plan may also comply with the notice requirements by use of the Summary Plan
Description. The Safe Harbor notice must cross-reference the applicable sections in the Summary
Plan Description. The information which may be contained in the Summary Plan Description, as well
as the notice, is the Safe Harbor Contribution Formula, including a description of the levels of
Matching Contributions, if any, how to make salary deferral elections, including any administrative
requirements that apply to such elections, and the periods available under the Plan for making
deferral elections.



11.20 Satisfying Safe Harbor 401(k) Contribution Requirements Under Another Defined Contribution
Plan




     (a) General Requirements — A Safe Harbor Matching or Safe Harbor Non-Elective Contribution
may be made to this Plan or to another Defined Contribution Plan maintained by the Employer that
satisfies Code Sections 401(a) or 403(a). The Employer electing this option shall do so by
identifying the plan that makes the Safe Harbor Contribution in the Adoption Agreement. If the
Safe Harbor Contributions are made to another Defined Contribution Plan, the Safe Harbor
Contribution requirements must be satisfied in the same manner as if the contributions were being
made to this Plan. A Safe Harbor Contribution made to another Defined Contribution Plan shall not
satisfy this Safe Harbor requirement unless each Employee eligible to participate in this Plan is
eligible to participate in the other Defined Contribution Plan under the same terms and conditions,
and this Plan is established under a Nonstandardized Adoption Agreement.



     (b) Same Plan Year Requirement - In order to satisfy the Safe Harbor Contribution
requirements, this Plan and the other Defined Contribution Plan to which the Safe Harbor
Contribution is to be made must have the same Plan Year.




83









 






     (c) Aggregation And Disaggregation Rules — The rules that apply for purposes of aggregating
and disaggregating cash or deferred arrangement and Plans under Code Sections 401(k) and 401(m)
also apply for purposes of Code Sections 401(k)(12) and 401(m)(11), respectively. All cash or
deferred arrangements included in a Plan are treated as a single cash or deferred arrangement that
must satisfy the Safe Harbor Contribution and notice requirements. Moreover, two (2) Plans within
the meaning of Regulations Section 1.410(b)-7(b) that are treated as a single Plan pursuant to the
permissive aggregation rules of Regulation Section 1.410(b)-7(d) are treated as a single Plan for
purposes of the Safe Harbor requirements. Conversely, a Plan [within the meaning of Code Section
414(l)] that includes a cash or deferred arrangement covering both collectively bargained employees
and non-collectively bargained employees is treated as two (2) separate plans for purposes of Code
Section 401(k), and the ADP Safe Harbor need not be satisfied with respect to both plans in order
for one (1) of the plans to take advantage of the ADP Test Safe Harbor. Similarly, if pursuant to
Code Section 410(b)(4)(B), an Employer applies Code Section 410(b) separately to the portion of the
plan [within the meaning of Code Section 414(l)] that benefits only Employees who satisfy age and
Service conditions under the plan that are lower than the greatest minimum age and Service
conditions permitted under Code Section 410(a), the Plan is treated as two (2) separate plans for
purposes of Code Section 401(k), and the ADP Test Safe Harbor need not be satisfied with respect to
both plans in order for one (1) of the plans to take advantage of the ADP Test Safe Harbor.



84









 





ARTICLE XII

ADMINISTRATION




12.1 Plan Administrator



The Plan shall be administered by the Plan Administrator who shall have the authority to enforce
the Plan on behalf of any persons having or claiming any interest under the Plan and who shall be
responsible for the operation of the Plan in accordance with its terms. The Plan Administrator
shall be the “named fiduciary” for purposes of ERISA Section 402(a)(2) with the sole authority to
control and manage the operation and administration of the Plan, and will be responsible for
complying with the reporting and disclosure requirements of Part 1 of Subtitle B of Title I of
ERISA and, unless the Employer has otherwise designated, shall act as agent for service of legal
process with respect to the Plan. The Plan Administrator shall determine by rules of uniform
application all questions arising out of the administration, interpretation and application of the
Plan which determination(s) shall be conclusive and binding on all parties. The Employer will
serve as Plan Administrator unless an individual or other entity (excluding the Trustee or
Custodian, unless they are the Employer sponsoring the Plan) is named to serve in such capacity.
The Plan Administrator may appoint or allocate the duties of the Plan Administrator among several
individuals or entities. The Plan Administrator’s duties shall include:




     (a) appointing the Plan’s attorney, accountant, Service Provider, actuary, or any other party
needed to administer the Plan;



     (b) directing the appropriate party with respect to payments from the Trust;



     (c) communicating with Employees regarding their participation and benefits under the Plan,
including the administration of all claims procedures;



     (d) maintaining all necessary records for the administration of the Plan, nondiscrimination
testing, and filing any returns and reports with the Internal Revenue Service, Department of Labor,
or any other governmental agency;



     (e) reviewing and approving any financial reports, investment reviews, or other reports
prepared by any party appointed by the Employer under paragraph (a);



     (f) establishing a funding policy and investment objectives consistent with the purposes of
the Plan and ERISA;



     (g) construing and resolving any question of Plan interpretation and questions of fact. The
Plan Administrator’s interpretation of Plan provisions and resolution of questions of facts
including eligibility and amount of benefits under the Plan is final and unless it can be shown to
be arbitrary and capricious, will not be subject to “de novo” review;



     (h) monitoring the activities of the Trustee and the performance of, and making changes when
necessary to, the portfolio of the Plan;



     (i) obtaining a legal determination of the qualified status of all domestic relations orders
and complying with the requirements of the law with regard thereto;



     (j) administering any loan program including ensuring that any and all loans made by the Plan
are in compliance with the requirements of the Internal Revenue Code and the Regulations issued
thereunder, and the Regulations issued by the Department of Labor;



     (k) determining from the records of the Employer, the Compensation, Service, records, status,
and the other facts regarding Participants and Employees;



     (l) selecting the insurer to provide any life insurance policy to be purchased for any
Participant hereunder; and



     (m) the right to employ others, including legal counsel who may, but need not, be counsel to
the Employer, to render advice regarding any questions which may arise with respect to its rights,
duties and responsibilities under the Plan, and may rely upon the opinions or certificates of any
such person.



12.2 Persons Serving As Plan Administrator



If the Employer is no longer in existence, and the Plan or the Employer does not specify the person
to take an action or otherwise serve in the place of the Employer in connection with the operation
of the Plan, the Plan Administrator shall so act or serve, but if there is no person serving as
Plan Administrator, then a successor shall be designated in writing by a majority of Participants
whose accounts under the Plan have not yet been fully distributed at such time. A majority of the
legally competent Beneficiaries of a deceased Participant then entitled to receive benefits may
exercise a deceased Participant’s right to participate in that designation and shall be considered
for that purpose to be one Participant, in the Participant’s place.




85









 








12.3 Action By Employer



Any action required of the Employer under the Plan shall be executed by the sole proprietor (if the
Employer is a sole proprietorship), by a general partner or member of the Employer (if the Employer
is a partnership or limited liability company), or by the board of directors or a duly authorized
officer of the Employer (if the Employer is a corporation or other similarly organized business
entity). If the Employer is no longer in existence, and the Plan does not specify the person to
take an action, or otherwise serve in the place of the Employer in connection with the operation of
the Plan, the Plan Administrator shall so act or serve, but if there is no person serving as Plan
Administrator, such action shall be taken by a person selected following the approach referred to
in paragraph 12.2. The Trustee and/or Custodian shall have no responsibility for inquiring into
the authority of any person purporting to act on behalf of an Employer and shall not assume any
such responsibility.




12.4 Responsibilities Of The Parties




     (a) The Employer and the Plan Administrator shall cooperate with each other in all respects,
including the provision to each other of records and other information relating to the Plan, as may
be necessary or appropriate for the proper operation of the Plan or as may be required under the
Code or ERISA.



     (b) The Plan Administrator may delegate in writing all or any part of the Plan Administrator’s
responsibilities under the Plan to agents or others by written agreement communicated to the
delegate and to the Employer or, if the Employer is no longer in existence, to such person or
persons selected following the approach in paragraph 12.2 and, in the same manner, may revoke any
such delegation of responsibility. Any action of a delegate in the exercise of such delegated
responsibilities shall have the same force and effect for all purposes as if the Plan Administrator
had taken such action. The delegate shall have the right, in such person’s sole discretion, by
written instrument delivered to the Plan Administrator, to reject and refuse to exercise any such
delegated authority. The Trustee and/or Custodian need not act on instructions of such a delegate
despite any knowledge of such delegation, but may require the Plan Administrator to directly
provide all instructions necessary under the Plan.



     (c) Unless otherwise provided in a separate agreement, responsibility with respect to the
investment of the Trust shall be as elected in the Adoption Agreement. The Trustee and/or
Custodian shall invest the amounts allocated to Participants’ accounts pursuant, as applicable, to
the elections in the Adoption Agreement, Articles XII and XIII and/or in accordance with investment
directions from authorized parties as provided hereunder.



     (d) The Trustee and/or Custodian (or other agent appointed for this purpose) may act upon
receipt of directions (including without limitation, directions pursuant to a voice response
system, facsimile or other electronic or mechanical means). The Trustee and/or Custodian shall be
fully protected and will incur no liability for doing so.



12.5 Promulgating Notices And Procedures



The Employer and Plan Administrator are given the power and responsibility to promulgate certain
written notices, policies and/or procedures under the terms of the Plan and disseminate same to the
Participants, and the Plan Administrator may satisfy such responsibility by the preparation of any
such notice, policy and/or procedure in a written form which can be published and communicated to a
Participant in one or more of the following ways:




     (a) by distribution in hard copy;



     (b) through distribution of a summary plan description or summary of material modifications
thereto which sets forth the policy or procedure with respect to a right, benefit or feature
offered under the Plan;



     (c) by e-mail, either to a Participant’s personal e-mail address or his or her
Employer-maintained e-mail address; and



     (d) by publication on a web-site accessible by the Participant, provided the Participant is
notified of the web-site publication. Any notice, policy and/or procedure provided through an
electronic medium will only be valid if the electronic medium which is used is reasonably designed
to provide the notice, policy and/or procedure in a manner no less understandable to the
Participant than a written document, and under such medium, at the time the notice, policy and/or
procedure is provided, the Employee may request and receive the notice, policy and/or procedure in
a written paper document at no charge.



12.6 Appointment Of Investment Manager



The Employer or its designate may make the appointment of an investment manager in accordance with
this Article. If an investment manager is appointed, such entity or individual must be registered
directly or indirectly as an investment manager under the Investment Advisors Act of 1940 or under
applicable state law, meet the requirements of ERISA Section 3(38) or be a bank as defined in said
Act or an insurance company qualified under the laws of more than one state to perform investment
management services. An investment manager shall acknowledge in writing its appointment and
fiduciary status hereunder and shall agree to comply with all applicable provisions of this
document. The Employer, Plan Administrator, Trustee and any properly appointed investment manager
may execute a written agreement which shall be incorporated by reference into the Plan which
delineates the duties, responsibilities and any liabilities of the investment manager with respect
to any part of the Trust Fund which the Employer manages.




86









 







The investment manager shall have the investment powers granted the Trustee in paragraph 13.8
except to the extent the investment manager’s powers are limited by the investment management
agreement. A copy of the investment management agreement (and any modifications or termination
thereof) must be provided to the Trustee or Custodian (in the instance where there is no Trustee).
Written notice of each appointment of an investment manager shall be given to the Trustee or
Custodian (in the instance where there is no Trustee) in advance of the effective date of the
appointment. Such notice or agreement shall specify what portion of the Trust Fund will be subject
to the investment manager’s discretion.




12.7 Participant Investment Direction




The Employer may elect in the Adoption Agreement to provide Participants with the option to
direct the investment of all or any part of their account balances as specified therein. The
Employer or the Named Investment Fiduciary from time to time shall select the investments to be
made available, including the appointment of any investment manager who meets the requirements of
ERISA Section 3(38) to manage the assets of any Participant’s account. The Employer or the Named
Investment Fiduciary, independent of the Trustee, shall be responsible for reviewing the
performance of such investments. The following administrative procedures shall apply to the
administration of investments selected by the Employer or the Employer’s designated Fiduciary:



     (a) The Plan Administrator shall administer the program.



     (b) At the time an Employee becomes eligible for the Plan, he or she shall provide the Plan
Administrator an investment designation stating the percentage of his or her contributions to be
invested in the available investments.



     (c) A Participant may change his or her election with respect to future contributions by
notifying the Employer, or if agreed upon, Trustee and/or Custodian or other Service Provider, as
they shall mutually agree, in accordance with the procedures established by the Plan Administrator.



     (d) A Participant may transfer or exchange his or her balance from one investment alternative
to another by notifying the Employer, Trustee and/or Custodian or other Service Provider, as they
shall mutually agree, in accordance with the procedures established by the Plan Administrator.



     (e) The investment alternatives offered under the Plan may be limited in a uniform and
nondiscriminatory manner. Investments may be restricted to specific investment alternatives
selected, including but not limited to, certain mutual funds, investment contracts, collective
funds or deposit accounts. If investments outside the alternatives selected are permitted,
Participants may not direct that investments be made in collectibles other than U.S. Government or
state issued gold and silver coins.



     (f) The Plan Administrator may permit, in a uniform and nondiscriminatory manner, a
Beneficiary of a deceased Participant or alternate payee under a Qualified Domestic Relations Order
[as defined in Code Section 414(p)] to individually direct their account in accordance with this
paragraph.



     (g) Investment directions will be processed as soon as administratively practicable after
proper investment directions are received from the Participant. The Employer, Plan Administrator,
Service Provider, Trustee and/or Custodian cannot provide any guarantee of the timing of processing
of any investment directive. The Employer, Plan Administrator, Service Provider, Trustee and/or
Custodian reserve the right not to value an investment alternative or a Participant’s account on
any given Valuation Date for any reason deemed appropriate by the Employer or Plan Administrator.
The Employer, Plan Administrator, Service Provider, Trustee and/or Custodian further reserve the
right to delay the processing of any investment transaction for any legitimate business reason
including but not limited to failure of systems or computer programs, failure of the means of the
transmission of data, force majeure, the failure of a Service Provider to timely receive values or
prices, to correct its errors or omissions or the errors or omissions of any Service Provider.



     (h) Notwithstanding the foregoing, and regardless of a Participant’s authority to direct the
investment of assets allocated to his or her account, the Named Investment Fiduciary is authorized
and empowered to direct the Trustee to invest funds in short term investments pending other
investment instructions by the Plan Administrator.



     (i) If the Plan permits Participants the right to reallocate their contributions to a
different fund and to transfer contributions into and out of investments provided under the Plan,
subject to possible restrictions on these types of transactions, the Plan Administrator may decline
to implement investment directives where it in its sole discretion deems it appropriate (for
example, directives may be declined for excessive trading, market timing, or for any other
legitimate reason where the Plan Administrator, in fulfilling its Fiduciary role under ERISA,
believes that it would be imprudent to implement the directive). The Plan Administrator has the
power to adopt such rules and procedures to govern all Participant elections and directions under
the terms of the Plan.



     (j) All investment designations made by Participants are to be made subject to and in
accordance with such rules or procedures as the Plan Administrator shall adopt. Any such rules or
procedures when properly



87









 







executed in a written document, will be deemed incorporated in this Plan. The rules or
procedures therein may be modified or amended by the Plan Administrator without the necessity of
amending this paragraph; however, any such modification must be communicated to Participants in a
manner described in paragraph 12.5. Notwithstanding the foregoing: (1) a summary plan description
or summary of material modifications in which the rules or procedures which describe investment
designations are outlined shall be considered a separate written document sufficient to satisfy the
requirements of this paragraph; and (2) any rules or procedures established under this paragraph
must be applied in a uniform nondiscriminatory manner.



12.8 Application Of ERISA Section 404(c)



The Employer may elect in the Adoption Agreement (unless otherwise provided in a separate Trust
Agreement) that Participant accounts under the Plan be invested as elected by each Participant in a
broad range of investment options made available from time to time by the Employer for this
purpose. The Employer may further elect in an addendum to the Plan (or other agreement, which is
incorporated by reference) that the Plan is intended to qualify as an “ERISA Section 404(c) Plan”
within the meaning of Regulations issued pursuant to such section. Participants shall have the
opportunity, at least once in any three (3) month period, to give investment instructions (with an
opportunity to obtain written confirmation of such instructions) as to the investment of
contributions made on his or her behalf among the available investment options. The Plan
Administrator shall be obligated to comply with such instructions except as otherwise provided in
the Regulations issued under ERISA Section 404(c).



The Plan Administrator will provide or will make arrangements to provide each Participant with a
description of the investment alternatives available under the Plan; and with respect to each
designated investment alternative, a general description of the investments objectives, risk and
return characteristics of each alternative, including information relating to the type and
diversification of assets comprising the investment portfolio.



The Plan Administrator by separate document may prescribe the form and the manner in which such
direction shall be made, as well as the frequency with which such directions may be made or changed
and the dates as of which they shall be effective, in a manner consistent with the foregoing. The
Plan Administrator (or a person or entity so designated by the Employer) shall be the Fiduciary
identified to furnish the information as contemplated by ERISA Section 404(c), but may designate on
its behalf another person or entity to provide such information or to perform any of the
obligations of the Plan Administrator under this paragraph.



Except as otherwise provided by law, the Trustee, Custodian, the Employer, or any Fiduciary of the
Plan shall not be liable to the Participant or any of his or her Beneficiaries for any loss
resulting from action taken at the direction of the Participant.




12.9 Participant Loans



Unless otherwise provided in a loan policy or Trust Agreement, and if permitted by the Employer in
the Adoption Agreement, a Plan Participant and Beneficiaries who are parties-in-interest as defined
in ERISA Section 3(14) may make application to the Plan Administrator requesting a loan from the
Plan. The Plan Administrator shall have the sole right to approve or deny a Participant’s
application provided that loans shall be made available to all Participants on a reasonably
equivalent basis. Loans shall not be made available to Highly Compensated Employees in an amount
greater than the amount made available to other Participants. Any loan granted under the Plan
shall be made in accordance with the terms of a written loan policy adopted by the Employer which
is hereby incorporated by reference and made a part of this Basic Plan Document #01. The loan
policy may be amended in writing from time to time without the necessity of amending this paragraph
and shall be subject to the following rules to the extent such rules are not inconsistent with such
loan policy.




     (a) No loan, when aggregated with any outstanding loan(s) to the Participant, shall exceed the
lesser of (i) $50,000 reduced by the excess, if any, of the Participant’s highest outstanding
balance of all loans on any day during the one (1) year period ending on the day before the loan is
made, over the outstanding balance of loans from the Plan on the date the Participant’s loan is
made or (ii) one-half of the fair market value of the Participant’s Vested Account Balance
consisting of contributions as specified in the loan policy. An election may be made in the loan
policy, that if the Participant’s Vested Account Balance is $20,000 or less, the maximum loan shall
not exceed the lesser of $10,000 or 100% of the Participant’s Vested Account Balance. For the
purpose of the above limitation, all loans from all plans of the Employer and other members of a
group of employers described in Code Sections 414(b), 414(c), and 414(m) are aggregated. An
assignment or pledge of any portion of the Participant’s interest in the Plan and a loan, pledge,
or assignment with respect to any insurance contract purchased under the Plan, will be treated as a
loan under this paragraph.



     (b) All applications must be in accordance with procedures adopted by the Plan Administrator.



     (c) Any loan shall bear interest at a rate reasonable at the time of application, considering
the purpose of the loan and the rate being charged by representative commercial banks in the local
area for a similar loan unless the Plan Administrator sets forth a different method for determining
loan interest rates in its written loan procedures. The loan agreement shall also provide that the
payment of principal and interest be amortized in level payments not less frequently than
quarterly.



88









 





     (d) The term of such loan shall not exceed a period of five (5) years except in the case of a
loan for the purpose of acquiring any house, apartment, condominium, or mobile home that is used or
is to be used within a reasonable time as the principal residence of the Participant. The Plan
Administrator in accordance with the Plan’s loan policy shall determine the term of such loan.



     (e) The principal and interest paid by a Participant on his or her loan shall be credited to
the Plan in the same manner as for any other Plan investment. Unless otherwise provided in the loan
policy, loans will be treated as segregated investments of the individual Participant on whose
behalf the loan was made. This provision is not available if its election will result in
discrimination in the operation of the Plan.



     (f) If the Plan Administrator approves a Participant’s loan request, it shall be evidenced by
a note, loan agreement, and assignment of up to 50% of his or her interest in the Trust as
collateral for the loan. The Participant, except in the case of a profit-sharing plan satisfying
the requirements of paragraph 8.7, must obtain the consent of his or her Spouse, if any, within the
ninety (90) day period before the time his or her account balance is used as security for the loan.
A new consent is required if the account balance is used for any renegotiation, extension, renewal
or other revision of the loan, including an increase in the loan amount. The consent must be
written, must acknowledge the effect of the loan, and must be witnessed by a Plan representative or
notary public. Such consent shall subsequently be binding with respect to the consenting Spouse or
any subsequent Spouse.



     (g) If a valid Spousal consent has been obtained in accordance with paragraph (f), then,
notwithstanding any other provision of this Plan, the portion of the Participant’s Vested Account
Balance used as a security interest held by the Plan by reason of a loan outstanding to the
Participant shall be taken into account for purposes of determining the amount of the account
balance payable at the time of death or distribution, but only if the reduction is used as
repayment of the loan. If less than 100% of the Participant’s Vested Account Balance (determined
without regard to the preceding sentence) is payable to the surviving Spouse, then the account
balance shall be adjusted by first reducing the Vested Account Balance by the amount of the
security used as repayment of the loan, and then determining the benefit payable to the surviving
Spouse.



     (h) Any loan made hereunder shall be subject to the provisions of a loan agreement, promissory
note, security agreement, payroll withholding authorization and, if applicable, financial
disclosure. Such documentation may contain additional loan terms and conditions not specifically
itemized in this section provided that such terms and conditions do not conflict with this section.
Such additional terms and conditions may include, but are not limited to, procedures regarding
default, a grace period for missed payments, and acceleration of a loan’s maturity date on specific
events such as termination of employment.



     (i) Effective for Plan loans made after December 31, 2001, Plan provisions prohibiting loans
to any Owner-Employee or Shareholder Employee shall cease to apply.



     (j) Liquidation of a Participant’s assets for the purpose of the loan will be allocated on a
pro-rata basis across all the investment alternatives in a Participant’s account, unless otherwise
specified by the Participant, Plan Administrator, or the Plan’s loan policy.



     (k) If the Plan Administrator approves a request for a loan, funds shall be withdrawn from the
recordkeeping sub-accounts specified by the Participant, including Roth Elective Deferrals, if
applicable, or in the absence of such a specification, from the recordkeeping sub-accounts in the
order specified in the loan policy. The Plan Administrator may modify the loan program to provide
limitations on the ability to borrow from, or use as security, a Participant’s Elective Deferral
account. The loan policy may be amended to provide for ordering rules with respect to the default
of a loan that is made from the Participant’s Roth Elective Deferral account as well as other
accounts under the Plan.



     (l) If a Plan permits loans to Participants, the Trustee and/or Custodian may appoint the
Employer as its agent, and if the Employer accepts such appointment, agree to hold all notes and
other evidence of any loans made to Participants. If provided in the loan policy, the Plan
Administrator may also require additional collateral in order to adequately secure the loan. The
Employer shall hold such notes and evidence under such conditions of safekeeping as is prudent and
as required by ERISA. The Trustee and/or Custodian may account for all loans in the aggregate so
that all Participant loans will be shown collectively as a single asset of the Plan.



     (m) Unless otherwise elected in the Adoption Agreement, loan payments shall be suspended under
this Plan during periods of military service, as permitted under Code Section 414(u).



12.10 Insurance Policies



If elected by the Employer in the Adoption Agreement and agreed to by the Trustee or Custodian,
Participants may purchase life insurance policies under the Plan. Any life insurance premium paid
for any Participant out of the Employer contributions will be made on behalf of the Participant
unless the amount of such payment, plus all premiums previously paid on behalf of such Participant
is (a) with respect to ordinary life insurance policies, which may be contracts with both
non-decreasing death benefits and non-increasing premiums, less than 50% of the Employer
contributions and forfeitures allocated to the Participant’s account determined on the date the
premium is


89









 






paid, (b) with respect to term and universal life policies and all other life insurance contracts
which are not ordinary life, less than 25% of such allocation amounts, or (c) a combination of
ordinary life and term and/or universal life insurance policies are purchased, the sum of the term
and universal life insurance premiums plus one-half of the ordinary life premiums may not exceed
25% of such amounts allocated. Dividends received on life insurance policies shall be considered a
reduction of premiums paid in such computations. If the Plan established is a profit sharing plan,
the incidental insurance benefit requirement is not applicable if the Plan purchases life insurance
benefits from only Employer contributions which have been allocated to the Participant’s account
for at least two (2) years.




     (a) The Named Investment Fiduciary or its agent shall select the insurance company and the
policy and direct the Trustee or Custodian, as applicable, to purchase the insurance contract.
Such direction shall include but not be limited to the term, price and the insurance company from
which the policy should be purchased.



     (b) The Trustee or Custodian, as applicable, shall apply for and will be the owner of any
insurance contract and named beneficiary of any policies purchased under the terms of this Plan.
The insurance contract(s) must provide that proceeds will be payable to the Trustee or Custodian,
as applicable, however the Trustee or Custodian shall be required to pay over all the proceeds of
the contract(s) to the Participant’s designated Beneficiary in accordance with the distribution
provisions of this Plan. A Participant’s Spouse will be the designated Beneficiary of the proceeds
in all circumstances unless a Qualified Election has been made in accordance with paragraph 8.4, if
applicable. Under no circumstances shall the Trust or custodial account, as applicable, retain any
part of the proceeds. In the event of any conflict between the terms of this Basic Plan Document
#01 and the terms of any insurance contract purchased hereunder, these Plan provisions shall
control. The Beneficiary of a deceased Participant shall receive, in addition to the proceeds of
the Participant’s policy or policies, the amount credited to such Participant’s account.



     (c) A Participant who is uninsurable or insurable at substandard rates may elect to receive a
reduced amount of insurance, if available, or may waive the purchase of any insurance.



     (d) All dividends or other returns received on any policy purchased shall be applied to reduce
the next premium due on such policy, or if no further premium is due, such amount shall be credited
to the Trust as part of the account of the Participant for whom the policy is held.



     (e) If Employer contributions are inadequate to pay all premiums on all insurance policies,
the Trustee or Custodian may, at the option of the Employer, utilize other amounts remaining in
each Participant’s account to pay the premiums on his or her respective policy or policies, allow
the policies to lapse, reduce the policies to a level at which they may be maintained, or borrow
against the policies on a pro-rated basis, provided that the borrowing does not discriminate in
favor of the policies on the lives of Highly Compensated Employees.



     (f) The Named Investment Fiduciary or other Fiduciary responsible for making investment
decisions may discontinue the investment in life insurance policies at any time. If the Plan
provides for Participant directed investments, life insurance as an investment option may be
eliminated by the Plan Administrator. Where life insurance investment options are being
discontinued, the Plan Administrator in its sole discretion, may offer to sell the insurance
policies to the Participant, or to another person, provided the prohibited transaction exemption
requirements of the Department of Labor are satisfied. Such payment shall be credited to the
Participant’s account for distribution under the terms of the Plan. All distributions resulting
from the application of this paragraph shall be subject to the Joint and Survivor Annuity Rules of
Article VIII, if applicable.



     (g) The Employer shall be solely responsible to ensure the insurance provisions are
administered properly and that if there is any conflict between the provisions of this Plan and any
insurance contracts issued, the terms of this document will control.



     (h) Notwithstanding the above, in profit-sharing plans, the limitations imposed herein with
respect to the purchase of life insurance shall not apply to any Participant who has participated
in this Plan for five (5) or more years or to the portion of a Participant’s Vested Account Balance
that would be eligible for withdrawal under paragraph 6.10 (whether or not in-service withdrawals
are actually allowed under the Plan) that has accumulated for at least two (2) Plan Years. No
amount of Qualified Voluntary Contributions made to the Plan may be used to purchase life
insurance. In addition, under such plans, a Participant may, subject to the limitations set forth
in this subparagraph, elect to have “key man” life insurance purchased on the life of any
Participant who is considered essential to the success of the Employer’s business. In such case,
the proceeds of such a life insurance contract in excess of such contract’s cash value as of the
date of death of such insured shall be paid to the Beneficiaries named with respect to such
contract. Death benefits, including those in the previous sentence, payable from a life insurance
contract shall be paid in accordance with paragraph 8.7 if this Plan meets the safe harbor
provisions in that paragraph, or in accordance with paragraph 8.2 or 8.3, whichever may be
applicable. The cash value of the contract shall be added to the Participant’s Vested Account
Balance.



90









 





     (i) No insurance contract will be purchased under the Plan unless such contract or a separate
definite written agreement between the Employer and the insurer provides that no value under
contracts providing benefits under the Plan or credits determined by the insurer (on account of
dividends, earnings, or other experience rating credits, or surrender or cancellation credits) with
respect to such contracts may be paid or returned to the Employer or diverted to or used for other
than the exclusive benefit of the Participants or their Beneficiaries. However, any contribution
made by the Employer because of a mistake of fact must be returned to the Employer within one (1)
year of the contribution.



     (j) If this Plan is funded by individual contracts that provide a Participant’s benefit under
the Plan, such individual contracts shall constitute the Participant’s account balance. If this
Plan is funded by group contracts, under the group annuity or group insurance contract, premiums or
other consideration received by the insurance company must be allocated to Participants’ accounts
under the Plan.



     (k) For Plans funded with individual or group annuity contracts, no Trustee or Custodian is
required to hold the assets of the Plan. Accordingly, any references to the Trust, the Trust fund
or the fund collectively refers to any contracts issued by an insurance company to fund a Plan
established under this document.



12.11 Determination Of Qualified Domestic Relations Order (QDRO Or Order)



Unless otherwise provided in a separate Trust Agreement, or other separate written document such as
the Plan’s QDRO procedures, a domestic relations order shall specifically state all of the
following in order to be deemed a Qualified Domestic Relations Order (“QDRO”):




     (a) The name and last known mailing address (if any) of the Participant and of each alternate
payee covered by the QDRO. However, if the QDRO does not specify the current mailing address of
the alternate payee, but the Plan Administrator has independent knowledge of that address, the QDRO
will still be valid.



     (b) The dollar amount or percentage of the Participant’s benefit to be paid by the Plan to
each alternate payee, or the manner in which the amount or percentage will be determined.



     (c) The number of payments or period for which the order applies.



     (d) The specific Plan (by name) to which the domestic relations order applies.


The domestic relations order shall not be deemed a QDRO if it requires the Plan to provide:




     (e) any type or form of benefit or any option not already provided for in the Plan;



     (f) increased benefits or benefits in excess of the Participant’s vested rights;



     (g) payment of a benefit earlier than allowed by the Plan’s earliest retirement provisions or,
in the case of a profit-sharing or 401(k) plan, prior to the first date on which an in-service
withdrawal is allowed; or



     (h) payment of benefits to an alternate payee which are required to be paid to another
alternate payee under another QDRO.


Upon receipt of a domestic relations order (“Order”) which may or may not be “qualified”, the Plan
Administrator shall notify the Participant and any alternate payee(s) named in the Order of such
receipt, and forward either a copy of this paragraph or other written QDRO policies and procedures.
The Plan Administrator shall establish written procedures to establish the qualified status of a
domestic relations order, which may include forwarding the Order to the Plan’s legal counsel for an
opinion as to whether or not the Order is in fact “qualified” as defined in Code Section 414(p).
Within a reasonable time after receipt of the Order, not to exceed sixty (60) days, the Plan
Administrator shall make a determination as to its “qualified” status and the Participant and any
alternate payee(s) shall be promptly notified in writing of the determination.



If the “qualified” status of the Order is in question, there will be a delay in any payout to any
payee including the Participant, until the status is resolved. In such event, the Plan
Administrator shall segregate the amount that would have been payable to the alternate payee(s) if
the Order had been deemed a QDRO. If the Order is not qualified or the status is not resolved (for
example, it has been sent back to the court for clarification or modification) within eighteen (18)
months beginning with the date the first payment would have to be made under the Order, the Plan
Administrator shall pay the segregated amounts plus interest to the person(s) who would have been
entitled to the benefits had there been no Order. If a determination as to the qualified status of
the Order is made after the eighteen (18) month period described above, then the Order shall only
be applied on a prospective basis. If the Order is determined to be a QDRO, the Participant and
alternate payee(s) shall again be notified promptly after such determination. Once an Order is
deemed a QDRO, the Plan Administrator shall pay to the alternate payee(s) all the amounts due under
the QDRO, including segregated amounts plus earnings, if any, which may have accrued during a
dispute as to the Order’s qualification.




91









 







Unless specified otherwise in the Adoption Agreement or in a separate Trust Agreement or other
written document the QDRO retirement age with regard to the Participant against whom the order is
entered shall be the date the order is determined to be qualified. These provisions will only
allow distributions to the alternate payee(s) and not the Participant.



The costs of administering the Plan may be shared between Participants and the Employer. In
addition other administrative costs which may be deducted from Participant ‘s contributions or
accounts, these additional costs and/or fees associated with the qualification of a domestic
relations order may be charged back to the Participant and/or Alternate Payee. The Plan
Administrator will notify the parties involved of any costs that are charged to a Plan Account in
the operation of the Plan.




12.12 Receipt And Release For Payments



Unless otherwise provided in a separate Trust Agreement, any payment to any Participant, his legal
representative, Beneficiary, or to any guardian or committee appointed for such Participant or
Beneficiary in accordance with the provisions of the Plan shall be in full satisfaction of all
claims hereunder against the Trustee, Employer or Plan Administrator each of whom may require such
Participant, legal representative, Beneficiary, guardian or committee as a condition prior to such
payment, to execute a receipt and release in such form as shall be determined by the Trustee,
Employer or Plan Administrator.




12.13 Resignation And Removal



Unless otherwise provided in a separate Trust Agreement, an individual serving as Plan
Administrator may resign by giving written notice to the Employer, or if the Employer is no longer
in existence, to the Trustee and/or Custodian, as applicable not less than thirty (30) days before
the effective date of the individual’s resignation. The Plan Administrator may be removed with or
without cause by the Employer upon thirty (30) days prior written notice to the Plan Administrator,
or if the Employer is no longer in existence, by a majority of the Participants and Beneficiaries
following the procedure referred to in paragraph 12.2. A notice period provided for in this
paragraph may be waived or reduced if acceptable to the parties involved. The Employer, if in
existence, shall be the successor Plan Administrator, or the Employer may appoint a successor to a
person who has resigned or been removed as Plan Administrator, but if the Employer is no longer in
existence, the appointment shall be made by a majority of the Participants and Beneficiaries
following the procedure referred to in paragraph 12.2. When the Plan Administrator’s resignation
or removal becomes effective, the Plan Administrator shall perform all acts necessary to transfer
all relevant records to its successor. A successor Plan Administrator shall have all the rights
and powers and all of the duties and obligations of the original Plan Administrator but shall have
no responsibility for acts or omissions that occurred before the successor became Plan
Administrator.




12.14 Claims And Claims Review Procedure



The procedures in this paragraph will be the sole and exclusive remedy for an Employee, Participant
or Beneficiary (“Claimant”) to make a claim for benefits under the Plan. These procedures will be
administered and interpreted in a manner consistent with the requirements of ERISA Section 503 and
the Regulations thereunder. Any electronic notices provided by the Plan Administrator will comply
with the standards imposed under Regulations issued by the Department of Labor. All claims
determinations made by the Plan Administrator will be made in accordance with the provisions of
this paragraph and the Plan, and will be applied consistently to similarly situated Claimants.




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



     (b) Denial Of Claim — The Plan Administrator, in its sole and complete discretion, will make
all initial determinations as to the right of any person to benefits. If the claim is denied in
whole or in part, the Plan Administrator will send the Claimant a written or electronic notice,
informing the Claimant of the denial. The notice must be written in a manner calculated to be
understood by the Claimant and must contain the following information: the specific reason(s) for
the denial; a specific reference to pertinent Plan provisions on which the denial is based; if
additional material or information is necessary for the Claimant to perfect the claim, a
description of such material or information and an explanation of why such material or information
is necessary; and an explanation of the Plan’s claim review (i.e., appeal) procedures, the time
limits applicable to such procedures, and Claimant’s right to request arbitration if the claim
denial is upheld in whole or in part on appeal. Written or electronic notice of the denial will be
given within a reasonable period of time [but no later than ninety (90) days] from the date the
Plan Administrator receives the claim, unless special circumstances require an extension of time
for processing the claim. In no event may the extension exceed ninety (90) days from the end of
the initial ninety (90) day period. If an extension is necessary, prior to the expiration of the
initial ninety (90) day period, the Plan Administrator will send the Claimant a written notice
indicating the special circumstances requiring an extension and the date by which the Plan
Administrator expects to render a decision.



     (c) Request for Appeal — If the Plan Administrator denies a claim in whole or in part, the
Claimant may elect to appeal the denial. If the Claimant does not appeal the denial pursuant to
the procedures set forth herein, the denial will be final, binding and unappealable. A written
request for appeal must be filed by the Claimant (or the Claimant’s duly authorized representative)
with the Plan Administrator within sixty (60) days after the date on which the claimant receives
the Plan Administrator’s notice of denial. If a request for appeal is timely filed, the



92









 







Claimant will be afforded a full and fair review of the claim and the denial. As part of this
review, the Claimant may submit written comments, documents, records, and other information
relating to the claim, and the review will take into account all such comments, documents, records,
or other information submitted by the Claimant, without regard to whether such information was
submitted or considered in the Plan Administrator’s initial benefit determination. The Claimant
also may obtain, free of charge and upon request, records and other information relevant to the
claim, without regard to whether such information was relied upon by the Plan Administrator in
making the initial benefit determination.



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



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



12.15 Bonding



Every Fiduciary, except for a bank, trust company or an insurance company, unless otherwise
exempted by ERISA and the Regulations issued thereunder shall be bonded in an amount not less than
10% of the amount of the funds such Fiduciary handles; provided however, that the minimum bond
shall be $1,000 and the maximum bond $1,000,000. The amount of funds handled shall be determined
at the beginning of each Plan Year by the amount of funds handled by such person, group or class to
be covered and their predecessors, if any, during the preceding Plan Year, or if there is no
preceding Plan Year, then by the amount of the funds to be handled during the then current year.
The bond shall provide protection to the Plan against any loss by reason of acts of fraud or
dishonesty by the Fiduciary either acting alone or in concert with others. The surety shall be a
corporate surety company [as the term is used in ERISA Section 412(a)(2)], and the bond shall be in
a form approved by the Secretary of Labor. Notwithstanding anything in the Plan to the contrary,
the costs of such bonds shall be an expense of and may, at the election of the Plan Administrator,
be paid from the Trust or by the Employer.




93









 








ARTICLE XIII

TRUST PROVISIONS




13.1 Establishment Of The Trust




     (a) The Employer shall appoint an individual(s), institution or other party, who may be the
Sponsor (or an affiliate) of this Prototype Plan, to serve as Trustee or Custodian (if applicable)
of the Plan. The Employer may execute a separate trust or custodial account agreement outlining
the Trustee’s or Custodian’s duties and responsibilities that shall be incorporated by reference
and made part of this Prototype Plan. Unless otherwise indicated in the ancillary agreement, no
such ancillary agreement may conflict with any provision(s) of this document. Any provision that
would jeopardize the tax-qualified status of this Plan shall be null and void. Unless otherwise
elected in the Adoption Agreement, the Trust and/or Custodial provisions of Article XII and this
Article XIII, as applicable, together with any such ancillary agreement shall be operative. Any
reference in the Plan to a Trustee is also a reference to a Custodian and where the context of the
Plan dictates a limitation of the Trustee’s liability by Plan provision also constitute a
limitation of the Custodian’s liability.



     (b) The Employer establishes with the Trustee a Trust Fund which shall consist of all money
and property received under Articles III and IV of this document, increased by any income on or
increment in such value of assets and decreased by any investment loss, expense, benefit payment,
withdrawal or other distribution by the Trustee in accordance with the provisions of the Plan. The
Trustee and/or the Custodian shall hold the Trust Fund without distinction between principal and
income. The Trust Fund will be held, invested, reinvested and administered by the Trustee in
accordance with this Article and any ancillary documents as provided for in this Article.



     (c) The term “Trust Fund” shall be construed to apply to custodial account(s), annuity
contract(s) or other contract(s) which shall be treated as a qualified trust pursuant to Code
Section 401(f).



13.2 Control Of Plan Assets



The assets of the Trust or evidence of ownership shall be held by the Trustee and/or the Custodian
under the terms contained herein. If the assets represent amounts transferred from another trustee
or custodian under a former plan, the Trustee and/or Custodian named hereunder shall not be
responsible for any actions of the prior Fiduciary including the propriety of any investment
decision made by the prior trustee or custodian, as applicable, under any prior plan. Instead, the
Employer shall be responsible for such actions.




13.3 Discretionary Trustee



If the Employer elects in the Adoption Agreement, or otherwise appoints the Trustee to act in the
capacity of discretionary Trustee, the Trustee shall invest the Trust in accordance with the Plan’s
investment policy statement and the investment alternatives permitted at paragraph 13.8 herein.
The Trustee will have the discretion and authority to invest, manage and control those Plan assets
except those assets which are subject to the investment direction of the Employer, a Participant
(if Participant direction is permitted), or an investment manager or Named Investment Fiduciary, or
other agent properly appointed by the Employer. The exercise of any investment direction hereunder
shall be consistent with the investment policy of the Plan. The Trustee may also perform custodial
functions for the Trust with respect to Plan assets the Trustee does not manage, to the extent
agreed to between the Trustee and the Employer, if the Trustee is appointed Custodian for some or
all of such assets in accordance with the terms of the Plan. The Trustee may execute any
additional documents, as required, which shall be treated as an addendum to this Prototype Plan.
No such agreement may conflict with any provision nor shall any provision in such an agreement
jeopardize the tax-qualified status of the Plan. Any such provision shall be null and void. The
Trustee’s administrative duties shall be limited to those agreed to between the parties. The
Employer or its designate shall be responsible for other administrative duties required under the
Plan or by applicable law.




13.4 Nondiscretionary Trustee



If the Employer elects in the Adoption Agreement or as otherwise agreed to in writing, the Trustee
may act in the capacity of a nondiscretionary Trustee. In this capacity, the Trustee shall have no
discretionary authority to invest, manage or control Plan assets and is authorized solely to make
and hold investments only as directed pursuant to paragraph 12.4. The nondiscretionary Trustee
shall have the same rights, powers and duties as the discretionary Trustee but exercises such
authority in accordance with the direction of the party which has the authority to manage and
control the investment of Plan assets. If directions are not provided to the Trustee, the Employer
will provide such necessary direction.




13.5 Provisions Relating To Individual Trustees



Notwithstanding any other provisions of the Plan to the contrary, the provisions of this paragraph
shall apply if one (1) or more individuals are named as Trustee(s) in the Adoption Agreement and
shall not apply to any institutional Trustee named in the Adoption Agreement.




     (a) If there shall be more than one (1) individual acting in the capacity of Trustee, they
shall act by a majority of their number, unless they unanimously decide that one (1) or more of
them may act on the matter or category of matters involved without the approval of the others and
they may authorize in writing that one (1) or more



94









 







of them shall act on their behalf including but not limited to executing documents and
authorizing distributions on behalf of the Trustees.



     (b) Any person may rely, without having to make further inquiry, upon instructions appearing
to be genuine instructions from any individual serving as Trustee as being the will, intent and
action of all individuals so serving if no allocation of duties has been made.


The Trustee shall be paid such reasonable compensation for services as shall from time to time be
agreed upon in writing by the Employer and the Trustee, provided that an individual serving as
Trustee who already receives full-time Compensation from the Employer shall not receive
compensation for serving as such from the Plan.




13.6 Investment Instructions



Any investment directive shall be made in writing or such other form as agreed to by the Employer,
Trustee and/or Custodian and the investment manager. In the absence of such directive, cash shall
be automatically invested in such investment or investments as the Employer or Named Investment
Fiduciary shall select from the investments made available for that purpose unless and until the
person or persons responsible for giving directions directs otherwise. Such automatic investment
shall be made at regular intervals and pursuant to procedures established by the parties (which
procedures may without limitation, provide for more frequent intervals only if uninvested balances
exceed a stated amount). Absent a contrary direction in accordance with the preceding provisions
of this paragraph, such instructions regarding the delegation of investment responsibility shall
remain in force until revoked or amended in writing. Neither the Trustee nor the Custodian shall
be responsible for the propriety of any directed investment made nor shall they be required to
consult with or advise the Employer regarding the investment quality of any directed investment
held hereunder. If the Employer fails to designate an investment manager, the Trustee shall have
full investment management authority as agreed upon in a duly authorized and executed investment
management agreement. If the Employer does not issue investment directions with regard to specific
assets held in the Trust, the Trustee shall have authority to invest those assets in the Trust in
its sole discretion subject to paragraph 13.8. While the Employer may direct the Trustee with
respect to Plan investments, the Employer may not:




     (a) borrow from the Plan or pledge any of the assets of the Plan as security for a loan,



     (b) buy property or assets from or sell property or assets to the Plan,



     (c) charge any fee for services rendered to the Plan, or



     (d) receive any services from the Plan on a preferential basis.



13.7 Fiduciary Standards



Subject to paragraphs 13.6 and 13.8 hereof, the Trustee, Employer and Custodian, as applicable,
shall invest and reinvest principal and income of the Trust in accordance with the funding policy
and investment objectives established by the Employer, provided that:




     (a) such investments are prudent under ERISA, as amended, and the Regulations thereunder,



     (b) such investments are sufficiently diversified to minimize the risk of large losses,



     (c) such investments are made in accordance with the provisions of this Plan and Trust
document, and



     (d) such investments are made with the care, skill, prudence and diligence under the
circumstances then prevailing that a prudent man acting in a like capacity and familiar with such
matters would use in the conduct of an enterprise of a like character with like aims.



13.8 Powers Of The Trustee



The Trustee shall be responsible for the investment, administration and safekeeping of assets held
in the Trust Fund. The Trustee shall have the following duties and responsibilities, in addition
to powers given by law, and may:




     (a) receive contributions under the terms of the Plan;



     (b) implement an investment program based on the Employer’s investment policy statement,
funding policy, investment objectives and ERISA, as amended;



     (c) invest the Trust in any form of property, including common and preferred stocks,
exchange-traded covered put and call options, bonds, money market instruments, mutual funds
(including funds for which the Sponsor, Trustee or its affiliates receive compensation for
providing investment advisory, custody, transfer agency or other services), savings accounts, plan
loans, certificates of deposit, securities issued by the U.S. government or by governmental
agencies, insurance policies and contracts, or in any other property, real or personal, having a
ready market, including securities issued by the Trustee and/or affiliates of the Trustee as permitted by
law. The Trustee



95









 







may invest in time deposits (including, if applicable, its own or those of
affiliates) that bear a reasonable interest rate. No portion of any Qualified Voluntary
Contribution, or the earnings thereon, may be invested in life insurance contracts or, as with any
Participant-directed investment, in tangible personal property characterized by the IRS as a
collectible;



     (d) to the extent permitted by law, invest any assets of the Trust in a group or collective
trust fund established to permit the pooling of funds of separate pension and profit-sharing
trusts, provided the Internal Revenue Service has ruled such group or collective trust to be
qualified under Code Section 401(a) and exempt under Code Section 501(a) (or the applicable
corresponding provision of any other Revenue Act) or to any other common, collective, or commingled
trust fund which has been or may hereafter be established and maintained by the Trustee,
affiliate(s) of the Trustee, the Custodian or investment manager. Such commingling of assets of
the Trust with assets of other qualified trusts is specifically authorized, and to the extent of
the investment of the Trust in such a group or collective trust, the terms of the instrument
establishing the group or collective trust shall be a part hereof as though set forth herein. The
Employer may but is not required to specify the name(s) of the group or collective trust fund in an
addendum to the Adoption Agreement. The Employer expressly understands and agrees that any such
collective fund may provide for the lending of its securities by the collective fund trustee and
that such collective fund’s trustee will receive compensation from such collective fund for the
lending of securities that is separate from any compensation of the Trustee hereunder, or any
compensation of the collective fund trustee for the management of such collective fund;



     (e) for collective investment purposes, combine into one trust fund the Trust created under
this Plan with the trust created under any other qualified retirement plan the Employer maintains.
However, the Trustee must maintain separate records of account for the assets of each Trust in
order to reflect properly each Participant’s Vested Account Balance under the Plan(s) in which he
is a Participant;



     (f) invest up to 100% of the Trust in the common stock, debt obligations, or any other
security issued by the Employer or by an affiliate of the Employer within the limitations provided
under ERISA Sections 406, 407, and 408, as amended, and further provided that such investment does
not constitute a prohibited transaction under Code Section 4975. Any such investment in Employer
securities shall only be made upon written direction of the Employer who shall be solely
responsible for the propriety of such investment. Additional directives regarding the purchase,
sale, retention or valuing of such securities may be addressed in an investment management or trust
agreement, which is incorporated by reference. If there are any conflicts between this document
and the above referenced agreements, this document shall govern;



     (g) hold cash uninvested and deposit the same with any banking or savings institution,
including its own banking department or the banking department of an affiliate;



     (h) utilize a general disbursement account, i.e., in the form of a demand deposit account
and/or time deposit account, for distributions from the Trust, without incurring any liability for
payment of interest thereon, notwithstanding the Trustee’s receipt of income with respect to float
involving the disbursement account;



     (i) hold contributions in an omnibus account, i.e., in the form of a demand deposit and/or
time deposit account, maintained by the Trustee for up to three (3) business days (or such longer
period as may result due to circumstances beyond the Trustee’s control), without liability for
interest thereon. (The Employer acknowledges that any float earnings associated with the assets
held in such omnibus account are retained by the Trustee as part of its compensation for performing
services with respect to the allocation of contributions to Participants’ accounts);



     (j) join in or oppose the reorganization, recapitalization, consolidation, sale or merger of
corporations or properties, including those in which it or its affiliates are interested as
Trustee, upon such terms as it deems advisable;



     (k) hold investments in nominee or bearer form;



     (l) exercise all ownership rights including the voting of proxies and the exercise of tender
offers but only with respect to assets over which the Trustee has investment management
responsibility;



     (m) hold, manage and control all property forming part of the Trust Fund and sell, convey,
transfer, exchange and otherwise dispose of the same from time to time;



     (n) apply for and procure from an insurance company as an investment of the Trust such
annuity, or other contracts on the life of any Participant as the Plan Administrator shall deem
proper; exercise, at any time or from time to time, whatever rights and privileges may be granted
under such annuity, or other contracts; and collect, receive, and settle for the proceeds of any
such annuity, or other contracts as and when entitled to do so under the provisions thereof;



96









 





     (o) unless otherwise provided by a directive as described by paragraph 13.6, the Employer will
pass through shareholder rights (including voting rights) on Employer securities to Plan
Participants. If no directive is provided, the Trustee shall exercise any shareholder rights
(including voting rights) with respect to any securities held, but only in accordance with the
instructions of the person or persons responsible for the investment of such securities subject to
and as permitted by, any applicable rules of the Securities and Exchange Commission and any
national securities exchange. Voting rights with respect to shares of registered investment
companies held in the Trust shall be directed by the Named Investment Fiduciary responsible for
selection of such registered investment companies as permissible investment alternatives. In the
event of any conflict with any other provision of this Article or this Basic Plan Document #01, the
provision of this paragraph shall control. The Employer shall be responsible for preparing and
distributing all required prospectuses for Employer securities and making such materials available
to Plan Participants;



     (p) retain and employ such attorneys, agents and servants as may be necessary or desirable, in
the opinion of the Trustee, in the administration of the Plan, and pay them such reasonable
compensation for their services as may be agreed upon as an expense of administration of the Plan,
including the power to employ and retain counsel upon any matter of doubt as to the meaning or
interpretation to be placed upon this Plan or any provisions thereof with reference to any question
arising in the administration of the Plan or pertaining to the rights and liabilities of the
Trustee hereunder. The Trustee in any such event, may rely upon the advice, opinions, records,
statements and computations of any attorneys and agents and on the records, statements and
computations of any servants so selected by it in good faith and shall be released and exonerated
of and from all liability to anyone in so doing (except to the extent that liability is imposed
under ERISA); and



     (q) institute, prosecute and maintain, or defend, any proceeding at law or in equity
concerning the Plan or the assets thereof or any claims thereto, or the interests of Participants
and Beneficiaries hereunder at the sole cost and expense of the Plan or at the sole cost and
expense of the Participant that may be concerned therein or that may be affected thereby, as, in
its opinion, shall be fair and equitable in each case; and compromise, settle and adjust all claims
and liabilities asserted by or against the Plan or asserted by or against it, or such terms as it,
in each such case, shall deem reasonable and proper. The Trustee shall be under no duty or
obligation to institute, prosecute, maintain or defend any suit, action or other legal proceeding
unless it shall be indemnified to its satisfaction against all expenses and liabilities (including
without limitation, legal and other professional fees) which it may sustain or anticipate by reason
thereof; and


The Trustee is expressly authorized to the fullest extent permitted by law to (1) retain the
services of any broker-dealer, registered investment advisor or other financial services entity
(including the Trustee and any of its affiliates) and any future successors in interest thereto
collectively, for the purposes of this paragraph referred to as the “Affiliated Entities”), to
provide services to assist or facilitate the purchase or sale of investments in the Trust, (2)
acquire as assets of the Trust shares of mutual funds to which Affiliated Entities provide, for a
fee, services in any capacity and (3) acquire in the Trust any other services or products of any
kind or nature from the Affiliated Entities regardless of whether the same or dissimilar services
or products are available from other institutions. The Trust may pay directly or indirectly
(through mutual funds fees and charges for example) management fees, transaction fees and other
commissions to the Affiliated Entities for the services or products provided to the Trust and/or
such mutual funds at such Affiliated Entities’ standard or published rates without offset (unless
required by law) from any fees charged by the Trustee for its services as Trustee. The Trustee may
also deal directly with the Affiliated Entities regardless of the capacity in which it is then
acting, to purchase, sell, exchange or transfer assets of the Trust even though the Affiliated
Entities are receiving compensation or otherwise profiting from such transaction or are acting as
principal in such transaction. Each of the Affiliated Entities is authorized to effect
transactions on national securities exchanges for the Trust as directed by the Trustee, and retain
any transactional fees related thereto, consistent with Section 11(a)(1) of the Securities and
Exchange Act of 1934, as amended and related Rule 11a2-2(T). Included specifically, but not by way
of limitation in the transactions authorized by this provision, are transactions in which any of
the Affiliated Entities is serving as an underwriting or member of an underwriting syndicate for a
security being purchased or is purchasing or selling a security for its own account. In the event
the Trustee is directed by the Plan Administrator, any named Fiduciary, designated Investment
Manager, Participant and/or Beneficiary, as applicable hereunder (collectively referred to as for
purposes of this paragraph as the “Directing Party”), the Directing Party shall be authorized, and
expressly retains the right hereunder, to direct the Trustee to retain the services of, and conduct
transactions with, Affiliated Entities fully in the manner described above.




13.9 Appointment Of Additional Trustee And Allocation Of Responsibilities



The Employer may appoint one or more additional Trustees to hold specified investments for which
the original Trustee is not serving in the capacity of Trustee. In the event that an additional
Trustee is appointed, the second Trustee shall have no responsibilities for these specific assets
other than as set forth herein. The original Trustee shall have no duties with respect to an
investment held by any other person including, without limitation, any other Trustee for the Plan.
Any other secondary Trustee of the Plan shall have no duties with respect to assets held in the
Plan by the original Trustee or another secondary Trustee.




97









 








13.10 Compensation, Administrative Fees And Expenses



All reasonable fees, charges and expenses incurred by the Trustee or the Custodian in connection
with the administration of the Trust and all reasonable fees, charges and expenses incurred by the
Plan Administrator in connection with the administration of the Plan (including such reasonable
compensation to the Trustee and/or Custodian and the Plan Administrator as may be agreed upon from
time to time between the Employer, the Trustee and/or Custodian and Plan Administrator) and fees
for legal services rendered to the Trustee and/or Custodian or Plan Administrator shall be paid
from the Trust unless:




     (a) The payment of such expense would constitute a “prohibited transaction” within the meaning
of ERISA Section 406 or Code Section 4975 for which no statutory or administrative exemption is
available.



     (b) The Employer actually pays such expenses directly. Any and all reasonable additional
administrative expenses incurred to effect directives made by the Participants and by each
Beneficiary under this Plan shall be paid by the Trust and as determined by the Employer shall
either be charged (in accordance with such reasonable nondiscriminatory rules as the Employer deems
appropriate under the circumstances) to the account of the individual issuing such directive, or
treated as a general expense of the Trust. If charged to a Participant’s account and if the assets
of such account are insufficient to satisfy such charges, the Employer shall pay any deficit to the
Trustee. Notwithstanding the foregoing, nothing in this section shall prevent the Employer from
paying the administrative expenses of the Plan directly.



     (c) All related expenses incurred on behalf of a Participant (included but not limited to
brokerage commissions and other transaction related expenses), shall, as determined by the
Employer, either be paid from or otherwise be charged directly to the account of the Participant
providing such direction or treated as a general expense of the Trust.



     (d) If there are insufficient liquid assets of the Trust to cover the fees of the Trustee or
the Custodian, then assets of the Trust shall be liquidated to the extent necessary to cover fees.



     (e) Notwithstanding the foregoing, no compensation other than reimbursement for expenses
incurred shall be paid to a Plan Administrator who is the Employer or Employee of the Employer.



     (f) In the event any part of the Plan becomes subject to tax, all taxes incurred will be paid
from the Plan at the direction of the Plan Administrator.



     (g) Any investment gain or loss of the Trust that is not directly attributable to the
investment of the account of any Participant (including, but not limited to, for example, any
“float” earned on the disbursement account established for the Plan and not treated as part of the
compensation of the Trustee or paying agent for the Plan, and any 12b-1 or similar fees paid to the
Plan) will be applied to pay administrative expenses of the Plan, with any excess remaining at the
close of the Plan Year being allocated among the Participant’s accounts in accordance with the
procedure established by the Plan Administrator for this purpose.



13.11 Records



Within ninety (90) days following the close of each Plan Year, or at such other times as may be
agreed to between the Employer and the Trustee, and within ninety (90) days following its removal
or resignation, the Trustee shall file with the Employer a report of that part of the Trust under
the investment management of the Trustee during such year or from the end of the preceding Plan
Year to the date of removal or resignation. Such report shall include a statement of receipts and
disbursements, the net income or loss of the Trust, the gains or losses realized by the Trust upon
sale or other disposition of the assets, the increase or decrease in the value of the Trust, all
payments and distributions made from the Trust since the date of its last report, and shall contain
a schedule of assets listing the fair market value of investments held in the Trust as of the end
of the Plan Year or the date of removal or resignation, as applicable. The fair market value of
investments for which there is a ready market shall be determined using the most recent price
quoted on a national or other recognized securities exchange or over-the-counter market. The fair
market value of illiquid investments shall be obtained by a valuation performed by an independent
appraiser appointed by the Trustee or Custodian or appointed by the Employer and approved by the
Trustee or Custodian as applicable, for this purpose whose determination shall be final. In the
case where there is both a Trustee and Custodian serving the Plan, the Trustee shall have the
responsibility for appointing the independent appraiser and obtaining such report. The Trustee
shall assume responsibility for the accuracy of any such report, and the Custodian serving
hereunder shall have no additional obligation or responsibility to review or verify the accuracy of
the report provided to the Custodian. The Employer shall review the Trustee’s report and notify
the Trustee in the event of its disapproval of the report within thirty (30) days, providing the
Trustee with a written description of the items in question. The Trustee shall have sixty (60)
days to provide the Employer with a written explanation of the items in question. If the Employer
again disapproves, the Trustee shall have the right to file its report in a court of competent
jurisdiction for audit and adjudication. In the event the Employer fails to file a written
objection to the Trustee’s report within the ninety (90) day period following receipt of the
report, the Employer shall be deemed to have approved the report. In such case, the Trustee shall
be released and discharged with respect to all matters contained in the report.




98









 








13.12 Limitation On Liability And Indemnification




     (a) The Trustee shall have the authority to manage and govern the Trust to the extent provided
in this instrument, but does not guarantee the Trust in any manner against investment loss or
depreciation in asset value, or guarantee the adequacy of the Trust to meet and discharge all or
any liabilities of the Plan.



     (b) The Trustee and/or Custodian shall not be liable for the making, retention, or sale of any
investment or reinvestment made by it, as herein provided, or for any loss to, or diminution of the
Trust, or for any other loss or damage which may result from the discharge of its duties hereunder
except to the extent it is judicially determined such loss or damage is attributable to the Trustee
and/or Custodian’s breach of its duties hereunder or under ERISA.



     (c) An institution acting as a Custodian or nondiscretionary Trustee shall have no discretion
or investment management responsibility, unless otherwise expressly agreed in writing (pursuant to
an investment management agreement, for example) and shall only be responsible to perform the
functions described at paragraph 13.4 hereof. Neither the Custodian nor Trustee (whether
nondiscretionary or discretionary) shall have any responsibility with respect to Plan investments
and does not guarantee the adequacy of the Trust to meet and discharge any or all liabilities
associated with the Plan.



     (d) The Employer warrants that all directions issued to the Trustee and/or Custodian by it or
the Plan Administrator will be in accordance with the terms of the Plan and the auxiliary agreement
and not contrary to the provisions of ERISA, as amended, and the Regulations issued thereunder.



     (e) Neither the Trustee nor the Custodian shall be answerable for any action taken pursuant to
any direction, consent, certificate, or other paper or document in the belief that the same is
genuine. All directions by the Employer, Participant, the Plan Administrator, Named Fiduciary or
an investment manager shall be made pursuant to pre-approved communication procedures to which all
such parties, as applicable, shall have consented to in writing. The Employer shall deliver to the
Trustee and Custodian as applicable, written notification identifying the individual or individuals
authorized to act on behalf the Plan and shall deliver specimens of their signatures to the Trustee
and/or Custodian.



     (f) The duties and obligations of the Trustee and the Custodian shall be limited to those
expressly imposed by this instrument or subsequently agreed upon by the parties in writing.
Responsibility for administrative duties required under the Plan or applicable law not expressly
imposed upon or agreed to by the Trustee or the Custodian shall rest solely with the Employer.



     (g) The Employer shall indemnify the Trustee and/or Custodian as applicable against, and
agrees to hold the Trustee and/or Custodian harmless from, all liabilities and claims and expenses
including attorney’s fees and expenses incurred in defending against such liability or claims
against the Trustee and/or Custodian, unless such liability or claim results from the gross
negligent action or inaction of the Trustee and/or Custodian, or where the Trustee or Custodian is
found to have breached its duties under this Article or Part 4 of Title I of ERISA by a final
judgment of a court of competent jurisdiction. Except as otherwise provided by the preceding
sentence, the Employer also shall indemnify the Trustee and/or Custodian as applicable against, and
agrees to hold the Trustee and/or Custodian harmless from, all liabilities, claims and expenses
including attorney’s fees and other expenses incurred in defending against such liabilities or
claims, arising from any actions or breach of responsibility by any party other than the Trustee
and/or Custodian, including without limitation by specification any acts of a prior Trustee and/or
Custodian or of another Trustee and/or Custodian appointed by the Employer.



     (h) Without limiting any provision in the prior paragraph, the Employer expressly agrees to
indemnify the Trustee and/or Custodian as applicable, against any liability or claim (including
attorney’s fees and expenses in defending against such liabilities or claims) arising as a result
of any act taken or failure to act, in accordance with the directions received from the Employer,
Plan Administrator, investment manager, Participant, or a designee specified by the Employer
directly or transmitted by a designated Service Provider to the Plan and without limitation by
specification.



     (i) The Trustee and/or Custodian as applicable will take all reasonable steps to assure the
security of any data received from the Employer in connection with services provided to the Plan.
The Employer will be responsible for retaining duplicate copies of any such data or materials it
forwards to the Trustee and/or Custodian and for taking all other reasonable and necessary
precautions in event such data or materials are lost or destroyed, regardless of cause, or in the
event reprocessing is needed for any reason. The Trustee and/or Custodian will maintain records in
connection with the performance of services hereunder for the applicable period as required by law,
or if no period is required, for such period as is reasonable under the law.



     (j) No waiver of any breach of this agreement shall constitute a waiver of any other breach,
whether of the same or any other covenant, term or condition. The subsequent performance of any of
the terms, covenants and conditions of this Article shall not constitute a waiver of any preceding
breach, nor shall any delay or omission of any



99









 







party’s exercise of any rights arising from any default effect or impair the party’s rights as to
the same or future default.



     (k) Neither the Trustee nor the Custodian shall be responsible in any way for any actions
taken, or failure to act, by a prior trustee/custodian. The Employer shall indemnify and hold
harmless the Trustee and/or Custodian as applicable, for such prior trustee and/or custodian’s acts
or inactions for any periods applicable, including periods for which the Plan must retroactively
comply with any tax law or regulations thereunder.



     (l) A Fiduciary with respect to the Plan shall not be liable for a breach of Fiduciary
responsibility of another Fiduciary with respect to the Plan except to the extent that:



          (1) it participates knowingly in, or knowingly undertakes to conceal, an act or omission of
such other Fiduciary, knowing such act or omission is a breach;



          (2) by its failure to comply with ERISA Section 404(a)(1) in the administration of its
specific responsibilities which give rise to its status as a Fiduciary, it has enabled such other
Fiduciary to commit a breach; or



          (3) it has knowledge of a breach by such other Fiduciary, unless it makes reasonable efforts
under the circumstances to remedy the breach.



     (m) If the assets of the Plan are held by two (2) or more Trustees, each Trustee will use
reasonable care to prevent a co-Trustee from committing a breach of duty under the ERISA and they
shall jointly manage and control the assets of the Plan; provided however, that such co-Trustee
shall be authorized to allocate specific responsibilities, obligations or duties among the
co-Trustees pursuant to a written agreement. If co-Trustees do enter into such an agreement, then
a Trustee to whom certain responsibilities, obligations or duties have not been allocated shall not
be liable either individually or as Trustee for any loss resulting to the Plan arising from the
acts or omissions on the part of another Trustee to which such responsibilities, obligations or
duties have been allocated.



13.13 Responsibilities Of A Named Custodian



The Employer may appoint a Custodian as provided for in the Adoption Agreement. A Custodian shall
have the same rights, powers and duties as a nondiscretionary Trustee. Any reference in the Plan
to a Trustee is also a reference to the Custodian unless the context indicates otherwise. Any
limitation of the Trustee’s liability in the Plan shall act as a limitation of the Custodian’s
liability. Where a discretionary Trustee has provided direction, any action taken by the Custodian
satisfies the requirement in the Plan referencing the Trustee taking that action. The resignation
or removal of the Custodian shall be made in accordance with paragraph 13.19 as though the
Custodian were the Trustee. The Custodian shall be responsible for the holding and safekeeping of
all or a portion of the Plan’s assets. One or more Custodian(s) appointed under this Plan may hold
all or any portion of the Plan’s assets. Such separate assets shall be held pursuant to the terms
of a separate custodial agreement with such Custodian. The separate custodial agreement shall be
treated as an addendum and, as such, may not conflict with any provision of this document. In
addition, any provision of a separate custodial agreement that would jeopardize the tax-qualified
status of this Defined Contribution Plan shall be null and void. In addition to the holding and
safekeeping of Plan assets, the Custodian’s duties shall include:




     (a) receiving contributions under the terms of the Plan, but not determining the amount or
enforcing the payment thereof,



     (b) making distributions from the Plan in accordance with instructions received from the Plan
Administrator or an authorized representative of the Employer,



     (c) keeping records reflecting its administration of the Trust or the custodial account and
making such records, statements and reports available to the Employer for review and audit at such
times as agreed to between the Custodian, Plan Administrator, and the Employer, and



     (d) retaining and employing such attorneys, agents and servants as may be necessary or
desirable, in the opinion of the Custodian, in the administration of the Plan, and to pay them such
reasonable compensation for their services as may be agreed upon as an expense of administration of
the Plan, including the power to employ and retain counsel upon any matter of doubt as to the
meaning or interpretation to be placed upon this Plan or any provisions thereof with reference to
any question arising in the administration of the Plan or pertaining to the rights and liabilities
of the Trustee hereunder. The Custodian in any such event, may rely upon the advice, opinions,
records, statements and computations of any attorneys and agents and on the records, statements and
computations of any servants so selected by it in good faith shall be released and exonerated of
and from all liability to anyone in so doing (except to the extent that liability is imposed under
ERISA).


The Custodian’s duties will be limited to those as agreed to between the Employer and the
Custodian. The Employer shall be responsible for any other administrative duties required under
the Plan or by applicable law.




100









 








13.14 Investment Alternatives Of The Custodian




     (a) The Custodian shall hold any or all assets received from the Employer or the Trustee or
its agents. If the Custodian holds title to Plan assets and such ownership requires action on the
part of the registered owner, such action will be taken by the Custodian only upon receipt of
specific instructions from the Trustee, or its designated agents or the Named Investment Fiduciary.
Proxies shall be voted by or pursuant to the express direction of the Trustee, its’ authorized
agent or the Named Investment Fiduciary. The Custodian shall not render any investment advice,
including any opinion on the prudence of directed investments. The Employer and Trustee and its
agents thereof assume all responsibility for adherence to Fiduciary standards under ERISA, as
amended, and the Regulations issued thereunder.



     (b) Where the Sponsor serves as Custodian, the Trust shall only be invested in investment
alternatives the Custodian makes available in the ordinary course of business unless the Custodian
is directed otherwise by the Employer, the Trustee or any properly designated agent thereof. The
Custodian, under applicable Federal or state laws, may offer investment alternatives including but
not limited to savings accounts, savings certificates, or in other savings instruments offered by
the Sponsor or its affiliates. Such investments shall be made at the direction of the Employer or
Trustee(s) or other Named Investment Fiduciary and the Custodian shall have no responsibility for
the propriety of such investments.



     (c) If the Custodian is a bank, which under applicable state law does not possess trust
powers, an investment in common or collective trust funds is not permitted.



13.15 Prohibited Transactions



Neither the Trustee, Custodian, Employer, investment manager, Named Investment Fiduciary nor the
Participant shall knowingly enter into any transaction, engage in any activity, or direct the
purchase or acquisition of any investment with respect to the Plan which would constitute a
prohibited transaction under ERISA or the Code for which a statutory or administrative exemption is
not available. The Trustee and/or Custodian shall not knowingly receive any investment advisory or
other fees from a regulated investment company (a mutual fund) that duplicates investment
management fees charged by the Trustee and/or Custodian except to the extent the receipt of such
fees is fully disclosed and/or a procedure exists for crediting duplicate fees back to the Plan.
The Trustee and/or Custodian shall be permitted to receive fees from a regulated investment company
to the extent that the receipt of such fees is not a prohibited transaction pursuant to any
guidance or exemption issued by the Department of Labor from time to time.




13.16 Exclusive Benefit Rules



No part of the Trust shall be used for, or diverted to, purposes other than for the exclusive
benefit of Participants, former Participants with a vested interest, and the Beneficiary or
Beneficiaries of deceased Participants who have a vested interest in the Plan at death.




13.17 Assignment And Alienation Of Benefits



Except as provided in paragraphs 12.9 or 12.11, no right or claim to, or interest in, any part of
the Plan or any payment from the Plan shall be assignable, transferable, or subject to sale,
mortgage, pledge, hypothecation, commutation, anticipation, garnishment, attachment, execution, or
levy of any kind. Neither the Trustee nor Custodian shall recognize any attempt to assign,
transfer, sell, mortgage, pledge, hypothecate, commute, or anticipate the same, except to the
extent required by law. The preceding sentences shall also apply to the creation, assignment, or
recognition of a right to any benefit payable with respect to a Participant pursuant to a domestic
relations order, unless such order is determined to be a Qualified Domestic Relations Order, as
defined in Code Section 414(p), or any domestic relations order entered before January 1, 1985
which the Plan’s attorney and Plan Administrator deem to be qualified.



Notwithstanding any provision of this paragraph to the contrary, an offset to a Participant’s
Vested Account Balance 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, on or after
August 5, 1997, shall be permitted in accordance with Code Sections 401(a)(13)(C) and (D).




13.18 Liquidation Of Assets



If the Trustee and/or Custodian must liquidate assets in order to make distributions, transfer
assets, or pay fees, expenses or taxes assessed against all or a part of the Trust, and the Trustee
and/or Custodian is not instructed as to the liquidation of such assets, assets will be liquidated
on a prorated basis across all the investment alternatives in the Trust. The Trustee and/or
Custodian are expressly authorized to liquidate assets in order to satisfy the Trust’s obligation
to pay the Trustee and/or Custodian’s fees or other compensation if such fees or compensation are
not paid on a timely basis.




13.19 Resignation And Removal Of The Trustee and/or Custodian



The Trustee and/or Custodian may resign upon thirty (30) days written notice to the Employer. The
Employer may remove the Trustee and/or Custodian upon sixty (60) days (or such shorter period of
time as may be agreed to by the


101









 






parties) written notice to the Trustee and/or Custodian. The Employer may discontinue its
participation in this Prototype Plan effective upon thirty (30) days (or such shorter period of
time as may be agreed to by the Sponsor and the Employer) written notice to the Sponsor. To the
extent the Employer does not restate and replace the Prototype Plan established under this Plan and
applicable Adoption Agreement with either a similar plan of another Sponsor or an individual plan,
the Employer shall, prior to the effective date thereof, amend the Plan to eliminate any reference
to this Prototype Plan and appoint a successor trustee and/or custodian. The Trustee or Custodian,
as applicable, shall deliver the Trust to its successor on the effective date of the resignation or
removal, or as soon thereafter as practicable, provided that this shall not waive any lien the
Trustee and/or Custodian may have upon the Trust for its compensation or expenses. Following the
effective date of the notice of termination, the Trustee and/or Custodian shall have no further
responsibility for providing services to the Employer or the Plan. If the Employer fails to amend
or replace the Plan and appoint a successor trustee or custodian, as applicable, within the said
thirty (30) days, or such longer or shorter period as agreed to by the Trustee and/or Custodian,
the Plan shall be deemed individually designed and the highest ranking officer of the Employer
shall be deemed the successor trustee or custodian as the case may be. In such event, the Trustee
and/or Custodian may, but shall not be required to, continue to hold custody of the assets of the
Plan until such time as appropriate arrangements have been made for the security of the Plan
assets, upon notification thereof to Plan Participants, and shall no longer have any responsibility
for the investment of Plan assets.




102









 








ARTICLE XIV

TOP-HEAVY PROVISIONS




14.1 Applicability Of Rules



If the Plan [except in the case of a SIMPLE 401(k) Plan] is or becomes Top-Heavy in any Plan Year,
the provisions of this Article will supersede any conflicting provisions in the Basic Plan Document
#01 and accompanying Adoption Agreement. The Top-Heavy requirements of Code Section 416 and this
Article shall not apply in any Plan Year beginning after December 31, 2001, in which the Plan
consists solely of a cash or deferred arrangement which meets the requirements of Code Section
401(k)(12) and Matching Contributions which meet the requirements of Code Section 401(m)(11).




14.2 Determination Of Top-Heavy Status



This paragraph shall apply for purposes of determining whether the Plan is a Top-Heavy Plan under
Code Section 416(g) for Plan Years beginning after December 31, 2001, and whether the Plan
satisfies the minimum benefits requirements of Code Section 416(c) for such years. This paragraph
shall apply for purposes of determining the Present Values of accrued benefits and the amounts of
account balances of Employees as of the Top-Heavy Determination Date.




     (a) Distributions During the Plan Year Ending on the Top-Heavy Determination Date — The
Present Value of accrued benefits and the amounts of account balances of an Employee as of the
Top-Heavy Determination Date shall be increased by the distributions made with respect to the
Employee under the Plan and any plan aggregated with this Plan under Code Section 416(g)(2) during
the one (1) year period ending on the Top-Heavy Determination Date. The preceding sentence shall
also apply to distributions under a terminated plan which, had it not been terminated, would have
been aggregated with this Plan under Code Section 416(g)(2)(A)(i). In the case of a distribution
made for a reason other than separation from Service, death, or Disability, this provision shall be
applied by substituting “five (5) year period” for “one (1) year period”.



     (b) Employees Not Performing Services During the Plan Year Ending on the Top-Heavy
Determination Date — The accrued benefits and accounts of any individual who has not performed
services for the Employer during the one (1) year period ending on the Top-Heavy Determination Date
shall not be taken into account.



     (c) Top-Heavy Ratio:



          (1) If the Employer maintains one or more Defined Contribution Plans (including any Simplified
Employee Pension Plan) and the Employer has not maintained any Defined Benefit Plan which during
the one (1) year period [five (5) year period in determining whether the Plan is Top-Heavy for Plan
Years beginning before January 1, 2002] ending on the Determination Date(s) has or has had accrued
benefits, the Top-Heavy Ratio for this Plan alone or for the Required 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(s) [including any part of any account balance
distributed in the one (1) year period ending on the Determination Date(s) or five (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 one (1) year period
ending on the Determination Date(s) or five (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 one (1) year period [five (5) year period in determining whether the Plan is
Top-Heavy for Plan Years beginning before January 1, 2002] ending on the Determination Date(s) has
or has had any accrued benefits, the Top-Heavy Ratio for any Required 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(s), 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(s), 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 one (1) year period ending on
the Determination Date [five (5) year period ending on the Determination Date in



103









 







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 twelve (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 (1) who is not a Key Employee but
who was a Key Employee in a prior year, or (2) who has not been credited with at least one (1) Hour
of Service with any Employer maintaining the Plan at any time during the one (1) year period [five
(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 (a) the
method, if any, that uniformly applies for accrual purposes under all Defined Benefit Plans
maintained by the Employer, or (b) 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).




     (d) Permissive Aggregation Group — The Required Aggregation Group of plans plus any other plan
or plans of the Employer which, when considered as a group with the Required Aggregation Group,
would continue to satisfy the requirements of Code Section 401(a)(4) and 410.



     (e) Required Aggregation Group — Each Qualified Plan of the Employer in which at least one (1)
Key Employee participates or participated at any time during the determination period (regardless
of whether the Plan has terminated), and any other Qualified Plan of the Employer which enables a
Plan described herein to meet the requirements of Code Section 401(a)(4) or 410.



     (f) Determination Date —  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, the last day of that year is the
Determination Date.



     (g) Valuation Date —  The date elected by the Employer in the Adoption Agreement as of which
account balances or accrued benefits are valued for purposes of calculating the Top-Heavy Ratio.



     (h) Present Value —  Present Value shall be based only on the interest and mortality rates
specified in the Adoption Agreement.



14.3 Minimum Contribution



For any Plan Year in which the Plan is Top-Heavy, the aggregate Employer contributions and
forfeitures allocated on behalf of any Participant who is not a Key Employee (without regard to any
Social Security contribution) under this Plan, the Employer will contribute the lesser of 3% of
such Participant’s Compensation or in the case where the Employer has no Defined Benefit Plan which
designates this Plan to satisfy Code Section 401, the largest percentage of the Employer
contributions and forfeitures, as a percentage of the Key Employee’s Compensation, up to a maximum
permitted under Code Section 401(a)(17), as indexed, allocated on behalf of any Key Employee for
that year. For this purpose, Elective Deferrals or Roth Elective Deferrals as defined in Code
Section 401(k) are used in determining the lesser of 3% of Compensation or the amount allocated on
behalf of Key Employees.



Each Participant who is employed by the Employer on the last day of the Plan Year shall be entitled
to receive an allocation of the Employer’s minimum contribution for such Plan Year. The minimum
allocation applies even though under other Plan provisions the Participant would not otherwise be
entitled to receive an allocation, or would have received a lesser allocation for the year because
the Participant fails to make required contributions to the Plan, the Participant’s Compensation is
less than a stated amount, or the Participant fails to complete 1,000 Hours of Service (or such
lesser number designated by the Employer in the Adoption Agreement) during the Plan Year. An
Employer may elect in the Adoption Agreement by resolution or by Plan amendment whether the
Top-Heavy minimum contribution will be made to all Participants or to non-Key Employees.



The Top-Heavy minimum contribution does not apply to any Participant to the extent the Participant
is covered under any other plan(s) of the Employer and the Employer has provided in the Adoption
Agreement that the minimum allocation or benefit requirements applicable to this Plan will be
satisfied in the other plan(s).



If a Key Employee makes an Elective Deferral or Roth Elective Deferral or has an allocation of
Matching Contributions credited to his or her account, a Top-Heavy minimum contribution will be
required for non-Key Employees who are Participants. For purposes of satisfying the Top-Heavy
minimum contribution requirement, Elective Deferrals or Roth Elective Deferrals are not taken into
account; Matching Contributions shall be taken into account unless otherwise elected by the
Employer in the Adoption Agreement. Employer Matching Contributions


104









 






that are used to satisfy the minimum contribution requirements shall be treated as Matching
Contributions for purposes of the ACP Test and other requirements of Code Section 401(m).



The Employer may provide in the Adoption Agreement that the minimum benefit requirement shall be
met in another plan, including another plan that consists solely of a cash or deferred arrangement
which meets the requirements of Code Section 401(k)(12) and Matching Contributions which meet the
requirements of Code Section 401(m)(11).




14.4 Minimum Vesting



For any Plan Year during which this Plan is Top-Heavy, the minimum vesting schedule selected by the
Employer in the Adoption Agreement will apply to the Plan. If the vesting schedule elected by the
Employer in the Adoption Agreement is less liberal than the allowable schedule, the schedule will
automatically shift to a vesting schedule that satisfies the Top-Heavy minimum requirements. For
those Plans using a graded vesting schedule, the schedule will accelerate to no less than a two (2)
to six (6) year graded vesting schedule. For those Plans using a cliff vesting schedule, the
schedule will accelerate to a three (3) year cliff vesting schedule. If the vesting schedule under
the Employer’s Plan shifts in or out of the Top-Heavy schedule for any Plan Year, such shift is an
amendment to the vesting schedule and the election in paragraph 9.9 applies. The minimum vesting
schedule applies to all accrued benefits within the meaning of Code Section 411(a)(7) except those
attributable to Employee contributions, including benefits accrued before the effective date of
Code Section 416 and benefits accrued before the Plan became Top-Heavy. No reduction in vested
benefits may occur in the event the Plan’s status as Top-Heavy changes for any Plan Year. This
paragraph does not apply to the account balances of any Employee who does not have one (1) Hour of
Service after the Plan initially becomes Top-Heavy and such Employee’s account balance attributable
to Employer contributions and forfeitures will be determined without regard to this paragraph.




14.5 Limitations On Allocations



In any Limitation Year beginning prior to January 1, 2000 in which the Top-Heavy Ratio exceeds 90%
(i.e., the Plan becomes Super Top-Heavy), the denominators of the Defined Benefit Fraction and
Defined Contribution Fraction shall be computed using 100% of the dollar limitation instead of
125%.




14.6 Use Of Safe Harbor Contributions To Satisfy Top-Heavy Contribution Rules



If elected in the Adoption Agreement, a 3% Safe Harbor Non-Elective Contribution allocated to all
eligible Employees may be used to satisfy the minimum contribution requirement for a Top-Heavy
Plan. A Safe Harbor Matching Contribution may also be used to satisfy the minimum contribution
requirement for a Top-Heavy Plan, provided no other contribution is made to the Plan for that Plan
Year.




14.7 Top-Heavy Rules For SIMPLE 401(k) Plans



A SIMPLE 401(k) Plan is not treated as a Top-Heavy Plan under Code Section 416 for any year for
which the Employer maintains a SIMPLE 401(k) Plan.




105









 








ARTICLE XV

AMENDMENT AND TERMINATION




15.1 Amendment By Sponsor



The Sponsor may amend any or all provisions of this Prototype Plan at any time without obtaining
the approval or consent of any Employer which has adopted this Plan and Trust provided that no
amendment shall authorize or permit any part of the corpus or income of the Plan to be used for or
diverted to purposes other than for the exclusive benefit of Participants and their Beneficiaries,
or eliminate an optional form of distribution. For purposes of Sponsor amendments, the mass
submitter of this Prototype Plan shall be recognized as the agent of the Sponsor. If the Sponsor
does not adopt the amendments made by the mass submitter, it will no longer be identical to or a
minor modifier of the mass submitter plan.




15.2 Amendment By Employer



The Employer may:




     (a) change the choice of options in the Adoption Agreement;



     (b) add overriding language in the Adoption Agreement when such language is necessary to
satisfy Code Section 415 or 416 because of the required aggregation of multiple plans;



     (c) amend administrative provisions of the Trust or custodial document in the case of a Plan
established under a Nonstandardized Adoption Agreement and make more limited amendments in the case
of a Plan established under a Standardized Adoption Agreement such as the name of the Plan,
Employer, Trustee or Custodian, Plan Administrator and other Fiduciaries, the trust year, and the
name of any pooled trust in which the Plan’s Trust will participate;



     (d) add certain sample or model amendments published by the Internal Revenue Service or other
required good faith amendments which specifically provide that their adoption will not cause the
Plan to be treated as individually designed; and



     (e) add or change provisions permitted under the Plan and/or specify or change the Effective
Date of a provision as permitted under the Plan and correct obvious and unambiguous typographical
errors and/or cross-references that merely correct a reference but that do not in any way change
the original intended meaning of the provisions. An Employer that amends the Plan for any other
reason, including a waiver of the minimum funding requirement under Code Section 412(d), will no
longer participate in this Prototype Plan and will be considered to have an individually designed
plan.



15.3 Protected Benefits



An amendment (including the adoption of this Plan as a restatement of an existing Plan) may not
decrease a Participant’s accrued benefit or account balance except to the extent permitted under
Code Section 412(c)(8), and may not reduce or eliminate a Code Section 411(d)(6) protected benefit
(except as provided by the Code or the Regulations issued thereunder) determined immediately prior
to the date of adoption, or if later, the Effective Date of the amendment. Where this Plan is
being adopted to amend another plan that contains a protected benefit not provided for in this
document, the Employer may attach an addendum to the Adoption Agreement that describes such
protected benefit which shall be incorporated in the Plan. Should any early retirement benefit or
other optional retirement benefits be changed by an amendment to this Plan, all benefits accrued
prior to the date of such amendment may not be reduced.




15.4 Permitted Plan Amendments Affecting Alternative Forms Of Payment



This Plan will not violate the requirements of Code Section 411(d)(6) merely because the adopting
Employer amends this Plan to eliminate or restrict the ability of a Participant to receive payment
of his or her Vested Account Balance under a particular optional form of benefit if, after the Plan
amendment is effective with respect to the Participant, the alternative forms of payment available
to such Participant include payment in a lump sum distribution form that is otherwise identical to
the optional form of benefit that is being eliminated or restricted.



For purposes of this paragraph, a lump sum distribution form is otherwise identical to an optional
form of benefit that is eliminated or restricted pursuant to the paragraph above only if the lump
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. A lump sum distribution form is not
otherwise identical to a specified installment form of benefit if the lump sum distribution form is
not available for distribution on the date on which the installment form would have been available
for commencement, is not available in the same medium of distribution as the installment form, or
imposes any condition of eligibility that did not apply to the installment form. However, an
otherwise identical distribution form need not retain rights or features of the optional form of
benefit that is eliminated or restricted to the extent that those rights or features would not be
protected from elimination or restriction under Code Section 411(d)(6) or this paragraph.




106









 








15.5 Plan Termination



The Employer shall have the right to terminate its Plan at any time. The Sponsor of this Prototype
Plan shall be given sixty (60) days notice in writing of the Employer’s intent to terminate or
transfer the assets of the Plan or shall be notified by such other means and/or within such time
period as the Sponsor may designate and/or may be agreed upon between the Sponsor and the Employer.
If the Plan is terminated, partially terminated, or if there is a complete discontinuance of
contributions under a profit-sharing plan maintained by the Employer, all amounts credited to the
accounts of Participants shall vest and become nonforfeitable. In the event of a partial
termination, only those who are affected by such partial termination shall be fully vested. In the
event of termination, the Plan Administrator shall direct the Trustee or Custodian as applicable
with respect to the distribution of accounts to or for the exclusive benefit of Participants or
their Beneficiaries. Such distribution may be made directly to Participants or, at the direction
of the Participant, may be transferred directly to another Eligible Retirement Plan, including an
individual retirement account. In the absence of an election by a Participant who has received
notice pursuant to paragraph 6.5 from the Plan Administrator, the Plan Administrator may direct the
Trustee and/or Custodian as applicable, to transfer the Participant’s benefit to another Defined
Contribution Plan maintained by the Employer, other than an employee stock ownership plan. If the
Employer does not maintain another Defined Contribution Plan, the Plan Administrator may direct the
Trustee or Custodian to transfer the Participant’s benefit to an individual retirement account with
an institution selected by the Plan Administrator, but only to the extent provided for in the
Adoption Agreement, or make a distribution pursuant to paragraph 7.16. Prior to making any
distribution, the Trustee or Custodian, as applicable, may require the Plan Administrator to
represent that the Plan has received a favorable determination letter from the Internal Revenue
Service approving the Plan termination and authorizing the distribution of benefits to Plan
Participants. In the absence of such determination letter and prior to agreeing to make any
distributions in accordance with the Plan Administrator’s directions, the Trustee or Custodian may
require the Plan Administrator to represent in an manner acceptable to the Trustee or Custodian
that the applicable requirements, if any, of ERISA and the Code governing the termination of
employee benefit plans have been or are being complied with or that appropriate authorizations,
waivers, exemptions, or variances have been or are being obtained. Until final distribution of the
assets of the Trust, the Plan Administrator and Trustee shall have all the powers necessary for the
orderly administration, liquidation and distribution of the assets of the Trust.




15.6 Involuntary Termination



The Plan shall terminate if:




     (a) the Employer is dissolved or adjudicated bankrupt or insolvent in appropriate proceedings,
or if a general assignment is made by the Employer for the benefit of creditors, or



     (b) the Employer loses its identity by consolidation or merger into one or more corporations
or organizations, unless within the time period prescribed by Code Section 410(b)(6)(c)(ii) such
corporations(s) or organization(s) elect to continue the Plan. Following the termination of the
Plan the Trust will continue until each Participant’s benefit has been distributed.



15.7 Termination Of Participation By Participating Employer



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




15.8 Distribution Restrictions Under A Code Section 401(k) Plan



If the Employer’s Plan includes a cash or deferred arrangement or if transferred assets described
in paragraph 6.15 are subject to the distribution restrictions of Code Sections 401(k)(2) and
401(k)(10), the special distribution provisions of this paragraph apply. The portion of the
Participant’s Vested Account Balance attributable to Elective Deferrals or Roth Elective Deferrals
(or to amounts treated under the cash or deferred arrangement as Elective Deferrals such as QNECs
and QMACs and income allocable to each) are not distributable earlier than upon the Participant’s
severance from employment, death, or Disability. Such amounts may also be distributed upon:




     (a) Termination of the Plan without the Employer maintaining another Defined Contribution Plan
[other than 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 described in Code Section 403(b), or a Plan described in
Code Section 457(b) or (f)] at any time during the period beginning on the date of Plan termination
and ending twelve (12) months after all assets have been distributed from the Plan. Such a
distribution must be made in a lump sum.



     (b) The attainment of age 591/2 in the case of a profit-sharing plan.



     (c) The Hardship of the Participant, as described in paragraph 6.11.



107









 




For Plan Years beginning prior to 2002, such amounts could also be distributed upon:




     (d) The disposition by a corporation to an unrelated corporation of substantially all of the
assets [within the meaning of Code Section 409(d)(2)] used in trade or business of such corporation
if such corporation continues to maintain the Plan after the disposition, but only with respect to
the Employees who continue employment with the corporation acquiring such assets. Such a
distribution must be made in a lump sum.



     (e) The disposition by a corporation to an unrelated entity of such corporation’s interest in
a subsidiary [within the meaning of Code Section 409(d)(3)] if such corporation continues to
maintain the Plan, but only with respect to Employees who continue employment with such subsidiary.
Such a distribution must be made in a lump sum.


All distributions that may be made pursuant to one or more of the foregoing distributable events
are subject to the spousal and Participant consent requirements (if applicable) contained in Code
Sections 401(a)(11) and 417. Other distribution restrictions include:




     (f) If Roth Elective Deferral Accounts are permitted for tax years beginning after 2005,
distributions from such accounts (other than corrective distributions) are not includible in the
Participant’s gross income if made after five (5) years and after the Participant’s death,
Disability, or attainment of age 591/2. Earnings on corrective distributions of Roth Elective
Deferrals are includible in gross income the same as earnings on corrective distributions of
pre-tax Elective Deferrals; or



     (g) The Participant otherwise is entitled under the terms of the Plan to a distribution of
that portion of the Vested Account Balance.



15.9 Qualification Of Employer’s Plan



The Trustee and/or Custodian, if applicable shall have no liabiltiy with respect to any operational
or qualification failure of any Plan established hereunder. If the adopting Employer fails to
obtain or retain applicable Internal Revenue Service qualification as a Prototype Plan, such
Employer’s Plan shall no longer participate in this Prototype Plan and will be considered an
individually designed plan.




     (a) Employer Reliance Using A Standardized Adoption Agreement— An Employer establishing a
Plan under a Standardized Adoption Agreement in conjunction with this Prototype Plan may rely on
that Plan’s opinion letter, except as provided in (1) through (3) and paragraph (c) below if the
Sponsor of such Plan or Plans has a currently valid favorable opinion letter, the Employer has
followed the terms of the Plan(s), and the coverage and contributions or benefits under the Plan(s)
are not more favorable for Highly Compensated Employees than for other Employees.



          (1) An Employer may not rely on an opinion letter for a Plan established under a Standardized
Adoption Agreement with respect to the requirements of Code Sections 415 and 416, without obtaining
a determination letter, if the Employer maintains at any time, or has maintained at any time,
another plan including a Plan established under a Standardized Adoption Agreement that was
qualified or determined to be qualified covering some of the same Participants. For this purpose, a
plan that has been properly replaced by the adoption of a Plan established under a Standardized
Adoption Agreement is not considered another plan. The plan that has been replaced and the Plan
established under a Standardized Adoption Agreement must be of the same type (e.g., both Defined
Contribution Plans) in order for the Employer to be able to rely on the Plan established under a
Standardized Adoption Agreement with respect to the requirements of Code Sections 415 and 416
without obtaining a determination letter. In addition, an Employer that adopts a Defined
Contribution Plan under a Standardized Adoption Agreement will not be considered to have maintained
another plan merely because the Employer has maintained another Defined Contribution Plan(s),
provided such other plan(s) has been terminated prior to the Effective Date of the Plan established
under a Standardized Adoption Agreement and no Annual Additions have been credited to the account
of any Participant under such other plan(s) as of any date within a Limitation Year of the Plan
established under a Standardized Adoption Agreement. Likewise, an Employer that adopts a Defined
Contribution Plan established under a Standardized Adoption Agreement that is first effective on
or after the Effective Date of the repeal of Section 415(e) will not be considered to have
maintained another plan merely because the Employer has maintained a Defined Benefit Plan(s),
provided the Defined Benefit Plan(s) has been terminated prior to the Effective Date of the Defined
Contribution Plan established under a Standardized Adoption Agreement.



          (2) An Employer that adopts a Plan established under a Standardized Adoption Agreement may not
rely on an opinion letter with respect to:



               (i) whether the timing of any amendment to the Plan (or series of amendments) satisfies the
nondiscrimination requirements of Regulations Section 1.401(a)(4)-5(a), except with respect to Plan
amendments granting past Service that meet the safe harbor described in Regulations
Section 1.401(a)(4)-5(a)(3) and are not part of a pattern of amendments that significantly
discriminate in favor of Highly Compensated Employees; or



108









 





               (ii) whether the Plan satisfies the effective availability requirement of Regulations
Section 1.401(a)(4)-4(c) with respect to any benefit, right, or feature.



          An Employer that adopts a Plan established under a Standardized Adoption Agreement as an
amendment to a plan other than a Plan established under a Standardized Adoption Agreeement may not
rely on an opinion letter with respect to whether a benefit, right, or feature that is
prospectively eliminated satisfies the current availability requirements of Regulations
Section 1.401(a)(4)-4. Such an Employer may request a determination letter if the Employer wishes
to have reliance as to whether the prospectively eliminated benefit, right, or feature satisfies
the current availability requirements.




     (b) Employer Reliance Using A Nonstandardized Adoption Agreement — An Employer establishing a
Plan using a Nonstandardized Adoption Agreement in conjunction with this Basic Plan Document #01
may rely on that Plan’s opinion letter as described below if the Employer’s Plan is identical to
the approved Prototype Plan with a currently valid favorable opinion letter, the Employer has
selected only options permitted under the terms of the approved Prototype Plan, and the Employer
has followed the terms of the Plan [also see paragraph 15.9(c)(3) below]. The Employer may forego
filing IRS Form 5307 and rely on the Prototype Plan’s favorable opinion letter with respect to the
qualification requirements, except as provided in section (1) through (4) and paragraph 15.9(c)
below.



          (1) Except as provided in paragraphs 15.9(c)(2), (3) and (4), the adopting Employer of a Plan
established under a Nonstandardized Adoption Agreement may not rely on a favorable opinion letter
with respect to the requirements of Code Sections 401(a)(4), 401(a)(26), 401(l), 410(b) or 414(s)
or if the Employer maintains or has ever maintained another plan covering some of the same
Participants, Code Sections 415 or 416. For this purpose, whether an Employer maintains or has ever
maintained another plan will be determined using principles consistent with paragraph 15.9(a)
above.



          (2) An adopting Employer of a Plan established under a Nonstandardized Adoption Agreement may
rely on the opinion letter with respect to the requirements of Code Sections 410(b) and 401(a)(26)
[other than the Code Section 401(a)(26) requirements that apply to a prior benefit structure] if
100% of all nonexcludable Employees benefit under the Plan.



          (3) Plans established using a Nonstandardized Adoption Agreement must give adopting Employers
the option to elect a safe harbor allocation or benefit formula and a safe harbor Compensation
definition. Adopting Employers of Plans established under a Nonstandardized Adoption Agreement that
elect a safe harbor allocation or benefit formula and a safe harbor Compensation definition may
rely on an opinion letter with respect to the nondiscriminatory amounts requirement under Code
Section 401(a)(4). Adopting Employers of Plans established under a Nonstandardized Adoption
Agreement that are Code Section 401(k) and/or Code Section 401(m) plans may rely on an opinion
letter with respect to whether the form of the Plan satisfies the ADP Test of Code
Section 401(k)(3) or the ACP Test of Code Section 401(m)(2) if the Employer elects to use a safe
harbor definition of Compensation in the test. Adopting Employers of Plans established under a
Nonstandardized Adoption Agreement described in Code Sections 401(k)(11) and/or 401(m)(12) may rely
on an opinion letter with respect to whether the form of the Plan satisfies these requirements
unless the Plan provides for the safe harbor contribution to be made under another Plan.



     (c) Other Limitations and Conditions on Reliance — The following conditions and limitations
apply with respect to Prototype Plans:



          (1) An adopting Employer can rely on a favorable opinion letter for a Prototype Plan that
amends or restates a Plan of the Employer only if the Plan that is being amended or restated was
qualified.



          (2) An adopting Employer has no reliance if the Employer’s adoption of the Plan precedes the
issuance of an opinion for the Prototype Plan.



          (3) An adopting Employer can rely on an opinion letter only if the requirements of this
paragraph 15.9 are met, and the Employer’s Plan is identical to an approved Prototype Plan with a
currently valid favorable opinion letter, and the Employer has not added any terms to the approved
Prototype Plan and has not modified or deleted any terms of the Plan, other than selecting options
permitted under the Prototype Plan or amended the document as permitted under paragraph 15.2.



          (4) An Employer’s Plan will not fail to be identical to an approved Prototype Plan merely
because the Employer modifies or amends the Plan to:



               (i) Add or change a provision and/or to specify or change the Effective Date of a provision,
provided the Employer is permitted to make the modification or amendment under the terms of the
approved Prototype Plan as well as under Code Section 401(a), and, except for the Effective Date,
the provision is identical to a provision in the approved Plan. Thus, an Employer is not required
to restate its Prototype Plan in order to change options under the Plan or to specify different
Effective Dates. The Employer, in it’s ability to amend a Prototype Plan without causing the Plan
to be treated as an individually designed plan, must execute a new signature page when the Employer
modifies any prior elections or makes a new election in its Adoption Agreement.



109









 





               (ii) Correct obvious and unambiguous typographical errors and/or cross-references that merely
correct a reference but that do not in any way change the original intended meaning of the
provisions. No such changes may affect any qualification requirements of the Plan. The Internal
Revenue Service in its discretion may determine that any such changes are not considered identical.



               (iii) Adopt model, sample or other required good faith amendments that specifically provide
that their adoption by an adopter of a Prototype Plan will not cause the Plan to be treated as an
individually designed plan or cause the Plan to fail to be “identical” to the approved Prototype
Plan within the meaning of this paragraph.



          (5) An adopting Employer cannot rely on an opinion letter if the adopting Employer has
modified the terms of the Plan’s approved Trust Agreement in a manner that would cause the Plan to
fail to be qualified.




     (d) Reliance Equivalent to Determination Letter — If an Employer can rely on a favorable
opinion letter pursuant to this paragraph, the opinion letter shall be equivalent to a favorable
determination letter. The favorable opinion letter shall be treated as a favorable determination
letter for purposes of Section 21 of Revenue Procedure 2005-6, regarding the effect of a
determination letter, and Section 5.01(4) of Revenue Procedure 2003-44, regarding the definition of
“favorable letter” for purposes of the Employee Plans Compliance Resolution System (and as such
Revenue Procedures are subsequently modified or superseded by written guidance issued by the
Department of the Treasury or by the Internal Revenue Service); however, the extent of the
Employer’s reliance may be limited, as provided above.



15.10 Mergers And Consolidations




     (a) In the case of any merger or consolidation of the Employer’s Plan with, or transfer of
assets or liabilities of the Employer’s Plan to any other plan, Participants in the Employer’s Plan
shall be entitled to receive benefits immediately after the merger, consolidation, or transfer
which are equal to or greater than the benefits they would have been entitled to receive
immediately before the merger, consolidation, or transfer if the Plan had then terminated.



     (b) Any corporation (or other authorized business entity) into which the Trustee, Custodian or
any successor thereto may be merged or with which it may be consolidated, or any corporation
resulting from any merger or consolidation to which the Trustee, Custodian or any successor thereto
may be a party, or any corporation (or other authorized business entity) to which all or
substantially all the business of the Trustee, Custodian or any successor thereto may be
transferred, shall automatically be the successor without the filing of any instrument or
performance of any further act, before any court.



15.11 Qualification Of Prototype



The Sponsor intends that this Prototype Defined Contribution Plan, inclusive of the Basic Plan
Document #01 and associated Adoption Agreements, will meet the requirements of the Code and the
Regulations thereunder. Should the Commissioner of Internal Revenue or any delegate of the
Commissioner at any time determine that this Prototype Plan fails to meet the applicable
qualification requirements of the Code and/or the Regulations thereunder, the Sponsor will amend
the Basic Plan Document #01 and/or Adoption Agreement(s) as necessary to maintain their qualified
status.




110









 








ARTICLE XVI

GOVERNING LAW




16.1 Governing Law



Construction, validity and administration of the Prototype Plan and any Employer Plan established
under the terms of this Plan and accompanying Adoption Agreement(s), shall be governed by Federal
law to the extent applicable, and, to the extent Federal law is not applicable by the laws of the
State or Commonwealth in which the principal office of the Prototype Sponsor or its affiliate is
located.



Notwithstanding any provision of the Plan to the contrary, no provision in the Basic Plan Document
#01 shall subject a governmental Plan as defined in Code Section 414(d) or a non-electing church
plan as described in Code Section 410(d) to the fiduciary provisions of Title I of ERISA or any
other provision of ERISA that is not applicable to such governmental or non-electing church plans.




16.2 State Community Property Laws



The terms and conditions of the Prototype Plan and any Employer’s Plan established under the terms
of this Basic Plan Document #01 and accompanying Adoption Agreement(s) shall be applicable without
regard to community property laws of any state.




3/08





111









 








ARTICLE XVII

DEEMED IRAS




RESERVED




112









 





ARTICLE XVII

DEEMED IRAS



This Article shall apply if elected by the Employer in the Adoption Agreement and shall be
effective for Plan Years beginning after the date specified in the Adoption Agreement, but in no
event earlier than the Plan Year beginning on or after January 1, 2003. Any Traditional or Roth
IRA established hereunder to accept Deemed IRA Contributions as permitted by Code Section 408(g)
will follow the rules set forth in Code Section 408 and outlined in Article XVIII. Any Roth IRA
established hereunder to accept Deemed IRA Contributions as permitted by Code Section 408(g) shall
follow the rules set forth in Code Section 408A and outlined in Article XIX. Any account
established hereunder is for the exclusive benefit of the Participant or his or her Beneficiaries.




17.1 Deemed IRAs



If the Employer’s Plan allows Participants to make Voluntary Employee Contributions, such
Participant may make Voluntary Employee Contributions to the Participant’s Traditional or Roth IRA
as elected on the Adoption Agreement under Basic Plan Document #01. Simplified Employee Pension
Plans (SEPs) under Code Section 409(k) and SIMPLE IRAs under Code Section 408(p) may not be used as
Deemed IRAs.



The Plan may establish an annuity or a trust (whether or not separate from the Employer’s Plan
Trust) for the designated IRA contributions of each Participant and any earnings properly allocable
to the contributions. A separate recordkeeping account with respect to each such IRA will be
maintained for each Participant. If Deemed IRA contributions are made to an annuity contract, such
annuity contract shall be separate from the Employer’s Qualified Plan. Contributions may be held
under a single annuity contract or under separate annuity contracts. Where a single annuity
contract is used, separate accounting for the interest of each Participant is required.




17.2 Individual



The Participant in the Plan who has established a Traditional IRA or a tax-qualified Roth IRA under
this Basic Plan Document #01, which may be amended from time to time.




17.3 Investment In Collectibles



If a Deemed IRA established hereunder acquires collectibles within the meaning of Code Section
408(m) after December 31, 1981, assets of the Deemed IRA will be treated as a distribution in an
amount equal to the cost of such collectibles.




17.4 Restrictions On Directing Investments



While the Individual may direct the Trustee or Insurer with respect to investments, the Individual
may not borrow from the account or pledge any of the assets of the IRA as security for a loan, or
buy property or assets from or sell property or assets to the account.




17.5 Prohibition Against Investing In Life Insurance



No part of the Deemed IRA assets (whether or not the Deemed IRA Account is separate from the
Employer’s Qualified Plan) used to hold Deemed IRA contributions will be invested in life insurance
contacts.




17.6 Commingling Of Assets



The assets of a Deemed IRA may be commingled for investment purposes with those of Employer
Qualified Plan. However, the restrictions on the commingling of Plan and IRA assets as outlined in
Code Section 408(a)(5) with other assets apply to the assets of the Employer Qualified Plan and the
Deemed IRA.




17.7 Nonforfeitability



The balance in an Individual’s Deemed IRA account is nonforfeitable at all times.




17.8 Separate Accounting



Separate records will be maintained for the interest of each Individual under an IRA established by
the Employer.




17.9 Separate Trusts



Deemed IRAs established pursuant to this paragraph may be held in a trust separate from the Trust
established under the Plan as determined by the Employer’s administrative policy. Any separate
trust established to hold Deemed IRA contributions shall satisfy the applicable requirements of
Code Sections 408 and 408(A), whose requirements are set forth in Articles XVIII and XIX, and will
not be considered an Employer Qualified Plan. All contributions made to a separate trust of a
Deemed IRA will be treated as contributions to such Deemed IRA and not to the Employer’s Qualified
Plan. Similarly, the requirements of Code Sections 408 and 408(A) and the rules set forth in
Articles XVIII and XIX will not be applicable to the Employer’s Qualified Plan established
hereunder if the Deemed IRA contributions are made to a separate trust. When a separate Deemed IRA
is not established, the Deemed IRA contributions will be included as part of the Employer’s
Qualified Plan, but separate accounting of the Deemed IRA contributions must be established as
outlined in paragraphs 5.1 and 17.8. Where an Employer Qualified Plan and Deemed IRAs are included
in the same Trust, the Trustee of the Plan must be the same Trustee of the IRA;




113









 







therefore, the Trustee must be either a bank or a non-bank trustee that satisfies the requirements
of Code Section 408(a)(2) and the Regulations thereunder.




17.10 Separate Annuities



Deemed IRAs established pursuant to this paragraph may be held in an annuity contract. Separate
annuity contracts must be established for the interest of each Individual to hold Deemed IRA
contributions. Such annuity contracts must be held separate from the Employer’s Plan, even if the
Employer Qualified Plan also maintains annuity contracts.




17.11 Reporting Duties



The Trustee or Insurer of a Roth IRA shall furnish annual calendar year reports concerning the
status of the account as well as information concerning required minimum distributions as is
prescribed by the Commissioner of Internal Revenue. The Trustee or Insurer, as applicable, shall
be subject to the reporting requirements of Code Section 408(i) with respect to all Deemed IRAs
that are established and maintained under the Plan.




17.12 Distributions



The rules applicable to distributions from Employer Qualified Plans under the Internal Revenue Code
and the Regulations thereunder do not apply to distributions from Deemed IRAs. Instead, the rules
applicable to distributions from IRAs apply to distributions from Deemed IRAs, as outlined in
Article XVIII and Article XIX, as applicable. Additionally, any restrictions that a Trustee,
Custodian, or insurance company is permitted to impose on distributions from Traditional and Roth
IRAs, may be imposed on distributions from Deemed IRAs (i.e., early withdrawal penalties on
annuities). The required minimum distribution rules of Code Section 401(a)(9) must be met
separately with respect to the Employer Qualified Plan and the Deemed IRA. The determination of
whether an Employer Qualified Plan satisfies the required minimum distribution rules of Code
Section 401(a)(9) is made without regard to whether a Participant satisfies the required minimum
distribution requirements with respect to the Deemed IRA that is established under such Plan.




17.13 Voluntary Employee Contributions



For purposes of this paragraph, a Voluntary Employee Contribution is any contribution [other than a
mandatory contribution within the meaning of Code Section 411(c)(2)] that is made by a Participant
to an Employer Qualified Plan that allows Participants to elect to make contributions to Deemed
IRAs and which the Participant has designated, at or prior to the time of making the contribution,
as a contribution to which this Article applies.




17.14 Substitution Of Non-Bank Trustee



If a non-bank Trustee has been appointed by the Employer, such entity shall retain the right to
substitute another Trustee or Custodian if such non-bank Trustee receives notice from the
Commissioner of Internal Revenue that such substitution is required because it has failed to comply
with the requirements of Regulations Section 1.408-2(e).




17.15 Disqualification



The failure of either the Employer Qualified Plan portion or the Deemed IRA portion of the Plan to
satisfy the applicable qualification rules of each will not cause the other portion to be
automatically disqualified, provided the Deemed IRA portion and the Qualified Plan portion are
maintained as separate Trusts (or separate annuity contracts, as required in the case of a Deemed
IRA annuity). If both the Deemed IRA portion and the Qualified Plan portion are included in
separate Trusts, and the Qualified Plan is disqualified, the IRA portion will not be considered a
Deemed IRA under Code Section 408(a), but it will not fail to satisfy the applicable requirements
of Code Sections 408 or 408(A) if it satisfies the applicable requirements of those sections,
including, with respect to individual retirement accounts the requirements of Code Section
408(a)(5) with regard to commingling of assets. If the IRA assets and the non-IRA assets have been
commingled [except in a common trust fund or common investment fund as permitted by Code Section
408(a)(5)], the IRA portion will fail to satisfy the requirements of Code Section 408(a).
Additionally, if the IRA assets and the non-IRA assets are commingled [except as permitted by Code
Section 408(a)(5)] and the IRA is disqualified, the Employer’s Plan will also be disqualified.




114









 








ARTICLE XVIII

DEEMED TRADITIONAL INDIVIDUAL RETIREMENT ACCOUNT PROVISIONS




RESERVED




115









 





ARTICLE XVIII

DEEMED TRADITIONAL INDIVIDUAL RETIREMENT ACCOUNT PROVISIONS




18.1 Deemed IRA



The provisions of this Article and Article XVII shall apply if elected in the Adoption Agreement.
A Deemed Individual Retirement Account, or Deemed Individual Retirement Annuity described in Code
Section 408(a) where the context so requires, include a Traditional IRA, Rollover IRA and Combined
IRA. No account established under the Prototype Plan may accept SEP, SARSEP, SIMPLE IRA or
Coverdell Education contributions.




18.2 Maximum Annual Contribution



With respect to Traditional IRA Contributions made by or on behalf of an Individual for a taxable
year, Maximum Annual Contribution shall mean an amount that does not exceed the lesser of the
deductible amount described in Code Section 219(b)(5)(A) reduced by the amount of any contributions
made by or on behalf of the Individual to another Traditional IRA or to a Roth IRA for the same
Taxable Year.




18.3 Catch-Up Contribution



In the case of annual contributions to a Traditional IRA or IRA Rollover Account, a Catch-Up
Contribution is an amount not to exceed the Applicable Amount as defined in Code Section
219(b)(5)(B)(i).



Catch-Up Contributions that may be made by or on behalf of an Individual for any taxable year to an
IRA established under this Plan shall be reduced by the amount of Catch-Up Contributions made by or
on behalf of the same Individual to any other IRA or Roth IRA for the same taxable year except
that, in the case of Catch-Up Contributions made as salary reduction contributions to a SARSEP IRA
Account, the amount of such Catch-Up Contributions allowed for any taxable year shall be reduced by
the amount of Catch-Up Contributions made by or on behalf of the same Individual to any other
retirement plan described in Code Sections 401(a), 403(b), 408(p) or 457. Catch-Up Contributions
may be made by or on behalf of an Individual who has attained the age of fifty (50) on or before
the last day of the year for which the contribution is made. The Plan shall be interpreted to deem
any Individual’s contribution that exceeds the Maximum Annual Contribution as defined in paragraph
18.2 but not an amount greater than the Applicable Amount to be a Catch-Up Contribution unless the
Individual elects to treat such amount as an Excess Contribution described in paragraph 18.8.




18.4 Required Beginning Date



The April 1st of the calendar year following the calendar year in which the Individual
attains age 701/2.




18.5 Tax Year



The period for which an Individual must report income on his or her Federal income tax return. The
tax return of most Individuals is based on the calendar year.




18.6 Trustee



The institution and any successor thereto including by merger or acquisition that has been
appointed and accepted as indicated on the Adoption Agreement.




18.7 Traditional IRA Contributions



An Individual may make a cash contribution in any amount up to the Maximum Annual Contribution
(reduced by the amount of any contributions made by the Individual or on the Individual’s behalf to
another IRA or to a Roth IRA for the same Tax Year) in which the Individual is under the age of
701/2.



The Trustee is not permitted to accept contributions in excess of the Maximum Annual Contribution
amount for any Tax Year unless it is a Rollover Contribution [as permitted by Code Sections 402(c)
and 403(a)(4)]. Contributions may be made to an IRA for any Tax Year at any time starting on the
first day of the Tax Year and ending on the day the Individual’s Federal income tax return is due
for such year (not including any extensions). Except in the case of a Rollover Contribution [as
permitted by Code Sections 402(c), 402(e)(6), 403(a)(4), 403(b)(8), 403(b)(10), 408(d)(3) and
457(e)(16)(A)(i)], the total of such contributions shall not exceed the Maximum Annual Contribution
amount for each year listed below:




	 	 	 
	Tax Years	 	Maximum Annual Contribution Amount
	2002 through 2004

	 	$3,000
	2005 through 2007
	 	$4,000
	2008 and thereafter
	 	$5,000





For years after 2008, the $5,000 limit is subject to cost-of-living adjustments (“COLAs”) under
Code Section 219(b)(5)(c). Such adjustments will be in $500 increments.



If by December 31 of any taxable year an Individual is age fifty (50) or over, the Individual may
make an additional contribution (a “Catch-Up Contribution”) to all of the Individual’s IRAs in the
aggregate (and if the Individual is eligible, Roth IRAs) up to $500 for Tax Years 2002 through
2005, and up to $1,000 for Tax Years 2006 and thereafter.




116









 







If the Individual is eligible, any annual contribution the Individual makes that exceeds the
Individual’s Maximum Annual Contribution will be treated as a Catch-Up Contribution (up to the
limits described above) unless the Individual elects to treat such amounts as an Excess
Contribution described in paragraph 18.8 below.




18.8 Excess Contributions



If the Participant contributes more than allowed with respect to a Tax Year, the Individual must
notify the Trustee or Insurer to return to the Individual the excess contribution, together with
any investment earnings on that amount, or to apply the excess contribution as a contribution for
the Individual’s next succeeding Tax Year. The Participant must notify the Trustee or Insurer in
writing prior to the date on which the Individual files, or is required to file, the Individual’s
income tax return for the Tax Year for which the excess contribution was made.




18.9 Maintenance Of An Individual’s IRA



The Trustee or Insurer will establish and maintain an IRA in the Individual’s name under this
document. The Individual’s Account will be administered separately from any other IRA and the
assets of the Individual’s IRA will not be commingled with the assets of any other IRA, except in a
common trust fund or common investment fund as described in Code Section 408(a)(5).




18.10 Methods Of Payment



The Individual’s retirement benefits must begin to be paid to the Individual no later than the
April 1 following the calendar year in which the Individual reaches age 701/2. Such distributions
shall be made in accordance with Code Sections 408(a)(6) or 408(b)(3) and the Regulations issued
thereunder. Not later than March 1 of the year following the calendar year in which the Individual
reaches age 701/2, the Individual may elect to have the balance in the IRA paid to the Individual in:




     (a) a single lump-sum payment, or



     (b) equal or substantially equal monthly, quarterly, semi-annual, or annual payments. The
payments may be computed over any period of time but not longer than the Individual’s life
expectancy or the joint life expectancy of the Individual and the Individual’s Designated
Beneficiary.


Installment payments will continue only so long as amounts remain in an IRA. Once an IRA is
exhausted, payments will stop. If the Individual is receiving installment payments, the Individual
may request distribution of all or any part of the remaining balance in the Individual’s IRA at any
time upon written notice to the Sponsor.




18.11 Requirements Of Income Tax Regulations



All distributions required under this Article will be determined and made in accordance with the
Income Tax Regulations under Code Section 401(a)(9)(1)(2). The requirements of this Article XVI
will take precedence over any inconsistent provisions of the Plan.




18.12 Required Beginning Date



Notwithstanding any provision of this Article to the contrary, the distribution of the Individual’s
interest in the IRA account shall be made in accordance with the requirements of Code Section
408(a)(6), as modified by Code Section 408A(c)(5), and the Regulations thereunder, the provisions
of which are herein incorporated by reference. If distributions are made from an annuity contract
purchased from an insurance company, distributions thereunder must satisfy the requirements of
Regulations Section 1.401(a)(9)-6 [taking into account Code Section 408A(c)(5)], rather than the
distribution rules in paragraphs 18.14(b), (c) and (d) below.




18.13 Forms Of Distributions



Unless the Individual’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
paragraph 18.14 through paragraph 18.16.




18.14 Distributions Upon Death



Upon the death of the Individual, his or her entire interest will be distributed at least as
rapidly as follows:




     (a) If the Designated Beneficiary is someone other than the Individual’s surviving Spouse, the
remaining interest will be distributed, starting by the end of the calendar year following the
calendar year of the Individual’s death, over the remaining life expectancy of the Designated
Beneficiary, with such life expectancy determined using the Designated Beneficiary’s age as of his
or her birthday in the year following the year of the Individual’s death, or, if the distributions
are being made over the period described in (c) below if longer.



117









 





     (b) If the Individual’s sole Designated Beneficiary is the Individual’s surviving Spouse, the
entire interest will be distributed, starting by the end of the calendar year following the
calendar year of the Individual’s death (or by the end of the calendar year in which the Individual
would have attained age 701/2, if later), over such Spouse’s life or if elected in accordance with
paragraph (c) below. If the surviving Spouse dies before distributions are required to begin, the
remaining interest will be distributed, starting by the end of the calendar year following the
calendar year of the Spouse’s death, over the Spouse’s Designated Beneficiary’s remaining life
expectancy determined using such Beneficiary’s age as of his or her birthday in the year following
the death of the Spouse, or if elected will be distributed in accordance with paragraph (c) below.
If the surviving Spouse dies after the distributions are required to begin, any remaining interest
will be distributed over the Spouse’s remaining life expectancy determined using the Spouse’s age
as of his or her birthday in the year of the Spouse’s death.



     (c) If there is no Designated Beneficiary, or if applicable by operation of paragraph (a) or
(b) above, the remaining interest will be distributed by the end of the calendar year containing
the fifth anniversary of the Individual’s death [or of the Spouse’s death in the case of the
surviving Spouse’s death before distributions are required to begin under paragraph (b) above] over
the Individual’s remaining life expectancy determined in the year of the Individual’s death.



     (d) The amount to be distributed each year under paragraph (a), (b) or (c), beginning with the
calendar year following the calendar year of the Individual’s death, is the quotient obtained by
dividing the value of the IRA as of the end of the preceding year by the remaining life expectancy
specified in such paragraph. Life expectancy is determined using the Single Life Table in Q&A-1 of
Regulations Section 1.401(a)(9)-9.



     (e) If distributions are being made to a surviving Spouse as the sole Designated Beneficiary,
such Spouse’s remaining life expectancy for a year is the number in the Single Life Table
corresponding to the Spouse’s age in the year. In all other cases, remaining life expectancy for
a year is the number in the Single Life Table corresponding to the Beneficiary’s age in the year
specified in (a) or (b) and reduced by one (1) for each subsequent year.



     (f) The value of the IRA includes the amount of any outstanding rollover, transfer, and
recharacterization under Q&As-7 and -8 of Regulations Section 1.408-8.



     (g) If the sole Designated Beneficiary is the Individual’s surviving Spouse, the Spouse may
elect to treat the IRA as his or her own IRA. The election will be deemed to have been made if
such Surviving Spouse makes a contribution to the IRA or fails to take required distributions as a
Beneficiary.



18.15 Designated Beneficiary



The individual who is designated as the Beneficiary under paragraphs 1.13 and 1.26 and is the
Designated Beneficiary under Code Section 401(a)(9) and Regulations Section 1.401(a)(9).




18.16 Remainder Beneficiary



The Individual’s Beneficiary may, after the Individual’s death, name a person, trust, estate or
other entity to receive distributions of any balance remaining in the Individual’s IRA after the
death of the Individual’s Beneficiary. Any person or entity so designated will, upon the death of
the Individual’s Beneficiary, become the Individual’s Beneficiary for all purposes except for
required minimum distributions. This additional designation may not extend the schedule of
required minimum distributions established when the Individual attains age 701/2 or, if sooner,
following the Individual’s death.




18.17 Distribution Calendar Year



A calendar year for which a required minimum distribution is required. For distributions beginning
before the Individual’s death, the First Distribution Calendar Year is the calendar year
immediately preceding the calendar year which contains the Individual’s Required Beginning Date.
For distributions beginning after the Individual’s death, the First Distribution Calendar Year is
the calendar year in which distributions are required to begin under paragraph 18.11. The required
minimum distribution for the Individual’s First Distribution Calendar Year will be made on or
before the Individual’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 Individual’s Required Beginning Date occurs, will be made on or before
December 31 of that Distribution Calendar Year.




18.18 Life Expectancy



Life expectancy as computed by use of one of the following tables, as appropriate:




     (a) the Single Life Table,



     (b) the Uniform Life Table, or



     (c) the Joint and Last Survivor Table found in Section 1.401(a)(9)-9 of the Treasury
Regulations.



118









 





18.19 Individual’s Account Balance



The IRA account balance as of December 31 of the calendar year immediately preceding the
Distribution Calendar Year. The “value” of the IRA includes the amount of any outstanding
rollover, transfer and recharacterization under Q&As-7 and -8 of Regulations Section 1.408-8.




18.20 Duties Of The Trustee



The administrative functions the Trustee will perform include:




     (a) setting up and maintaining an IRA in the Individual’s name;



     (b) accepting contributions for deposit to the Individual’s IRA. The Trustee does not require
the Individual to make annual contributions since they are voluntary. However, the Trustee is not
permitted to accept contributions in excess of the Maximum Annual Contribution for any Tax Year
unless it is a Rollover Contribution;



     (c) investing the Individual’s contributions in accordance with the Individual’s direction;



     (d) making payments or distributions from the Individual’s IRA in accordance with the
Individual’s written instructions;



     (e) preparing and mailing to the Individual an annual report of the Individual’s IRA for each
Tax Year. The report will show the contributions received, the payments and distributions made,
the investment earnings received, the market value of assets held in the Individual’s Account
including gains and/or losses (if applicable) and the balance held in the Account at the end of the
Tax Year; and



     (f) preparing an annual calendar year statement concerning the status of the account and such
information concerning required minimum distributions as is prescribed by the Commissioner of
Internal Revenue.


Where the context is appropriate, Trustee also refers to an Insurer.




18.21 Duties Of The Individual



The administrative functions the Individual must perform include:




     (a) determining the amount of the Individual’s annual contribution, if any. The Individual is
also responsible to make the Individual’s contribution within the time limits set by the Internal
Revenue Service;



     (b) authorizing any payment or distribution from the Individual’s Account;



     (c) filing Form 5329, Return for Additional Taxes Attributable to Retirement Plans (including
IRAs), Annuities and Modified Endowment Contracts, if the Individual owes an excise tax with
respect to the Individual’s IRA;



     (d) furnishing the Trustee with a written explanation of the intended use of any distribution
prior to attainment of age 591/2; and



     (e) furnishing the Trustee with any information the Trustee may need to complete any
governmental report required at paragraph 18.20(f) above. If the Individual fails to furnish the
Trustee with such information and documents the Trustee may reasonably require, the Trustee may in
the Trustee’s sole discretion terminate the account and distribute to the Individual the lump sum
payment, in an amount equal to the assets in the IRA less an amount deemed reasonably necessary by
the Trustee for the payment of all unpaid fees, expenses, charges, taxes or other liabilities of
the account, whether or not liquidated.



119









 





ARTICLE XIX

DEEMED ROTH INDIVIDUAL RETIREMENT ACCOUNT PROVISIONS




RESERVED




120









 





ARTICLE XIX

DEEMED ROTH INDIVIDUAL RETIREMENT ACCOUNT PROVISIONS




19.1 Deemed Roth IRA



The provisions of this Article and Article XVII shall apply if Deemed Roth Individual Retirement
Account (“IRA”) provisions are elected in the Adoption Agreement. A Deemed Roth IRA is an
Individual Retirement Account established under Code Section 408A under which contributions are not
tax deductible and where qualifying distributions are not taxable to the Individual.



The Trustee will establish and maintain a Roth Individual Retirement Account or Annuity in the
Individual’s name under the terms as contained herein and where applicable, and any other agreement
used to establish the Deemed Roth IRA. The account is established for the exclusive benefit of the
Individual or that of the Individual’s Beneficiaries. The Individual’s account will be
administered separately from any other IRA or Roth IRA and the assets of such Individual’s IRA or
Roth IRA will not be commingled with the assets of any other IRA or Roth IRA, except in a common
trust fund or common investment fund.



No part of the IRA may be invested in life insurance contracts. If the IRA acquires collectibles
within the meaning of Code Section 408(m) after December 31, 1981, IRA assets will be treated as a
distribution in an amount equal to the cost of such collectibles. Code Section 408(m) provides an
exception to this rule for certain coins and precious metals.




19.2 Compensation



For purposes of paragraph 19.9, Compensation is defined as wages, salaries, professional fees, or
other amounts derived from or received for personal services actually rendered (including but not
limited to commissions paid salesmen, compensation for services on the basis of a percentage of
profits, commissions on insurance premiums, tips, and bonuses) and includes earned income, as
defined in Code Section 401(c)(2) (reduced by the deduction the self-employed individual takes for
contributions made to a self-employed retirement plan). For purposes of this definition, Code
Section 401(c)(2) shall be applied as if the term trade or business for purposes of Code Section
1402 included service described in such section 9(c)(6). Compensation does not include amounts
derived from or received as earnings or profits from property (including but not limited to
interest and dividends) or amounts not includible in gross income. Compensation also does not
include any amount received as a pension or annuity or as deferred compensation. The term
“Compensation” shall include any amount includible in the individual’s gross income under Code
Section 71 with respect to a divorce or separation instrument described in subparagraph (A) of Code
Section 71(b)(2). In the case of a married individual filing a join return, the greater
compensation of his or her Spouse is treated as his or her own Compensation, but only to the extent
that such Spouse’s Compensation is not being used for purposes of the Spouse making a contribution
to a Roth IRA or a deductible contribution to a non-Roth IRA.




19.3 Age Requirements



Contributions may be made to this Roth IRA even after the Individual has reached age 701/2.




19.4 Plan Year



The twelve (12) month period starting on January 1 and ending on December 31.




19.5 Timing Of Contributions



An Individual must make his or her contribution for a Taxable Year either during such year or
within the time period prescribed by law for filing the Individual’s Federal income tax return for
such Taxable Year without extensions.




19.6 Adjusted Gross Income (AGI)




“AGI” shall mean adjusted gross income as reported on an Individual’s Federal income tax
return but modified, in accordance with Code Section 219(g)(3), to adjust for Social Security
benefits and passive activity losses and credits and to include foreign earned income, adoption
assistance or expenses and income from U.S. Savings Bonds used to pay higher education tuition and
fees, and further modified, in accordance with Code Section 408(c)(3)(C), to exclude any amount
included in income due to a conversion from a Traditional or Regular IRA to a Roth IRA.



19.7 Modified AGI



An Individual’s Modified AGI for a Taxable Year is defined in Code Section 408A(c)(3)(C)(i) and
does not include any amount included in Adjusted Gross Income as a result of a rollover from a
non-Roth IRA (a “conversion”).




19.8 Applicable Dollar Amount



Applicable Dollar Amount shall mean (i) $150,000, in the case of an individual filing a joint
Federal income tax return, (ii) $95,000, in the case of any other Individual (other than a married
Individual filing separately), and (iii) $0, in the case of a married Individual filing separately.




19.9 Maximum Permissible Amount



No contribution will be accepted unless it is in cash and the total of such contributions to all
the Individual’s Roth IRAs for a Taxable Year does not exceed the applicable amount [as defined in
19.10(b)], or the Individual’s Compensation, if less, for that Taxable Year. The contribution
described in the previous sentence that may not exceed the lesser of


121









 






the applicable amount or the Individual’s Compensation is referred to as a “Regular Contribution.”
A “Qualified Rollover Contribution” is a rollover contribution that meets the requirements of Code
Section 408(d)(3), except the one-rollover-per-year rule of Code Section 408(d)(3)(B) does not
apply if the rollover contribution is from an IRA other than a Roth IRA (a “non-Roth IRA”).
Contributions may be limited as described in paragraph 19.10(b).




19.10 Roth IRA Contributions




     (a) Except in the case of a Qualified Rollover Contribution or a recharacterization [as
defined in (f) below], no contribution will be accepted unless it is in cash and the total of such
contribution to all the Individual’s Roth IRAs for a taxable year does not exceed the Maximum
Permissible Amount described at paragraph 19.9.



     (b) When determining the Maximum Permissible Amount, the applicable amount is determined under
(i) or (ii) below:



          (i) If the Individual is under age fifty (50), the applicable amount is $3,000 for any Taxable
Year beginning in 2002 through 2004, $4,000 for any Taxable Year beginning in 2005 through 2007,
and $5,000 for any Taxable Year beginning in 2008 and years thereafter.




          (ii) If the Individual is age fifty (50) or older, the applicable amount is $3,500 for any
Taxable Year beginning in 2002 through 2004, $4,500 for any Taxable Year beginning in 2005, $5,000
for any Taxable Year beginning in 2006 through 2007, and $6,000 for any Taxable Year beginning in
2008 and years thereafter.




     (c) If (i) and/or (ii) below apply, the maximum Regular Contribution that can be made to all
the Individuals’ Roth IRAs for a Taxable Year is the smaller amount determined under (i) or (ii).



          (i) The maximum Regular Contribution is phased out ratably between certain levels of modified
Adjusted Gross Income (“Modified AGI,”) in accordance with the following table:




	 	 	 	 	 	 	 	 	 
	Filing Status	 	Full Contribution	 	Phase-Out Range	 	No Contribution
	 	 	Modified AGI	 	 
	Single or Head of
Household

	 	$95,0000 or less
	 	Between $95,000 and $110,000
	 	$110,000 or more
	Joint Return Or
Qualifying
Widow(er)

	 	$150,000 or less
	 	Between $150,000 and $160,000
	 	$160,000 or more
	Married-Separate
Return

	 	     $0	 	 	 	Between $0 and $10,000
	 	$10,000 or more





If the Individual’s Modified AGI for a Taxable Year is in the phase-out range, the maximum Regular
Contribution determined under this table for that Taxable Year is rounded up to the next multiple
of $10 and is not reduced below $200.




          (ii) If the Individual makes Regular Contributions to both Roth and non-Roth IRAs for a
Taxable Year, the maximum Regular Contribution that can be made to all the Individual’s Roth IRAs
for the Taxable Year is reduced by the Regular Contributions made to the Individual’s non-Roth IRAs
for the Taxable Year.




     (d) A rollover from a non-Roth IRA cannot be made to this IRA if, for the Taxable Year the
amount is distributed from the non-Roth IRA (i) the Individual is married and files a separate
return, (ii) the Individual is not married and has Modified AGI in excess of $100,000 or (iii) the
Individual is married and together the Individual and the Individual’s Spouse have Modified AGI in
excess of $100,000. For purposes of the preceding sentence, a husband and wife are not treated as
married for a Taxable Year if they have lived apart at all times during that Taxable Year and file
separate returns for the Taxable Year.



     (e) No contributions will be accepted under a SIMPLE IRA plan established by any Employer
pursuant to Code Section 408(p). Additionally, no transfer or rollover of funds attributable to
contributions made by a particular employer under its SIMPLE IRA plan will be accepted from an IRA
used in conjunction with a SIMPLE IRA plan, prior to the expiration of the two (2) year period
beginning on the date the Individual first participated in that employer’s SIMPLE IRA plan.



     (f) A Regular Contribution to a non-Roth IRA may be recharacterized pursuant to the rules in
Regulations Section 1.408A-5 as a Regular Contribution to this IRA, subject to the limits in (c)
above.



     (g) For purposes of this paragraph, an Individual’s Modified AGI for a Taxable Year is defined
in Code Section 408A(c)(3)(c)(i) and does not include any amount included in Adjusted Gross Income
as a result of a rollover from a non-Roth IRA (a “conversion”).



122









 





19.11 Excess Contribution



If the amount contributed by an Individual exceeds the Maximum Permissible Amount with respect to a
Taxable Year, the Individual must notify the Trustee or Insurer to distribute to the Individual the
excess contribution, together with any investment earnings on that amount. If any excess is not
corrected by the tax filing deadline (including extensions) for the year during which the excess
contribution was made, such excess contribution may be applied, on a year-by-year basis, against
the annual limit for regular Roth IRA contributions. However, in order to “carry over” the excess
contribution and treat it as a contribution made for a subsequent year, the Individual must meet
the eligibility requirements for the subsequent year. In addition, the Individual is subject to
the 6% excise tax for the initial year and each subsequent year until the excess is used up.



The provisions under Code Section 408(d)(5) for Traditional or Regular IRAs (correcting excesses
after the filing deadline) and under Code Section 219(f)(6) for Traditional or Regular IRAs
(carrying over excesses to a subsequent year) do not apply to Roth IRAs.



The Individual must notify the Trustee or Insurer of the excess contribution, in writing, before
the date on which the Individual files, or is required to file, his or her income tax return for
the Taxable Year for which the excess contribution was made.




19.12 Qualified Distributions



A distribution of contributions or rollovers made pursuant to this Roth IRA, that are held in a
Roth IRA account for five (5) or more Taxable Years, will be Federal income tax-free and
penalty-free if the distribution is made on account of:




     (a) the Individual having attained age 591/2,



     (b) the Individual’s death,



     (c) the Individual’s Disability, or



     (d) a Qualified Special Purpose Distribution.


If the entire Roth IRA account balance is distributed before any other Roth IRA contributions are
made, the five (5) year holding period does not start over when future contributions are made.
However, in the following situations, the five (5) year holding period will not be considered to
have begun if:




     (e) the initial Roth IRA contribution is revoked within the initial seven (7) day period;



     (f) the initial Roth IRA contribution is recharacterized to a Traditional IRA; or



     (g) an excess contribution, plus earnings, is timely distributed in accordance with Code
Section 408(d)(4), by the tax filing deadline (including extensions), unless other eligible
contributions were made.



19.13 Qualified Special Purpose Distribution



A distribution to an Individual who is a Qualified First-Time Homebuyer, as defined under Code
Section 72(t)(8), to the extent such distribution is used by the Individual before the close of the
120th day after the day on which such distribution is received to pay qualified acquisition costs
with respect to a principal residence of the Individual, the Spouse of such Individual, or any
child, grandchild, or ancestor of such Individual or the Individual’s Spouse.




19.14 Nonqualified Distributions



A distribution will not be considered qualified if such distribution is made within the five (5)
year period beginning with the first Taxable Year for which a contribution or rollover is made to
this Roth IRA. If a nonqualified distribution is made from this Roth IRA, the amount so
distributed shall be subject to tax and applicable penalties to the extent the distribution, when
added to previous nonqualified distributions, exceeds the aggregate contributions made by the
Individual pursuant to this Roth IRA. For purposes of this determination, contributions shall be
deemed to be distributed on a first-in first-out basis.




19.15 Form Of Payment



An Individual may elect to have the balance in his or her Roth IRA paid in the form of a lump sum
or installment payments in equal or substantially equal monthly, quarterly, semi-annual, or annual
amounts.




19.16 Rollover From A Qualified Retirement Plan



An Individual may not roll over to this or any other Roth IRA any part of a distribution received
from a Qualified Retirement Plan.




19.17 Life Expectancy



The life expectancy of the Individual. Life expectancy is determined by reference to the return
multiple contained in the tables published at Regulations Section 1.72-9.




123









 








19.18 Distributions Commencing Prior To Death



An Individual may direct the Trustee or Insurer to commence payments in the form of a lump sum or
installments at any time without regard to the minimum distribution requirements under Code Section
401(a)(9). Installment payments may be set up over any period selected by the Individual provided
that such period is acceptable to the Trustee or Insurer. Installment payments will continue only
so long as amounts remain in the Individual’s Roth IRA. The Individual shall have the right at any
time to request a lump sum payment of the balance remaining in his or her account.




19.19 Distributions After Death



Benefits payable to a Beneficiary must be distributed or commence to be distributed from the
Individual’s account in accordance with one of the following provisions:




     (a) Upon the death of the Individual, distribution of the Individual’s entire interest shall
be completed by December 31 of the calendar year containing the fifth (5th) anniversary
of the Individual’s death except to the extent that an election is made to receive distributions in
accordance with (i) or (ii) below.



          (i) If the Individual’s interest is payable to a Beneficiary, then the entire interest of the
Individual may be distributed over the life or over a period certain not greater than the life
expectancy of the Beneficiary commencing on or before December 31 of the calendar year immediately
following the calendar year in which the Individual died.



          (ii) If the Beneficiary is the Individual’s surviving Spouse, the date distributions are
required to begin in accordance with (i) above shall not be earlier than the later of (A) December
31 of the calendar year immediately following the calendar year in which the Individual died or (B)
December 31 of the calendar year in which the Individual would have attained age 701/2.



     (b) If the Beneficiary is the Individual’s surviving Spouse, the Spouse may elect to treat the
account as his or her own Roth IRA. This election will be deemed to have been made if such
surviving Spouse makes a regular contribution to the account, makes a rollover to or from such
account, or fails to take distributions under (a) above.



     (c) The amount to be distributed under paragraph (a)(i) or (a)(ii) is the quotient obtained by
dividing the value of the IRA as of the end of the preceding year by the remaining Life Expectancy
specified in such paragraph. Life Expectancy is determined using the Single Life Table in Q&A-1 of
§1.401(a)(9)-9 of the Income Tax Regulations. If distributions are being made to a surviving
Spouse as the sole Designated Beneficiary, such Spouse’s remaining Life Expectancy for a year is
the number in the Single Life Table corresponding to such Spouse’s age in the year. In all other
cases, remaining Life Expectancy for a year is the number in the Single Life Table corresponding to
the Beneficiary’s age in the year specified in paragraph (a)(i) or (ii) reduced by one (1) for each
subsequent year.



     (d) the “value” of the IRA includes the amounts of any outstanding rollover, transfer and
recharacterization under Q&As-7 and -8 of Regulations Section 1.408-9.



     (e) If the sole Designated Beneficiary is the Participant’s surviving Spouse, the Spouse may
elect to treat the IRA as his or her own IRA. This election will be deemed to have been made if
such surviving Spouse makes a contribution to the IRA or fails to take required distributions as a
Beneficiary.



19.20 Ordering Rules Upon Death Of Individual



For purposes of the ordering rules upon distribution, a Beneficiary’s inherited Roth IRAs may not
be aggregated with any other Roth IRAs maintained by such Beneficiary, except for other Roth IRAs
that the Beneficiary inherited from the same decedent. However, if the surviving Spouse is the
sole Beneficiary of a Roth IRA and such surviving Spouse elects to treat the Roth IRA as his or her
own Roth IRA, the Spouse can aggregate contributions with his or her other Roth IRAs for purposes
of determining the ordering rules when distributions are taken.




19.21 Minimum Payment



No amount is required to be distributed from this Roth IRA before the death of the Individual for
whose benefit it has been established. Distributions made pursuant to this Roth IRA will not be
subject to the required minimum distribution rules under Code Section 401(a)(9)(A), or the
incidental death benefit rules under Code Section 401(a).




19.22 Duties Of Trustee



The administrative functions the Trustee will perform include:




     (a) setting up and maintaining a Roth IRA in the Individual’s name;



     (b) accepting contributions for deposit to the Individual’s Roth IRA. The Trustee will not
accept contributions in excess of $2,000 for any Taxable Year or contributions from a SIMPLE IRA
unless such contribution is a rollover or direct transfer from another Roth IRA or Traditional or
Regular IRA (other than a conduit IRA);



124









 





     (c) investing contributions in accordance with the investment options offered by the Trustee;



     (d) making payments or distributions from this Roth IRA in accordance with written
instructions issued by an authorized party hereunder;



     (e) preparing and issuing an annual calendar year report of the Roth IRA for each Plan Year
concerning the status of the status of the account and such information concerning required minimum
distributions as is prescribed by the Commissioner of Internal Revenue. The report will show the
contributions received, the payments and distributions made, the investment earnings received, the
market value of assets held in the account and the balance held in the account at the end of the
Plan Year, and such information concerning required minimum distributions as is prescribed by the
Commissioner of Internal Revenue; and



     (f) preparing any reports that may be required by the Internal Revenue Service or by any
governmental unit or agency having authority to request reports.


Where the context is appropriate, Trustee also refers to an Insurer.




19.23 Duties Of Individual



The administrative functions the Individual must perform include:




     (a) determining the amount and timing of the annual contribution, if any;



     (b) notifying the Trustee of any excess contribution made for a Taxable Year and directing the
Trustee as to the disposition of such contribution plus the investment earnings thereon;



     (c) authorizing any payment or distribution from the account;



     (d) filing Form 5329, Return for Additional Taxes Attributable to Qualified Retirement Plans,
if an excise tax is owed with respect to the Roth IRA;



     (e) furnishing the Trustee with a written explanation of the intended use of any distribution
to the Individual prior to the attainment of age 591/2; and



     (f) furnishing the Trustee with any information the Trustee may need to complete any
governmental report required under applicable statutes or regulations.




125











 





NONSTANDARDIZED ADOPTION AGREEMENT

PROTOTYPE CASH OR DEFERRED PROFIT-SHARING PLAN




Sponsored by




Pentegra Retirement Services, Inc.



The Employer named below hereby establishes a Cash or Deferred Profit-Sharing Plan for eligible
Employees as provided in this Adoption Agreement and the accompanying Basic Plan Document #01.





	I.	 	EMPLOYER INFORMATION
	 
	 	 	If more than one Employer is adopting the Plan, complete this section based on the lead
Employer. Additional Employers who are members of the same controlled group or affiliated
service group may adopt this Plan by completing and executing a Participation Agreement
that, once executed, will become part of this Adoption Agreement.






	 	A.	 	Name And Address:
	 
	 	 	 	Athens Federal Community Bank
	 		 	106 Washington Avenue, NW
	 	 	 	Athens, TN 37303
	 
	 	B.	 	Telephone Number: 423-745-1111
	 
	 	C.	 	Employer’s Tax ID Number: 62-0118775
	 
	 	D.	 	Form Of Business:





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	  o
	 	 	1.	 	 	Sole Proprietor
	 	o
	 	 	5.	 	 	Limited Liability Company
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	  o
	 	 	2.	 	 	Partnership
	 	o
	 	 	6.	 	 	Limited Liability Partnership
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	  þ
	 	 	3.	 	 	Corporation
	 	o
	 	 	7.	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	  o
	 	 	4.	 	 	S Corporation	 	 	 	 	 	 	 	 






	 	 	 	 	 	 	 	 	 
	 

	 	E.
	 	Is The Employer Part Of A Controlled Group?
	 	o YES
	 	þ NO
	 

	 	 	 	Part Of An Affiliated Service Group?
	 	o YES
	 	þ NO







	 	F.	 	Name Of Plan: Athens Federal Community Bank Employees’ Savings & Profit Sharing Plan and
Trust
	 
	 	G.	 	Three Digit Plan Number: 003
	 
	 	H.	 	Employer’s Tax Year End: December 31
	 
	 	I.	 	Employer’s Business Code:                                                             






	II.	 	EFFECTIVE DATE






	 	A.	 	New Plan:
	 
	 	 	 	This is a new Plan having an Effective Date of October 1, 2009. The Effective Date
may be no earlier than the Plan Year beginning after December 31, 2001 or if later,
the first day of the Plan Year in which it is adopted.
	 
	 	B.	 	Amended and Restated Plans:
	 
	 	 	 	This is an amendment and/or restatement of an existing Plan. The initial Effective
Date of the Plan was      N/A     . The Effective Date of this
amendment and/or restatement is      N/A      . The Effective Date of the
restated Plan may be no earlier than for Plan Years beginning after December 31,
2001.




1









 












	 	C.	 	Amended or Restated Plans for EGTRRA:
	 
	 	 	 	This is an amendment and/or restatement of an existing Plan to comply with the
Economic Growth and Tax Relief Reconciliation Act of 2001, Pub. L. 107-17 (EGTRRA)].
The initial Effective Date of the Plan was      N/A     . Except
as provided for in the Plan, the Effective Date of this amendment and/or restatement
is      N/A     . (The restatement date should be no earlier than the
first day of the current Plan Year. The Plan contains appropriate retroactive
Effective Dates with respect to provisions of EGTRRA.)
	 
	 	 	 	Except to the extent permitted under Code Section 411(d)(6) and the Regulations
issued thereunder, an Employer cannot reduce, eliminate or make subject to Employer
discretion any Code Section 411(d)(6) protected benefit. Where this Plan document
is being adopted to amend another plan that contains a protected benefit not
provided for in the Basic Plan Document #01, the Employer may complete Schedule A as
an addendum to this Adoption Agreement. Schedule A describes such protected
benefits and shall become part of this Plan. If a prior plan document contains a
plan feature not provided for in the Basic Plan Document #01, the Employer may
attach Schedule B describing such feature. Provisions listed on Schedule B may not
be covered by the IRS Opinion Letter issued with respect to the Basic Plan Document
#01.
	 
	 	D.	 	Effective Date for Elective Deferrals:
	 
	 	 	 	If different from above, the Elective Deferral provisions shall be effective
     N/A     .
	 
	 	E.	 	Effective Date for Safe Harbor 401(k) Contributions:
	 
	 	 	 	If different from above, this provision shall be effective      N/A     .
This provision must be adopted prior to the first day of the Plan Year and remain in
effect for an entire twelve (12) month period.
	 
	 	F.	 	Effective Date for Roth Elective Deferrals:
	 
	 	 	 	If different from above, Roth Elective Deferral provisions shall be effective
     N/A     . The Effective Date of this provision cannot be earlier than
January 1, 2006.
	 
	 	G.	 	Frozen Plan:
	 
	 	 	 	This Plan was frozen effective      N/A     . For any period following
this Effective Date, neither the Employer nor any Participant may contribute to this
Plan, and no otherwise eligible Employee shall become a Participant in this Plan.
All existing account balances will become fully vested as of the date specified
above.






	III.	 	DEFINITIONS






	 	A.	 	“Compensation”
	 
	 	 	 	Select the definition of Compensation, the Compensation Computation Period, any
Compensation Dollar Limitation and Exclusions from Compensation for each
contribution type from the options listed below. Enter the letter of the option
selected on the lines provided below. Leave the line blank if no election needs to
be made. The Compensation Computation Period must be the same as the Limitation Year
defined at Section III(F).





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Compensation	 	 	 	 
	Employer	 	Compensation	 	Computation	 	Compensation	 	Exclusions
	Contribution Type	 	Definition	 	Period	 	Dollar Limitation	 	From Compensation
	All Contributions
	 	 	d	 	 	 	b	 	 	$	N/A	 	 	 	j	 
	Elective Deferrals
(including Roth Elective
Deferrals, if
applicable)
	 	 	 	 	 	 	 	 	 	$	 	 	 	 	 	 






2









 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Compensation	 	 	 	 
	Employer	 	Compensation	 	Computation	 	Compensation	 	Exclusions
	Contribution Type	 	Definition	 	Period	 	Dollar Limitation	 	From Compensation
	Voluntary After-tax
	 	 	 	 	 	 	 	 	 	$	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Required After-tax
	 	 	 	 	 	 	 	 	 	$	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Matching Contribution
(Formula 1)
	 	 	 	 	 	 	 	 	 	$	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Matching Contribution
(Formula 2)
	 	 	 	 	 	 	 	 	 	$	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Non-Elective Contribution
(Formula 1)
	 	 	 	 	 	 	 	 	 	$	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Non-Elective Contribution
(Formula 2)
	 	 	 	 	 	 	 	 	 	$	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Safe Harbor Contribution
	 	 	 	 	 	 	 	 	 	 	N/A	 	 	 	N/A	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	QNEC
	 	 	 	 	 	 	 	 	 	$	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	QMAC
	 	 	 	 	 	 	 	 	 	$	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	ADP/ACP Tests
	 	 	d	 	 	 	b	 	 	 	N/A	 	 	 	N/A	 







	 	1.	 	Compensation Definition:






	 	a.	 	Code Section 3401(a) — W-2 Compensation subject
to income tax withholding at the source, with all pre-tax contributions
excluded.
	 
	 	b.	 	Code Section 3401(a) — W-2 Compensation subject
to income tax withholding at the source, with all pre-tax contributions
included [Plan defaults to this election].
	 
	 	c.	 	Code Section 6041/6051 — Income reportable on
Form W-2, with all pre-tax contributions excluded.
	 
	 	d.	 	Code Section 6041/6051 — Income reportable on
Form W-2, with all pre-tax contributions included.
	 
	 	e.	 	Code Section 415 — All income received for
services performed for the Employer, with all pre-tax contributions
excluded.
	 
	 	f.	 	Code Section 415 — All income received for
services performed for the Employer, with all pre-tax contributions
included.






	 	 	 	The selection of any of the above definitions of Compensation meets the Code
Section 414(s) definition of Compensation. The Code Section 415 definition
shall always apply with respect to sole proprietors and partners.






	 	o	2. 	 Deemed Compensation from permitted waiver of group health coverage under
a Cafeteria Plan Arrangement: The Employer elects to include deemed Code Section 125
Compensation not available to a Participant in cash in lieu of group health coverage
in the Plan’s definition of Compensation.







	 	3.	 	Compensation Computation Period:






	 	a.	 	Compensation paid during a Plan Year while a
Participant [Plan defaults to this election].
	 
	 	b.	 	Compensation paid during the entire Plan Year.
	 
	 	c.	 	Compensation paid during the Employer’s fiscal year.
	 
	 	d.	 	Compensation paid during the calendar year.






	 	4.	 	Compensation Dollar Limitation: The dollar limitation section
does not need to be completed unless Compensation of less than the Code Section
401(a)(17) limit of $200,000 is to be used. When an integrated allocation
formula in Section VI is selected, Compensation cannot be limited to an amount
less than the maximum amount under Code Section 401(a)(17).




3









 






	 	5.	 	Exclusions from Compensation (non-integrated plans only):






	 	a.	 	There will be no exclusions from Compensation
under the Plan [Plan defaults to this safe harbor election].
	 
	 	b.	 	Overtime
	 
	 	c.	 	Bonuses
	 
	 	d.	 	Commissions
	 
	 	e.	 	Exclusion applies only to Participants who are
Highly Compensated Employees [safe harbor].
	 
	 	f.	 	Holiday and vacation pay
	 
	 	g.	 	Reimbursements or other expense allowances,
fringe benefits (cash and non-cash), moving expenses, deferred
compensation, and welfare benefits [safe harbor].
	 
	 	h.	 	Post-severance payments, as described in
paragraph 1.17(c)(6) of Basic Plan Document #01. (This exclusion may
apply no earlier than the 2005 Limitation Year.)
	 
	 	i.	 	Compensation in excess of
$                                         for Highly Compensated Employees [safe
harbor].
	 
	 	j.	 	Other: Benefits attributable to a Code Section
132(f)Fringe Benefits Plan.






	 	 	 	Any exclusion of Compensation except (a), (e), (g), (h) and (i) must satisfy
the requirements of Section 1.401(a)(4) of the Income Tax Regulations and
Code Section 414(s) and the Regulations thereunder. These exclusions do not
fall under the “safe harbor” modifications to Compensation and therefore
must be tested to determine if the modified definition of Compensation
satisfies Code Section 414(s).






	 	B.	 	“Disability”





	 
	 	o	1.	 As defined in the Basic Plan Document #01 [Plan defaults to this election].

	 
	 	o	2.	 As defined in the Employer’s Disability Insurance Plan.

	 
	 	þ	3.	 An individual will be considered to be disabled if he or she is unable to
engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or to be of
long, continued and indefinite duration. An individual shall not be considered to be
disabled unless he or she furnishes proof of the existence thereof in such form and
manner as the Secretary of the Treasury may prescribe.






	 
	 	C.	 	“Highly Compensated Employees — Top-Paid Group Election”






	 	1.	 	Top-Paid Group Election: In determining who is a Highly
Compensated Employee, the Employer may make the Top-Paid Group election. The
effect of this election is that an Employee (who is not a 5% owner at any time
during the determination year or the look-back year) who earned more than
$95,000, as indexed for the look-back year, is a Highly Compensated Employee if
the Employee was in the Top-Paid Group for the look-back year. This election
is applicable for the Plan Year in which this Plan is effective.





	 
	 	þ	a.	 The Employer does not make the Top-Paid Group election.

	 
	 	o	b.	 The Employer makes the Top-Paid Group election [Plan defaults to this election].







	 	o	2.	 Calendar Year Data Election: If the Plan Year is not the calendar year,
the prior year computation period for purposes of determining if an Employee earned
more than $95,000, as indexed, is the calendar year beginning in the prior Plan Year.
This election is applicable for the Plan Year in which this Plan is effective.





4









 












	 	D.	 	“Hours Of Service”
	 
	 	 	 	Hours shall be determined by the method selected below. The method selected shall be
applied to all Employees:





	 
	 	þ	1.	 Not applicable. A Year of Service (Period of Service) is
defined using the Elapsed Time method.

	 
	 	o	2.	     On the basis of actual hours for which an Employee is paid or
entitled to payment [Plan defaults to this election].

	 
	 	o	3.	 On the basis of days worked. An Employee shall be credited
with ten (10) Hours of Service if the Employee would be
credited with at least one (1) Hour of Service during the
day.

	 
	 	o	4.	 On the basis of weeks worked. An Employee shall be credited
with forty-five (45) Hours of Service if the Employee would
be credited with at least one (1) Hour of Service during the
week.

	 
	 	o	5. 	On the basis of semi-monthly payroll periods. An Employee
shall be credited with ninety-five (95) Hours of Service if
the Employee would be credited with at least one (1) Hour of
Service during the semi-monthly payroll period.

	 
	 	o	6.	 On the basis of months worked. An Employee shall be credited
with one-hundred-ninety (190) Hours of Service if the
Employee would be credited with at least one (1) Hour of
Service during the month.






	 
	 	E.	 	“Integration Level”





	 
	 	þ	1.	 Not applicable. Either the Plan’s allocation formula is not
integrated with Social Security or there are no Non-Elective
Employer Contributions being made to the Plan [Plan defaults
to this election].

	 
	 	o	2. 	The Taxable Wage Base.

	 
	 	o	3.	                     % (not more than 100%) of the Taxable Wage Base.

	 
	 	o	4.	 $                    , provided that such amount is not in excess of the
amount determined under paragraph (E)(2) above.

	 
	 	o	5.	     One dollar over 80% of the Taxable Wage Base.

	 
	 	o	6.	 20% of the Taxable Wage Base.






	 
	 	F.	 	“Limitation Year”





	 
	 	 	 	Unless elected otherwise below, the Limitation Year shall be the Plan Year.
	 
	 	 	 	The twelve (12) consecutive month period commencing on January 1 and ending on
December 31.
	 
	 	 	 	If applicable, there will be a short Limitation Year commencing on October 1, 2009
and ending on December 31, 2009. Thereafter, the Limitation Year shall end on the
date specified above.
	 
	 	G.	 	“Net Profit”





	 
	 	þ	1.	 Not applicable. Employer contributions to the Plan are not conditioned on
profits [Plan defaults to this election].

	 
	 	o	2. 	Net Profits are required for making Employer contributions and are defined as follows:







	 	o	a. 	As defined in the Basic Plan Document #01.

	 
	 	o	b. 	Net Profits will be defined in a uniform and
nondiscriminatory manner which will not result in a deprivation of an eligible
Participant of any Employer Contribution.







	 		c.	Net Profits are required for the following types of
contributions:





5









 












	 	o	 	i.	Employer Matching Contributions (Formula 1).
	 
	 	o	 	ii.	Employer Matching Contributions (Formula 2).
	 
	 	o	 	iii.	Employer QNEC and QMAC Contributions.
	 
	 	o	 	iv.	Non-Elective Employer Contributions (Formula 1).
	 
	 	o	 	v.	Non-Elective Employer Contributions (Formula 2).






	 	 	 	Elective Deferrals, Top-Heavy minimums (if required), and Safe Harbor
Contributions (if applicable) must be contributed regardless of profits.






	 	H.	 	“Plan Year”
	 
	 	 	 	The 12-consecutive month period commencing on January 1 and ending on December 31.
	 
	 	 	 	If applicable, there will be a short Plan Year commencing on October 1, 2009 and
ending on December 31, 2009. Thereafter, the Plan Year shall end on the date
specified above.
	 
	 	I.	 	“QDRO Payment Date”





	 
	 	þ	 1.	 The date the QDRO is determined to be qualified [Plan defaults to this
election].

	 
	 	o	 2.	 The statutory age fifty (50) requirement applies for purposes of making
distribution to an alternate payee under the provisions of a QDRO.






	 
	 	J.	 	“Qualified Joint and Survivor Annuity”





	 
	 	þ	 1. 	Not applicable. The Plan is not subject to Qualified Joint and Survivor
Annuity rules. The safe harbor provisions of paragraph 8.7 of the Basic Plan Document
#01 apply. The normal form of payment is a lump sum. No annuities are offered under
the Plan [Plan defaults to this election].

	 
	 	o	 2.	 The normal form of payment is a lump sum. The Plan does provide for
annuities as an optional form of payment at Section XVI(D) of the Adoption Agreement.
The Plan’s Joint and Survivor Annuity rules are avoided and the safe harbor provisions
of paragraph 8.7 of the Basic Plan Document #01 will apply, unless the Participant
elects to receive his or her distribution in the form of an annuity. If this option is
selected, Section III(K) below must also be completed.

	 
	 	o	 3. 	  The Joint and Survivor Annuity rules are applicable and the survivor
annuity will be                     % (50%, 66-2/3%, 75% or 100%) of the annuity payable during the
lives of the Participant and his or her Spouse. If no selection is specified, 50%
shall be deemed elected.






	 
	 	K.	 	“Qualified Pre-Retirement Survivor Annuity”





	 
	 	 	 	Do not complete this section if paragraph (J)(1) was elected.





	 
	 	o	1. 	The Qualified Pre-Retirement Survivor Annuity shall be 100% of the
Participant’s Vested Account Balance in the Plan as of the date of the Participant’s
death.

	 
	 	o	2.	 The Qualified Pre-Retirement Survivor Annuity shall be 50% of the
Participant’s Vested Account Balance in the Plan as of the date of the Participant’s
death.






	 
	 	 	 	If this provision applies but no selection is made, the Qualified Pre-Retirement
Survivor Annuity shall be 50%.
	 
	 	L.	 	“Valuation of Plan Assets”
	 
	 	 	 	The assets of the Plan shall be valued on the last day of the Plan Year and on the
following Valuation Date(s):





	 
	 	o	 1.	 There are no other mandatory Valuation Dates.





6









 






	 	þ	2. 	 The Valuation Dates are applicable for the contribution type specified below:






	 	 	 
	Contribution Type	 	Valuation Date
	All Contributions
	 	a
	 
	 	 
	Elective Deferrals (including Roth Elective
Deferrals, if applicable)
	 	 
	 
	 	 
	Voluntary After-tax Contributions
	 	 
	 
	 	 
	Required After-tax Contributions
	 	 
	 
	 	 
	Deemed IRA Contribution
	 	 
	 
	 	 
	Matching Contributions (Formula 1)
	 	 
	 
	 	 
	Matching Contributions (Formula 2)
	 	 
	 
	 	 
	Non-Elective Contributions (Formula 1)
	 	 
	 
	 	 
	Non-Elective Contributions (Formula 2)
	 	 
	 
	 	 
	Safe Harbor Contributions
	 	 
	 
	 	 
	QNEC
	 	 
	 
	 	 
	QMAC
	 	 







	 	a.	 	Daily valued.
	 
	 	b.	 	The last day of each month.
	 
	 	c.	 	The last day of each quarter in the Plan Year.
	 
	 	d.	 	The last day of each semi-annual period in the Plan Year.
	 
	 	e.	 	Other:              
               
               
                
                     .


(Note: Date must be at least once during the Plan Year.)







IV.       ELIGIBILITY REQUIREMENTS




Complete the following using the eligibility requirements as specified for each contribution
type. To become a Participant in the Plan, the Employee must satisfy the following
eligibility requirements.




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Eligibility	 	 
	 	 	Minimum	 	Service	 	Class	 	Computation	 	 
	Contribution Type	 	Age	 	Requirement	 	Exclusions	 	Period	 	Entry Date
	All Contributions
	 	 	1	 	 	 	1	 	 	 	1, 2, 6, 10	 	 	 	1	 	 	 	2	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Elective Deferrals
(including Roth Elective
Deferrals, if applicable)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Voluntary After-tax
Contributions
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Required After-tax
Contributions
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Matching Contributions
(Formula 1)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Matching Contributions
(Formula 2)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Non-Elective
Contributions (Formula 1)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Non-Elective
Contributions (Formula 2)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Safe Harbor Contributions*
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	QNECs
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	QMACs
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 






7









 








 




			
	*	 	If any age or Service requirement selected is more restrictive than that which is imposed
on any Employee contribution, that group of Employees will be subject to the ADP and/or ACP
testing as prescribed under applicable IRS Regulations






	 	A.	 	Age:






	 	1.	 	No age requirement.
	 
	 	2.	 	Insert the applicable age in the chart above. The age may not
be more than twenty-one (21).






	 	B.	 	Service:
	 
	 	 	 	The maximum Service requirement for Elective Deferrals is one (1) year. For all
other contributions, the maximum is two (2) years. If a Service requirement greater
than one (1) year is selected, Participants must be 100% vested in that
contribution.






	 	1.	 	No Service requirement.
	 
	 	2.	 	Completion of                      Days of Service. [No more than 730 Days
of Service may be required; if more than 365 days are entered here,
Participants must be 100% vested upon entering the Plan.]
	 
	 	3.	 	Completion of                      months of Service [No more than
twenty-four (24) months of Service may be required; if more than twelve (12)
months are entered here, Participants must be 100% vested upon entering the
Plan.]
	 
	 	4.	 	Completion of                      months of Service [No more than
twenty-four (24) months of Service may be required; if more than twelve (12)
months are entered here, Participants must be 100% vested upon entering the
Plan.]
	 
	 	5.	 	One (1) Year of Service or Period of Service.
	 
	 	6.	 	Two (2) Years of Service or Periods of Service.
	 
	 	7.	 	One (1) Expected Year of Service. An Employee whose position
is required as a condition of employment to work a Year of Service may enter
after six (6) months of actual Service.
	 
	 	8.	 	One (1) Expected Year of Service. An Employee whose position
is required as a condition of employment to work a Year of Service may enter
after                     
months of actual Service [must be twelve (12) months or less].
	 
	 	9.	 	One (1) Expected Year of Service. An Employee whose position
is required as a condition of employment to work a Year of Service may enter
after                      months of actual Service [must be twelve (12) months or less].
	 
	 	10.	 	Completion of                      Hours of Service (1,000 hours or
less) within the                      month(s) time period [the monthly period must be a
pro-ration of twelve (12) months or less] following an Employee’s commencement
of employment. An Employee who is otherwise eligible who meets the statutory
one (1) Year of Service requirement and any age requirement if applicable,
shall participate in the Plan not later than the earlier of the first day of
the first Plan Year after the Employee has met the statutory requirements or
six (6) months after the day such requirements are met.
	 
	 	11.	 	Completion of                      Hours of Service (may not be more than 1,000 Hours).






	 	C.	 	Method for Measuring Service Eligibility Period (do not enter this method in
the table above):
	 
	 	 	 	A Year of Service for eligibility purposes is defined as follows
(choose one):
	 
	 	þ	 	1.     Not applicable.





	 
	 	o	2.	 Hours of Service method. A Year of Service will be credited upon
completion of                      Hours of Service. A Year of Service for eligibility
purposes may not be less than one (1) Hour of Service nor greater than 1,000 hours by
operation of law. If left
blank, the Plan will use 1,000 hours.





8









 












	 	o	 	3.      Elapsed Time method
	 
	 	D.	 	Employee Class Exclusions:
	 
	 	 	 	The exclusion of any classification may cause the Plan to fail the ratio percentage
test under Code Section 410(b)(1)(A) or (B) which may require the Plan to be tested
under the average benefits test of Code Section 410(b)(1)(C).






	 	1.	 	Employees included in a unit of Employees covered by a
collective bargaining agreement between the Employer and Employee
Representatives, if benefits were the subject of good faith bargaining and if
two percent or less of the Employees are covered pursuant to the agreement are
professionals as defined in Regulations Section 1.410(b)-9, unless
participation in this Plan is specifically provided for in the collective
bargaining agreement. For this purpose, the term “employee representative”
does not include any organization more than half of whose members are owners,
officers, or executives of the Employer.
	 
	 	2.	 	Employees who are non-resident aliens [within the meaning of
Code Section 7701(b)(1)(B)] who receive no Earned Income [within the meaning of
Code Section 911(d)(2)] from the Employer which constitutes income from sources
within the United States [within the meaning of Code Section 861(a)(3)].
	 
	 	3.	 	Employees compensated on an hourly basis.
	 
	 	4.	 	Employees compensated on a salaried basis.
	 
	 	5.	 	Employees compensated on a commission basis.
	 
	 	6.	 	Leased Employees.
	 
	 	7.	 	Highly Compensated Employees.
	 
	 	8.	 	Key Employees.
	 
	 	9.	 	Employees of any member of the controlled and/or affiliated
service group Employer whose Employer does not affirmatively adopt this Plan.
	 
	 	10.	 	The Plan shall exclude from participation any nondiscriminatory
classification of Employees determined as follows (any exclusion must pass
coverage and nondiscrimination testing):
	 
	 	 	 	1)Flex staff employees (i.e.; any Employee who is not a regular full-time or
part-time Employee).
	 
	 	 	 	2)Short-term Employees ( i.e.; employees who are hired under a written
agreement which precludes membership in the Plan and provides for a specific
period of employment not in excess of one year).






	 	E.	 	Eligibility Computation Period:
	 
	 	 	 	The initial eligibility computation period shall commence on the date on
which an Employee first performs an Hour of Service and end with the first anniversary
thereof. Each subsequent computation period shall commence on:






	 	1.	 	Not applicable. The Plan has a Service requirement of less
than one (1) year or uses the Elapsed Time method to determine eligibility.
	 
	 	2.	 	The anniversary of the Employee’s employment commencement date and
each subsequent twelve (12) consecutive month period thereafter.
	 
	 	3.	 	The first day of the Plan Year which commences prior to the
first anniversary date of the Employee’s employment commencement date and each
subsequent Plan Year thereafter.




9









 












	 	F.	 	Entry Date:






	 	1.	 	The Employee’s date of hire.
	 
	 	2.	 	The first day of the month coinciding with or next following
the date on which an Employee meets the eligibility requirements.
	 
	 	3.	 	The first day of the payroll period coinciding with or next
following the date on which an Employee meets the eligibility requirements, or
as soon as administratively feasible thereafter.
	 
	 	4.	 	When the Days of Service method is selected at Section
IV(B)(2), the Entry Date shall be the day the Employee meets the eligibility
requirements, or as soon as administratively feasible thereafter.
	 
	 	5.	 	The earlier of the first day of the Plan Year, or the first day
of the fourth, seventh or tenth month of the Plan Year coinciding with or next
following the date on which an Employee meets the eligibility requirements.
	 
	 	6.	 	The earlier of the first day of the Plan Year or the first day
of the seventh month of the Plan Year coinciding with or next following the
date on which an Employee meets the eligibility requirements.
	 
	 	7.	 	The first day of the Plan Year following the date on which the
Employee meets the eligibility requirements. If this election is made, the
Service waiting period cannot be greater than one-half year and the minimum age
requirement may not be greater than age twenty and one-half (201/2).
	 
	 	8.	 	The first day of the Plan Year nearest the date on which an
Employee meets the eligibility requirements. This option can only be selected
for Employer related contributions.
	 
	 	9.	 	The first day of the Plan Year during which the
Employee meets the eligibility requirements. This option can only be
selected for Employer related contributions.
	 
	 	10.	 	Other:                                         .
	 
	 	 	 	This option may not require an entry date more than two (2) months
following the date on which an Employee meets the eligibility
requirements.






	 	G.	 	Employees on Effective Date:
	 
	 	 	 	If option (1) is selected, options (2) and (3) should not be selected. Options (2)
and (3) can be selected or just option (2) or (3).





	 
	 	þ	1.	 All Employees will be required to satisfy both the age and Service
requirements specified above.

	 
	 	o	2. 	Employees employed on the Plan’s Effective Date do not have to satisfy the
age requirement specified above.

	 
	 	o	3.	 Employees employed on the Plan’s Effective Date do not have to satisfy the
Service requirement specified above.






	 
	 	H.	 	Special Waiver of Eligibility Requirements:
	 
	 	 	 	The age and/or Service eligibility requirements specified above shall be waived for
the eligible Employees specified below who are employed on the specified date for
the contribution type(s) specified. This waiver applies to either the age or
Service requirement or both as elected below.





	 	 	 	 	 	 	 
	 	 	Waiver of Age	 	Waiver of Service	 	 
	Waiver Date	 	Requirement	 	Requirement	 	Contribution Type
	 	 	 	 	 	 	All Contributions

	 	 	 	 	 	 	 

	 	 	 	 	 	 	Elective Deferrals (including Roth






10









 






	 	 	 	 	 	 	 
	 	 	Waiver of Age	 	Waiver of Service	 	 
	Waiver Date	 	Requirement	 	Requirement	 	Contribution Type
	 	 	 	 	 	 	 

	 	 	 	 	 	 	Elective Deferrals, if applicable)

	 	 	 	 	 	 	 

	 	 	 	 	 	 	Matching Contribution (Formula 1)

	 	 	 	 	 	 	 

	 	 	 	 	 	 	Matching Contribution (Formula 2)

	 	 	 	 	 	 	 

	 	 	 	 	 	 	Non-Elective Contribution (Formula 1)

	 	 	 	 	 	 	 

	 	 	 	 	 	 	Non-Elective Contribution (Formula 2)

	 	 	 	 	 	 	 

	 	 	 	 	 	 	Safe Harbor Contribution

	 	 	 	 	 	 	 

	 	 	 	 	 	 	QNEC

	 	 	 	 	 	 	 

	 	 	 	 	 	 	QMAC








	 	 	 	The waiver above applies to:
	 
	 	o	 	1.      All eligible Employees employed on the specified date.
	 
	 	o	 	2.      The indicated class of Employees employed on the specified date.






	 	 	 	 

	 
	 	 	 	 

	 	 	 	Note: Any selection here may cause the Plan to be discriminatory in
operation and therefore would have to be tested for nondiscrimination.






	V.	 	RETIREMENT AGES






	 	A.	 	Normal Retirement:
	 
	 	 	 	Select option (1) or (2) and either (3)(a) or (3)(b).
	 
	 	þ	 	1.      Normal Retirement Age shall be age 65 [not to exceed sixty-five (65)].





	 
	 	o	 2.	 Normal Retirement Age shall be the later of attaining age ___[not to
exceed age sixty-five (65)] or the ___(not to exceed the fifth) anniversary of
the first day of the first Plan Year in which the Participant commenced participation
in the Plan.







	 	3.	 	 The Normal Retirement Date shall be:
	 
	 	o	 a.	 as of the date the Participant attains Normal Retirement
Age [Plan defaults to this election].

	 
	 	þ	 b.	 the first day of the month next following the Participant’s
attainment of Normal Retirement Age.







	 	B.	 	Early Retirement:





	 
	 	þ	1.	 Not applicable.

	 
	 	o	2.	 The Plan shall have an Early Retirement Age of                      [not less than age
fifty-five (55)] and completion of                      Years of Service.







	 	3.	 	The Early Retirement Date shall be:





	 
	 	o	a.	 as of the date the Participant attains Early Retirement
Age [Plan defaults to this election].

	 
	 	o	b.	 the first day of the month next following the
Participant’s attainment of Early Retirement Age.







11











 






	VI.	 	CONTRIBUTIONS TO THE PLAN
	 
	 	 	The Employer shall make contributions to the Plan in accordance with the formula or formulas
selected below. The Employer’s contribution shall be subject to the limitations contained
in Articles III and X of the Basic Plan Document #01. For this purpose, a contribution for
a Plan Year shall be limited by Compensation earned in the Limitation Year that ends with or
within such Plan Year. For Limitation Years beginning on or after January 1, 2002, except to
the extent permitted under paragraph 4.6(h) of the Basic Plan Document #01 and under Code
Section 414(v), the Annual Addition that may be contributed or allocated to a Participant’s
account under the Plan for any Limitation Year beginning after December 31, 2001 shall not
exceed the lesser of (a) $40,000, as adjusted for increases in the cost-of-living under Code
Section 415(d), or (b) 100% of the Participant’s Compensation within the meaning of Code
Section 415(c)(3), for the Limitation Year.






	 	A.	 	Elective Deferrals:






	 	1.	Participants shall be permitted to make Elective Deferrals:
	 
	 	þ	a.	 in any amount up to 75% (may be no more than 100%) of
Compensation.
	 
	 	o	b. 	 in any amount from a minimum of                     % (may be no less
than 1%) to a maximum of                     % (may be no more than 100%) of their
Compensation not to exceed $                     [may be no more than the Code Section
402(g) limit and Code Section 414(v) limit, if applicable].
	 
	 	o	c. 	 in a flat dollar amount from a minimum of $
                    
(may be no less than $500) to a maximum of $                    ,
[may be no more than the Code Section 402(g) limit and Code
Section 414(v) limit, if applicable] not to exceed                     %
(no more than 100%) of their Compensation.
	 
	 	o	d. 	 in any amount up to the maximum percentage of Compensation
and dollar amount permissible under Code Section 402(g) and
414(v) not to exceed the limits of Code Section 401(k), 404
and 415.
	 
	 	o	e. 	 Highly Compensated Employees may defer any amount up to
___% (may be no more than 100%) of Compensation or $                     [may be no more
than the Code Section 402(g) limit and Code Section 414(v) limit, if
applicable].
	 
	 	þ	f. 	 Catch-up Contributions may be made by eligible Participants.
	 
	 	2.	Participants shall be permitted to terminate their Elective
Deferrals (including Roth Elective Deferrals, if any) at any time upon proper
and timely notice to the Employer. Modifications and reinstatement of
Participants’ Elective Deferrals will become effective as soon as
administratively feasible on a prospective basis as provided for below:





	 	 	 	 	 
	Modifications	 	Reinstatement	 	Method
	o	 	o	 	On a daily basis.
	o	 	o
	 	On the first day of each quarter.
	o	 	o
	 	On the first day of the next month.
	þ	 	þ
	 	The beginning of the next payroll period.
	o	 	o
	 	On the first day of the next semi-annual period.
	o	 	n/a
	 	Upon ______days notice to the Plan Administrator.
	n/a

	 	o
	 	Upon ______days notice to the Plan Administrator.







	o	B.  	Roth Elective Deferrals:




12









 












	 	 	 	If Participants are permitted to make Elective Deferrals, they shall also be
permitted to make Roth Elective Deferrals. Roth Elective Deferrals may be treated
as Catch-Up Contributions.
	 
	 	C.	 	Bonus Option:
	 
	 	o	1. 	 Not applicable. The Plan’s definition of Compensation excludes bonuses
from deferrable Compensation for both Elective Deferrals and Roth Elective Deferrals.
	 
	 	þ	2. 	 Not applicable. Participants are not permitted to make a separate deferral
election and the Participant’s deferral amount elected on their Salary Deferral
Agreement will also apply to any bonus received by the Participant for any Plan Year.
	 
	 	o	3. 	The Employer permits a Participant to amend his or
her deferral election to defer to the Plan an amount not to
exceed                     % (may be no more than 100%) or
$                    
[may be no more than the Code Section 402(g) limit and Code
Section 414(v) limit, if applicable] of any bonus received by
the Participant for any Plan Year.
	 
	o	D. 	 Automatic Enrollment:






	 	 	The Employer elects the automatic enrollment provisions for Elective Deferrals as
follows. Automatic enrollment in Roth Elective Deferrals is not permitted under the
Plan. The automatic enrollment provisions apply to all eligible Employees.
Employees and Participants shall have the right to amend the stated automatic
Elective Deferral percentage or receive cash in lieu of deferral into the Plan.
	 
	 	 	1.	RESERVED
	 
	 	o	2. 	 Automatic Deferrals:






	 	a.	New Employees: Employees who have not met the
eligibility requirements shall have Elective Deferrals withheld in the
amount of                     % (not more than 10%) of Compensation or
$                    
[may be no more than the Code Section 402(g) limit and Code Section
414(v) limit, if applicable] upon entering the Plan.
	 
	 	o	i. 	 On an annual basis the Elective Deferral
limit under the Plan shall be increased up to a maximum amount
determined by the Employer.
	 
	 	o	ii. 	 After                      Years of Service, the amount
specified above shall increase to                     % (no more than 10%) or
$                    
[may be no more than the Code Section 402(g) limit and Code Section
414(v) limit, if applicable].
	 
	 	o	This requirement is effective for Employees
hired on or after
                                        
___.






	 	o	b. 	 Current Employees: Employees who are eligible to
participate but not deferring shall have Elective Deferrals withheld in the
amount of                      % (not more than 10%) of Compensation or
$                     [may be no
more than the Code Section 402(g) limit and Code Section 414(v) limit, if
applicable].






	 	o	i. 	 On an annual basis the Elective Deferral
limit under the Plan shall be increased up to a maximum amount
determined by the Employer.
	 
	 	o	ii. 	 After                      Years of Service, the amount
specified above shall increase to                  
   % (no more than 10%) or $              
      
[may be no more than the Code Section 402(g) limit and Code Section
414(v) limit, if applicable].






	 	o	c. 	 Current Participants: Current Participants who are
deferring at a percentage less than the amount selected herein shall have
Elective Deferrals withheld in the amount of        
             % (not more than 10%) of
Compensation or $             
       [may be no more than the Code Section 402(g) limit
and Code Section 414(v) limit, if applicable].







	 	o	i. 	 On an annual basis the Elective Deferral
limit under the Plan shall be increased up to a maximum amount
determined by the Employer.
	 
	 	o	ii. 	 After ___Years of Service, the amount
specified above shall increase to ___% (no more than 10%) or $     
               [may be no
more than the Code Section 402(g) limit and Code Section
414(v) limit, if applicable].




13









 







	 	 	 	Employees and Participants shall have the right to amend the stated
automatic Elective Deferral provisions or receive cash in lieu of deferral
into the Plan. For purposes of this provision, Employees returning an
election form indicating a “zero” deferral amount shall be deemed “Current
Participants”.






	 
	 	E.	Voluntary After-tax Contributions:
	 
	 	 	If the Employer wishes to reserve the right to recharacterize Elective Deferrals as
Voluntary After-tax Contributions in order to pass the ADP/ACP Test, this section
must be completed.
	 
	 	þ	1. 	 The Plan does not permit Voluntary After-tax Contributions.
	 
	 	o	2. 	Participants may make Voluntary After-tax Contributions in any amount from
a minimum of                     % (may not be less than 1%) to a maximum of
                    % (may be no
more than 100%) of their Compensation or a flat dollar amount from a minimum of
$                     (may not be less
than $1,000) to a maximum of $        
            [may be no
more than the Code Section 402(g) limit and Code Section 414(v) limit, if applicable].
	 
	 	o	3. 	 Participants may make Voluntary After-tax Contributions in any amount up
to the maximum permitted by law.
	 
	 	o	4. 	 The maximum combined limit of Elective Deferrals, Roth Elective Deferrals,
and Voluntary After-tax Contributions will not exceed              
       % (may be no more than
100%) of Compensation or $              
       [may be no more than the Code Section 402(g) limit
and Code Section 414(v) limit, if applicable].
	 
	 	F.	Required After-tax Contributions (for Thrift Savings Plans only):
	 
	 	þ	1. 	 The Plan does not permit Required After-tax Contributions.
	 
	 	o	2. 	 Participants shall be required to make Required After-tax Contributions as follows:
	 
	 	 	o	a. 	                     %
(may be no more than 100%) of Compensation.
	 
	 	 	o	b. 	 A percentage determined by the Employee.
	 
	 	 	o	c. 	 A flat dollar amount of $          
          [may be no more than the
Code Section 402(g) limit and Code Section 414(v) limit, if applicable].
	 
	 	 	o	d. 	 The maximum combined limit of Elective Deferrals, Roth
Elective Deferrals and Required After-tax Contributions will not exceed                     %
(may be no more than 100%) of Compensation or $                     [may be no more than
the Code Section 402(g) limit and Code Section 414(v) limit, if applicable].
	 
	 	G.	Rollover Contributions:
	 
	 	o	1. 	 The Plan does not accept Rollover Contributions.
	 
	 	þ	2. 	 Rollover Contributions may be made:
	 
	 	 	o	a. 	 after meeting the eligibility requirements for participation in the Plan.
	 
	 	 	þ	b. 	 prior to meeting the eligibility requirements for participation in the Plan.
	 
	 	 	3.	The Plan will accept a Participant Rollover Contribution of an
Eligible Rollover Distribution from (check only those that apply):
	 
	 	 	þ	a. 	 A Qualified Plan described in Code Section 401(a) or 403(a).
	 
	 	 	þ	b. 	 An annuity contract described in Code Section 403(b).
	 
	 	 	þ	c. 	 An eligible plan under Code Section 457(b) which is
maintained by a state, political subdivision of a state, or any agency or
instrumentality of a state or political subdivision of a state.





14









 











	 	 	þ	d. 	 An Individual Retirement Account (which was not used as a
conduit from a Qualified Plan) or Annuity described in Code Section 408(a) or
408(b) that is eligible to be rolled over and would otherwise be includable in
gross income.
	 
	 	 	4.	The Plan will accept a Direct Rollover of an Eligible Rollover
Distribution from (check only those that apply):
	 
	 	 	þ	a. 	 A Qualified Plan described in Code Section 401(a) or 403(a),
excluding Voluntary After-tax Contributions.
	 
	 	 	o	b. 	 A Qualified Plan described in Code Section 401(a) or
403(a), including Voluntary After-tax Contributions.
	 
	 	 	þ	c. 	 An annuity contract described in Code Section 403(b),
excluding Voluntary After-tax Contributions.
	 
	 	 	o	d. 	 An annuity contract described in Code Section 403(b),
including Voluntary After-tax Contributions.
	 
	 	 	þ	e. 	 An eligible plan under Code Section 457(b) which is
maintained by a state, political subdivision of a state, or an agency or
instrumentality of a state or political subdivision of a state.
	 
	 	 	o	f. 	 A Roth Elective Deferral Account if it is a Direct
Rollover from another Roth Elective Deferral Account under a Qualified Plan
described in Code Section 402A(e)(1) and only to the extent the rollover is
permitted under Code Section 402(c).
	 
	 	H.	Deemed IRA Contributions/Reserved:
	 
	 	þ	1. 	 The Plan does not accept any Deemed IRA contributions.
	 
	 	o	2. 	 Deemed IRA contributions may be made to this Plan for Plan
Years beginning                   
  (may be no earlier than January
1, 2003):





	 	o	a. 	 In accordance with the Traditional IRA rules as described
in the Basic Plan Document #01. An Individual must meet the eligibility
requirements for participation in the Plan in order to make a “Deemed IRA”
contribution.
	 
	 	o	b. 	 In accordance with the Roth IRA rules as described in the
Basic Plan Document #01. An Individual must meet the eligibility requirements
for participation in the Plan in order to make a “Deemed IRA” contribution.






	þ	 	I. 	 Safe Harbor Plan Provisions:
	 
	 	 	 	If the Safe Harbor Plan provisions are elected, the nondiscrimination tests at
Article XI of the Basic Plan Document #01 are not applicable. Safe Harbor
Contributions made are subject to the withdrawal restrictions of Code Section
401(k)(2)(B) and Treasury Regulation Section 1.401(k)-1(d); such contributions (and
earnings thereon) must not be distributable earlier than severance from employment,
death, Disability, an event described in Code Section 401(k)(10), or in the case of
a profit-sharing or stock bonus plan, the attainment of age 591/2. Safe Harbor
Contributions are NOT available for Hardship withdrawals.
	 
	 	 	 	The ACP Test Safe Harbor is automatically satisfied if the only Matching
Contribution to the Plan is either a Basic Matching Contribution or an Enhanced
Matching Contribution that does not provide a match on Elective Deferrals in excess
of 6% of Compensation. For Plans that allow Voluntary or Required After-tax
Contributions, the ACP Test is applicable with regard to such contributions.
	 
	 	 	 	Employees eligible to make Elective Deferrals to this Plan must be eligible to
receive the Safe Harbor Contribution in the Plan listed below, to the extent
required by applicable IRS Regulations.
	 
	 	 	 	The Employer elects to comply with the Safe Harbor Cash or Deferred Arrangement
provisions of Article XI of the Basic Plan Document #01 and elects one of the
following contribution formulas:




15









 












	 	 	1.	Safe Harbor Tests:
	 
	 	 	o	a. 	 Only the ADP Test Safe Harbor provisions are applicable.
A formula in paragraphs (3), (4) or (5) below has been selected and the ADP
Safe Harbor has been satisfied.
	 
	 	 	o	b. 	 Only the ACP Test Safe Harbor provisions are applicable.
No additional Matching Contributions would be needed in order to satisfy the
ACP Safe Harbor if the Plans satisfies the Basic or Enhanced Match.
	 
	 	 	þ	c. 	 Both the ADP and ACP Test Safe Harbor provisions are
applicable. If both ADP and ACP provisions are applicable:
	 
	 	 	 	þ	i. 	 No additional Matching Contributions will be
made in any Plan Year in which the Safe Harbor provisions are used.
	 
	 	 	 	o	ii. 	 The Employer may make Matching
Contributions in addition to any Safe Harbor Matching Contributions
elected below. [Complete provisions in Section VI(J) regarding
Matching Contributions that will be made in addition to those Safe
Harbor Matching Contributions made below.]
	 
	 	 	 	Safe Harbor Contributions cannot be subject to an Hours of Service or
employment on the last day of the Plan Year requirement.






	 	o	2. 	 Designation of Alternate Plan to Receive Safe Harbor Contribution: If the
Safe Harbor Contribution as elected below is not being made to this Plan, the name of
the other plan that will receive the Safe Harbor Contribution is:                     .
	 
	 	o	3. 	 Basic Matching Contribution Formula: Matching Contributions will be made
on behalf of Participants in an amount equal to 100% of the amount of the Eligible
Participant’s Elective Deferrals that do not exceed 3% of the Participant’s
Compensation and 50% of the amount of the Participant’s Elective Deferrals that exceed
3% of the Participant’s Compensation but that do not exceed 5% of the Participant’s
Compensation.
	 
	 	þ	4. 	 Enhanced Matching Contribution Formula: Matching Contributions will be made
in an amount equal to the sum of:






	 	 	 	a.	100% of the Participant’s Elective Deferrals
that do not exceed 6% of the Participant’s Compensation [insert a
number that is three (3) or greater but not greater than six (6); if a
number greater than six (6) is inserted or if left blank, this will not
qualify as an Enhanced Matching Contribution Formula and the ADP test
will apply], plus
	 
	 	 	o	b. 	 N/A% of the Participant’s Elective Deferrals
that exceed N/A% of the Participant’s Compensation but do not
exceed N/A% of the Participant’s Compensation [insert a number
that is three (3) or greater but not greater than six (6) in the second blank.
Both blanks should be completed so that at any rate of Elective Deferrals, the
Matching Contribution is at least equal to the Matching Contribution receivable
if the Employer were making a Basic Matching Contribution. The rate of match
cannot increase as Elective Deferrals increase. If a number greater than six
(6) is inserted or if left blank, this will not qualify as an Enhanced Matching
Contribution Formula and the ACP Test will apply.]
	 
	 	 	 	 	If an additional discretionary Matching Contribution is made, the
dollar amount of that contribution may not exceed 4% of eligible Plan
Compensation.






	 	o	5. 	 Guaranteed Non-Elective Contribution Formula: The Employer shall make a
Non-Elective Contribution equal to                     % (not less than 3%) of the Compensation of
each Eligible Participant.




16









 












	 	o	6. 	 Flexible Non-Elective Contribution Formula: This provision provides the
Employer with the ability to amend the Plan to comply with the Safe Harbor provisions
during the Plan Year. To provide such option, the Employer must amend the Plan and
indicate on Schedule C that the Safe Harbor Non-Elective Contribution (not less than
3%) will be made for the specified Plan Year. Such election must comply with all the
applicable notice requirements.
	 
	 	 	Additional non-Safe Harbor Contributions may be made to the Plan pursuant to Section
VI(J) hereof. Any additional contributions may be subject to nondiscrimination
testing.






	 	 	7.	Limitations on Safe Harbor Matching Contributions: If a Safe
Harbor Matching Contribution is made to the Plan:
	 
	 	 	o	a. 	 The Employer elects to match Safe Harbor Matching
Contributions on an annual basis.
	 
	 	 	þ	b. 	 The Employer elects to match actual Elective Deferrals made:






	 
	 	 	 	þ	i. 	 on a payroll basis [Plan defaults to this election].
	 
	 	 	 	o	ii. 	 on a monthly basis.
	 
	 	 	 	o	iii. 	 on a Plan Year quarterly basis.
	 
	 	 	 	o	iv. 	 The Employer elects to true up Safe
Harbor Matching Contributions made to the Plan on the above basis.
	 
	 	 	 	 	If one of the Matching Contribution calculation periods at paragraph
(7)(b) above is selected, Matching Contributions must be deposited to
the Plan not later than the last day of the calendar quarter next
following the quarter to which they relate.
	 
	 	 	o	c. 	 The Employer will only contribute the Safe Harbor
Contribution to Non-Highly Compensated Employees.






	o	J. 	 Matching Employer Contribution:
	 
	 	 	Do not complete this section of the Adoption Agreement if the Plan only offers a
Safe Harbor Contribution. A Plan that offers both a Safe Harbor Contribution as well
as an additional Employer Contribution that is specified below, must complete both
Sections VI(I) and VI(J) of this Adoption Agreement.
	 
	 	 	Select the Matching Contribution Formula, Computation Period and special Limitations
for each contribution type from the options listed below. Enter the letter of the
option(s) selected on the lines provided. Leave the line blank if no election is
required.
	 
	 	o	The Matching Contribution(s) selected below will be deemed an additional
discretionary ACP Test Safe Harbor Matching Contribution in accordance with the
selection made at Section VI(I). The allocation of any additional Matching
Contribution made by the Employer will not exceed 4% of eligible Compensation.
	 
	 	o	The Matching Contribution(s) selected below will be deemed a discretionary
contribution that will be subject to nondiscrimination testing.





	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Matching	 	Matching	 	 	 	Matching	 	Matching	 	 
	Type of	 	Contribution	 	Computation	 	 	 	Contribution	 	Computation	 	 
	Contribution	 	(Formula 1)	 	Period	 	Limitations	 	(Formula 2)	 	Period	 	Limitations
	Elective Deferrals
(including Roth
Elective Deferrals,
if applicable)
	 	 	 	 	 	 	 	 	 	 	 	 
	Voluntary After-tax
	 	 	 	 	 	 	 	 	 	 	 	 
	Required
After-tax
	 	 	 	 	 	 	 	 	 	 	 	 
	403(b) Deferrals
	 	 	 	 	 	 	 	 	 	 	 	 






17









 







	 	 	 	If any election is made with respect to “403(b) Deferrals” above, and if this Plan
is used to fund any Employer Contributions, Employer Contributions will be based on
the Elective Deferrals made to an existing 403(b) plan sponsored by the Employer.
	 
	 	 	 	Name of corresponding 403(b) plan, as applicable:                     
	 
	 	 	 	If the Matching Contribution formula selected by the Employer is 100% vested and may
not be distributed to the Participant before the earlier of the date the Participant
has a severance from employment, retires, becomes disabled, attains 591/2, or dies, it
may be treated as a Qualified Matching Contribution.
	 
	 	 	 	Matching Contribution Formulas may be subject to a minimum or maximum dollar or
percentage limit.
	 
	 	 	 	1. Matching Contribution Formulas:






	 	Matching Contribution Formulas for Elective Deferrals and Roth Elective
Deferrals:
	 
	 	a.	 	Percentage of Deferral Match: The Employer
shall contribute to each eligible Participant’s account an amount equal
to                     % (no more than 500%) of the Participant’s Elective
Deferrals up to a maximum of                     % (no more than the Annual
Addition limit for the Plan Year) of Compensation or $                    [no
more than the Annual Addition limit for the Plan Year].
	 
	 	b.	 	Uniform Dollar Match: The Employer shall
contribute to each eligible Participant’s account $                    (no more
than the Annual Addition limit for the Plan Year) if the Participant
contributes at least                     % (no more than 100%) of Compensation or
$                    [may be no more than the Code Section 402(g) limit and Code
Section 414(v) limit, if applicable]. The Employer’s contribution will
be made up to a maximum of                     % (no more than the Annual Addition
limit for the Plan Year) of Compensation.
	 
	 	c.	 	Discretionary Match: The Employer shall have
the right to make a Discretionary Matching Contribution. The
Employer’s Matching Contribution shall be determined by the Employer
with respect to each Plan Year’s eligible Participants. Such
contribution shall be in the amount specified and allocated as follows:
                    
                    
 

 

 

	 
	 	d.	 	Tiered Match: The Employer shall contribute to
each eligible Participant’s account an amount equal to:
	 
	 	 	 	                    % of the first
                    % (no more than 500%) of the
Participant’s Compensation contributed, and
	 
	 	 	 	                    % of the next
                    % (no more than 400%) of the
Participant’s Compensation contributed, and
	 
	 	 	 	                    % of the next
                    % (no more than 300%) of the
Participant’s Compensation contributed.
	 
	 	 	 	The Employer’s contribution will be made up to the o greater of
(may be no more than 500%) o lesser of (may be no less than 1%)
                    % of Compensation, or
$                    (no more than the Annual
Addition limit for the Plan Year).
	 
	 	 	 	The percentages specified above may not increase as the rate of
Elective Deferrals or Employee Contributions increase. This formula
must meet Code Section 401(a)(4) and the ACP Test.




18









 












	 	e.	 	Percentage of Compensation Match: The Employer
shall contribute to each eligible Participant’s account                     % (no
less than 1%) of Compensation if the eligible Participant contributes
at least                     % (no more than 100%) of Compensation.
	 
	 	 	 	The Employer’s contribution will be made up to the o greater of
(may be no more than 500%) o lesser of (may be no less than 1%)
                    % of Compensation or
$                    (no more than the Annual
Addition limit for the Plan Year).
	 
	 	 	 	This formula must meet Code Section 401(a)(4) and the ACP Test.
	 
	 	f.	 	Proportionate Compensation Match: The Employer
shall contribute to each eligible Participant who defers at least
                    % (may be no more than 100%) of Compensation, an amount
determined by multiplying such Employer Matching Contribution by a
fraction, the numerator of which is the Participant’s Compensation and
the denominator of which is the Compensation of all Participants
eligible to receive such an allocation.
	 
	 	 	 	The Employer’s contribution will be made up to the o greater of
(may be no more than 500%) o lesser of (may be no less than 1%)
                    % of Compensation or
$                    (no more than the Annual
Addition limit for the Plan Year).
	 
	 	 	 	This formula must meet Code Section 401(a)(4) and the ACP Test.






	 	o	g. 	 Catch-Up Contributions: The Employer elects to match
Catch-Up Contributions under the same formula or formulas as elected above.
	 
	 	 	 	In the event that an Excess Contribution is recharacterized as a
Catch-up Contribution, any Matching Contribution made thereon may
remain in the Plan if the Matching Contribution Formula is not
otherwise exceeded.
	 
	 	 	Additional Matching Contribution Formulas for Voluntary After-tax
Contributions:






	 	h. 	 	  Percentage of Deferral Match: The Employer shall contribute to each
eligible Participant’s account an amount equal to                     % (no less than 1%) of the
Participant’s Contribution up to a maximum of                     % (may be no more than 500%) of
Compensation or $                    [may be no more than the Code Section 402(g) limit and
Code Section 414(v) limit, if applicable].
	 
	 	i.	 	Uniform Dollar Match: The Employer shall
contribute to each eligible Participant’s account $                    (no more
than the Annual Addition limit for the Plan Year) if the Participant
contributes at least                     % (may be no more than 100%) of
Compensation or $                    [may be no more than the Code Section 402(g)
limit and Code Section 414(v) limit, if applicable]. The Employer’s
contribution will be made up to the maximum of                     % (may be no more
than 500%) of Compensation.
	 
	 	j.	 	Discretionary Match: The Employer shall have
the right to make a Discretionary Matching Contribution. The Employer’s
Matching Contribution shall be determined by the Employer with respect
to each Plan Year’s eligible Participants. Such contribution shall be
in the amount specified and allocated as follows:  
 

 

 

	 
	 	Additional Matching Contribution Formulas for Required After-tax
Contributions:
	 
	 	k.	 	Percentage of Deferral Match: The Employer
shall contribute to each eligible Participant’s account an amount equal
to                     % no less than 1%) of the Participant’s Contribution up to a
maximum of                     %
 (may be no more than 500%) of Compensation or $                    [may be no more than the
Code Section 402(g) limit and Code Section 414(v) limit, if
applicable].




19









 












	 	l.	 	Uniform Dollar Match: The Employer shall
contribute to each eligible Participant’s account $                    (no more
than the Annual Addition limit for the Plan Year) if the Participant
contributes at least                     % (may be no more than 100%) of
Compensation or $                    [may be no more than the Code Section
402(g) limit and Code Section 414(v) limit, if applicable]. The
Employer’s contribution will be made up to the maximum of                     % (may
be no more than 500%) of Compensation.
	 
	 	m.	 	Discretionary Match: The Employer shall have
the right to make a Discretionary Matching Contribution. The
Employer’s Matching Contribution shall be determined by the Employer
with respect to each Plan Year’s eligible Participants. Such
contribution shall be in the amount specified and allocated as follows:  
 

 

 

 

	 
	 	Additional Matching Contribution Formulas for 403(b) Deferrals:
	 
	 	n.	 	Percentage of Deferral Match: The Employer
shall contribute to each eligible Participant’s account an amount equal
to                     % (no less than 1%) of the Participant’s deferral up to a
maximum of                     % (may be no more than 500%) of Compensation or
$                    [may be no more than the Code Section 402(g) limit and Code
Section 414(v) limit, if applicable].
	 
	 	o.	 	 Uniform Dollar Match: The Employer shall
contribute to each eligible Participant’s account $                    (no more
than the Annual Addition limit for the Plan Year) if the Participant
contributes at least                     % (may be no more than 100%) of Compensation
or $                    [may be no more than the Code Section 402(g) limit and
Code Section 414(v) limit, if applicable]. The Employer’s contribution
will be made up to the maximum of                     % (may be no more than 500%) of
Compensation.
	 
	 	p.	 	Discretionary Match: The Employer shall have
the right to make a Discretionary Matching Contribution. The Employer’s
Matching Contribution shall be determined by the Employer with respect
to each Plan Year’s eligible Participants. Such contribution shall be
in the amount specified and allocated as follows:  
 

 








	 	2.	 	Matching Contribution Computation Period: The Compensation or
any dollar limitation imposed in calculating the Matching Contribution will be
based on the period selected below. Matching Contributions will be calculated
on the following basis:






	 	a.	 	Payroll Based
	 
	 	b.	 	Weekly
	 
	 	c.	 	Bi-weekly
	 
	 	d.	 	Semi-monthly
	 
	 	e.	 	Monthly
	 
	 	f.	 	Quarterly
	 
	 	g.	 	Semi-annually
	 
	 	h.	 	Annually






	 	 	 	The calculation of Matching Contributions based on the Computation Period
selected above has no applicability as to when the Employer remits Matching
Contributions to the Trust.
	 
	 	3.	 	Limitations on Matching Formulas:






	 	a.	 	Contributions to Participants who are not
Highly Compensated Employees: Contribution of the Employer’s Matching
Contribution will be made only to eligible Participants who are
Non-Highly Compensated Employees.
	 
	 	b.	 	Deferrals withdrawn prior to the end of the
Matching Computation Period: Matching Contributions (whether or not
Qualified) will not be made on Employee contributions withdrawn prior
to the end of the o Matching Computation Period, or o Plan Year.




20









 












	 	o	 	If elected, this requirement shall apply in
the event of a withdrawal occurring as the result of a termination of
employment for reasons of retirement, Disability or death.
	 
	 	c.	 	Maximum Plan Limit for Matching Contributions:
In no event will Matching Contributions exceed                     % (no more than
500%) of Compensation, or $                     (no more than the Annual Addition
limit for the Plan Year).
	 
	 	o	 	If elected, this limitation applies to the
total of all Elective Deferrals, Roth Elective Deferrals, Catch-Up
Contributions, Voluntary After-tax Contributions, Required After-tax
Contributions and 403(b) Deferrals made to the Plan for the Plan Year.
	 
	 	d.	 	True Up of Matching Contributions: The
Employer elects to true up Matching Contributions made to the Plan.






	o	K. 	 Non-Elective Employer Contributions:
	 
	 	 	The Employer shall have the right to make a discretionary contribution. If a
discretionary contribution is made, the Employer’s contribution for the Plan Year
shall be allocated to the accounts of eligible Participants as follows (enter the
number of the allocation method being used by the Plan):





	 	 	 	 	 	 
	 
	 	Type of Contribution	 	 	Allocation Method	 
	 	Non-Elective Formula 1
	 	 	 	 
	 	Non-Elective Formula 2
	 	 	 	 
	 






	 	1.	 	Pro-Rata Formula: The Employer’s contribution for the Plan
Year shall be allocated to each eligible Participant on a pro-rata basis based
on the Compensation of the Participant to the total Compensation of all
Participants.
	 
	 	2.	 	Uniform Percentage Formula: The Employer’s contribution shall
be allocated to each eligible Participant as a uniform percentage of the
Employer’s Net Profit.
	 
	 	3.	 	Percentage of Compensation Formula: The Employer’s
contribution shall be                     % of each Participant’s Compensation allocated on a
pro-rata basis based on the Compensation of the Participant to the total
Compensation of all Participants.
	 
	 	4.	 	Hours of Service Formula: The Employer’s contribution shall be a discretionary
amount allocated in the same dollar amount to each eligible Participant based on
each Hour of Service performed or each day that the Participant is entitled to
Compensation.
	 
	 	5.	 	Uniform Dollar Amount Formula: The Employer shall contribute
and allocate to the account of each eligible Participant an equal dollar
amount.
	 
	 	6.	 	Excess Integrated Contribution Formula: The Employer’s
contribution shall be allocated as an amount taking into consideration amounts
contributed to Social Security using the four-step Excess Integrated Allocation
Formula as described in the Basic Plan Document #01; the Integration Level is
defined at Section III(E) of this Adoption Agreement.
	 
	 	7.	 	Base Integrated Contribution Formula: The Employer’s
contribution shall be allocated as an amount taking into consideration amounts
contributed to Social Security using the two-step Base Integrated Allocation
Formula as described in the Basic Plan Document #01; Employer Contributions
shall be allocated as follows:                     % of each eligible Participant’s
Compensation, plus                     % of Compensation in excess of the Integration Level
defined at Section III(E) hereof. If the Integration Level selected in Section
III(E) is other than the Taxable Wage Base, the maximum disparity rate will be
adjusted as follows: (a) if the Integration Level selected is greater than zero
(0) but not more than the greater of $10,000 or 20% of the Taxable Wage Base,
the maximum disparity rate will be 5.7%; (b) if the Integration Level selected
is more than the greater of $10,000 or 20% but not more than 80% of the Taxable
Wage Base, the maximum disparity rate will be 4.3%; (c) if the Integration
Level selected is more than 80% of the Taxable Wage Base, but not more than any
amount more than 80% of the Taxable Wage Base, but less than 100% of the
Taxable Wage Base, the maximum disparity rate will be 5.4%.
	 
	 	 	 	Only one Plan maintained by the Employer may be integrated with Social
Security. Any Plan utilizing a Safe Harbor formula as provided in Section
VI(I) of this Adoption Agreement may not apply the Safe Harbor Contributions
to the integrated allocation formula.





21









 











	 	8.	Uniform Points Contribution Formula: The allocation for each
eligible Participant will be determined by a uniform points method. Each
eligible Participant’s allocation shall bear the same relationship to the
Employer contribution as the Participant’s total points bears to all points
awarded. The Employer must grant points for at least age or Service. Each
eligible Participant will receive                      points for each of the following:






	 	o	a. 	      year(s) of age.
	 
	 	o	b. 	     Year(s) of Service determined:
	 
	 	 	o	i. 	 In the same manner as determined for eligibility.
	 
	 	 	o	ii. 	In the same manner as determined for vesting.
	 
	 	 	o	iii. 	Points will not be awarded with respect
to Year(s) of Service in excess of ___.
	 
	 	o	c. 	 $                    (not to exceed $200) of Compensation.






	 	 	The contribution formulas must satisfy the design-based safe harbors described in
the Regulations under Code Section 401(a)(4).
	 
	 	L.	Qualified Matching (QMAC) and Qualified Non-Elective (QNEC) Employer
Contribution Formulas:
	 
	 	o	1. 	 QMAC Contribution Formula: The Employer may contribute to each eligible
Participant’s Qualified Matching Contribution account an amount equal to (select one or
more of the following):






	 	o	a. 	 $                    or
                    % of the Participant’s
Elective Deferrals (including Roth Elective Deferrals, if applicable).
	 
	 	o	b. 	 $                    or
                    % of the Participant’s
Elective Deferrals (including Roth Elective Deferrals, if applicable) not to exceed
                    % of Compensation.
	 
	 	o	c. 	$                    or
                    % of the Participant’s Voluntary After-tax Contributions.
	 
	 	o	d. 	$                    or
                    % of the Participant’s Required After-tax Contributions.






	 	o	2. 	 Discretionary QMAC Contribution Formula: The Employer shall have the right to make a discretionary QMAC
contribution. The Employer’s Matching Contribution shall be determined by the Employer with respect to each Plan
Year’s eligible Participants. Such contribution shall be in the amount specified and allocated as follows:  
 

This part of the Employer’s contribution shall be fully vested when made.
	 
	 	o	3. 	 QNEC Contribution Formula: The Employer may contribute to each eligible
Participant’s Qualified Non-Elective Contribution account an amount equal to (select
one or more of the following):






	 	o	a. 	          % of Compensation of all eligible Participants. This
part of the Employer’s contributions shall be fully vested when made.
	 
	 	o	b. 	 $                    not to exceed           % of Compensation. This part
of the Employer’s contribution shall be fully vested when made and subject to
the limitations specified in the Basic Plan Document #01.






	 	o	4. 	 Discretionary Percentage QNEC Contribution Formula: The Employer shall
have the right to make a discretionary QNEC contribution which shall be allocated to
each eligible Participant’s account in proportion to his or her Compensation as a
percentage of the Compensation of all eligible Participants. This part of the
Employer’s contribution shall be fully vested when made. This contribution will be
made to:






22











 





	 	 	 	 	 	 	 	 	 
	 
	 	 	 	o	 	a.	 	All eligible Participants.
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	o	 	b.	 	Only eligible Participants who are Non-Highly Compensated Employees.
	 
	 	 	 	 	 	 	 	 
	 	 	o	 	5.	 	Discretionary Uniform Dollar QNEC Contribution Formula: The Employer shall
have the right to make a discretionary QNEC contribution which shall be allocated to
each eligible Participant’s account in a uniform dollar amount to be determined by the
Employer and allocated in a nondiscriminatory manner. This part of the Employer’s
contribution shall be fully vested when made. This contribution will be made to:
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	o	 	a.	 	All eligible Participants.
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	o	 	b.	 	Only eligible Participants who are Non-Highly Compensated Employees.
	 
	 	 	 	 	 	 	 	 
	 	 	o	 	6.	 	Corrective QNEC Contribution Formula: The Employer shall have the right
to make a QNEC contribution in the amount necessary to pass the ADP/ACP Test or the
maximum permitted under Code Section 415. This contribution will be allocated to some
or all Non-Highly Compensated Participants designated by the Plan Administrator. The
allocation will be the lesser of the amount required to pass the ADP/ACP Test, or the
maximum permitted under Code Section 415. This part of the Employer’s contribution
shall be fully vested when made.
	 
	 	 	 	 	 	 	 	 
	 	 	o	 	7.	 	Qualified Matching Contributions (QMAC):
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	o	 	a.	 	For purposes of the ADP and ACP Tests, all Matching Contributions made to the Plan will
be deemed “Qualified” for purposes of calculating the Actual Deferral Percentage and/or Actual Contribution Percentage.  All Matching Contributions
must be fully vested when made.
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	o	 	b.	 	For purposes of the ADP and ACP Tests, only Matching Contributions made to the Plan that are needed to meet the
Actual Deferral Percentage or Actual Contribution Percentage Test will be deemed “Qualified” for purposes of calculating the
Actual Deferral Percentage and/or Actual Contribution Percentage. All such Matching Contributions used must be fully vested when made.
	 
	 	 	 	 	 	 	 	 
	 	 	o	 	8.	 	Qualified Non-Elective Contributions (QNEC):
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	o	 	a.	 	For purposes of the ADP and  ACP Tests, all Non-Elective Contributions made to the
Plan will be deemed “Qualified” for purposes of calculating the Actual Deferral Percentage
and/or Actual Contribution Percentage.  All Non-Elective Contributions must be fully vested when made.
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	o	 	b.	 	For purposes of the ADP and ACP Tests, only the Non-Elective Contributions made to
the Plan that are needed to meet the Actual Deferral Percentage or Actual Contribution
Percentage Test will  be deemed “Qualified” for purposes of calculating the Actual Deferral
Percentage and/or Actual Contribution Percentage. All such Non-Elective Contributions used must be fully vested when made.
	 
	 	 	 	 	 	 	 	 
	o	 	M.	 	Additional Adopting Employers:
	 
	 	 	 	 	 	 	 	 
	 	 	o	 	1.	 	All participating Employers’ contributions and forfeitures, if applicable, attributable to
each specific contribution source made by such Employer shall be pooled together and
allocated uniformly among all eligible Participants.
	 
	 	 	 	 	 	 	 	 
	 	 	o	 	2.	 	Each participating Employer’s contribution and forfeitures, if applicable, attributable to
each specific contribution source made by such Employer shall be allocated only to eligible
Participants of the participating Employer.
	 
	 	 	 	 	 	 	 	 
	 	 	Where contributions and forfeitures are to be allocated to eligible Participants by
participating Employers, each such Employer must maintain data demonstrating that the
allocations by group satisfy the nondiscrimination rules under Code Section 401(a)(4).





23










 






	 	 	 	 	 	 	 	 	 
	VII.	 	ALLOCATIONS TO PARTICIPANTS
	 
	 	 	 	 	 	 	 	 
	 	 	A.	 	Allocation Accrual Requirements:
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	No Hours of Service or last day requirement may be imposed on any Employer
contribution that is subject to the Safe Harbor Plan rules.
	 
	 	 	 	 	 	 	 	 
	 	 	þ	 	1.	 	There are no allocation requirements for Participants to
receive any contribution made to the Plan; however, a
Participant must have received Compensation from the Employer
to be entitled to an allocation of contributions.
	 
	 	 	 	 	 	 	 	 
	 	 	o	 	2.	 	Employer contributions will be allocated to all Participants
employed on the last day of the Plan Year regardless of hours
worked.
	 
	 	 	 	 	 	 	 	 
	 	 	o	 	3.	 	The Plan is using the Elapsed Time method; contributions will be allocated
to all Participants who have completed _____ [not more than twelve (12)] months of
Service regardless of the hours credited. If left blank, the Plan will use twelve (12)
months.
	 
	 	 	 	 	 	 	 	 
	 	 	o	 	4.	 	Employer contributions for a Plan Year will be allocated to all
Participants upon completion of the hours and/or employment requirements below.
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	a.	 	A Year of Service for allocation accrual purposes cannot be less than one (1) Hour of Service nor greater than 1,000 hours by operation of law. If left blank, the Plan will use 1,000 hours.  Enter whole digit
numbers only.






	 	 	 	 	 
	Contribution Type	 	Hours
	All contributions
	 	 	 	 
	Matching Contribution (Formula 1)
	 	 	 	 
	Matching Contribution (Formula 2)
	 	 	 	 
	Non-Elective Contribution (Formula 1)
	 	 	 	 
	Non-Elective Contribution (Formula 2)
	 	 	 	 
	QNEC
	 	 	 	 
	QMAC
	 	 	 	 






	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	b.	 	Participants must be employed on the last day of each quarter of the Plan Year in order to receive the following contribution(s):
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	o	 	All contributions
	 
	 	 	 	 	 	o	 	Matching Contribution (Formula 1)
	 
	 	 	 	 	 	o	 	Matching Contribution (Formula 2)
	 
	 	 	 	 	 	o	 	Non-Elective Contribution (Formula 1)
	 
	 	 	 	 	 	o	 	Non-Elective Contribution (Formula 2)
	 
	 	 	 	 	 	o	 	QNEC
	 
	 	 	 	 	 	o	 	QMAC
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	Note: Use of this subsection (b) requires that no more than one (1) Hour of Service be required in subsection (a) above for the contribution types selected.
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	c.	 	Participants must be employed on the last day of the Plan Year in order to receive the following contribution(s):
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	o	 	All contributions
	 
	 	 	 	 	 	o	 	Matching Contribution (Formula 1)
	 
	 	 	 	 	 	o	 	Matching Contribution (Formula 2)
	 
	 	 	 	 	 	o	 	Non-Elective Contribution (Formula 1)
	 
	 	 	 	 	 	o	 	Non-Elective Contribution (Formula 2)
	 
	 	 	 	 	 	o	 	QNEC
	 
	 	 	 	 	 	o	 	QMAC
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	o	 	d.	 	Participants must complete the Hours of Service indicated above or be employed on the last day of the Plan Year to receive the Employer Contribution(s) selected above.
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	5.	 	Employer Contributions for a Plan Year will be allocated to terminated Participants who have met the following allocation accrual requirements (check all applicable boxes):






24










 





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	All	 	Match	 	Match	 	Non-Elective	 	Non-Elective	 	 	 	 
	 	 	 	 	 	 	Contributions	 	Formula 1	 	Formula 2	 	Formula 1	 	Formula 2	 	QNEC	 	QMAC
	 	 	a.	 	The Hours of Service or
Period of
Service requirement
above will be
waived if termination
is due to:	 	 	 	 	 	 	 	 	 	 
	i.
	 	Retirement	 	 	 	o	 	o	 	o	 	o	 	o	 	o	 	o
	ii.
	 	Disability	 	 	 	o	 	o	 	o	 	o	 	o	 	o	 	o
	iii.
	 	Death	 	 	 	o	 	o	 	o	 	o	 	o	 	o	 	o
	iv.
	 	Other (must	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	be non-	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	Discriminatory	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	in operation):	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	o	 	o	 	o	 	o	 	o	 	o	 	o
	 	 	b.	 	The last day of employment
requirement above will be
waived if termination is
due to:	 	 	 	 	 	 	 	 	 	 
	i.
	 	Retirement	 	 	 	o	 	o	 	o	 	o	 	o	 	o	 	o
	ii.
	 	Disability	 	 	 	o	 	o	 	o	 	o	 	o	 	o	 	o
	iii.
	 	Death	 	 	 	o	 	o	 	o	 	o	 	o	 	o	 	o
	iv.
	 	Other (must be non-	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	Discriminatory in	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	operation):	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	o	 	o	 	o	 	o	 	o	 	o	 	o






	 	 	 	 	 	 	 
	o	 	B.	 	Contributions to Disabled Participants:
	 
	 	 	 	 	 	 
	 	 	 	 	The Employer will make contributions on behalf of a Participant who is permanently and totally disabled. These contributions will be based on
the Compensation each such Participant would have received for the Limitation Year if the Participant had been paid at the rate of Compensation paid
immediately before becoming permanently and totally disabled. Such imputed Compensation for the disabled Participant may be taken into account only if
the Participant is not a Highly Compensated Employee. These contributions will be 100% vested when made.
	 
	 	 	 	 	 	 
	VIII.	 	DISPOSITION OF FORFEITURES
	 
	 	 	 	 	 	 
	 	 	A.	 	Forfeiture Allocation Alternatives:
	 
	 	 	 	 	 	 
	 
	 	o	 	1.	 	Not applicable; all contributions are fully vested.
	 
	 	 	 	 	 	 
	 
	 	þ	 	2.	 	Select one or more methods in which forfeitures associated with the contribution type will be allocated (number each item in order of use):






	 	 	 	 	 	 	 	 	 
	 	 	Employer Contribution Type	 
	 	 	All Non-Safe Harbor	 	 	All Other	 
	Disposition Method	 	Matching Contributions	 	 	Contributions	 
	a. Restoration of Participant’s forfeitures
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 
	b. Used to offset Plan expenses
	 	 	 	 	 	 	3	 
	 
	 	 	 	 	 	 
	 
	c. Used to reduce the Employer’s
Non-Elective Contribution
	 	 	 	 	 	 	1	 
	 
	 	 	 	 	 	 
	 
	d. Used to reduce the Employer’s
Matching Contribution
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 
	e. Added to the Employer’s contribution
(other than Matching Contributions or
Base Integration Formula) under the Plan
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 
	f. Added to the Employer’s Matching
Contribution under the Plan (these
contributions will be subject to ACP Testing)
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 





25










 






	 	 	 	 	 	 	 	 	 
	 	 	Employer Contribution Type	 
	 	 	All Non-Safe Harbor	 	 	All Other	 
	Disposition Method	 	Matching Contributions	 	 	Contributions	 
	g. Allocate to all Participants
eligible to share in the allocations
in the same proportion that each
Participant’s Compensation for the
year bears to the Compensation of all
other Participant’s for such year
	 	 	N/A	 	 	 	2	 
	 
	 	 	 	 	 	 
	 
	h. Allocate to all NHCEs eligible to share
in the allocations in proportion to each such
Participant’s Compensation for the year
	 	 	N/A	 	 	 	 	 
	 
	 	 	 	 	 	 
	 
	i. Allocate to all NHCEs eligible to share in the
allocations in proportion to each such
Participant’s Elective Deferrals for the year
	 	 	 	 	 	 	N/A	 
	 
	 	 	 	 	 	 
	 
	j. Allocate to all Participants eligible to share in
the allocations in the same proportion that
each Participant’s Elective Deferrals for the year
bears to the Elective Deferrals of all Participants
for such year
	 	 	 	 	 	 	N/A	 
	 
	 	 	 	 	 	 





	 	 	 	 	 	 	 	 	 
	 	 	 	 	Participants eligible to share in the allocation of other Employer contributions
under Section VI shall be eligible to share in the allocation of forfeitures. The
selection of (i) or (j) may require that the Plan be tested for nondiscrimination
using a general test described in Regulations Section 1.410(b).
	 
	 	 	 	 	 	 	 	 
	 	 	B.	 	Timing of Allocation of Forfeitures:
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	If no timely distribution or deemed distribution [pursuant to paragraph 6.5(c) of
the Basic Plan Document #01] has been made to a former Participant, non-vested
portions shall be forfeited at the end of the Plan Year during which the former
Participant incurs his or her fifth consecutive one (1) year Break in Service or
Period of Severance for Plans that use the Elapsed Time Method.
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	If a former Participant has received the full amount of his or her Vested Account
Balance, the non-vested portion of his or her account shall be forfeited and be
disposed of:
	 
	 	 	 	 	 	 	 	 
	 	 	o	 	1.	 	during the Plan Year following the Plan Year in which the forfeiture
arose.
	 
	 	 	 	 	 	 	 	 
	 	 	o	 	2.	 	as of any Valuation or Allocation Date during the Plan Year (or as soon as
administratively feasible following the close of the Plan Year) in which the former
Participant receives full payment of his or her vested benefit.
	 
	 	 	 	 	 	 	 	 
	 	 	þ	 	3.	 	as of the end of the Plan Year during which the former Participant receives
full payment of his or her vested benefit.
	 
	 	 	 	 	 	 	 	 
	 	 	o	 	4.	 	as of the earlier of the first day of the Plan Year, or the first day of
the seventh month of the Plan Year following the date on which the former Participant
has received full payment of his or her vested benefit.
	 
	 	 	 	 	 	 	 	 
	 	 	o	 	5.	 	as of the next Valuation or Allocation Date following the date on which
the former Participant receives full payment of his or her vested benefit.
	 
	 	 	 	 	 	 	 	 
	IX.	 	MULTIPLE PLANS MAINTAINED BY THE EMPLOYER AND TOP-HEAVY CONTRIBUTIONS
	 
	 	 	 	 	 	 	 	 
	o	 	A.	 	Plans Maintained By The Employer:
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	The Employer does maintain another Plan [including a Welfare Benefit Fund or an
individual medical account as defined in Code Section 415(l)(2)], under which
amounts are treated as Annual Additions and has completed the proper sections below.
If the Participant is covered under another qualified Defined Contribution Plan
maintained by the Employer, other than a Master or Prototype Plan [option (1) below
shall automatically apply if the other plan is a Master or Prototype Plan]:
	 
	 	 	 	 	 	 	 	 
	 	 	o	 	1.	 	The provisions of Article X of the Basic Plan Document #01 will apply as
if the other plan were a Master or Prototype Plan.






26










 






	 	 	 	 	 	 	 	 	 
	 	 	o	 	2.	 	The Employer has specified below the method under which the plans will
limit total Annual Additions to the Maximum Permissible Amount, and will properly
reduce any Excess Amounts in a manner that precludes Employer discretion:
	 	 


	 
	 	 	 	 	 	 	 	 
	 	 	B.	 	Top-Heavy Provisions:
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	In the event the Plan is or becomes Top-Heavy, the minimum contribution or benefit
required under Code Section 416 and paragraph 14.3 of the Basic Plan Document #01
relating to Top-Heavy Plans shall be satisfied in the elected manner:
	 
	 	 	 	 	 	 	 	 
	 	 	þ	 	1.	 	The minimum contribution will be satisfied by this Plan.
	 
	 	 	 	 	 	 	 	 
	 	 	o	 	2.	 	The minimum contribution will be satisfied by (name of other Qualified Plan):
                    
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Minimum contribution or benefit to be provided (specify interest rates and mortality table, if
applicable):                    
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	3.	 	For any Plan Year during which the Plan is Top-Heavy, the sum
of the contributions (excluding Elective Deferrals) allocated to non-Key
Employees shall not be less than the amount required under the Basic Plan
Document #01. Top-Heavy minimums will be allocated to:
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	þ	 	a.	 	all eligible Participants [Plan defaults to this election].
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	o	 	b.	 	only eligible non-Key Employees who are Participants.
	 
	 	 	 	 	 	 	 	 
	 	 	o	 	4.	 	Matching Contributions shall not be included when satisfying Top-Heavy minimum contributions.
	 
	 	 	 	 	 	 	 	 
	X.	 	NONDISCRIMINATION TESTING
	 
	 	 	 	 	 	 	 	 
	 	 	A Plan may use different testing methods for the ADP and ACP Tests provided the Plan does
not permit recharacterization of Excess Contributions, Elective Deferrals to be used in the
ACP Test, or Qualified Matching Contributions to be used in the ADP Test.
	 
	 	 	 	 	 	 	 	 
	 	 	If no election is made, the Plan will use the Current Year testing method for both the ADP
and ACP Tests.
	 
	 	 	 	 	 	 	 	 
	 	 	A.	 	Testing Elections:
	 
	 	 	 	 	 	 	 	 
	 	 	o	 	1.	 	The Plan is not subject to ADP or ACP testing. The Plan does not offer Voluntary After-tax or Required After-tax
Contributions and it either meets the Safe Harbor provisions of Section VI(I) of this Adoption Agreement, or it
does not benefit any Highly Compensated Employees.
	 
	 	 	 	 	 	 	 	 
	 	 	o	 	2.	 	This Plan is using the Current Year testing method for purposes of the ADP Test.
	 
	 	 	 	 	 	 	 	 
	 	 	o	 	3.	 	This Plan is using the Current Year testing method for purposes of the ACP Test.
	 
	 	 	 	 	 	 	 	 
	 	 	þ	 	4.	 	This Plan is using the Prior Year testing method for purposes of the ADP Test.
	 
	 	 	 	 	 	 	 	 
	 	 	þ	 	5.	 	This Plan is using the Prior Year testing method for purposes of the ACP Test.
	 
	 	 	 	 	 	 	 	 
	 	 	B.	 	Testing Elections for the First Plan Year:
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	Complete only when Prior Year testing method election is made and the Employer is
not using the “deemed 3%” rule.
	 
	 	 	 	 	 	 	 	 
	 	 	o	 	1.	 	If this is not a successor Plan, then for the first Plan Year this Plan
permits any Participant to make Elective Deferrals, the ADP used in the ADP Test for
Participants who are Non-Highly Compensated Employees shall be such first Plan Year’s
ADP.
	 
	 	 	 	 	 	 	 	 
	 	 	o	 	2.	 	If this is not a successor Plan, then for the first Plan Year this Plan
permits (a) any Participant to make Employee contributions, (b) provides for Matching
Contributions or (c) both, the ACP used in the ACP Test for Participants who are
Non-Highly Compensated Employees shall be such first Plan Year’s ACP.






27










 






	 	 	 	 	 	 	 	 	 
	o	 	C.	 	Recharacterization:
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	Elective Deferrals may be recharacterized as Voluntary After-tax Contributions to
the extent so provided by this Plan, to satisfy the ADP Test. The Employer must
have elected to permit Voluntary After-tax Contributions in the Plan for this
election to be operable.
	 
	 	 	 	 	 	 	 	 
	o	 	D.	 	Forfeitures of Vested Excess Aggregate Contributions Resulting from ADP Test Failure:
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	Forfeitures of Excess Aggregate Contributions resulting from failure of the ADP Test and the inability to
distribute corresponding Matching Contributions will be allocated to the Matching Contribution accounts of Non-Highly
Compensated Employees instead of being used to reduce Employer Contributions for the Plan Year in which the failure
occurred.
	 
	 	 	 	 	 	 	 	 
	XI.	 	VESTING	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Participants shall always have a fully vested and nonforfeitable interest in their Employee
contributions (including Elective Deferrals, Catch-Up Contributions, Roth Elective
Deferrals, Deemed IRA Contributions, Required After-tax Contributions, and Voluntary
After-tax Contributions), Qualified Matching Contributions (“QMACs”), Qualified Non-Elective
Contributions (“QNECs”) or Safe Harbor Contributions, and their investment earnings.
	 
	 	 	 	 	 	 	 	 
	 	 	Each Participant shall acquire a vested and nonforfeitable percentage in his or her account
balance attributable to Employer contributions and their earnings under the schedule(s)
selected below.
	 
	 	 	 	 	 	 	 	 
	 	 	A.	 	Vesting Computation Period:
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	A Year of Service for vesting will be determined on the basis of the (choose one):
	 
	 	 	 	 	 	 	 	 
	 	 	o	 	1.	 	Not applicable. All contributions are fully vested.
	 
	 	 	 	 	 	 	 	 
	 	 	þ	 	2.	 	Elapsed Time method.
	 
	 	 	 	 	 	 	 	 
	 	 	o	 	3.	 	Hours of Service method. A Year of Service will be credited upon
completion of __________ Hours of Service. A Year of Service for vesting purposes will
not be less than one (1) Hour of Service nor greater than 1,000 hours by operation of
law. [If left blank, the Plan will use 1,000 hours.]
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	The computation period for purposes of determining Years of Service and
Breaks in Service for purposes of computing a Participant’s nonforfeitable
right to his or her account balance derived from Employer contributions:
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	o	 	a.	 	shall commence on the date on which an Employee first performs an Hour of Service for the Employer and
each subsequent twelve (12) consecutive month period shall commence on the anniversary thereof.
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	o	 	b.	 	shall commence on the first day of the Plan Year during
which an Employee first performs an Hour of Service for the Employer and each
subsequent twelve (12) consecutive month period shall commence on the anniversary thereof.
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	A Participant shall receive credit for a Year of Service if he or she
completes the number of hours specified above at any time during the twelve
(12) consecutive month computation period. A Year of Service may be earned
prior to the end of the twelve (12) consecutive month computation period and
the Participant need not be employed at the end of the twelve (12)
consecutive month computation period to receive credit for a Year of
Service.






28










 





	 	 	 	 	 	 	 	 	 
	 	 	B.	 	Vesting Schedules:
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	The Employer must select either the two-twenty vesting schedule option [(B)(4)] or
the three-year cliff vesting schedule [(B)(3)] to apply in any Plan Year in which
the Plan is Top-Heavy. The percentages selected for option (B)(5) may not be less
for any year than the percentages shown at option (B)(4). Any switch to a
Top-Heavy schedule will remain in effect even if the Plan later falls out of
Top-Heavy status unless the Employer executes an amendment to this Adoption
Agreement. If a Participant has at least three (3) Years of Service for vesting
purposes at the time of the amendment, the Plan must provide that Participant the
option of remaining on the vesting schedule in effect prior to such amendment.
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	Select the appropriate schedule for each contribution type and complete the blank
vesting percentages from the list below and insert the option number in the vesting
schedule chart below. Employer Contributions that are not Safe Harbor Contributions
may only choose option (3) or (4) or a schedule where amounts vest faster than at
option (4).






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Years of Service
	 	 	1	 	2	 	3	 	4	 	5	 	6
	1.	 	Full and immediate Vesting	 	 	 	 
	2.
	 	 	—	%	 	 	100	%	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	3.
	 	 	—	%	 	 	—	%	 	 	100	%	 	 	 	 	 	 	 	 	 	 	 	 
	4.
	 	 	—	%	 	 	20	%	 	 	40	%	 	 	60	%	 	 	80	%	 	 	100	%
	5.
	 	 	0	%	 	 	33.3	%	 	 	66.6	%	 	 	100	%	 	 	100	%	 	 	100	%






	 	 	 
	Vesting Schedule Chart	 	Employer Contribution Type
	5

	 	All Employer Contributions
	 
	 	 
	 

	 	Matching Contribution (Formula 1)
	 
	 	 
	 

	 	Matching Contribution (Formula 2)
	 
	 	 
	 

	 	Match on Voluntary After-tax Contributions
	 
	 	 
	 

	 	Match on Required After-tax Contributions
	 
	 	 
	 

	 	Match on 403(b) Deferrals
	 
	 	 
	 

	 	Non-Elective Contribution (Formula 1)
	 
	 	 
	 

	 	Non-Elective Contribution (Formula 2)
	 
	 	 
	5

	 	Top-Heavy Minimum Contribution
	 
	 	 






	 	 	 	 	 	 	 	 	 
	 	 	 	 	If a different Vesting Schedule than that entered above applies to Employer
Contributions made prior to the first day of the Plan’s 2007 Plan Year, it should be
entered in Schedule B of this Adoption Agreement.
	 
	 	 	 	 	 	 	 	 
	 	 	C.	 	Service Disregarded for Vesting:
	 
	 	 	 	 	 	 	 	 
	 	 	þ	 	1.	 	Not applicable. All Service is recognized.
	 
	 	 	 	 	 	 	 	 
	 	 	o	 	2.	 	Service prior to the Effective Date of this Plan or a predecessor plan is
disregarded when computing a Participant’s vested and nonforfeitable interest.
	 
	 	 	 	 	 	 	 	 
	 	 	o	 	3.	 	Service prior to a Participant having attained age eighteen (18) is
disregarded when computing a Participant’s vested and nonforfeitable interest.
	 
	 	 	 	 	 	 	 	 
	o	 	D.	 	Full Vesting of Employer Contributions for Current Participants:
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	Notwithstanding the elections above, all Employer contributions made to a
Participant’s account shall be 100% fully vested if the Participant is employed on
the Effective Date of the Plan (or such other date as entered herein):
________________. The operation of this provision may not result in the
discrimination in favor of Highly Compensated Employees.






29









 






	 	 	 	 	 	 	 	 	 
	XII.	 	SERVICE WITH PREDECESSOR ORGANIZATION
	 
	 	 	 	 	 	 	 	 
	 	 	This option only applies in the situation where the Employer does not or did not maintain
the plan of a Predecessor Organization.
	 
	 	 	 	 	 	 	 	 
	o	 	A.	 	Not applicable. The Employer does not maintain the plan of a Predecessor Organization.
	 
	 	 	 	 	 	 	 	 
	o	 	B.	 	The Plan will recognize Service with all Predecessor Organizations.
	 
	 	 	 	 	 	 	 	 
	þ	 	C.	 	Service with the following organization(s) will be recognized for the Plan purpose indicated:






	 	 	 	 	 	 	 
	 	 	 	 	Allocation	 	 
	 	 	Eligibility	 	Accrual	 	Vesting
	Valley Title Services, LLC

	 	þ
	 	o
	 	þ
	 

	 	o
	 	o
	 	o
	 


	 	 	 	 	 	 
	 

	 	o
	 	o
	 	o
	 


	 	 	 	 	 	 
	 

	 	o
	 	o
	 	o
	 


	 	 	 	 	 	 
	 

	 	o
	 	o
	 	o
	 


	 	 	 	 	 	 






	 	 	 	 	 	 	 	 	 
	 	 	 	 	Attach additional pages as necessary.
	 
	 	 	 	 	 	 	 	 
	o	 	D.	 	The Plan shall recognize                      Years of Service with the Employer(s) named in
Section
XII(C) above.
	 
	 	 	 	 	 	 	 	 
	XIII.	 	IN-SERVICE WITHDRAWALS
	 
	 	 	 	 	 	 	 	 
	 	 	Distribution restrictions apply in the case of Elective Deferrals (including Roth Elective
Deferrals, if applicable), Safe Harbor Contributions, Qualified Matching Contributions and
Qualified Non-Elective Contributions, including the withdrawal restrictions prior to
attainment of age 591/2.
	 
	 	 	 	 	 	 	 	 
	 	 	If the Participant could withdraw his or her account in the past, this right may not be
taken away.
	 
	 	 	 	 	 	 	 	 
	 	 	A.	 	In-Service Withdrawals: (SEE SCHEDULE B)
	 
	 	 	 	 	 	 	 	 
	 	 	o	 	1.	 	In-service withdrawals are not permitted in the Plan.
	 
	 	 	 	 	 	 	 	 
	 	 	þ	 	2.	 	In-service withdrawals are permitted in the Plan. Participants may withdraw
the following contribution types after meeting the following requirements (select one
or more of the following options):






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Withdrawal Restrictions
	Contribution Types	 	A	 	B	 	C	 	D	 	E	 	F	 	G	 	H
	 	 	 
	a.
	 	All Contributions	 	n/a	 	n/a	 	n/a	 	o	 	o	 	n/a	 	n/a	 	n/a
	b.
	 	Elective Deferrals	 	o	 	n/a	 	n/a	 	o	 	þ	 	n/a	 	n/a	 	n/a
	c.
	 	Roth Elective Deferrals	 	o	 	n/a	 	n/a	 	o	 	o	 	n/a	 	n/a	 	n/a
	d.
	 	Voluntary After-tax Contributions	 	o	 	o	 	o	 	o	 	o	 	n/a	 	n/a	 	n/a
	e.
	 	Required After-tax Contributions	 	o	 	o	 	o	 	o	 	o	 	n/a	 	n/a	 	n/a
	f.
	 	Rollover Contributions	 	o	 	þ	 	o	 	o	 	o	 	n/a	 	n/a	 	n/a
	g.
	 	Vested Matching (Formula 1)	 	o	 	n/a	 	þ	 	o	 	þ	 	þ	 	o	 	o
	h.
	 	Vested Matching (Formula 2)	 	o	 	n/a	 	o	 	o	 	o	 	o	 	o	 	o
	i.
	 	Vested Non-Elective (Formula 1)	 	o	 	n/a	 	o	 	o	 	o	 	o	 	o	 	o






30









 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Withdrawal Restrictions
	Contribution Types	 	A	 	B	 	C	 	D	 	E	 	F	 	G	 	H
	j.
	 	Vested Non-Elective (Formula 2)	 	o	 	n/a	 	o	 	o	 	o	 	o	 	o	 	o
	k.
	 	Safe Harbor Matching	 	o	 	n/a	 	n/a	 	o	 	þ	 	n/a	 	n/a	 	n/a
	l.
	 	Safe Harbor Non-Elective	 	o	 	n/a	 	n/a	 	o	 	o	 	n/a	 	n/a	 	n/a
	m.
	 	Qualified Non-Elective	 	o	 	n/a	 	n/a	 	o	 	o	 	n/a	 	n/a	 	n/a
	n.
	 	Qualified Matching	 	o	 	n/a	 	n/a	 	o	 	o	 	n/a	 	n/a	 	n/a






	 	 	 	 	 	 	 	 	 
	 	 	 	 	Withdrawal Restriction Key
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	A.	 	Not available for in-service withdrawals.
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	B.	 	Available for in-service withdrawals without restrictions.
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	C.	 	Participants having completed five (5) years of Plan
participation may elect to withdraw all or any part of their Vested Account
Balance.
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	D.	 	Participants may withdraw all or any part of their Account
Balance after having attained the Plan’s Normal Retirement Age (Normal
Retirement Age cannot be less than age 591/2 for in-service withdrawal of
Elective Deferrals, Roth Elective Deferrals, Safe Harbor Contributions, QMACs
or QNECs).
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	E.	 	Participants may withdraw all or any part of their Vested
Account Balance after having attained age 59.5 (not less than age 591/2).
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	F.	 	Participants may elect to withdraw all or any part of their
Vested Account Balance which has been credited to their account for a period in
excess of two (2) years.
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	G.	 	Available for withdrawal only if the Participant is 100% vested
(an election at (C), (D), (E) or (F) must also be made).
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	H.	 	All requirements selected in (C) through (G) above must be
satisfied prior to a distribution being made from the Plan.
	 
	 	 	 	 	 	 	 	 
	 	 	o	 	3.	 	In-service withdrawals may be made to Participants who have attained age 701/2.
	 
	 	 	 	 	 	 	 	 
	 	 	B.	 	Hardship Withdrawals: (SEE SCHEDULE B)
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	Prior to age 591/2, a Participant may withdraw balances attributable to Elective
Deferrals (including Roth Elective Deferrals, if applicable) for reason of Hardship
only. Safe Harbor Contributions, Qualified Matching Contributions, and Qualified
Non-Elective Contributions are not available for Hardship distributions.
	 
	 	 	 	 	 	 	 	 
	 	 	o	 	1.	 	Hardship withdrawals are not permitted in the Plan.
	 
	 	 	 	 	 	 	 	 
	 	 	þ	 	2.	 	Hardship withdrawals are permitted in the Plan and will be taken from the
Participant’s account as follows (select one or more of these options):
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	o	 	a.	 	Participants may withdraw Elective Deferrals.
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	þ	 	b.	 	Participants may withdraw Elective Deferrals and any earnings credited as of December 31, 1988 (or if later, the end of the last Plan Year ending before July 1, 1989).
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	o	 	c.	 	Participants may withdraw Roth Elective Deferrals.
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	þ	 	d.	 	Participants may withdraw Rollover Contributions plus their earnings.
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	o	 	e.	 	Participants may withdraw vested Non-Elective Contributions (Formula 1) plus their earnings.
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	o	 	f.	 	Participants may withdraw vested Non-Elective Contributions (Formula 2) plus their earnings.
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	o	 	g.	 	Participants may withdraw fully vested Non-Elective Contributions (Formula 1) plus their earnings.






31









 






	 	 	 	 	 	 	 	 	 
	 
	 	 	 	o	 	h.	 	Participants may withdraw fully vested Non-Elective Contributions (Formula 2) plus their earnings.
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	þ	 	i.	 	Participants may withdraw vested Employer Matching Contributions (Formula 1) plus their earnings.
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	o	 	j.	 	Participants may withdraw vested Employer Matching Contributions (Formula 2) plus their earnings.
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	o	 	k.	 	Participants may withdraw Qualified Matching Contributions and Qualified Non-Elective Contributions plus their earnings, and the earnings
on Elective Deferrals which have been credited to the Participant’s account as of December 31, 1988 (or if later, the end of the last Plan Year ending before July 1, 1989).






	 	 	 	 	 	 	 	 	 
	XIV.	 	LOAN PROVISIONS
	 
	 	 	 	 	 	 	 	 
	o	 	A.	 	Participant loans are not available from the Plan.
	 
	 	 	 	 	 	 	 	 
	þ	 	B.	 	Participant loans are permitted in accordance with the Employer’s established loan procedures.
	 
	 	 	 	 	 	 	 	 
	þ	 	C.	 	Loan payments will be suspended under the Plan as permitted under Code Section 414(u) in compliance with the
Uniformed Services Employment and Reemployment Rights Act of 1994.
	 
	 	 	 	 	 	 	 	 
	XV.	 	INVESTMENT MANAGEMENT
	 
	 	 	 	 	 	 	 	 
	 	 	A.	 	Investment Management Responsibility:
	 
	 	 	 	 	 	 	 	 
	 	 	o	 	1.	 	The Employer shall appoint a discretionary Trustee to manage the assets of
the Plan.
	 
	 	 	 	 	 	 	 	 
	 	 	o	 	2.	 	The Employer shall retain investment management responsibility and/or
authority. Unless otherwise appointed, the Trustee shall act in a nondiscretionary
capacity.
	 
	 	 	 	 	 	 	 	 
	 	 	þ	 	3.	 	The party designated below shall be responsible for the investment of the Participant’s account. By selecting a box, the Employer is making
a designation as to who will have authority to issue investment directives with respect to the specified contribution type (check all
applicable boxes):






	 	 	 	 	 	 	 	 	 
	 	 	 	 	Trustee	 	Employer	 	Participant
	a.
	 	All Contributions	 	n/a	 	n/a	 	þ
	 
	b.
	 	Elective Deferrals/Roth Elective Deferrals	 	o	 	o	 	o
	 
	c.
	 	Voluntary After-tax Contributions	 	o	 	o	 	o
	 
	d.
	 	Required After-tax Contributions	 	o	 	o	 	o
	 
	e.
	 	Safe Harbor Contributions	 	o	 	o	 	o
	 
	f.
	 	Matching Contributions (Formula 1)	 	o	 	o	 	o
	 
	g.
	 	Matching Contributions (Formula 2)	 	o	 	o	 	o
	 
	h.
	 	QMACs	 	o	 	o	 	o
	 
	i.
	 	QNECs	 	o	 	o	 	o
	 
	j.
	 	Non-Elective Contributions (Formula 1)	 	o	 	o	 	o
	 
	k.
	 	Non-Elective Contributions (Formula 2)	 	o	 	o	 	o
	 
	l.
	 	Rollover Contributions	 	o	 	o	 	o
	 
	m.
	 	Deemed IRA Contributions	 	o	 	o	 	o






32









 






	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	To the extent that Participant self-direction was previously permitted, the
Employer shall have the right to either make the assets part of the general
fund, or leave them as self-directed subject to the provisions of the Basic
Plan Document #01.
	 
	 	 	 	 	 	 	 	 
	 	 	B.	 	Limitations on Participant Directed Investments:
	 
	 	 	 	 	 	 	 	 
	 	 	þ	 	1.	 	Participants are permitted to invest among only those investment
alternatives made available by the Employer under the Plan.
	 
	 	 	 	 	 	 	 	 
	 	 	o	 	2.	 	Participants are permitted to invest in any investment alternative
permitted under the Basic Plan Document #01
	 
	 	 	 	 	 	 	 	 
	o	 	C.	 	Insurance:
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	The Plan permits life insurance as an investment alternative.
	 
	 	 	 	 	 	 	 	 
	XVI.	 	DISTRIBUTION OPTIONS
	 
	 	 	 	 	 	 	 	 
	 	 	A.	 	Timing of Distributions [both (1) and (2) must be completed]:
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	1.	 	Distributions payable as a result of termination for reasons other than death, Disability or retirement shall be paid c [select from the list at (A)(3) below].
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	2.	 	Distributions payable as a result of termination for death, Disability or retirement shall be paid c [select from the list at (A)(3) below].
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	3.	 	Distribution Options:
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	a.	 	As soon as administratively feasible on or after the Valuation Date following the date on which a distribution is requested or is otherwise payable.
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	b.	 	As soon as administratively feasible following the close of the Plan Year during which a distribution is requested or is otherwise payable.
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	c.	 	As soon as administratively feasible following the date on which a distribution is requested or is otherwise payable.  (This option is recommended for daily valuation plans.)
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	d.	 	As soon as administratively feasible after the close of the Plan Year during which the Participant incurs
                     [cannot be more than five (5)] consecutive one (1) year Breaks in Service.
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	e.	 	Only after the Participant has attained the Plan’s Normal Retirement Age or Early Retirement Age, if applicable.
	 
	 	 	 	 	 	 	 	 
	 	 	B.	 	Required Beginning Date:
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	The Required Beginning Date of a Participant with respect to the Plan is (select one
from below):
	 
	 	 	 	 	 	 	 	 
	 	 	o	 	1.	 	The April 1 of the calendar year following the calendar year in which  the Participant attains age 701/2
	 
	 	 	 	 	 	 	 	 
	 	 	þ	 	2.	 	The April 1 of the calendar year following the calendar year in which the Participant attains age 701/2 except that
distributions to a Participant (other than a 5%
owner) with respect to benefits accrued after the later of the adoption of this Plan or Effective Date of the amendment of this Plan must commence no later than the April 1 of
the calendar year following the later of the calendar year in which the Participant attains age 701/2 or the calendar year in which the Participant retires.
	 
	 	 	 	 	 	 	 	 
	 	 	o	 	3.	 	The later of the April 1 of the calendar year following the calendar year in which the Participant attains age 701/2 or
retires except that distributions to a 5%
owner must commence by the April 1 of the calendar year following the calendar year in which the Participant attains age 701/2.






33









 






	 	 	 	 	 	 	 	 	 
	 	 	 	 	Option (3) may only be elected if (i) it corresponds to an amendment previously made
to the Plan pursuant to Regulations Section 1.411(d)-4, Q&A-10(b), or (ii) it does
not eliminate an age 701/2 distribution option as described in the preceding
Regulations because either (A) the Plan is a new Plan or (B) Section XIII(A)(3) is
checked or the Plan already offers a pre-retirement distribution at least as
generous as Section XIII(A)(3).
	 
	 	 	 	 	 	 	 	 
	 	 	C.	 	Minimum Distribution Requirements:
	 
	 	 	 	 	 	 	 	 
	 	 	o	 	1.	 	Election to Apply Five (5) Year Rule to Distributions to Designated
Beneficiaries: If the Participant dies before distributions begin and there is a
Designated Beneficiary, distribution to the Designated Beneficiary is not required to
begin by the date specified in the Basic Plan Document #01 but the Participant’s entire
interest will be distributed to the Designated Beneficiary by December 31 of the
calendar year containing the fifth anniversary of the Participant’s death.
	 
	 	 	 	 	 	 	 	 
	 	 	o	 	2.	 	Election to Allow Participants or Beneficiaries to Elect Five (5) Year
Rule: Participants or Beneficiaries may elect on an individual basis whether the five
(5) year rule or the life expectancy rule described in the Basic Plan Document #01
applies to distributions after the death of a Participant who has a Designated
Beneficiary. The election must be made no later than the earlier of September 30 of
the calendar year in which distribution would be required to begin under the Plan, or
by September 30 of the calendar year which contains the fifth anniversary of the
Participant’s (or, if applicable, surviving Spouse’s) death. If neither the
Participant nor Beneficiary makes an election under this paragraph, distributions will
be made in accordance with Article VII of the Basic Plan Document #01 and, if
applicable, the elections in Section XVI(C)(1) above.
	 
	 	 	 	 	 	 	 	 
	 	 	D.	 	Forms of Payment (select all that apply):
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	The normal form of payment is determined at Section III(J) of this Adoption
Agreement. If option (1) or no selection is made in Section III(J), then options
(4), (5) and (6) in this section cannot be selected.
	 
	 	 	 	 	 	 	 	 
	 	 	þ	 	1.	 	Lump sum.
	 
	 	 	 	 	 	 	 	 
	 	 	þ	 	2.	 	Installment payments.
	 
	 	 	 	 	 	 	 	 
	 	 	þ	 	3.	 	Partial payments; the minimum amount will be $1000.
	 
	 	 	 	 	 	 	 	 
	 	 	o	 	4.	 	Life annuity.
	 
	 	 	 	 	 	 	 	 
	 	 	o	 	5.	 	Term certain annuity with payments guaranteed for                      years [not to exceed
twenty (20)]
	 
	 	 	 	 	 	 	 	 
	 	 	o	 	6.	 	Joint and o 50%, o 66-2/3%, o 75% or o 100% survivor
annuity.
	 
	 	 	 	 	 	 	 	 
	 	 	E.	 	Type of Payment (select all that apply):
	 
	 	 	 	 	 	 	 	 
	 	 	þ	 	1.	 	Cash.
	 
	 	 	 	 	 	 	 	 
	 	 	þ	 	2.	 	Employer securities.
	 
	 	 	 	 	 	 	 	 
	 	 	o	 	3.	 	Other marketable securities.
	 
	 	 	 	 	 	 	 	 
	 	 	o	 	4.	 	Other:                      (fill in the blank with the type of other in-kind distributions
allowed under the Plan).







34











 






	F.	 	Application of Involuntary Cash-out Provisions:






	o	1. 	 	 The Plan shall not make involuntary cash-outs to any terminated vested
Participant. Distributions will only be made with the consent of the
Participant.
	 
	þ 	2.	 	 The Plan shall make involuntary cash-outs to a terminated vested Participant
as follows:






	 	o 	a.	 	 The Plan shall make involuntary cash-out
distributions of Vested Account Balances of less than $200. Distribution of
amounts $200 or greater shall only be made with the consent of the Participant.
	 
	 	þ 	b.	 	 The Plan shall make involuntary cash-out
distributions of Vested Account Balances of $1,000 or less. Distribution of
amounts greater than $1,000 shall only be made with the consent of the
Participant.






	 	3.	 	When determining the value of the Participant’s nonforfeitable
account balance for purposes of the Plan’s involuntary cash-out rules, the Plan
elects to:






	 	þ 	a.	 	 exclude Rollover Contributions.
	 
	 	o 	b.	 	 include Rollover Contributions.
	 
	 	 	If no selection is made, the Plan will exclude Rollover Contributions when
determining the value of the Participant’s nonforfeitable account balance
for involuntary cash-out purposes. Rollover Contributions, if any, will
always be included when determining whether the $1,000 threshold has been
exceeded.






	G.	 	Automatic Rollovers:
	 
	 	 	Do not complete if a selection has been made at Section XVI(F)(1) or
(2) above.






	o 	1. 	 	The Plan shall make automatic rollovers of Vested Account
Balances that are greater than $1,000 but are not more than $5,000 in accordance with
the provisions of Article VI of the Basic Plan Document #01.
	 
	o 	2.	 	 The Plan shall make automatic rollovers of Vested Account Balances that
are not more than $5,000 in accordance with the provisions of Article VI of the Basic
Plan Document #01.






	H.	 	Distribution Upon Severance from Employment:






	o 	1.	 	 Not applicable.
	 
	þ 	2.	 	 Distribution upon severance from employment as described in the
Basic Plan Document #01 shall apply for distributions after December 31, 2001
regardless of when the severance from employment occurred.
	 
	o 	3.	 	 Distribution upon severance from employment as described in the Basic Plan
Document #01 shall apply for distributions after                      (no earlier than
December 31, 2001) for severance from employment occurring after                      (enter
the Effective Date if different than the Effective Date above).





35









 






	XVII.	 	SPONSOR INFORMATION AND ACCEPTANCE
	 
	 	 	This Plan may not be used and shall not be deemed to be a Prototype
Plan unless an authorized representative of the Sponsor has
acknowledged the use of the Plan. Such acknowledgment that the
Employer is using the Plan does not represent that the Adoption
Agreement (as completed) and Basic Plan Document #01 have been reviewed by a representative of the Sponsor or constitute a qualified
retirement plan.
	 
	 	 	Acknowledged and accepted by the Sponsor this                      day of                                         ,
                    .





	 	 	 	 	 	 	 
	 

	 	Name:
	 	 	 	Robert D. Alin
	 
	 	 	 	 	 	 
	 

	 	Title:
	 	 	 	SVP, Secretary & General Counsel
	 
	 	 	 	 	 	 
	 

	 	Signature:
	 	 	 	/s/ Robert D. Alin
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	Questions concerning the language contained in and qualification of the Prototype should be addressed to:
	 
	 	 	 	 	 	 
	 	 	 





	 	 	 	 	 	 	 	 	 	 	 
	 

	 	(Position):
	 	 	 	 	 	(Phone Number):	 	 
	 

	 	 	 	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	In the event that the Sponsor amends, discontinues or abandons this Prototype Plan,
notification will be provided to the Employer’s address provided on the first page of this
Adoption Agreement.







	XVIII.	 	SIGNATURES
	 
	 	 	Completion of this Adoption Agreement requires consideration of complex tax and legal
issues. The Employer should consult with or should obtain the advice of its legal counsel
and/or tax advisor before executing this Adoption Agreement. By executing this Adoption
Agreement, the Employer acknowledges that it is a legal document with significant tax and
legal ramifications. The Employer understands that its failure to properly complete or
amend this Adoption Agreement may result in failure of the Plan to qualify or in
disqualification of the Plan. Neither the Sponsor nor any of its agents or affiliates
assumes any responsibility for the completion and operation of the Plan established under
this Adoption Agreement and Basic Plan Document #01.






	 	A.	 	Employer:
	 
	 	 	 	This Adoption Agreement and the corresponding provisions of Basic Plan Document #01
are adopted by the Employer this                     day of                                         ,
                    .





	 	 	 	 	 
	 

	 	Executed on behalf of the Employer by:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Signature:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 	 	Employer’s Reliance: The adopting Employer may rely on an Opinion Letter issued by
the Internal Revenue Service as evidence that the Plan is qualified under Code
Section 401 except to the extent provided in Revenue Procedure 2005-16. The Employer
may not rely on the Opinion Letter in certain other circumstances or with respect to
certain qualification requirements, which are specified in the Opinion Letter issued
with respect to the Plan and in Revenue Procedure 2005-16. In order to have reliance
in such circumstances or with respect to such qualification requirements,
application for a determination letter must be made to Employee Plans Determinations
of the Internal Revenue Service. This Adoption Agreement may only be used in
conjunction with Basic Plan Document #01.






36









 






	B.	 	Trust Agreement/Custodial Agreement:
	 
	o	 	Plan assets will be invested in group annuity contracts and the terms of the contract(s) will apply.
	 
	o	 	Plan assets are held in a tax qualified Trust. The Trust provisions used will be as contained in the Basic Plan Document
#01.
	 
	þ	 	Plan assets are held in a tax qualified Trust. The Trust provisions used will be as contained in the accompanying
pre-approved executed Trust Agreement between the Employer and the Trustee attached hereto.
	 
	o	 	Plan assets are being held in a Custodial Account arrangement. The Custodial Account provisions used will be as contained
in the Basic Plan Document #01.
	 
	þ	 	Plan assets are being held in a Custodial Account arrangement. The Custodial Account provisions used will be as contained
in the accompanying pre-approved executed Custodial Account Agreement between the Employer and the Custodian attached
hereto.
	 
	C.	 	Trustee:
	 
	o	 	The Trustee appointed shall act in the capacity of a non-discretionary directed Trustee.
	 
	þ	 	The Trustee appointed shall act in the capacity of a discretionary Trustee.
	 
	 	 	Name and address of Trustee:
	 
	 	 	Pentegra Trust Company

c/o Pentegra Services, Inc.

3 Enterprise Drive, Suite 105

Shelton, CT 06484
	 
	 	 	The Employer’s Plan as contained herein is accepted by the Trustee this                      day of
                                        ,                     .





	 	 	 	 	 
	 

	 	Accepted on behalf of the Trustee by:
	 	Stephen P. Pollak
	 
	 	 	 	 
	 

	 	Title:
	 	Executive Vice President
	 
	 	 	 	 
	 

	 	Signature:	 	 
	 

	 	 	 	 





37









 







	D.	 	Custodian:
	 
	 	 	Name and address of Custodian:
	 
	 	 	Reliance Trust Company

1100 Abernathy Road NE

500 North Park, Suite 400

Atlanta, GA 30328
	 
	 	 	The Employer’s Plan as contained herein is accepted by the Custodian this                     
day of                                         ,                     .





	 	 	 	 	 
	 

	 	Accepted on behalf of the Custodian by:
	 	Brian Larson
	 
	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Signature:	 	 
	 

	 	 	 	 





38









 





PARTICIPATION AGREEMENT



Each Participating Employer must execute a separate Participation Agreement. If not applicable, do
not complete this Participation Agreement.



By executing this Participation Agreement, the undersigned Employer elects to become a
Participating Employer in the Plan and accompanying Adoption Agreement as if the Participating
Employer were a signatory to the Adoption Agreement. The Participating Employer accepts, and
agrees to be bound by, all of the elections granted under the provisions of the Prototype Plan as
made by the signatory sponsoring Employer in Section XVIII(A) of the Adoption Agreement. Further,
the Participating Employer hereby appoints the signatory sponsoring Employer as its attorney in
fact for the purpose of adopting on its behalf of all future amendments whether required or
voluntary and any applicable corresponding documents (e.g., Loan Policy, QDRO procedures, Trust
Agreement). This includes the adoption of all future Model Amendments to this Prototype Plan which
are required by the U.S. Department of the Treasury or the Internal Revenue Service as a result of
a modification or amendment of applicable Federal laws or regulations that become effective
subsequent to the execution of this Participation Agreement.





	A.	 	PARTICIPATING EMPLOYER:
	 
	 	 	Name and address of any Participating Employer.
	 
	 	 	 

	 
	 	 	 

	 
	 	 	 

	 
	 	 	 






	 	 	 	 	 	 	 	 	 	 	 
	 

	 	Phone Number:
	 	 	 	 	 	Tax ID Number:	 	 
	 

	 	 	 	 
	 	 	 	 	 	 






	B.	 	EFFECTIVE DATE:
	 
	 	 	The Effective Date of the Plan for the Participating Employer is:                                                             .
	 
	o	 	This is an adoption of a new plan by the Participating Employer.
	 
	o	 	This is an adoption of an amendment and/or restatement of a plan currently maintained by the Participating Employer
identified as follows:




Name of Plan:



 



Original Effective Date:



 





	C.	 	SIGNATURES:





	 	 	 	 	 
	 

	 	Executed on behalf of the Participating Employer by:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Signature:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Executed on behalf of the Signatory Sponsoring
Employer by:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Signature:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Executed on behalf of the Trustee by:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Signature:	 	 
	 

	 	 	 	 





39









 





SCHEDULE A




PROTECTED BENEFITS



This Schedule describes Code Section 411(d)(6) protected benefits included in the adopting
Employer’s prior plan document that are not available in this Prototype Defined Contribution Plan,
Basic Plan Document #01. Complete as applicable.





	1.	 	Plan Provision:
	 
	 	 	 

	 
	 	 	 

	 
	 	 	 

	 
	 	 	 






	 	 	 	 	 	 	 
	 

	 	Effective Date:	 	 	 	 
	 

	 	 	 	 

	 	 







	2.	 	Plan Provision:
	 
	 	 	 

	 
	 	 	 

	 
	 	 	 

	 
	 	 	 






	 	 	 	 	 	 	 
	 

	 	Effective Date:	 	 	 	 
	 

	 	 	 	 

	 	 







	3.	 	Plan Provision:
	 
	 	 	 

	 
	 	 	 

	 
	 	 	 

	 
	 	 	 






	 	 	 	 	 	 	 
	 

	 	Effective Date:	 	 	 	 
	 

	 	 	 	 

	 	 







	4.	 	Plan Provision:
	 
	 	 	 

	 
	 	 	 

	 
	 	 	 

	 
	 	 	 






	 	 	 	 	 	 	 
	 

	 	Effective Date:	 	 	 	 
	 

	 	 	 	 

	 	 







	5.	 	Plan Provision:
	 
	 	 	 

	 
	 	 	 

	 
	 	 	 

	 
	 	 	 






	 	 	 	 	 	 	 
	 

	 	Effective Date:	 	 	 	 
	 

	 	 	 	 

	 	 






40









 






SCHEDULE B




PRIOR PLAN PROVISIONS



This Schedule should be used by the adopting Employer if a prior plan contains provisions not found
in this Prototype Defined Contribution Plan, Basic Plan Document #01, or where the Employer wishes
to document transactions or historical provisions of the Employer’s Plan.





	1.	 	Plan Provision:
	 
	 	 	The Employer will continue to make a monthly basic contribution in the amount of 3% of
each Participant’s Compensation, subject to IRS limitations. These contributions can be
withdrawn for hardship reasons. In-service withdrawals are permitted at age 59.5, or
earlier, if the Participant has been a Participant in the Plan for at least 5 years or the
money has been allocated for at least 2 years. These contributions shall vest in accordance
with the vesting schedule listed in XI(B) of the adoption agreement.
	 
	 	 	Effective Date: October 1, 2009






	2.	 	Plan Provision:
	 
	 	 	 

	 
	 	 	 

	 
	 	 	 

	 
	 	 	 






	 	 	 	 	 	 	 
	 

	 	Effective Date:	 	 	 	 
	 

	 	 	 	 

	 	 







	3.	 	Plan Provision:
	 
	 	 	 

	 
	 	 	 

	 
	 	 	 

	 
	 	 	 






	 	 	 	 	 	 	 
	 

	 	Effective Date:	 	 	 	 
	 

	 	 	 	 

	 	 







	4.	 	Plan Provision:
	 
	 	 	 

	 
	 	 	 

	 
	 	 	 

	 
	 	 	 






	 	 	 	 	 	 	 
	 

	 	Effective Date:	 	 	 	 
	 

	 	 	 	 

	 	 







	5.	 	Plan Provision:
	 
	 	 	 

	 
	 	 	 

	 
	 	 	 

	 
	 	 	 






	 	 	 	 	 	 	 
	 

	 	Effective Date:	 	 	 	 
	 

	 	 	 	 

	 	 






41









 






SCHEDULE C




SAFE HARBOR ELECTIONS FOR FLEXIBLE NON-ELECTIVE CONTRIBUTION



The following elections are made with regard to the Plan’s Safe Harbor status pursuant to Section
VII herein. For Plan Years indicated below, the Plan hereby invokes a Safe Harbor status in
accordance with IRS Notices 98-52 and 2000-3.



For all Plan Years in which this Safe Harbor election is being made, the limitations and
restrictions found in Section VII herein apply.





	1.	 	For the Plan Year beginning ___and ending ___, the Employer hereby invokes a Safe Harbor
status as provided in IRS Notice 2000-3. The Safe Harbor Contribution will be an amount equal
to ___% (not less than 3%) of Compensation. This election is made on this ___day of
___, ___(date may not be later than 30 days prior to the end of the Plan Year in which
such election is being made).
	 
	2.	 	For the Plan Year beginning ___and ending ___, the Employer hereby invokes a Safe Harbor
status as provided in IRS Notice 2000-3. The Safe Harbor Contribution will be an amount equal
to ___% (not less than 3%) of Compensation. This election is made on this ___day of
___, ___(date may not be later than 30 days prior to the end of the Plan Year in which
such election is being made).
	 
	3.	 	For the Plan Year beginning ___and ending ___, the Employer hereby invokes a Safe Harbor
status as provided in IRS Notice 2000-3. The Safe Harbor Contribution will be an amount equal
to ___% (not less than 3%) of Compensation. This election is made on this ___day of
___, ___(date may not be later than 30 days prior to the end of the Plan Year in which
such election is being made).
	 
	4.	 	For the Plan Year beginning ___and ending ___, the Employer hereby invokes a Safe Harbor
status as provided in IRS Notice 2000-3. The Safe Harbor Contribution will be an amount equal
to ___% (not less than 3%) of Compensation. This election is made on this ___day of
___, ___(date may not be later than 30 days prior to the end of the Plan Year in which
such election is being made).
	 
	5.	 	For the Plan Year beginning ___and ending ___, the Employer hereby invokes a Safe Harbor
status as provided in IRS Notice 2000-3. The Safe Harbor Contribution will be an amount equal
to ___% (not less than 3%) of Compensation. This election is made on this ___day of
___, ___(date may not be later than 30 days prior to the end of the Plan Year in which
such election is being made).





42









 





SCHEDULE D




COLLECTIVE AND COMMINGLED FUNDS




The Trustee is authorized to invest all or any part of the Fund in the following Collective and
Commingled Funds as provided for in the Basic Plan Document #01:



1.




2.




3.




4.




5.




6.




7.




8.




9.




10.




43









 





SCHEDULE E

MISCELLANEOUS ADMINISTRATIVE ELECTIONS



The following elections are made with regard to the administration of the Plan:





	o 	1. 	 	ERISA Section 404(c): The Employer intends to be covered by
the fiduciary liability provisions with respect to
Participant-directed investments under ERISA Section 404(c).
Under the terms of this Plan, Participants (or their
Beneficiaries) have a reasonable opportunity to give
instructions to the Plan Administrator in accordance with
the policy set by the Plan Administrator (whether written,
oral, or in electronic form) regarding the choice of
investment of their account balance. The Plan Administrator
is obligated to comply with the Participant’s or
Beneficiary’s investment instructions unless complying with
such instructions would result in a prohibited transaction
under the Code, ERISA or the Department of Labor, violate
the Plan document, or jeopardize the Plan’s tax-qualified
status.
	 
	þ 	2.	 	 Fees: Listed below are the charges your account will incur
as a condition of the receipt of a benefit under the Plan,
depending upon the transaction involved.






	 	þ 	a. 	 	Participants have the ability to take a loan from the Plan. þ There will
be a loan set-up fee of $50 paid from the account prior to obtaining a loan from the
Plan. þ $40 will be charged on an annual basis until the loan is paid in full. þ
The loan set-up charge is deducted from the Participant’s account. All other costs of
administering the Plan will be paid by the Employer or from Plan assets.
	 
	 	o 	b. 	 	The costs of administering the Plan are shared between Participants and
the Employer.
	 
	 	o 	c.	 	 A service fee equal to $___/ ___% of a Participant’s account balance
will be charged per o Plan quarter o Plan Year.
	 
	 	o 	d.	 	 All costs of administering the Plan will be paid by the Employer or from
Plan assets.
	 
	 	o 	e.	 	 In order to maintain a self-directed brokerage option, Participants will
be charged an initial fee of $                     o and annual fee of $                    .
	 
	 	o 	f.	 	 To obtain a Hardship distribution, Participants will incur a charge of
$                    .
	 
	 	o 	g.	 	 Qualified Domestic Relations Order (QDRO) presented to the Plan for
payment will be charged $                     to the Participant’s/Alternate Payee’s account for
processing.
	 
	 	o 	h.	 	 Other:






	o 	3.	 	 Automatic Rollover Of Distributions: If a Plan Participant
does not elect to take a distribution and include it in
income or have the distribution rolled over to either a
qualified retirement plan or an Individual Retirement
Account (“IRA”), the Plan is required to make a Direct
Rollover of the distribution to an IRA. The Employer as
Plan Sponsor has the authority to execute the documents
necessary to establish the IRA account, and once
established, the Trustee/Issuer of the IRA will provide the
Participant with a Disclosure Statement detailing the terms
and conditions as well as any fees imposed on the IRA,
including the procedures regarding the seven (7) day
revocation period. The Plan has selected the following IRA
Trustee/Issuer:




Name:



 



Address:



Phone:



 



The initial IRA setup fee shall be:



 



The initial IRA setup fee shall be paid by:



 



The IRA Provider’s annual fee shall be:



 



The IRA funds shall be invested in:





44