Exhibit 10.11


 


 


THE EQUITY RESIDENTIAL


 


ADVANTAGE RETIREMENT SAVINGS PLAN


 


(Restated Effective January 1, 2004)


 


 





















 


Table of Contents


 


	
   

  	
  Page

  
	
  Article 1        INTRODUCTION

  	
  1

  
	
  1.01

  	
  1

  
	
  1.02

  	
  1

  
	
  Article 2        DEFINITIONS

  	
  2

  
	
  2.01 Account

  	
  2

  
	
  2.02 Act

  	
  2

  
	
  2.03 Authorized Leave of Absence

  	
  2

  
	
  2.04 Beneficiary

  	
  2

  
	
  2.05 Break in Service

  	
  2

  
	
  2.06 Code

  	
  3

  
	
  2.07 Committee

  	
  3

  
	
  2.08 Company

  	
  3

  
	
  2.09 Compensation

  	
  3

  
	
  2.10 Credited Service

  	
  3

  
	
  2.11 Distribution

  	
  4

  
	
  2.12 Effective Date

  	
  4

  
	
  2.13 Employee

  	
  4

  
	
  2.14 Employee Contributions

  	
  5

  
	
  2.15 Employer

  	
  5

  
	
  2.16 Employer Contributions

  	
  5

  
	
  2.17 Entry Date

  	
  5

  
	
  2.18 Fiduciary

  	
  5

  
	
  2.19 Forfeiture

  	
  5

  
	
  2.20 Former Participant

  	
  5

  
	
  2.21 Fund

  	
  5

  
	
  2.22 Hour of Service

  	
  5

  
	
  2.23 Normal Retirement Date

  	
  6

  
	
  2.24 Participant

  	
  6

  
	
  2.25 Participating Employer

  	
  6

  
	
  2.26 Permanent Disability

  	
  7

  
	
  2.27 Plan

  	
  7

  
	
  2.28 Plan Year

  	
  7

  
	
  2.29 Postponed Retirement Date

  	
  7

  
	
  2.30 Prior Plan

  	
  7

  
	
  2.31 Qualified Domestic Relations Order (QDRO)

  	
  7

  
	
  2.32 Qualified Matching Contribution (QMAC)

  	
  7

  
	
  2.33 Qualified Military Service

  	
  7

  
	
  2.34 Qualified Non-Elective Contribution (QNEC)

  	
  7

  
	
  2.35 Recordkeeper

  	
  7

  
	
  2.36 Related Employer

  	
  7

  
	
  2.37 Related Plan

  	
  8

  
	
  2.38 Retirement

  	
  8

  
	
  2.39 Rollover Contribution

  	
  8

  



 





















 


	
   

  	
  Page

  
	
  2.40 Termination of Employment

  	
  8

  
	
  2.41 Trust or Trust Agreement

  	
  8

  
	
  2.42 Trustee

  	
  8

  
	
  2.43 Valuation Date

  	
  8

  
	
  2.44 Rules of Construction

  	
  8

  
	
  Article 3        PARTICIPATION

  	
  9

  
	
  3.01 Participation

  	
  9

  
	
  3.02 Participation and Rehire

  	
  10

  
	
  3.03 No Contract for Employment

  	
  10

  
	
  Article 4        CONTRIBUTIONS

  	
  11

  
	
  4.01 Pre-Tax Contributions

  	
  11

  
	
  4.02 Suspension of Pre-Tax Contributions

  	
  13

  
	
  4.03 Employer Profit Sharing Contributions

  	
  13

  
	
  4.04 Employer Matching Contributions

  	
  14

  
	
  4.05 Qualified Matching Contributions

  	
  15

  
	
  4.06 Qualified Non-Elective Contributions

  	
  15

  
	
  4.07 Payment of Contributions

  	
  15

  
	
  4.08 Limitations on Contributions

  	
  16

  
	
  4.09 Rollover Contributions

  	
  19

  
	
  Article 5        ACCOUNTS
  AND ALLOCATIONS

  	
  20

  
	
  5.01 Participant Accounts

  	
  20

  
	
  5.02 Investment Directives

  	
  21

  
	
  5.03 Valuation

  	
  22

  
	
  5.04 Value of Account for Purposes of Distribution

  	
  22

  
	
  5.05 Expenses

  	
  23

  
	
  5.06 Voting of Employer Stock

  	
  23

  
	
  5.07 Errors

  	
  23

  
	
  5.08 Allocations Do Not Affect Vesting

  	
  23

  
	
  5.09 Limitations on Allocations

  	
  23

  
	
  Article 6        DISTRIBUTION
  AND VESTING

  	
  24

  
	
  6.01 Normal Retirement

  	
  24

  
	
  6.02 Postponed Retirement

  	
  24

  
	
  6.03 Permanent Disability

  	
  24

  
	
  6.04 Distribution Upon Death

  	
  24

  
	
  6.05 Termination of Employment

  	
  25

  
	
  6.06 Disposition of Forfeitures

  	
  26

  
	
  6.07 Valuation and Timing of Distribution

  	
  27

  
	
  6.08 Method of Distribution

  	
  29

  
	
  6.09 Withdrawal of Accounts

  	
  30

  
	
  6.10 Payment to Minors and Incapacitated Persons

  	
  32

  
	
  6.11 Missing Persons

  	
  32

  
	
  6.12 Application for Benefits

  	
  33

  
	
  6.13 Beneficiary

  	
  33

  



 





















 


	
   

  	
  Page

  
	
  6.14 Loans To Participants

  	
  34

  
	
  6.15 Qualified Domestic Relations Orders

  	
  38

  
	
  6.16 Special Distribution Rules

  	
  39

  
	
  Article 7        ADMINISTRATION
  OF THE PLAN

  	
  43

  
	
  7.01 Named Fiduciaries

  	
  43

  
	
  7.02 Company

  	
  44

  
	
  7.03 Trustee

  	
  44

  
	
  7.04 Plan Administrator

  	
  44

  
	
  7.05 Standard of Fiduciary Duty

  	
  46

  
	
  7.06 Claims Procedure

  	
  46

  
	
  Article 8        AMENDMENT
  AND TERMINATION

  	
  47

  
	
  8.01 Right to Amend

  	
  47

  
	
  8.02 Termination and Discontinuance of Contributions

  	
  48

  
	
  Article 9        MISCELLANEOUS

  	
  50

  
	
  9.01 Headings

  	
  50

  
	
  9.02 Action by Employer

  	
  50

  
	
  9.03 Spendthrift Clause

  	
  50

  
	
  9.04 Discrimination

  	
  50

  
	
  9.05 Release

  	
  50

  
	
  9.06 Compliance with Applicable Laws

  	
  50

  
	
  9.07 Agent for Service of Process

  	
  50

  
	
  9.08 Merger

  	
  51

  
	
  9.09 Governing Law

  	
  51

  
	
  9.10 Absence of Guarantee

  	
  51

  
	
  Article 10      TOP
  HEAVY RULES

  	
  52

  
	
  10.01 General Rule

  	
  52

  
	
  10.02 Definitions

  	
  52

  
	
  10.03 Minimum Allocation

  	
  53

  
	
  10.04 Nonforfeitability of Employer Top-Heavy
  Contribution

  	
  53

  
	
  10.05 Vesting

  	
  54

  



 




















 


Article 1


 


INTRODUCTION


 


1.01     Equity Residential, a
Maryland real estate trust (the “Company”) established a Profit Sharing Plan
and Trust effective January 1, 1995, known as the Equity Residential Properties
Trust Advantage Retirement Savings Plan.


 


Effective January
1, 2001, Lexford Residential Trust (“Lexford”) and Grove Property Trust (“Grove”)
was merged into the Company and the employees of Lexford who participated in
the Lexford Residential Trust Savings Plan (the “Lexford Plan”) and the
employees of Grove who participated in the Grove Property Trust 401(k)
Retirement Plan (the “Grove Plan”) began participating in this Plan. Effective
July 1, 2001, Globe Business Resources, Inc. (“Globe”), and the employees of
Globe who participated in the Globe Business Resources, Inc.
401(k)/Profit-Sharing Plan (the “Globe Plan”) began participating in this Plan.
The Lexford Plan and Grove Plan were merged into this Plan effective January 1,
2001, and the Globe Plan was merged into this Plan on August 1, 2001. Effective
as of December 31, 2001, two frozen plans previously maintained by subsidiaries
of the Company, the Cardinal Industries, Inc. Retirement Plan (the “Cardinal
Plan”), and the Equity Hotel Savings Trust (the “Hotel Trust”) were merged into
the Plan.


 


The Company hereby
amends and restates the Plan to comply with recent legislation, to incorporate
previous amendments, to delete obsolete provisions, and to make other
administrative, technical and conforming changes. The restatement of the Plan
is generally effective as of January 1, 2004, except as specifically stated
otherwise in this Plan document.


 


The Plan was
established on a qualified basis, and shall be maintained in such manner as
will continue to meet the applicable qualification requirements of Section 401
of the Internal Revenue Code of 1986, as amended, and the Employee Retirement
Income Security Act of 1974, as amended. Anything else contained herein to the
contrary notwithstanding, any provision of this amendment and restatement of
the Plan which is required to have an effective date earlier than January 1,
2004, in order to preserve the qualified status of the Plan under Section 401
shall be effective as of such date. In the case of a plan that has been merged
into the Plan, any such provision which has an effective date prior to the date
of merger, shall apply to such plan, and shall govern the rights of
participants in such plan, during the period between such effective date and
the date of merger.


 


1.02     The purpose of this Plan is
to provide the benefits of a qualified combined profit sharing and cash or
deferred arrangement that is funded, insofar as the law permits, through
pre-tax salary reduction contributions and Employer contributions, for the
exclusive benefit of the Participants and their Beneficiaries; and this Plan
shall be administered and interpreted in accordance with such purpose. For
purposes of Section 401(a)(27) of the Code, the Plan is a profit sharing plan.


 


2

















 


Article 2


 


DEFINITION


 


Certain terms of
this Plan have defined meanings which are set forth in this Article and which
shall govern unless the context in which they are used clearly indicates that
some other meaning is intended.


 


2.01     Account shall mean the
total Account established and maintained by the Plan Administrator or Trustee
for each Participant, Former Participant, or their Beneficiaries, to which
shall be allocated the Participant’s interest, if any, in the Fund. Each
Account shall be comprised of the sub-accounts described in Section 5.01.


 


2.02     Act shall mean Public
Law No. 93-406, the Employee Retirement Income Security Act of 1974, as the
same has been and may be amended from time to time.


 


2.03     Authorized Leave of
Absence shall mean any absence authorized by an Employer under the Company’s
leave of absence policies, provided that all persons under similar
circumstances must be treated alike in the granting of such Authorized Leaves
of Absence and provided further that the Participant returns within the period
of authorized absence. Once approved, a Leave of Absence begins on the first
day the employee is absent from work. An absence covered under the Family
Medical Leave Act shall be considered an authorized Leave of Absence provided
that the Employee returns to employment with an Employer within the period
provided by law. A period of Qualified Military Service (as hereinafter
defined) shall also be considered an Authorized Leave of Absence. In other
cases, the maximum length of an Authorized Leave of Absence is 26 weeks.


 


A period of
Authorized Leave of Absence shall not be considered a Break in Service.
Employees will continue to accrue hours of Credited Service for the number of
hours for which they receive compensation while on leave, or for any period of
Qualified Military Service. A person on Authorized Leave of Absence who does
not return to employment with an Employer or a Related Employer when such
Authorized Leave has expired will be considered to have a Termination of
Employment as defined in the leave policies of the Company.


 


2.04     Beneficiary shall mean
any person or persons entitled to benefits under the Plan upon the death of a
Participant, as determined under Section 6.13.


 


2.05     Break in Service
refers to a Plan Year in which an Employee has 500 or fewer Hours of Service.
Solely for purposes of determining whether the Employee has incurred a Break in
Service, an Employee who is on a Leave of Absence by reason of: (i) the
pregnancy of the Employee; (ii) the birth of a child of the Employee; (iii) the
placement of a child with the Employee in connection with the adoption of the
child by the Employee; or (iv) caring for a child referred to in (ii) and (iii)
above immediately following such birth or placement, shall be credited with
Hours of Service for such Absence. Hours of Service shall be credited for such
Absence at the rate of ten (10) hours per day, or forty-five (45) hours per
week, but no more than 501 hours shall be credited for such Absence in any Plan
Year. Such Hours of Service shall be credited for the Plan Year in which such
Absence occurs if necessary to prevent a Break in Service for that


 


3

















 


Plan Year; otherwise such
Hours of Service shall be credited in the next following Plan Year, but only if
necessary to prevent a Break in Service for that Plan Year.


 


2.06     Code shall mean the
Internal Revenue Code of 1986, as amended from time to time.


 


2.07     Committee shall mean
the Administrative Committee, if any, appointed by the Company under Article 7
to oversee the administration of the Plan.


 


2.08     Company shall mean
Equity Residential Properties Trust, a Maryland real estate trust, and its
successors. The Company shall be the Plan Sponsor.


 


2.09     Compensation shall
mean the total cash compensation of each Participant (but only while a
Participant) paid by the Employer during any Plan Year, including bonuses
(except as provided below), overtime pay and commissioned earnings, and before
reductions for salary reduction contributions contributed to this Plan, to a
cafeteria plan under Section 125 of the Code, or to a qualified transportation
fringe benefit policy under Section 132(f) of the Code. Compensation shall not
include (i) relocation pay or related payments; (ii) severance pay; (iii) the
rental value of apartments provided to the resident managers of the rental
properties of any Employer; (iv) disposition of incentive stock options; (v)
miscellaneous compensation; (vi) non-qualified stock options; (vii) tips; or
(viii) solely for purposes of Section 4.01, any hire or retention bonus or
other bonus that is not a performance-based incentive bonus.


 


Any Employee’s
Compensation for any Plan Year in excess of $170,000 (or such other amount
provided pursuant to Section 401(a)(17) of the Code) shall be disregarded for
all purposes under the Plan. Effective January 1, 2002, $200,000 shall be
substituted for $170,000 in the preceding sentence. If an Employee receives
Compensation from more than one Employer for a Plan Year, then his Compensation
from all such Employers shall be aggregated for purposes of applying the limit
of Section 401(a)(17) of the Code for that Plan Year. Commencing January 1,
1997, the rules requiring the aggregation of compensation paid to certain
family members of Highly Compensated Employees as set forth in the Plan prior
to the Effective Date shall no longer apply.


 


For purposes of
determining the Compensation of any Participant employed by a Participating
Employer for the Plan Year in which the Participating Employer first maintains
the Plan, only Compensation earned on and after the effective date by which the
Participating Employer becomes a Participating Employer (or, if later, the date
the individual becomes a Participant) shall be counted under the Plan.


 


2.10     Credited Service shall
mean the number of years of service used to determine a Participant’s vesting
in Employer Contributions made pursuant to Sections 4.03 and 4.04, which shall
be measured in accordance with the following rules:


 


(a)       Subject to the other rules
listed in this Section, an Employee shall receive one (1) year of Credited
Service for any Plan Year during which he earns 1,000 or more Hours of Service
for one or more Employers or Related Employers.


 


4

















 


(b)       An individual shall not
receive any Credited Service for any period of employment during any Plan Year
if he earns less than 1,000 Hours of Service for one or more Employers or
Related Employers during such Plan Year.


 


(c)       Except to the extent
specifically provided in Schedule A hereto, Credited Service shall not include:
Hours of Service worked for an entity prior to the earlier of (i) the date on
which it adopted this Plan or (ii) the date on which it became a Related
Employer.


 


(d)       An individual shall not
receive Credited Service for any period of employment which precedes a Break in
Service, if:


 


(i)        As of the first day of the
Break in Service, the individual was not entitled to a vested benefit under
Section 6.05; and


 


(ii)       The duration of the Break
in Service measured in years (complete months expressed as a fraction of a
year) equals or exceeds five (5) years.


 


(e)       Any Participant who ceases
to be employed by an Employer but who remains employed with any Related
Employer or any other entity to the extent provided in Schedule A, shall
continue to earn Credited Service as though such employment was employment with
an Employer for purposes of vesting under this Plan. Such employment also shall
be considered as employment by an Employer for purposes of Section 2.40 and
eligibility to receive benefits, but the contribution provisions of Article 4
shall not apply while he is not employed by an Employer, notwithstanding any
Plan provisions to the contrary.


 


(f)        An Employee’s Credited
Service as of the Effective Date of the Plan shall not be less than the service
accrued immediately prior to the Effective Date of the Plan.


 


2.11     Distribution shall
mean payment by the Trustee to or for the benefit of a Participant, Beneficiary
or other person entitled to benefits as provided in this Plan.


 


2.12     Effective Date shall
mean January 1, 2004. Effective Date of the Plan shall mean January 1, 1995.


 


2.13     Employee shall mean
any person engaged in rendering personal services to and under the control or
supervision of an Employer and who is receiving or accruing compensation from
an Employer therefor, including any person on Authorized Leave of Absence; but
excluding any person whose terms of employment are governed by the provisions
of a collective bargaining agreement with respect to which retirement benefits
were the subject of good faith negotiations, unless such agreement provides for
such person’s coverage under the Plan, and any person who is an independent
contractor.


 


A Leased Employee
shall not be considered an Employee, but a Leased Employee who is subsequently
hired as an Employee shall be entitled to Credited Service for the period spent
as a Leased Employee to the extent required by Section 414(n) of the Code and
the regulations thereunder, a Leased Employee who is subsequently employed as
an Employee shall be treated as an Employee. For this purpose, a “Leased
Employee” means any individual who is not an Employee and who provides services
for the Employer if: (i) such services are provided


 


5

















 


pursuant to an agreement
between the Employer and any other person; (ii) such individual has performed
such services for the Employer (or a related person within the meaning of
Section 144(a)(3) of the Code) on a substantially full-time basis for a period
of at least one year; and (iii) effective January 1, 1997, such services are
performed under the primary direction and control of the Employer.


 


2.14     Employee Contributions
shall mean contributions made or elected to be made by or on behalf of a
Participant to the Plan as required or permitted under Section 4.01 of the
Plan, as from time to time in effect.


 


2.15     Employer shall mean
the Company and/or any Participating Employer, and any successors or assigns of
the Company or of any Participating Employer. Each Employer shall bear the
costs of contributions and may also bear the costs of reasonable administrative
expenses under the Plan for its Employees.


 


2.16     Employer Contributions
shall refer to the Employer Profit Sharing Contributions made under Section
4.03 and the Employer Matching Contributions made under Section 4.04, and may
refer to Qualified Matching Contributions under Section 4.05 or Qualified
Non-elective Contributions under Section 4.06, to the extent such Contributions
are made to satisfy the tests set forth in Section 4.08.


 


2.17     Entry Date shall mean
the first day of each payroll period in each Plan Year.


 


2.18     Fiduciary shall mean
any party named as a Fiduciary in Article 7 of the Plan. Any party shall be
considered a Fiduciary of the Plan only to the extent of any powers and duties
specifically allocated to such party under the Plan which are in the nature of
fiduciary powers within the scope of Section 3(2l) of the Act.


 


2.19     Forfeiture shall mean
the cancellation and treatment of the non-vested portion of a Participant’s
Account in accordance with Section 6.06.


 


2.20     Former Participant
shall mean an individual who has had a Termination of Employment, and who was
not thereafter re-employed, but who has not received a complete Distribution of
his Account.


 


2.21     Fund shall mean the
money and other properties held and administered by the Trustee in accordance
with the Plan and Trust Agreement.


 


2.22     Hour of Service shall
mean:


 


(a)       Each hour for which an
Employee is paid, or entitled to payment, for his performance of duties for an
Employer or Related Employer.


 


(b)       Each hour for which an
Employee is paid, or entitled to payment, by an Employer or a Related Employer,
on account of a period of time during which he performs no duties (irrespective
of whether the employment relationship is terminated) due to vacation, holiday,
illness, incapacity, layoff, jury duty, or leave of absence; provided that no
Employee shall


 


6

















 


receive credit for more
than 501 Hours of Service for any single continuous period of nonworking time,
except for an Employee in Qualified Military Service.


 


(c)       Each hour for which back
pay, irrespective of mitigation of damages, is either awarded or agreed to by
an Employer or Related Employer with respect to an Employee.


 


The following
rules shall apply in the determination of whether an Employee completes an Hour
of Service:


 


(i)        The same hours shall not
be credited under subparagraphs (a) or (b) above, as the case may be, and
subparagraph (c) above;


 


(ii)       The rules relating to
determining Hours of Service for reasons other than the performance of duties
and for crediting Hours of Service to particular periods of continuous
employment shall be those rules stated in U.S. Department of Labor regulations
2530.200b-2(b) and (c), respectively.


 


(iii)      In determining Hours of
Service an Employee who is employed by an Employer on other than an hourly
rated basis shall be credited with ten (10) hours per day, or forty-five (45)
hours per week for each day or week the Employee would, if hourly rated, be
credited with Service pursuant to Subsection 2.22(a).


 


2.23     Normal Retirement Date
shall mean the date a Participant reaches age sixty-five (65). Each Participant
who attains his Normal Retirement Date while actively employed shall become one
hundred percent (100%) vested in his Account as of such Date, regardless of his
years of Credited Service.


 


2.24     Participant shall mean
an Employee who becomes eligible to participate in the Plan as provided in
Section 3.01, and shall also include an Employee who has made a Rollover
Contribution, but only for purposes of such Contribution.


 


2.25     Participating Employer
shall mean any corporation, partnership or trust that adopts this Plan and agrees
to be governed by the terms and provisions of this Plan and to participate
herein. Upon the adoption of this Plan by a Participating Employer, its
employees shall be considered as Employees for all purposes of this Plan
effective as of the date of adoption, or as of such earlier date as is
specified in the resolution of adoption. No Participating Employer shall be
permitted to become a Participating Employer without the consent of the
Company. The Participating Employer status of any corporation, partnership or
trust shall cease as of the effective date specified in a resolution of the
Company which revokes such status. If any Participating Employer so ceases to
participate hereunder, such event shall not constitute a partial or complete
termination of the Plan except as otherwise provided under the circumstances by
applicable law. The Participating Employers shall be those entities set forth
on Schedule B hereto as in effect from time to time.


 


2.26     Permanent Disability
shall mean a physical or mental condition which, based upon medical reports and
other evidence satisfactory to the Plan Administrator, presumably permanently
prevents an Employee from satisfactorily performing his usual duties for his


 


7

















 


Employer or the duties of
such other position or job which his Employer makes available to him and for
which such Employee is qualified by reason of his training, education or
experience.


 


2.27     Plan shall mean The
Equity Residential Properties Trust Advantage Retirement Savings Plan, as in
effect from time to time, including any amendment or restatement thereof.


 


2.28     Plan Year shall mean
the calendar year.


 


2.29     Postponed Retirement Date
shall mean a date following a Participant’s Normal Retirement Date on which he
actually terminates his employment.


 


2.30     Prior Plan shall mean
a defined contribution retirement plan that has been merged into the Plan or
from which account balances have been transferred in a direct trust-to-trust
transfer, including the Lexford Plan, the Grove Plan, the Globe Plan, the
Cardinal Plan, the Hotel Trust, and the Wellsford Residential Property Trust
401(k) Profit Sharing Plan.


 


2.31     Qualified Domestic
Relations Order (QDRO) shall mean (1) a qualified domestic relations order,
as defined in Section 414(p) of the Code and Section 206(d) of the Act, entered
after December 31, 1984, or (2) a domestic relations order, entered before
January 1, 1985.


 


2.32     Qualified Matching
Contribution (QMAC) shall mean an additional contribution made by the
Employer in order to satisfy the requirements of Section 4.08. This
contribution shall be treated as designated in Section 4.05.


 


2.33     Qualified Military Service
shall mean a period of time during which an Employee is serving in the armed
forces of the United States provided that the Employee has reemployment rights
under the Uniformed Services Employment and Reemployment Rights Act of 1994 (or
other applicable federal law) and returns to employment during the period in
which his reemployment rights are protected. Wherever this Plan provides for
additional contributions to be made on behalf of a Participant who returns
after Qualified Military Service, such contributions shall be treated for
purposes of all annual limitations on contributions as having been made in the
Plan Year for which they would have been made but for the Qualified Military
Service, shall be based on the Compensation the Participant would have earned
had he been employed during the period of Qualified Military Service, shall not
be credited with any earnings, gains or losses until actually made, and shall
in all other respects be made in a manner consistent with Code Section 414(u)
and the regulations thereunder.


 


2.34     Qualified Non-Elective
Contribution (QNEC) shall mean an additional contribution made by the
Employer in order to satisfy the requirements of Section 4.08. This
contribution shall be treated as designated in Section 4.06.


 


2.35     Recordkeeper shall
mean the person(s), corporation(s), associations(s), or a combination of them,
whose duties include the tracking and updating of account values for
participants, the tracking of plan activities and total plan balances and other
similar duties.


 


2.36     Related Employer shall
mean (i) any corporation that is a member of a controlled group of corporations
(as defined in Section 414(b) of the Code) that includes any Employer; (ii) any
trade or business (whether or not incorporated) that is under common control
(as defined in


 


8

















 


Section 414(c) of the
Code) with any Employer, (iii) any member of an affiliated service group (as
defined in Section 414(m) of the Code) that includes any Employer, and (iv) any
other entity required to be aggregated with any Employer under regulations
pursuant to Section 414(o) of the Code. For purposes of Section 5.09, the
meanings of (i) and (ii) shall be as modified by Section 415(h) of the Code.
The Related Employers shall be those Employers set forth on Schedule B hereto
as in effect from time to time.


 


2.37     Related Plan shall
mean any other defined contribution plan (as defined in Section 415 of the
Code) maintained by the Company or by a Related Employer.


 


2.38     Retirement shall mean
the termination of employment of a Participant on his Normal or Postponed Retirement
Date.


 


2.39     Rollover Contribution
shall mean contributions made by or on behalf of a Participant to the Plan
pursuant to Section 4.09.


 


2.40     Termination of Employment
shall mean that an Employee has ceased to be employed by the Employer and all
Related Employers for any of the following reasons:


 


(i)        Voluntary resignation from
service;


 


(ii)       Discharge from service;


 


(iii)      Retirement;


 


(iv)      Death;


 


(v)       Permanent Disability; or


 


(vi)      Loss of Employer or Related
Employer status provided that distributions shall only be made as a result of
such loss of status to the extent permitted by Section 401(k)(10) of the Code,
or as provided in Section 6.05(b).


 


An Employee who ceases to
be actively employed by reason of an Authorized Leave of Absence shall not be
considered as having a Termination of Employment until the end of such Leave.


 


2.41     Trust or Trust
Agreement shall mean the separate agreement of Trust entered into between
the Company and the Trustee which governs the creation of the Fund, and all
amendments thereto which may hereafter be made.


 


2.42     Trustee shall mean the
person(s), corporation(s), association(s), or a combination of them, acting as
Trustee under the Trust Agreement.


 


2.43     Valuation Date shall
mean the last business day of the Plan Year. The Plan Administrator may
designate additional Valuation Dates for the purposes of valuing the assets for
(i) updating individual Participant Account Balances for Participant reporting
(ii) performing transfers of account balances among investment funds for an
individual Participant (iii)


 


9

















 


processing withdrawals,
loans and distributions for individual Participants and/or (iv) any other
individual plan activity or reporting activity as deemed necessary by the Plan
Administrator.


 


2.44     Rules of Construction.
A defined term, such as “Retirement,” will normally govern the definitions of
derivatives therefrom, such as “Retire,” even though such derivatives are not
specifically defined and even if they are or are not initially capitalized. The
masculine gender, where appearing in the Plan, shall be deemed to include the
feminine gender, unless the context clearly indicates to the contrary. Singular
and plural nouns and pronouns shall be interchangeable as the factual context
may allow or require. The words “hereof,” “herein,” “hereunder” and other
similar compounds of the work “here” shall mean and refer to the entire Plan
and not to any particular provision or Section.


 


Article 3


 


PARTICIPATION


 


3.01     Participation.


 


(a)       Employees who were eligible
to participate in the Plan, or in the Grove Plan or Lexford Plan, on December
31, 2000, shall continue to be eligible to participate on the Effective Date.


 


(b)       Except as otherwise
provided below, any other individual who is an Employee on or after the
Effective Date shall be eligible to participate in the Plan on any Entry Date
on or after the date he becomes an Employee, provided he is still an Employee
on such Entry Date. Persons who are Employees on December 31, 2000, but who
were not previously eligible to participate because they had not yet completed
a year of service as required prior to the Effective Date, shall be eligible to
participate on the Effective Date.


 


(c)       Any person who is retained
to provide services for an Employer and who is classified by the Employer,
whether or not pursuant to a written agreement with such person or his
employer, as an independent contractor or as the employee of a third party, and
who is subsequently determined to have been a common law employee of an
Employer by any court or tax authority, shall not be eligible to participate in
the Plan, but if such person subsequently becomes eligible to participate he
shall receive credit for this Credited Service as a common law employee. The provisions
of this subsection (c) are intended to clarify the eligibility requirements of
the Plan as in effect since the Effective Date of the Plan, and nothing
contained herein shall be construed to imply that such persons were previously
eligible to participate.


 


(d)       Any Employee who is a
participant in an Advantage Retirement Savings Plan by virtue of employment
with a company listed in Schedule A shall not be eligible to participate in
this Plan.


 


(e)       Any Employee who is covered
by a collective bargaining agreement shall participate in the Plan only if
explicitly so provided in the collective bargaining agreement, and any
provisions of such collective bargaining agreement that provide for such
Employees to participate on a basis different from other Employees shall be
deemed incorporated into the Plan


 


10

















 


and shall govern with
respect to such Employees, to the extent not inconsistent with the tax
qualified status of the Plan or other applicable law.


 


(f)        Any Employee or former
Employee of Cardinal Industries, Inc., or Reserve Square, Inc., whose account
in the Cardinal Plan or Hotel Trust is transferred to this Plan as of December
31, 2001, shall be considered a Participant with respect to such transferred account
only, and shall not be entitled to any additional allocations or contributions
under this Plan, including the right to make a Rollover Contribution, unless
such person becomes an eligible Employee as provided above.


 


(g)       Any Employee who is a
nonresident alien with no United States source income shall not be eligible to
participate in the Plan.


 


3.02     Participation and Rehire.


 


(a)       An Employee’s participation in the Plan
shall continue until the Participant has a Termination of Employment. Any
Participant who has a Termination of Employment shall cease to be a Participant
and his benefits shall thereafter be governed by the provisions of Article 6.


 


(b)       An Employee who was an
eligible employee at the time of his Termination of Employment and who is subsequently
rehired shall be eligible to begin or resume participation immediately.


 


3.03     No Contract for Employment.
Participation in the Plan shall not give any Employee the right to be retained
in the Employer’s employ, nor shall any Employee, upon dismissal from or
voluntary termination of his employment, have any right or interest in the
Fund, except as herein provided.


 


Article 4


 


CONTRIBUTIONS


 


4.01     Pre-Tax Contributions.


 


(a)       For each Plan Year or
portion thereof, each Employer shall contribute in cash amounts specified in
salary reduction agreements made pursuant to this Section 4.01. A Participant
may enter into a salary reduction agreement with his Employer pursuant to which
he declines the salary reduction opportunity and elects not to contribute. The
Participant may enter into a salary reduction agreement, in which he designates
one to eighteen percent (1 to 18%), expressed in whole integers, of his
Compensation subject to the limitations of this Article 4, be withheld and
contributed on a pre-tax basis by his Employer to the Plan. Effective January
1, 2002, the maximum percentage that a Participant may agree to defer shall be
increased from eighteen percent (18%) to fifty percent (50%).


 


(b)       The Plan Administrator may
modify the provisions governing the timing and effect of salary reduction
agreements from time to time in a manner that is not discriminatory in favor of
Highly Compensated Employees. Without limiting the generality of the foregoing,
the Plan Administrator may modify the time and manner in which salary reduction
agreements may


 


11

















 


be made and modified
(including permitting agreements to be made or modified by voice response
system or other electronic means), and may establish rules permitting
Participant’s to specify particular paychecks to which his elected salary
reduction shall or shall not apply (and, in such case, the percentage
limitation described above shall be applied to the aggregate Compensation of
the Participant instead of the Compensation covered by each specific paycheck).
Absent such direction, the elected percentage shall apply equally to each
paycheck covered by the salary reduction agreement. Such election to be valid
shall be in conformance with the form and procedure specified by the Plan
Administrator.


 


(c)       Any former participant in
the Lexford Plan or Grove Plan who does not make a different election shall be
deemed to have elected to have the same percentage withheld from his
Compensation under this Plan as the last election in effect under the Lexford
Plan or Grove Plan prior to the Effective Date (but subject to the maximum
percentage permitted under this Plan). The Plan Administrator may provide for
other situations, including future acquisitions, in which Employees will be
deemed to have made salary reduction agreements, consistent with all applicable
laws.


 


(d)       A salary reduction
agreement, whether it is for a specific paycheck or a regular salary reduction
agreement, shall be deemed to be entered into by an Employee on the date on
which a properly completed and executed agreement is received by the Plan
Administrator. Properly completed agreements must be received by the Plan
Administrator before the cut-off dates established for the processing of salary
reduction agreements.


 


(e)       If a Participant’s
Compensation rate changes while he has a salary reduction agreement in effect
under this Section the elected percentage shall continue to apply to the new
compensation rate, subject to applicable limitations.


 


(f)        Effective as of the first
day of each payroll period, a Participant may change the percentage of
Compensation designated for contribution under his salary reduction agreement,
subject to the limitations of this Article 4. These changes must be received by
the Plan Administrator before the cut-off dates established for the processing
of salary reduction changes. The Plan Administrator may allow agreements to be
entered orally or by other electronic means if confirmed in writing to the
Participant. Unless so changed, or suspended under Section 4.02, a Participant’s
salary reduction agreement shall continue in effect until the earlier of the
Termination of Employment with his Employer or a termination of the Plan
affecting him; provided, however, that the salary reduction agreement of a
Participant who is transferred from employment with one Participating Employer
to employment with another Participating Employer, without interruption, shall
not be affected by such transfers and shall continue in effect thereafter as if
entered into with his new Employer.


 


(g)       No amount shall be
contributed on behalf of any Participant under Section 4.01(a) in an amount
which, when considered together with any Pre-Tax Contributions elected by such
Participant and made on his behalf under any other qualified retirement plan
having a cash or deferred arrangement in accordance with Section 401(k) of the
Code, as amended (or any similar or successor provision of the Code), exceeds
the amount set forth in the following table:


 


12

















 


	
  Plan Year

  	
   

  	
  Maximum Contribution

  	
   

  
	
  2001

  	
   

  	
  $  10,500

  	
   

  
	
  2002

  	
   

  	
  $  11,000

  	
   

  
	
  2003

  	
   

  	
  $  12,000

  	
   

  
	
  2004

  	
   

  	
  $  13,000

  	
   

  
	
  2005

  	
   

  	
  $  14,000

  	
   

  
	
  2006

  	
   

  	
  $  15,000

  	
   

  
	
  After 2006

  	
   

  	
  The limit in effect under Code Section 402(g) for
  the year

  	
   

  



 


Any Pre-Tax Contribution
that would otherwise exceed the foregoing limitation for a Plan Year shall be
distributed to the Participant, with the income allocable thereto, not later
than April 15 of the following year. If the amount of a Participant’s Pre-Tax
Contributions under this Plan does not exceed the foregoing limitation, but
would cause the Participant’s total elective deferrals (as defined in Section
402(g) of the Code) for the year to exceed the foregoing limitation when added
to the Participant’s elective deferrals under plans not maintained by a Related
Employer, the Participant may notify the Plan Administrator and the amount
designated by the Participant as necessary to comply with the foregoing
limitation shall be distributed in accordance with the preceding sentence.


 


(h)       Notwithstanding the
foregoing, a Participant who returns to employment from Qualified Military
Service will have the opportunity to make supplemental Pre-Tax Contributions to
the Plan by increasing his rate of deferral over a make-up period, which shall
begin on the date of his reemployment, shall be equal to three times the period
of his Qualified Military Service, up to a maximum of five years. For purposes
of all limitations on contributions under the Plan, such contributions shall be
treated as having been made during the period of Qualified Military Service.


 


(i)        In any Plan Year
commencing on or after January 1, 2002, a Participant who has attained the age
of 50 (or will attain the age of 50 by the last day of the Plan Year), and who
is otherwise precluded from making additional Pre-Tax Contributions under any
provision of this Plan, may enter into a supplemental salary reduction
agreement to have his Employer make additional Pre-Tax Contributions (“Catch-Up
Contributions”) in an amount not to exceed the lesser of his Compensation for
the Plan Year reduced by all other Pre-Tax Contributions for the Plan Year or
the dollar amount set forth in the following table:


 


13

















 


	
  Plan Year

  	
   

  	
  Maximum Contribution

  	
   

  
	
  2002

  	
   

  	
  $  1,000

  	
   

  
	
  2003

  	
   

  	
  $  2,000

  	
   

  
	
  2004

  	
   

  	
  $  3,000

  	
   

  
	
  2005

  	
   

  	
  $  4,000

  	
   

  
	
  2006

  	
   

  	
  $  5,000

  	
   

  
	
  After
  2006

  	
   

  	
  The limit in effect under Code Section 414(v) for
  the year

  	
   

  



 


Catch-Up Contributions
shall not be eligible for Employer Matching Contributions, and shall not be
subject to any of the limitations on the amount of Contributions under this
Plan, except for the limits set forth above in this Section 4.01(i). Except as
otherwise provided in the preceding sentence, Catch-Up Contributions shall be
considered Pre-Tax Contributions for all purposes of this Plan, including
without limitation the rules governing the distribution of excess Pre-Tax
Contributions set forth in Section 4.01(g), which shall be construed by
substituting catch-up contributions subject to Section 414(v) of the Code for
elective deferrals subject to Section 402(g). The Plan Administrator may adopt
rules and procedures for implementing elections to make Catch-Up Contributions
in accordance with Code Section 414(v).


 


4.02     Suspension of Pre-Tax
Contributions.


 


(a)       A Participant may
voluntarily suspend Pre-Tax Contributions at any time by contacting the Plan
Administrator. Suspensions will be effective as soon as administratively
practical.


 


The earliest date
a Participant may resume Pre-Tax Contributions after a suspension is on the
first day of the first payroll period commencing on or after the Entry Date
next following the effective date of such suspension of contributions, or any
subsequent Entry Date thereafter. Resumptions must be received by the Plan
Administrator before the cut-off dates established for the processing of salary
reduction changes. The Plan Administrator may allow resumptions to be entered
orally or by other electronic means, if confirmed in writing to the Participant.


 


(b)       Pre-Tax Contributions shall
be suspended automatically during periods in which Compensation is not payable
to the absent Employee.


 


4.03     Employer Profit Sharing
Contributions.


 


(a)       Each Employer may make a
contribution to the Plan for each Plan Year on behalf of each of the
Participants who (i) have satisfied the eligibility requirements of
subparagraphs (a) and (b) and (ii) who either (A) have completed 1,000 or more
Hours of Service during the Plan Year and remains employed by the Employer as
of December 31 of the Plan Year, or (B) who incurred a Retirement, died or had
a Termination of Employment due to a Permanent Disability


 


14

















 


during the Plan Year. In
addition, each Employer may make an Employer Profit Sharing Contribution on
behalf of each Participant who transferred from such Employer to a company
listed on Schedule A provided that such Participant remained employed by such
company as of his last scheduled work day of the Plan Year, or terminated such
employment because he incurred a Retirement, died or had a termination of
Employment due to a Permanent Disability during such Year. Such contribution,
when made, shall be in an amount determined by the Employer and allocated based
on a uniform percentage of the Compensation that each eligible Participant
earned while both eligible to participate and employed by that Employer for the
Plan Year. In addition, each Employer shall make a contribution on behalf of
each Participant who returns from Qualified Military Service equal to the
Employer Profit-Sharing Contributions that would have been allocated to such
Participant’s Account had he been employed during the period of Qualified
Military Service.


 


(b)       A Participant will be
eligible to share in the Employer Profit-Sharing Contributions beginning with
the first payroll period after he has completed one full year as an Employee
(counting service with Lexford or Grove or, to the extent so provided by the
Plan Administrator, other employers acquired in the future). In the Plan Year
in which he first becomes eligible, only Compensation earned after the payroll
period in which he becomes eligible to share shall be counted for purposes of
allocating his share of the Employer Profit-Sharing Contribution. An Employee
whose employment is terminated before he is eligible to share in Employer
Profit Sharing Contributions and is later re-hired must complete a year of
employment after being rehired before becoming eligible. An Employee whose
employment is terminated after he has become eligible to share in the Employer
Profit-Sharing Contribution and who is subsequently rehired will be immediately
eligible to share in Profit Sharing Contributions unless he incurred five (5)
consecutive Breaks in Service, in which event he must complete a new year of
employment after being rehired. An Employee who is transferred to a position in
which he becomes eligible to share in Employer Profit Sharing Contribution
after completing a year of employment in a position in which he is not eligible
shall be immediately eligible, but based only on Compensation earned after the
date of transfer.


 


(c)       The amount of each Employer’s
Profit-Sharing Contribution for each Plan Year shall be determined by the Board
of Trustees or Directors of the Employer in its sole discretion, and shall not
be limited to the Employer’s net profits. An Employer may also make separate
Profit-Sharing Contributions (or no Profit-Sharing Contribution) on behalf of
different groups of Participants who are employed by separate operating
divisions, which shall be allocated only among such Participants. On or after
January 1, 2002, Employer Profit-Sharing Contributions may be made by the
Company on behalf of Participants who are employed by the division consisting of
the operations purchased from the Lexford Residential Trust (the “Lexford
Division”), and, effective January 1, 2002, Participants employed by the
Lexford Division are eligible to participate in the Employer Profit-Sharing
Contributions.


 


4.04     Employer Matching
Contributions.


 


Each Employer
shall make Employer Matching Contributions on behalf of each of the
Participants who is eligible to participate in Employer Profit-Sharing
Contributions for the Plan Year (regardless of whether any Employer
Profit-Sharing Contributions are actually made by such Employer). In addition,
each Employer shall make an Employer Matching Contribution on


 


15

















 


behalf of each
Participant who transferred from such Employer to a company listed on Schedule
A provided that such Participant remained employed by such company as of his
last scheduled work day of the Plan Year, or terminated such employment because
he incurred a Retirement, died or had a Termination of Employment due to a Permanent
Disability during such Year. Each Employer shall contribute on behalf of each
such Participant an amount equal to the Participant’s Pre-Tax Contributions
made while the Participant was employed by such Employer to the extent they do
not exceed 2% of the Participant’s Compensation earned while the Participant
was employed by such Employer for the Plan Year. In addition to the foregoing,
each Employer shall make supplemental matching contributions with respect to
any Participant returning from Qualified Military Service based upon the
supplemental Pre-Tax Contributions the Participant elects to make pursuant to
Section 4.01(h), equal to the amount of Employer Matching Contributions the
Participant would have received had such Pre-Tax Contributions been made during
his period of Qualified Military Service. Notwithstanding the foregoing,
Employer Matching Contributions shall not be made to the Plan with respect to a
Participant to the extent that such contributions would cause the limitations
set forth in Section 4.08(d) to be exceeded for such Participant with respect
to the year for which such contributions are made.


 


4.05     Qualified Matching
Contributions. Each Employer may make an additional Employer Matching
Contribution for purposes of satisfying the requirements of Section 4.08. Such
contributions shall be made in amounts determined by each Employer (and
approved by the Company) and allocated among Participants who are not members
of the Highly Compensated Group (as defined in Section 4.08) as determined by
the Company. These contributions shall be 100% vested and shall be treated as
Employer Matching Contributions for purposes of Section 6.


 


4.06     Qualified Non-Elective
Contributions. Each Employer may make an additional Employer Profit Sharing
Contribution for purposes of satisfying the requirements of Section 4.08. Such
contributions shall be made in amounts determined by each Employer (and
approved by the Company) and allocated among Participants who are not members
of the Highly Compensated Group (as defined in Section 4.08) in proportion to
the relative Compensation that each eligible Participant earned while both
eligible to participate and employed by that Employer for the Plan Year. These
contributions shall be 100% vested and shall be treated as Employer Profit
Sharing Contributions for purposes of Section 6.


 


4.07     Payment of Contributions.


 


(a)       Pre-Tax Contributions (in
an amount specified by the Participant pursuant to Section 4.01) shall be
withheld by the Employer from the Participant’s Compensation and paid to the
Trustee in cash as of the earliest date on which such Contributions can
reasonably be segregated from the Company’s general assets, but not later than
the 15th business day of the month following the month in which the Participant
contributions were withheld. The Employer Contributions made under Section
4.03, 4.04, 4.05 and 4.06, respectively, shall be paid to the Trustee, in cash
or in Employer stock, within the time for the Employer to obtain a federal
income tax deduction for such payment following the end of the Plan Year, and
such Contributions shall be credited, for purposes of allocating such
Contributions, to the eligible Participants as of the end of the Plan Year for
which they were made.


 


16
















 


(b)       All Employer Contributions (including,
for purposes of this paragraph, Pre-Tax Contributions made pursuant to Section
4.01) shall be irrevocable, and shall never inure to the benefit of the
Employer. All Employer Contributions shall be transferred to the Trustee to be
used only in accordance with the provisions of the Plan. Neither such
contributions, nor the income therefrom shall be used for, or diverted to,
purposes other than the exclusive benefit of the Participants or their
Beneficiaries under the Plan and contingently for defraying reasonable expenses
of administering the Plan.


 


Notwithstanding
the foregoing provisions of this Section, with respect to all contributions
made under this Article 4 on or after the Effective Date of the Plan, the following
conditions apply:


 


(i)        all such contributions are
conditioned on being deductible and shall be returned to the contributing
Employer, to the extent a deduction for such contribution is disallowed, upon
demand and within one year after such disallowance;


 


(ii)       any such contribution made
due to a mistake of fact shall be returned to the contributing Employer, upon
demand and within one year after the contribution was made; and


 


4.08     Limitations on Contributions.


 


(a)       Regardless of amounts which Participants
contribute or elect to have contributed on their behalf under this Article 4,
the total contributions made by an Employer under Sections 4.01, 4.03, 4.04,
4.05 and 4.06 in any taxable year of such Employer, taking into consideration
contributions to other qualified retirement plans as well, shall not exceed the
maximum amount deductible by such Employer under Section 404(a) of the Code, as
amended from time to time, and regulations thereunder, nor shall the aggregate
contributions made by all Employers to this Plan in any taxable year exceed the
maximum amount deductible by such Employers in the aggregate or by a Related
Employer.


 


(b)       In no event shall an Employer make
contributions for any Plan Year commencing with 1997 that would result in the
deferral percentage of the Highly Compensated Group (as defined in this
Section) exceeding the greater of (i) or (ii) below:


 


(i)        the deferral percentage
for all other Employees eligible to participate in the Plan for the immediately
preceding Plan Year, multiplied by 1.25; or


 


(ii)       Alternative Limit; the
lesser of:


 


(1)       the deferral percentage of
all other Employees eligible to participate in the Plan for the immediately
preceding Plan Year, plus two (2) whole percentage points; or


 


(2)       the deferral percentage of
all such other Employees, multiplied by 2.0.


 


17

















 


(c)       For purposes of Subsection (b), the
deferral percentage of a group of Employees shall be the average of the ratios
(calculated separately for each Employee in the group) of the Pre-Tax
Contributions made under Sections 4.01 on behalf of each Employee for the Plan
Year to the Employee’s compensation for the Plan Year. Such ratio for each
Employee shall be known as his “individual deferral percentage.” Solely for the
purposes of this Section (except Subsection (g)), compensation shall have the
same meaning as in Section 415 of the Code: the Participant’s wages (including
Pre-Tax Contributions), salaries, fees for professional service and other
amounts for personal services actually rendered in the course of employment
with an Employer maintaining the Plan. For any Plan Year commencing with 2001,
the Plan Administrator may elect to substitute the current Plan Year for the
immediately preceding Plan Year in Subsection (b)(ii)(1) for purposes of either
Subsection (b), Subsection (d), or both. Such election shall be accomplished by
the adoption by the Plan Administrator of a written resolution not later than
the end of the period described in Section 401(b) of the Code with respect to
such Plan Year, which shall be considered an amendment to the Plan and may be
reversed for subsequent Plan Years only with the consent of the Internal
Revenue Service.


 


(d)       The Plan Administrator shall make certain
that Employer Matching Contributions made under Section 4.04 satisfy the ACP
test in a similar manner as the ADP test described under Subsection (b), to be
applied as if Employer Matching Contributions were substituted for Pre-Tax
Contributions for purposes of Subsection (b) above. If Employer Matching
Contributions do not satisfy such test for a particular Plan Year, the Plan
Administrator may elect to have them aggregated with Pre-Tax Contributions for
this purpose. If the requirements of Subsection (b) would otherwise not be met
for a Plan Year, the Plan Administrator shall elect, to the extent necessary:


 


(i)        to have any excess
Employer Matching Contributions made on behalf of members of the Highly
Compensated Group distributed to the appropriate Participants for whom such
excess contributions were made. Any such distribution of excess shall be made
within 2-1/2 months after the close of the Plan Year to which it relates, or
within such other time period as applicable law and regulations shall permit
without causing the imposition of any applicable tax on excess contributions.


 


(ii)       to make additional
Qualified Matching Contributions or additional Qualified Non-Elective
Contributions for the Plan Year on behalf of one or more Participants who are
not members of the Highly Compensated Group. Once these additional Qualified
Matching or Qualified Non-Elective Contributions have been allocated, the above
tests shall be rerun, using the additional contributions to help satisfy either
the ADP or ACP test, as appropriate.


 


(e)       If a “Multiple Use of the Alternative
Limitation,” as defined in Code Regulation Section 1.401(m)-2(b), occurs in a
Plan Year beginning prior to January 1, 2002, then, notwithstanding any other
provision of Subsection 4.08(b) or Subsection 4.08(d), the test in paragraph
4.08(b)(2) as applied to Employer Matching Contributions in Subsection 4.08(d)
shall not be used to satisfy the requirements of this Section for Employer
Matching Contributions in the same Plan Year that the test contained in
paragraph 4.08(b)(2) is used to satisfy the


 


18

















 


requirements of this
Section with respect to Pre-Tax Contributions. If the preceding sentence shall
be applicable for a Plan Year, then the Plan Administrator shall determine whether
to use the test in paragraph 4.08(b)(2) to satisfy the requirements of this
Subsection 4.08(d) with respect to Employer Matching Contributions, or to use
the test in paragraph 4.08(b)(2) to satisfy the requirements of Subsection
4.08(b) with respect to Pre-Tax Contributions for such Plan Year. This
subsection (e) shall no longer apply effective January 1, 2002.


 


(f)        To the extent necessary to comply with
the limitations set forth in Subsection (b), during such period as applicable
law allows and after any adjustments under Section 5.07(b) the Plan
Administrator shall refund to affected Participants in the Highly Compensated
Group the excess contributions made under Section 4.01 for the Plan Year on
behalf of some or all Participants in the Highly Compensated Group. For Plan
Years beginning on or after January 1, 2002, an amount which would otherwise be
required to be distributed to a Participant may be recharacterized as a
Catch-Up Contribution to the extent the Participant is eligible to make Catch-Up
Contributions for such year.


 


For Plan Years
prior to 1997, the amount so refunded shall be determined for each Participant
in the Highly Compensated Group by determining the maximum deferral percentage
permitted for the Highly Compensated Group under Subsection (b) and then
reducing the individual deferral percentage of those Participants in the Highly
Compensated Group whose individual deferral percentage exceeds the maximum
deferral percentage for the Highly Compensated Group. Such reduction shall be made
in an amount of sufficient size to reduce the overall deferral percentage for
the Highly Compensated Group to a level such that Subsection (b) shall be
satisfied. The amount so refunded shall be determined on a step-down basis so
that the individual deferral percentage of the affected Participant(s) who
elected the highest individual deferral percentage shall be first lowered to
the level of the affected Participant(s) who elected the next to the highest
individual deferral percentage. If further overall reductions are required to
achieve compliance with Subsection (b), both of the above Participants’ or
groups of Participants’ individual deferral percentages will be lowered to the
next highest level, and so on continuing until sufficient total reductions have
occurred to achieve compliance with Subsection (b).


 


Starting with the
1997 Plan Year, the total amount to be refunded shall be determined by using
the method described above, and such amount shall then be allocated among the
Highly Compensated Participants in such manner that the deferral amount of the
Highly Compensated Participant(s) who deferred the greatest amount shall be
first lowered to the level of the Participant(s) who deferred the next greatest
amount. If further overall reductions are required to achieve compliance with
Subsection (b), both of the above Participants’ or groups of Participants’
deferral amounts will be reduced to the next greatest level, and so on
continuing until sufficient total reductions have occurred to achieve compliance
with Subsection (b).


 


Excess
contributions, adjusted for earnings and losses, shall be refunded to the
affected Highly Compensated Employees as soon as practicable. In no event,
however, shall such excess contributions be left undistributed any later than
the last day of the Plan Year following the Plan Year in which such excess
contributions were made.


 


19

















 


(g)       Effective January 1, 1997, for all
purposes of the Plan, the term “Highly Compensated Group” means a group,
determined separately for each Plan Year, consisting of each Employee who is
eligible to participate in the Plan and who:


 


(i)        in the Plan Year or
preceding Plan Year was a 5% owner (as defined in Section 416(i)(1)(B)(i) of
the Code); or


 


(ii)       in the preceding Plan Year,
received compensation from one or more Employers in excess of the amount
determined under the following table and (if the Plan Administrator so elects)
was among the top 20% of all Employees when ranked in order of total compensation.


 




	
  Determination Plan Year

  	
   

  	
  Compensation in Preceding Plan Year

  
	
  1997-2000

  	
   

  	
  80,000

  
	
  2001-2002

  	
   

  	
  85,000

  
	
  2003

  	
   

  	
  90,000

  
	
  After 2003

  	
   

  	
  Indexed amount under Code Section 414(q)

  






 


The determination
of who is included within the “Highly Compensated Group” shall be made
consistent with Section 414(q) of the Code. The Plan Administrator is
authorized to utilize any elective or alternative method of determining Highly
Compensated Employees and the election permitted by Treasury Regulation Section
1.414(q)-1T, A-14(b)(4), which is hereby provided for in the Plan.


 


For purposes of
this Subsection (g), “compensation” shall have the meaning set forth in Section
415(c)(3) of the Code. For purposes of this Section, the term Limitation Year
means the Plan Year.


 


(h)       For purposes of satisfying the testing
requirements of paragraph (b) the Plan Administrator may, from time to time,
and upon written notification to the Participant, reduce the amount of elective
Employee Contributions being deposited into the Plan on behalf of the Highly
Compensated Group. If such Contributions have been reduced pursuant to this
Subsection, the Plan Administrator may subsequently increase a Participant’s
contribution level, up to the level specified in the salary reduction agreement
on record, as test results permit.


 


4.09     Rollover Contributions.


 


(a)       Upon hire by a Participating Employer and
any time thereafter an Employee may contribute to the Plan as a Rollover
Contribution cash balances distributable from any qualified Profit Sharing,
Saving/Thrift, Money Purchase Pension, Target Benefit, Defined Benefit,
Employee Stock Ownership, Cash Balance, or Keogh Plan. Effective January 1,
2002, and subject to restrictions imposed by the Plan Administrator, an
Employee may also make a Rollover Contribution from an Individual Retirement
Account (but not from a Roth IRA), or from an annuity described in Section
403(b) of the Code or a plan described in Section 457(b) of the Code and
maintained by a governmental employer.


 


(b)       A Rollover Contribution shall be
allocated to the investment funds pursuant to a special investment directive
governing such Contribution. Once deposited in the funds, any


 


20

















 


subsequent changes to the
investment of the Rollover Contribution balances will be governed by Section
5.02.


 


(c)       Rollover balances shall not be included
in discrimination testing as set forth in Section 4.08(b).


 


(d)       No rollover or transfer shall be accepted
from any qualified plan which would result in this Plan becoming legally
required to provide any qualified joint and survivor annuity or qualified
preretirement survivor annuity benefits pursuant to Treasury Regulation
1.401(a)-20.


 


Article 5


 


ACCOUNTS AND ALLOCATIONS


 


5.01     Participant Accounts. The Recordkeeper
shall establish and maintain a separate Account for each Participant. Such
Account shall be credited with all contributions on behalf of the Participant.
The Account of each Participant shall consist of such sub-accounts as are
deemed by the Plan Administrator necessary or appropriate under the
circumstances, including the following:


 


(a)       One sub-account (hereinafter referred to
as the “Pre-Tax Contribution Account”) shall reflect the contributions made
pursuant to the Participant’s salary reduction agreement(s) under Section 4.01,
and investment earnings or losses thereon, in addition to any Pre-Tax
Contributions and earnings attributable to a Prior Plan. The


 


(b)       One sub-account (hereinafter referred to
as the “Rollover Account”) shall reflect any amounts transferred to the Fund
with respect to a Participant pursuant to Section 4.09, and investment earnings
or losses thereon. No further contributions will be allowed into this
sub-account, except as provided for under Section 4.09.


 


(c)       One sub-account (hereinafter referred to
as the “Employer Profit Sharing Contribution Account”) shall reflect any
contributions made to the Fund with respect to a Participant pursuant to
Section 4.03, and investment earnings or losses thereon.


 


(d)       One sub-account (hereinafter referred to
as the “Employer Matching Contribution Account”) shall reflect any
contributions made to the Fund with respect to a Participant pursuant to
Section 4.04, and investment earnings or losses thereon.


 


(e)       One sub-account (hereinafter referred to
as the “Qualified Matching Contribution Account”) shall reflect any
contributions made to the Fund with respect to a Participant pursuant to
Section 4.05, and investment earnings or losses thereon.


 


(f)        One sub-account (hereinafter referred to
as the “Qualified Non-elective Contribution Account”) shall reflect any
contributions made to the Fund with respect to a Participant pursuant to
Section 4.06, and investment earnings or losses thereon.


 


(g)       Amounts transferred to the Plan upon the
merger of a Prior Plan into the Plan shall be credited to the subaccount which
corresponds to the type of contribution made to the


 


21

















 


Prior Plan.
Notwithstanding the foregoing, the Plan Administrator may provide for the amounts
transferred from a Prior Plan to be credited to one or more separate
sub-accounts if such amounts need to be segregated in order to preserve Prior
Plan distribution or vesting rights, or for any other purpose determined by the
Plan Administrator.


 


5.02     Investment Directives.


 


(a)       Each Participant shall direct, pursuant
to procedures established by the Plan Administrator, the allocation of his
Accounts among the investment funds described in Section 5.02(c), subject to
the restrictions described in the last sentence of Section 5.02(d). Each
allocation shall be in one (1) percent increments. Such direction applies
generally to the entire Account, except that cash dividends paid on shares of
the Employer that are held in the Employer Stock Fund shall be automatically
reinvested in the applicable Employer shares.


 


(b)       A Participant’s initial investment
directive shall allocate his entire Account (except for any amounts allocated
to the Employer Stock Fund if so required under Section 5.02(d)), together with
all subsequent contributions to the Account for so long as the directive
remains in effect. Any investment directive shall remain in effect until
changed by a new directive. The Plan Administrator shall permit Participants to
make new directives at any time, subject to such limitations as the Plan
Administrator may adopt for administrative purposes, which limitations will
apply to all Participants on a nondiscriminatory basis, and be consistent with
Section 404(c) of the Act and the Department or Labor regulations thereunder.
Any such new investment directive shall allocate the Participant’s future
contributions among the funds. Subject to such rules as the Plan Administrator
prescribes, a Participant may also reallocate among the funds amounts
previously credited to the Participant’s Account. Properly completed initial
and new directives must be received by the Plan Administrator before the
cut-off dates established for the processing of investment directives and
changes. The Plan Administrator may allow initial and new directives to be
entered orally or by other electronic means, if confirmed in writing to the
Participant. The Plan Administrator shall determine the investment of the
Accounts of Participants who do not provide investment directives. In the case
of amounts transferred from a Prior Plan, the Plan Administrator may provide
for such amounts to be invested in the investment funds that most closely
resemble the risk and reward characteristics of the funds in which the
Participant had elected to invest his account in the Prior Plan.


 


(c)       The Plan Administrator shall establish
investment funds, and shall add, delete and change investment funds as it deems
appropriate. At any time, the Plan shall offer at least three investment funds:


 


(i)        each of which is
diversified;


 


(ii)       each of which has
materially different risk and return characteristics;


 


(iii)      which in the aggregate
enable the Participant or Beneficiary by choosing among them to achieve a
portfolio with aggregate risk and return characteristics at any point within
the range normally appropriate for the Participant or Beneficiary; and


 


22

















 


(iv)      each of which when combined
with investments in the other alternatives tends to minimize through diversification
the overall risk of a Participant’s or Beneficiary’s portfolio.


 


(d)       The Plan Administrator may establish one
or more Employer Stock Funds to hold shares of the Employer contributed as
Employer Profit Sharing Contributions or shares received prior to 1995 and
deposited into the Plan by Participating Employers. Each Employer Stock Fund
shall hold shares of one of the Participating Employers. Participation in each
Employer Stock Fund shall be limited to participants who are Employees of the
applicable Participating Employer. If the Plan Administrator establishes one or
more Employer Stock Funds, at least three other investment funds meeting the
above requirements shall be offered into which a Participant may transfer
amounts previously credited to the Participant’s Employer Profit Sharing
Contribution Account. In no event may a Participant transfer amounts into the
Employer Stock Fund pursuant to an investment directive.


 


(e)       If the Plan Administrator discontinues
offering an investment fund, Participants will be given the option to move
their Fund balances to the other available funds.


 


(f)        The Plan Administrator may impose
restrictions on investment directives to keep fund balances from moving into or
out of certain investment funds.


 


(g)       Except to the extent that the Plan
Administrator shall decide with respect to a fund or funds, the Plan
Administrator shall satisfy such conditions set forth in the U.S. Department of
Labor regulations regarding circumstances under which Plan fiduciaries would
not be liable for losses resulting from Participant-directed investments in
accordance with Section 404(c) of the Act, as are within the scope of the Plan
Administrator’s authority and discretion. Such conditions include providing a
Participant a reasonable opportunity to: (i) give investment instructions to
the Plan Administrator; (ii) obtain sufficient information to make informed
decisions with regard to investment alternatives available under the Plan, and
incidents of ownership appurtenant to such investments, and (iii) choose, from
a broad range of investment alternatives, the manner in which some or all of
the assets in his account are invested.


 


5.03     Valuation. On each Valuation Date,
the Recordkeeper shall establish new account balances which shall reflect each
Account’s (and sub-account’s) proper portion of the net income earned on,
expenses and charges against, and the appreciation and/or depreciation of the
respective investment funds in which the Account has been invested since the
previous Valuation Date.


 


In determining
such new Account balances, the Recordkeeper shall adjust the portion of each
Participant’s Account invested in each respective fund on the basis of the
actual investment return experienced by each fund. For purposes of such
adjustment, all assets of the Trust Fund shall be valued at their fair market
value as of each Valuation Date.


 


5.04     Value of Account for Purposes of
Distribution.


 


(a)       Upon a Participant’s Termination of
Employment, the value of such Participant’s Account (and of the respective
sub-accounts) for purposes of determining the vested amount, if any, to be
distributed in accordance with Article 6 shall be equal to the value of the
Participant’s


 


23

















 


Account as of the
Month-end Valuation Date coinciding with or next following the date of
Termination of Employment.


 


(b)       All amounts held for distribution to a
Participant shall continue to be adjusted on each Valuation Date following the
Termination of Employment in accordance with Section 5.03 until the entire
Account has been paid to the Participant, but no additional contributions shall
be made to the Account after the Termination of Employment, except (i) as
provided in Sections 4.03, 4.04, 4.05 and 4.06 with respect to any final
Employer Contributions which may be due on behalf of the Participant; or (ii)
to take account of additional compensation after the Participant’s Termination
of Employment.


 


(c)       Notwithstanding any provision herein to
the contrary, any distribution made hereunder to or with respect to a
Participant shall be net of the then outstanding balance of any loan made to
such Participant pursuant to Section 6.14.


 


5.05     Expenses. To the extent consistent
with applicable law, the Plan Administrator may authorize that (i) reasonable
administrative expenses may be deducted from plan earnings, (ii) direct charges
for expenses may be made directly to a Participant’s account for specific
activities requested by that Participant.


 


5.06     Voting of Employer Stock. If the
Plan offers an Employer Stock Fund as an investment fund, the Plan
Administrator shall direct the Trustee how to vote all shares of stock held in
the Stock Fund with respect to all voting rights and occasions for the exercise
of same.


 


5.07     Errors. Where an error or omission
is discovered in any Participant’s Account or in any payment made to a
Participant, the Plan Administrator shall make appropriate corrective
adjustments as soon as possible after discovery of such error, but no later
than the end of the Plan Year in which the error or omission is discovered.


 


5.08     Allocations Do Not Affect Vesting.
The fact that an allocation has been made shall not operate to vest in any
Participant any right or interest in or to any specific Account balance or
assets of the Fund, except as herein provided.


 


5.09     Limitations on Allocations.


 


(a)       The amount of Annual Additions which may
be credited to a Participant’s Account under this Plan for any Limitation Year
shall not exceed the “maximum permissible amount” as set forth in Section 415
of the Code. “Maximum permissible amount” means the lesser of:


 


(i)        $30,000 ($40,000 effective
January 1, 2002), as indexed pursuant to Code Section 415(d); or


 


(ii)       25 percent (100 percent
effective January 1, 2002) of the Participant’s compensation for such
Limitation Year.


 


(b)       “Annual Additions” means the total of:
(a) Company contributions (Employer Matching Contributions, Employer Profit
Sharing Contributions, Qualified Matching and


 


24

















 


Qualified Non-Elective
Contributions) allocated to a Participant’s Account under this Plan and any
Related Plan during any Limitation Year; (b) the amount of Employee
contributions made by the Participant under this Plan and any Related Plan; and
(c) forfeitures allocated to a Participant’s Account under this Plan and any
Related Plan.


 


(c)       For purposes of this Section, “compensation”
shall mean the total compensation paid to the Employee by all Employers and
Related Employers that is reportable in Box 1 of Form W-2 for the Limitation
Year, plus all elective deferrals and exclusions from income under Section
402(g), 125, or 132(f) of the Code.


 


(d)       For purposes of this Section, “Limitation
Year” means the Plan Year.


 


(e)       To the extent that annual additions to this
Plan with respect to a Participant exceed the “maximum permissible amount” for
a Limitation Year, then the Participant’s Pre-Tax Contributions (including
earnings and losses thereon) allocated for the Limitation Year shall be
returned to the Participant to the extent described in Treasury Department
regulation 1.415-6(b)(6)(iv). Excess annual additions for the Limitation Year
that are not returned in accordance with the prior sentence, shall be carried
forward to the next following Limitation Year and used to reduce future
Employer contributions for affected Participants, as described in Treasury
Department regulation 1.415-6(b)(6)(ii).


 


Article 6


 


DISTRIBUTION AND VESTING


 


6.01     Normal Retirement. Each Participant
whose employment with the Employer continues until his Normal Retirement Date
shall be entitled to retire under this Plan. In the event of such normal
retirement, all amounts credited to the Participant’s Account valued in
accordance with Section 5.04 shall be distributed to the Participant in the
manner hereinafter provided.


 


6.02     Postponed Retirement. Subject to
Subsection 6.07(b), in the event that a Participant continues his employment
after his Normal Retirement Date, the Participant shall continue to be treated
in all respects as a Participant until his actual retirement from employment
with the Employer. In the event of such postponed retirement, the Participant
shall not be entitled to a distribution from the Plan until his actual
retirement from employment with the Employer. Upon such actual retirement, all
amounts credited to the Participant’s Account as of such actual retirement,
valued in accordance with Section 5.04, shall be distributed to the Participant
in the manner provided hereinafter.


 


6.03     Permanent Disability. In the event
that a Participant shall have a Termination of Employment because of Permanent
Disability, all amounts credited to the Participant’s Account as of such
termination date, valued in accordance with Section 5.04, shall become fully
vested and be distributed to Participant in the manner hereinafter provided.


 


6.04     Distribution Upon Death. Should any
Participant die prior to his Termination of Employment under the Plan, all
amounts credited to the Account of such Participant as of the date of death,
valued in accordance with Section 5.04, shall become fully vested and shall be


 


25

















 


distributed to such
deceased Participant’s Beneficiary or Beneficiaries in the manner provided
herein.


 


6.05     Termination of Employment.


 


(a)       Upon a Participant’s Termination of
Employment for any reason other than Retirement, Permanent Disability or Death,
the Participant shall be entitled to the vested portion of his Account, valued
in accordance with Section 5.04, which shall be distributed in the manner
hereinafter provided. That portion of the Participant’s Account that is not
vested upon Termination of Employment shall be subject to forfeiture in
accordance with Section 6.06. Notwithstanding the foregoing, if within 30 days
of Termination of Employment, the Participant becomes employed by a company
listed on Schedule A, and if the Participant does not consent to an immediate
distribution, then his account is held pending further accrual of vesting
credit until he is no longer employed by any company on Schedule A.


 


(b)       In the case of a sale or other transfer
of a portion of an Employer’s business, Participants whose employment is
transferred to a successor employer in connection with the sale shall be
considered to have incurred a Termination of Employment only if (i) the
transfer constitutes a “separation from service” as defined in Section
401(k)(2)(B)(i)(I) of the Code (or an event described in Section 401(k)(10)),
and (ii) the Accounts of the Participants involved are transferred to a plan
maintained by the successor in a transaction meeting the requirements of
Section 414(l) of the Code.


 


(c)       The vested portion of any Participant’s
Account shall be determined as follows:


 


(i)        A Participant shall always
be 100% vested in his Pre-Tax Contribution Account, Rollover Contribution
Account, Qualified Matching Contribution Account and Qualified Non-Elective
Contribution Account.


 


(ii)       A Participant shall be
vested in a percentage of his Employer Profit Sharing Contribution and Employer
Matching Contribution Accounts based on his years of Credited Service as of the
date of his Termination of Employment in accordance with the following vesting
schedule:


 


	
  Years of Credited Service

  	
   

  	
  Vested Percentage

  
	
  Less than 2

  	
   

  	
  0%

  
	
  2

  	
   

  	
  25%

  
	
  3

  	
   

  	
  50%

  
	
  4

  	
   

  	
  75%

  
	
  5 or more

  	
   

  	
  100%

  



 


26

















 


(iii)      Except as modified in this
Section 6.05(c), the vested percentage for the Prior Plan Balances Account
shall be governed by the vesting provisions of the prior plan.


 


(iv)      The vested percentage for
the Prior Plan Balances Account for individuals who were active in the
Wellsford Residential Property Trust 401(k) Profit Sharing Plan shall be
determined in accordance with the following schedule:


 


	
  Years of Credited Service

  	
   

  	
  Vested Percentage

  
	
  Less than 2 years

  	
   

  	
  0%

  
	
  2 years, but less than 3

  	
   

  	
  20%

  
	
  3 years, but less than 4

  	
   

  	
  40%

  
	
  4 years, but less than 5

  	
   

  	
  60%

  
	
  5 years or more

  	
   

  	
  100%

  



 


(v)       The vested portion of the
Accounts of Participants who formerly participated in the Lexford Plan, the
Grove Plan or the Globe Plan shall be determined under the provisions of this
Plan, but shall in no event be less than the vested portion of their Accounts
in the Lexford Plan, Grove Plan, or Globe Plan determined as of the day
immediately prior to the day on which they began to participate in this Plan.


 


6.06     Disposition of Forfeitures.


 


(a)       As of the date that a Participant has a
Termination of Employment under circumstances which do not entitle him to 100%
of his Employer Profit Sharing Contribution or Employer Matching Contribution
Account, the portion of his Account which is not vested is shall be forfeited,
subject to restoration under Section 6.06(b). Forfeited amounts shall be used
as promptly as practicable to pay expenses of the Plan and Trust payable after
the date of forfeiture, and otherwise shall be applied to reduce the amount of
Employer Contributions. Until so used, forfeited amounts will be credited to
one or more separate suspense accounts which shall earn a fixed rate or money
market rate of interest unless the Plan Administrator directs the use of any
other investment option.


 


While a single
suspense account is maintained for Forfeitures, the Forfeitures therein which
are available to be applied against Employer Profit Sharing and Matching
Contributions shall be applied against such Contributions of each contributing
Employer, in proportion to each respective Employer’s Profit Sharing or
Matching Contributions (as the case may be). If a separate suspense account is
maintained with respect to each Employer, and only Forfeitures attributable to
Employees of a particular Employer are credited to that Employer’s Forfeiture
suspense account, then the Plan Administrator shall direct that amounts in
proportion to the respective balances of each such suspense account be used to
pay Plan and Trust expenses and


 


27

















 


any remaining balance in
each such account shall be applied only against the Employer Profit Sharing and
Matching Contribution obligations (in that order of priority) of the Employer
with respect to which such account is maintained.


 


(b)       If (i) the Plan Administrator, pays to
any terminated Participant who is not 100% vested in his Account, the vested
portion of his Account prior to the time such Participant has incurred five (5)
consecutive Breaks in Service and (ii) such Participant resumes employment as
an Employee after receipt of such distribution and before incurring five (5)
consecutive Breaks in Service, then the provisions of this Section 6.06(b) shall
be applicable. Upon such reemployment, the Participant may repay the vested
portion received as such distribution within five (5) years after rehire. If
and only if the Participant makes such repayment, the forfeited portion of the
Participant’s Account shall be restored to his credit and an additional
Employer contribution in that amount shall be made for that purpose. In the
event of any subsequent Termination of Employment occurring after the date of
such reemployment, the Participant’s vested interest in his Employer Accounts
shall not be less than the amount determined, as of the appropriate Valuation
Date, as follows:


 


(i)            If the distribution
has not been repaid:


 


	
  X

  	
   

  	
  =

  	
   

  	
  P (ABL + F + D) - D,

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Where:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  X

  	
   

  	
  =

  	
   

  	
  the amount of his vested interest in his Employer
  Accounts;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  P

  	
   

  	
  =

  	
   

  	
  the Participant’s vested percentage as determined
  under Section 6.05;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ABL

  	
   

  	
  =

  	
   

  	
  the balance in his Employer Accounts (excluding the
  forfeited balances);

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  F

  	
   

  	
  =

  	
   

  	
  the amount previously forfeited from the
  Participant’s Employer Accounts;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  D

  	
   

  	
  =

  	
   

  	
  the amount previously distributed to the Participant
  from his Employer Accounts;

  



 


(ii)           Once the distribution
has been repaid, and the forfeitures have been restored to the Participant’s
Account:


 


	
  X

  	
   

  	
  =

  	
   

  	
  P (AB),

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Where:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  X

  	
   

  	
  =

  	
   

  	
  the amount of
  his vested interest in his Employer Accounts;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  P

  	
   

  	
  =

  	
   

  	
  the
  Participant’s vested percentage as determined under Section 6.05;

  



 


28

















 


	
  AB

  	
   

  	
  =

  	
   

  	
  the balance in his
  Employer Accounts (includes the repaid distribution and restored
  forfeitures); 

  



 


The Trustee shall
thereafter distribute, in accordance with this Article 6, the Participant’s
vested interest in his Account, as determined above, and any nonvested balance
in his Account shall be a Forfeiture.


 


6.07     Valuation and Timing of Distribution.


 


(a)       Subject to the rules in this Section,
distributions shall be made as soon as practicable after a Participant’s
Termination of Employment, but not later than sixty (60) days after the end of
the Plan Year in which the Termination of Employment occurred.


 


(b)       Distributions shall be valued as of the
Valuation Date following the date of Termination of Employment except (i)
distributions delayed pursuant to subsection (d) shall be valued as of the
Valuation Date next following the Plan Administrator’s receipt of the
Participant’s consent to receive the distribution; and (ii) distributions
delayed pursuant to subsection (c) shall be valued as of the Valuation Date
with respect to which the related contributions are first reflected on the
quarterly account statement provided to the Participant.


 


(c)       If a Participant is entitled to an
allocation of contributions under Sections 4.03, 4.04, 4.05 and/or 4.06 for the
Plan Year containing his Termination of Employment date, the Participant shall
be allowed to defer receipt of his distribution until the Valuation Date next
following the date as of which such allocation is made. If a Participant makes
contributions under Section 4.01 for any portion of the calendar quarter after
his Termination of Employment date, his distribution shall be deferred until
the Valuation Date next following the quarter the contributions are made.


 


(d)       If at any time the distributable balance
in a terminated Participant’s Account, or the portion thereof payable to a
Beneficiary, does not exceed $5,000 ($3,500 for Plan Years prior to 1998), the
total remaining balance shall be distributed to the Participant or Beneficiary
in a single lump sum. For distributions prior to March 22, 1999, the foregoing
sentence shall apply only if the Participant’s Account balance never exceeded
$5,000 ($3,500) immediately prior to an earlier distribution. Effective January
1, 2002, for this purpose the balance in the Participant’s Account shall not
include any balance in his Rollover Account.


 


The distributable
balance of a Participant’s Account to a Participant or Beneficiary who is
entitled to begin receiving the balance in his Account prior to 90 days after
the date on which he receives a restated summary plan description describing
the changes made by the restatement of the Plan effective January 1, 2001, and
whose distributable balance exceeds $5,000, may be distributed, with the
Participant’s or Beneficiary’s consent, in any form permitted by the Plan prior
to such restatement (including any form permitted by a Prior Plan in which the
Participant was a participant). Such consent may be submitted, on forms
provided by the Plan Administrator, at any time after Termination of Employment,
in accordance with the Plan Administrator’s schedule for processing
distributions. If the terminated Participant or Beneficiary does not consent to
such a distribution, then no distribution may be made to him


 


29

















 


prior to the end of the
Plan Year in which such Participant either dies or attains his Normal
Retirement Date (whichever occurs first).


 


(e)       Unless the Participant otherwise elects,
a distribution be made no later than sixty (60) days after the close of the
Plan Year which contains the latest of (1) the date on which the Participant
attains the earlier of age 65 or his Normal Retirement Date, (2) the tenth
(10th) anniversary of the year in which the Participant commenced participation
in the Plan, or (3) the Participant’s Termination of Employment.


 


(f)        The account balances of former employees
of Cardinal Industries, Inc. that were transferred to this Plan upon the merger
of the Cardinal Plan and do not exceed $5,000 shall be distributed to such
former employees in a single lump sum as soon as administratively feasible
following the merger. To the extent the Plan Administrator is unable to locate
any such former employee, his account balance shall be forfeited and
reallocated, subject to restoration, as provided in Section 6.11.


 


(g)       Notwithstanding the foregoing provisions
of this Section, in no event shall any portion of a Participant’s Pre-Tax
Contribution Account, Qualified Matching Contribution Account or Qualified
Non-Elective Contribution Account be withdrawn or distributed even pursuant to
a “qualified domestic relations order,” as defined in Section 414(p) of the
Code) prior to the Participant’s Termination of Employment or attainment of age
59-1/2, whichever occurs first, except as otherwise provided in Section 6.09.


 


(h)       Notwithstanding the foregoing,
distributions under the Plan generally shall commence not later than April 1st
following the calendar year in which such Participant attains age 70-1/2. In
the case of a Participant who is still employed, and is not a 5% owner, within
the meaning of Section 416(i)(1)(B)(i) of the Code, in the year in which he
attains age 70-1/2, distribution shall commence not later than April 1st of the
year in which his employment is terminated.


 


(i)        Notwithstanding any provisions
hereunder, any distribution form or other right available under a Prior Plan
that is protected under Section 411 of the Code shall be available with respect
to applicable balances of the Prior Plan Balances Account, but only to the
extent required by law. In the case of a Participant whose Account is
transferred from a Prior Plan that provides for distributions in any form other
than a lump sum on or after the Effective Date, distribution shall be permitted
in such form only for a Participant whose Account becomes distributable before
December 31, 2001, and thereafter shall be distributable only in a lump sum as
provided herein, provided that such lump sum shall otherwise be available at
the same times and on the same terms that such other form of distribution was
available under the Prior Plan.


 


(j)        As of the date that a Participant
attains the age of 59 1/2, such Participant may withdraw his Vested Balance.


 


6.08     Method of Distribution.


 


(a)       The method of distribution for all benefits
shall be a single sum payment.


 


30

















 


(b)       If distribution is to commence by reason
of the death of the Participant, then the Participant’s Account shall be paid
to the Participant’s Beneficiary within five (5) years after the date of the
Participant’s death in accordance with this Section 6.08.


 


(c)       Distributions may be made wholly or
partly in cash or in kind as allowed by the Plan Administrator, provided that
no discrimination in value results therefrom and provided that distributions
shall be made in cash unless the Participant or his or her Beneficiary
otherwise elects in a manner acceptable to the Plan Administrator, including
orally or by other electronic means, if confirmed in writing to the Participant
or Beneficiary prior to implementation.


 


(d)       The Plan Administrator in conjunction
with the Recordkeeper shall issue directions to the Trustee and/or transfer
agent concerning the recipient, the commencement and the method of distribution
of all benefits which are to be paid from the Trust Fund pursuant to the Plan.


 


(e)       No later than fourteen (14) days after a
distribution is made in lump sum form under this Plan, the Plan Administrator
shall provide the recipient with a written notice of the federal income tax
treatment applicable to a lump sum distribution, as and to the extent required
by Section 402(f) of the Code, as amended, and proper regulations thereunder.


 


(f)        Distributions pursuant to this Section
shall be made in the name of the Participant with 20% (or such other amount
required by law) withheld for tax purposes, or shall be made in the name of an
IRA or Trustee for the full amount of the distribution in accordance with the
following:


 


(g)       If a Participant timely elects to have a
distribution payable hereunder paid directly to an eligible retirement plan,
and specifies the eligible retirement plan to which such distribution is to be
paid (in such form and at such time as the Plan Administrator may prescribe),
such distribution shall be made in the form of a direct rollover or
trustee-to-trustee transfer to the eligible retirement plan so specified.


 


(i)        For purposes of this
Section 6.08(f), the term “eligible rollover distribution” has the meaning
given to such term by Section 401(f)(2)(A) of the Code. Effective January 1,
1999, the term “eligible rollover contribution” shall not include any hardship
distribution described in Section 410(k)(2)(B)(i)(IV).


 


(ii)       For purposes of this
Section 6.08(f), the term “eligible retirement plan” has the meaning given to
such term by Section 401(c)(8)(B) of the Code, except that a qualified trust
shall be considered an eligible retirement plan only if it is a defined
contribution plan, the terms of which permit the acceptance of rollover
distributions.


 


(iii)      For purposes of this Section
6.08(f), to the extent allowed under Section 402 of the Code, an alternative
payee entitled to receive an eligible rollover distribution from the Plan
pursuant to a qualified domestic relations order, and a surviving Beneficiary
of a deceased Participant, shall


 


31
















 


have the same right to
elect a transfer of their benefit as a Participant is accorded under this
Section.


 


(iv)      Within a reasonable time
before making an eligible rollover distribution, the Plan Administrator shall
provide, in accordance with Section 401(f)(1) of the Code, to the recipient of
such distribution, a written explanation of the recipient’s transfer rights
under this Section 6.08(f) and of the required withholding of tax on the
distribution if such a transfer were not elected.


 


6.09     Withdrawal of Accounts.


 


(a)       A Participant may elect to
withdraw, in cash, any portion of the Pre-Tax Contributions from his Pre-Tax
Contribution Account, but not earnings thereon, and any portion of the Rollover
Account, determined as of the Valuation Date preceding the date of his request,
that is not being used as security for a loan under Section 6.14. His request
for withdrawal shall be submitted to the Plan Administrator in writing not less
than sixty (60) days prior to the desired withdrawal date (or such lesser
period as the Plan Administrator may allow to accommodate financial
emergencies). The Participant shall provide such further information as the
Plan Administrator may request in support of the withdrawal request. The Plan
Administrator shall approve or disapprove the withdrawal request in accordance
with any applicable regulations under Section 401(k) of the Code and such
rules, consistent with any such regulations, as the Plan Administrator shall
adopt and apply uniformly to similarly situated Participants.


 


(b)       Unless the Participant has
attained age 59-1/2, he shall not be entitled to a withdrawal of Pre-Tax
Contributions except in the event and to the extent of “financial hardship.”
For purposes of this Section, “financial hardship” means an immediate and heavy
financial need occurring in the Participant’s personal affairs which cannot
reasonably be satisfied from other resources available to the Participant. Such
hardship shall be determined by the Plan Administrator from appropriate
evidence furnished by the Participant and in accordance with applicable
regulations under Section 40l(k) of the Code. Unless the Plan Administrator
decides, from time to time, to determine financial need on the basis of all
relevant facts and circumstances, a Participant’s financial need shall be
deemed sufficiently immediate and heavy to justify a hardship withdrawal under
this Section only with respect to:


 


(i)        medical expenses described
in Section 213(d) of the Code previously incurred by the Participant, his
spouse or dependents (as defined in Section 152 of the Code), or necessary for
any of these persons to obtain medical care described in Section 213(d) of the
Code;


 


(ii)       the purchase (excluding
mortgage payments) of a principal residence for the Participant;


 


(iii)      payment of tuition and
related educational fees for the next twelve months of post-secondary education
for the Participant, his spouse, children or dependents;


 


(iv)      the need to prevent eviction
of the Participant from his principal residence or foreclosure on the mortgage
of his principal residence;


 


32

















 


(v)       funeral expenses of a
family member of the Participant; or


 


(vi)      any other circumstance
determined by the Internal Revenue Service to constitute immediate and heavy
financial need for this purpose.


 


A Withdrawal shall
not be treated as necessary to satisfy an immediate and heavy financial need of
an Participant to the extent the amount of the Withdrawal is in excess of the
amount required to relieve the financial need or to the extent such need may be
satisfied from other resources that are reasonably available to the
Participant. This determination generally is to be made on the basis of all
relevant facts and circumstances. The Participant’s resources include those
assets of an 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 shall
not be treated as a resource of the Participant. The amount of an immediate and
heavy financial need may include any amounts necessary to pay any federal,
state, or local income taxes or penalties reasonably anticipated to result from
the Withdrawal. A Withdrawal generally may be treated as necessary to satisfy a
financial need if the Plan Administrator relies upon the Participant’s written
representation, unless the Employer or Plan Administrator has actual knowledge
to the contrary, that the need cannot reasonably be relieved:


 


(i)        Through reimbursement or
compensation by insurance or otherwise;


 


(ii)       By reasonable liquidation
of the Participant’s assets, to the extent such liquidation would not itself
cause an immediate and heavy financial need;


 


(iii)      By cessation of Pre-Tax
Contributions under the Plan; or


 


(iv)      By other distributions or
nontaxable (at the time of the loan) loans from plans maintained by the
Employer or by any other employer, or by borrowing from commercial sources on
reasonable commercial terms in an amount sufficient to satisfy the need.


 


A need cannot be
reasonably relieved by one of the actions listed above if the effect would be
to increase the amount of the need. Notwithstanding (iii) above, a Participant
may, but shall not be required to, suspend or cease his or her Pre-Tax
Contributions in the event the Employer relies upon such Participant’s written
representation regarding the amount of withdrawal necessary to satisfy a
financial need.


 


(c)       No Participant will be
permitted to receive any portion of his Employer Profit Sharing, Matching
Contribution, Qualified Matching or Qualified Non-elective Accounts, except as
a distribution in accordance with Sections 6.01 through 6.07 and as a loan in
accordance with Section 6.14.


 


6.10     Payment to Minors and
Incapacitated Persons. In the event that any amount is payable to a minor
or to any person who, in the judgment of the Plan Administrator, is incapable
of making proper disposition thereof, such payment shall be made for the
benefit of such minor or such person in any of the following ways as the Plan
Administrator, shall determine:


 


33

















 


(i)        by payment to the legal
representative of such minor or such person;


 


(ii)       by payment directly to such
minor or such person; or


 


(iii)      by payment to any other
person/entity caring for such person.


 


The Trustee shall
make such payments as directed by the Plan Administrator, without the necessary
intervention of any guardian or like fiduciary, and without any obligation to require
bond or to see to the further application of such payment. Any payment so made
shall be in complete discharge of the Plan’s obligation to the Participant and
his Beneficiaries.


 


6.11     Missing Persons. In
the event that all, or any portion, of the distribution payable to a
Participant or his Beneficiary hereunder shall remain unpaid solely by reason
of the inability of the Plan Administrator to locate such Participant or his
Beneficiary, after sending a certified or registered letter, return receipt requested
to the last known address, then the Plan Administrator may attempt to ascertain
the whereabouts of such Participant or Beneficiary, through programs
established by the Social Security Administration or the Internal Revenue
Service. However, if such efforts should fail to locate such Participant or
Beneficiary, then the remaining amount distributable with respect to such
Participant or his Beneficiary shall be forfeited and reallocated in the same
manner as a Forfeiture. In the event a Participant or Beneficiary is located
subsequent to his benefit being reallocated, and such person claims such
reallocated benefit, such benefit shall be restored out of current year
Forfeitures (or if necessary an additional contribution by such person’s
Employer), unadjusted for gains or losses. In the event that the Plan is
terminated, the benefits maintained in an account under the Plan, on the date
of such termination, for the benefit of a Participant, Beneficiary, or
Alternate Payee who cannot be located, shall be maintained outside the Plan.
Any such benefits may be maintained by the establishment of an individual
retirement arrangement or the purchase of an annuity (as described in Sections
408(a) or (b) of the Code), or by another method which meets applicable Department
of Labor requirements. The Plan Administrator shall have the sole discretion in
determining which method or manner, or combination thereof, from among the
preceding, shall be utilized for the purpose of maintaining such benefits. The
duty of the named Fiduciaries hereunder, to maintain any such benefits under
the Plan, shall be extinguished upon the placement of such benefits outside the
Plan in the manner described in this paragraph.


 


6.12     Application for Benefits.
Notwithstanding Section 6.08, the Plan Administrator may require a Participant
or Beneficiary to complete and file with the Plan Administrator certain forms
as a condition precedent to the payment of benefits. The Plan Administrator may
rely upon all such information given to it, including the Participant’s current
mailing address. It is the responsibility of all persons interested in
distributions from the Trust Fund to keep the Plan Administrator informed of
their current mailing addresses.


 


6.13     Beneficiary.


 


(a)       Each Participant may designate
one or more Beneficiaries and successor Beneficiaries (including, without
limitation, one or more trustees) to receive any distributions provided herein
by reason of his death, or may change any such designation, upon such forms and
under such rules (as to manner of becoming effective and other matters) as the
Plan


 


34

















 


Administrator shall deem
appropriate, provided, that no natural Beneficiary so designated, not living on
the date fixed for distribution, nor any other Beneficiary not in existence on
such date, shall be entitled to receive any distributions hereunder, and
payment shall be made to the next successor designated Beneficiary, if any. To
the extent determined by the Plan Administrator, a designation of a beneficiary
made under a prior plan will continue to apply under this Plan until changed by
the Participant. In the event that a Participant has no valid Beneficiary
designation in effect at the time of his death, his entire Account balance shall
be distributed to his estate.


 


(b)       In the case of a
Participant who has been married for at least one year at the time of his
death, any designation of a Beneficiary other than the Participant’s spouse
shall not be valid without the consent thereto of the Participant’s spouse. The
spouse’s consent (i) shall be irrevocable, (ii) must be in writing, (iii) must
acknowledge both the particular designated Beneficiary (including any class of
Beneficiaries or any contingent Beneficiaries) and the effect of the
designation, and (iv) must be witnessed by a notary public or by a Plan
representative designated for such purpose by the Plan Administrator. If the
Participant establishes to the satisfaction of the Plan Administrator that such
spousal consent cannot be obtained, either because there is no spouse, the
spouse cannot be located or such other circumstances as the Secretary of the
Treasury may prescribe, then the Participant’s designation will be valid
without spousal consent. Any spousal consent given or waived under this
Subsection (c) shall be valid only with respect to the spouse who gives such
consent or cannot be located and only with respect to the specific Beneficiary
consented to. The Participant may revoke a designation made under this Section
at any time before his benefits commence without his spouse’s further consent,
but any change to a different designated Beneficiary other than his spouse will
require his spouse’s further consent in the manner provided in this Subsection,
unless the spouse has given a sufficient general consent to changes in
Beneficiaries in accordance with regulations under Section 401(a)(9) of the
Code. Designations of contingent or successor beneficiaries who become eligible
for benefits only if the spouse does not survive the Participant do not require
spousal consent under this Subsection.


 


(c)       In the event that a
Participant does not designate a Beneficiary, or if for any reason such
designation shall be legally ineffective or revoked, or if no designated
Beneficiary is living at the time any distribution is to be made, then the
distribution shall be made to the then surviving members of the following
classes of persons, with preference for classes in the order listed, in equal
shares among class members should there be more than one class member then
living:


 


(1)       spouse;


 


(2)       children (including
children by adoption);


 


(3)       parents (including adopting
parents);


 


(4)       brothers and sisters
(including brothers and sisters of the half blood and brothers and sisters by
adoption); and


 


(5)       the executor or
administrator of the Participant’s estate.


 


35

















 


(d)       The Plan, Trust and their
fiduciaries shall be fully protected in making distributions to the next
successor Beneficiary under Subsection (a), (b) or (c) if, within six (6)
months after any date fixed for distribution, they have no actual knowledge
that a predecessor Beneficiary survived, or was existing on, such date. Nothing
in this Section 6.13 shall be deemed to impair the right of any person not
described in this Section to benefits under this Plan solely in accordance with
a “qualified domestic relations order,” as provided in Section 9.03 of the
Plan.


 


6.14     Loans To Participants.


 


(a)       Loans from the Plan may
only be made to Participants who are employed by the Employer (or Participating
Employer, if applicable). Such individuals are referred to herein as “Eligible
Borrowers.” The number of loans which may be outstanding at any time shall be
one (1) unless otherwise provided in the Plan’s loan policy. A loan may not be
refinanced, unless otherwise provided in the Plan’s loan policy. Prior to
January 1, 2002, Loans shall not be made to any Owner-Employee or
Shareholder-Employee. Within each Eligible Borrower’s Account, there shall be
maintained a loan subaccount solely for the purpose of effecting loans from the
Eligible Borrower’s Account to the Eligible Borrower. The Plan’s loan policy
shall set forth all loan rules and restrictions.


 


A Participant
shall not be required to obtain the consent of his or her Spouse prior to
obtaining a loan from the Plan, unless the loan policy specifically provides
otherwise. If such consent is required, such consent shall be in writing and
shall be witnessed by a representative of the Plan or by a notary public.


 


(b)       Availability of Loans.


 


(i)        Application for a loan
shall be made to the Plan Administrator or its delegate in the form and manner
specified by the Plan Administrator. The decisions by the Plan Administrator or
its delegate on loan applications shall be made on a reasonably equivalent,
uniform and non-discriminatory basis. Loans shall only be repaid by payroll
deduction, unless otherwise provided in the loan policy. The Plan Administrator
or its delegate may change the terms of any outstanding loan to the extent
required by applicable law to reflect economic and other differences affecting
the individuals’ ability to repay any loan.


 


(ii)       Notwithstanding anything
herein to the contrary, no loan shall be made to an Eligible Borrower during a period
in which the Plan Administrator is making a determination of whether a domestic
relations order affecting the Eligible Borrower’s Account is a qualified
domestic relations order, as defined in Section 414(p) of the Code. Further, if
the Plan Administrator is in receipt of a qualified domestic relations order
with respect to any Eligible Borrower’s Account, it may prohibit such Eligible
Borrower from obtaining a loan until the rights of the alternate payee entitled
to benefits under such order are satisfied.


 


36

















 


(c)       A Plan loan shall be
derived from and the amount available for a loan shall be based on, the
Eligible Borrower’s vested interest in his Accounts, based on the most recent
valuation available to the Plan Administrator on the date the loan is approved.
The minimum loan available is $1,000. The maximum loan available is the lesser
of (i) 50% of the Eligible Borrower’s vested interest in his or her Account; or
(ii) $50,000, reduced by the highest outstanding balance of any Plan loan to
such Eligible Borrower during the twelve-month period ending on the day before
the loan is made.


 


(d)       Terms of Loan.


 


(i)        A loan shall be secured by
a lien on the Eligible Borrower’s interest in the Plan, to the maximum extent
permitted by the relevant provisions of the Code, the Act, and any regulations
or other guidance issued thereunder.


 


(ii)       The interest rate on a loan
shall be a reasonable rate of interest as defined by the Plan Administrator or
an authorized representative of the Plan Administrator.


 


(iii)      The principal amount and
interest on a loan shall be repaid no less frequently than quarterly by level
payroll deductions (or payment by other than payroll deduction, if permitted in
the loan policy) during each payroll period in which the loan is outstanding;
provided, however, that an Eligible Borrower may prepay the full amount due
under the loan at any time without penalty. No partial prepayments shall be
permitted. The Eligible Borrower may elect a repayment term of 1, 2, 3, 4 or 5
years from the date of a payroll period within one month of the date of the
distribution of the loan from the Plan. A longer period may be permitted under
the loan policy for purchase of the Participant’s principal residence. Notwithstanding
the foregoing, a loan may provide that no payments shall be made for up to six
(6) months during a period in which an Eligible Borrower is on an Authorized
Absence without pay.


 


(iv)      Each loan shall be evidenced
by a promissory note, evidencing the Eligible Borrower’s obligation to repay
the borrowed amount to the Plan, in such form and with such provisions
consistent with this Section 6.14 as are acceptable to the Plan Administrator
or its delegate. All promissory notes shall be deposited with the Trustee or an
authorized representative of the Trustee.


 


(v)       Under the terms of the loan
agreement, the Plan Administrator or a representative of the Plan Administrator
may determine a loan to be in default, and may take such actions upon default
in accordance with Section 6.14(f).


 


(vi)      If an Eligible Borrower is
transferred from employment with an Employer to employment with an Affiliate,
within thirty (30) days of Termination of Employment, he or she shall not be
treated as having a severance from


 


37

















 


Service or a separation
from employment and the Plan Administrator or its delegate shall make
arrangements for the loan to continue to be repaid in accordance with the loan
agreement. For this purpose, the Plan Administrator may authorize the transfer
of the loan to a qualified plan maintained by such Affiliate. In the absence of
such arrangements, the loan shall be deemed to be in default upon such Eligible
Borrower’s transfer. The Plan Administrator may also authorize the transfer of
a loan to another qualified plan of the Employer.


 


(e)       Distribution and Repayment
of Loan.


 


(i)        The loan proceeds shall be
transferred to the Eligible Borrower’s loan subaccount by the Trustee and shall
be derived from the Eligible Borrower’s interest in the Investment Funds on a pro rata basis. The loan proceeds shall be
distributed from the loan subaccount to the Eligible Borrower on the same day
as they are received by the loan subaccount.


 


(ii)       Repayments of Plan loans
shall be made to the Eligible Borrower’s loan subaccount. Such repayments shall
be immediately transferred from the loan subaccount, credited to the Eligible
Borrower’s Account and invested in the Investment Funds in the same proportions
as his or her current contributions are invested, as soon as administratively
practicable after they are received by the loan subaccount.


 


(f)        Events of Default and
Action Upon Default.


 


(i)        If an Eligible Borrower
does not repay the principal and accrued interest with respect to a Plan loan
at the times required by the terms of the loan, the loan shall be in default
and the unpaid balance of the loan, together with interest thereon, shall
become immediately due and payable. Such default shall constitute a deemed
distribution of the unpaid loan amount (including any interest thereon).
Further, upon an Eligible Borrower’s severance from Service or separation from
employment, such loan shall be deemed to be in default and the unpaid balance
of the loan, together with interest thereon shall become due and payable within
a reasonable period after such event. If, before a loan is repaid in full, a
distribution is required to be made from the Plan to an alternate payee under a
qualified domestic relations order (as defined in Section 414(p) of the Code)
and the amount of such distribution exceeds the value of the Eligible Borrower’s
Account less the amount of such outstanding loan, plus accrued interest, if
any, the unpaid balance thereon shall become immediately due and payable. The
Trustee shall satisfy the indebtedness to the Plan before making any payments
to the Eligible Borrower, a Beneficiary or any alternate payee. In addition to
the foregoing, the loan agreement may include such other events of default as
the Plan Administrator shall determine are necessary or desirable to safeguard
the assets of the Plan in


 


38

















 


order to secure and
preserve the assets of the Trust and prevent the loss of principal and
interest.


 


(ii)       Upon the default of any
Eligible Borrower, the Plan Administrator, or its designate in its sole
discretion, may direct the Trustee to take such action as the Plan
Administrator or its designate may reasonably determine to be necessary in
order to preclude the loss of principal and interest, including:


 


(1)       demanding immediate
repayment of the outstanding amount on the loan (including principal and
accrued interest); or,


 


(2)       if the loan is not repaid
within 90 days of the request for repayment, causing a foreclosure of the loan
to occur by distributing the promissory note to the Eligible Borrower or
otherwise reducing the Eligible Borrower’s Account by the value of the loan.
For these purposes, such loan shall be deemed to have a fair market value equal
to its face value (including accrued but unpaid interest) reduced by any
payments made thereon by the Eligible Borrower. In the event of any default,
the Eligible Borrower’s prior request for a loan shall be treated as the
Eligible Borrower’s consent to an immediate distribution of the promissory note
representing a distribution of the unpaid balance of any such loan. The loan
agreement shall include such provisions as are necessary to reflect such
consent. In all events, however, no foreclosure on the Participant’s loan shall
be made until the earliest time a distribution may occur without violating any
provisions of Sections 401(a) or (k) of the Code and the regulations issued
thereunder.


 


(g)       The loan policy shall set
forth the specific provisions for Participant Loans, and is herein incorporated
as part of the Plan by reference. The loan policy shall include (i) the
identity of the person or position authorized to administer the Participant
Loan program; (ii) a procedure for applying for Loans; (iii) the basis on which
Loans shall be approved or denied; (iv) limitations (if any) on the types and
amounts of Loans offered; (v) the procedure under the program for determining a
reasonable rate of interest; (vi) the types of collateral which may secure a
Participant Loan; (vii) the events constituting default and the steps that
shall be taken to preserve Plan assets in the event of such default; and (viii)
any other terms and conditions applicable to loans as determined by the Plan
Administrator. Loans shall be available to Plan Participants on a
nondiscriminatory basis without regard to any individual’s race, color,
religion, sex, age or national origin. The Plan Administrator shall have the
authority to amend the loan policy at any time, including amendments that alter
any of the foregoing provisions of this Section 6.14, subject to the
requirements of Section 72(p) of the Code and Section 408(b)(1) of the Employee
Retirement Income Security Act of 1974.


 


(h)       The originals of all
promissory notes and other forms requested by the Trustee in respect of any
Loan shall be retained by the Trustee (or an authorized representative of the


 


39

















 


Trustee), or the Plan
Administrator (or an authorized representative of the Plan Administrator) as long
as the Loan is outstanding.


 


6.15     Qualified Domestic Relations
Orders.


 


(a)       All rights and benefits,
including elections, provided to a Participant in this Plan shall be subject to
the rights afforded to any alternate payee under a Qualified Domestic Relations
Order. The Plan Administrator is authorized to and shall establish written
procedures to effectuate the requirements for administering Qualified Domestic
Relations Orders.


 


(b)       No withdrawal may be made
under this Plan by a Participant during the period in which the Plan
Administrator is making a determination of whether a domestic relations order
affecting the Participant’s Account is a Qualified Domestic Relations Order.
Further, if the Plan Administrator is aware that a Qualified Domestic Relations
Order is being sought with respect to a Participant’s benefit, the Plan
Administrator may restrict the Participant’s ability to obtain any withdrawal
otherwise available under the Plan until the Plan Administrator has determined
that such withdrawal would not be inconsistent with any such order or that no
such order shall be submitted. If the Plan Administrator is in receipt of a
Qualified Domestic Relations Order with respect to any Participant’s benefit,
it may prohibit that Participant from obtaining a withdrawal until the
alternate payee’s rights under such order are satisfied.


 


(c)       No distribution may be made
to a Participant during the period in which the Plan Administrator is making a
determination of whether a domestic relations order affecting the Participant’s
benefit is a Qualified Domestic Relations Order. Further, if the Plan
Administrator is aware that a Qualified Domestic Relations Order affecting a
Participant’s benefit is being sought, it may prohibit such Participant from
commencing to receive a distribution until the Plan Administrator has
determined that such distribution would not be inconsistent with any such order
or that no such order shall be submitted. If the Plan Administrator is in
receipt of a Qualified Domestic Relations Order with respect to any Participant’s
benefit, it may prohibit such Participant from receiving a distribution until
the alternate payee’s rights under such order are satisfied.


 


(d)       If the Plan Administrator
is in receipt of a Domestic Relations Order, or the Plan Administrator is
otherwise aware that a Qualified Domestic Relations Order affecting a
Participant’s Account is being sought, the Plan Administrator may take such
actions as necessary (including, without limitation, restricting the
Participant’s ability to withdraw, borrow, or direct the investment of funds in
his or her Account) in order to administer the Plan consistently with the terms
of any such Qualified Domestic Relations Order.


 


(e)       Notwithstanding any other
provision of the Plan, in the event that a Qualified Domestic Relations Order
is received by the Plan Administrator, benefits shall be payable in accordance
with such order and with Section 414(p) of the Code and Section 206(d) of the
Act. Payments may be made prior to the Participant’s “earliest retirement age”
(as defined in Section 414(p) of the Code and Section 206(d) of the Act), and
are not subject to any other distribution or withdrawal restrictions provided
in this Plan. The amount payable to the Participant and to any other person other
than the alternate payee named in the order shall be adjusted accordingly.


 


40

















 


Pursuant to
Section 1.411(a)-11(c)(6) of the Income Tax Regulations, distributions to an
alternate payee under the Plan shall not require the consent of the alternate
payee, except as shall be provided for in the Qualified Domestic Relations
Order applicable to such alternate payee. Any amounts held for the benefit of
an alternate payee under the Plan shall be immediately distributable, without
the consent of the alternate payee, after the Plan Administrator has determined
that an order is a Qualified Domestic Relations Order, pursuant to the Plan’s
written administrative procedures for administering Qualified Domestic Relations
Orders.


 


(f)        In the absence of a
Beneficiary designation in the Qualified Domestic Relations Order, the
alternate payee shall be treated as a single Participant under the Plan and the
alternate payee’s interest shall pass to his or her estate or other individuals,
in accordance with the terms of the Plan.


 


(g)       If this Plan is a
Participant-Directed Plan as provided under Article V, the alternate payee
shall be entitled to direct the investment of his or her own separate interest,
unless the Qualified Domestic Relations Order provides otherwise. Tax basis in
Nondeductible Employee Contributions shall be allocated on a pro rata basis, based on the ratio of the
alternate payee’s benefit to the Participant’s total benefit (including the
portion of his or her benefit assigned to the alternate payee). Alternate
payees shall not be entitled to borrow money under the Plan’s loan provisions.


 


6.16     Special Distribution Rules.


 


(a)       The provisions of this
Section 6.16 shall apply for purposes of determining required minimum
distributions for calendar years beginning with the 2003 calendar year. The
requirements of this Section will take precedence over any inconsistent
provisions of the Plan. All distributions required under this Article will be
determined and made in accordance with the Treasury Regulations under Code
Section 401(a)(9).


 


(b)      Time and Manner of
Distribution.


 


(i)        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.


 


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


 


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


 


41

















 


(2)       If the Participant’s
surviving spouse is not the Participant’s sole Designated Beneficiary, distribution
to a Designated Beneficiary who is not the surviving spouse will be made by no
later than December 31 of the calendar year containing the fifth anniversary of
the Participant’s death.


 


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


 


(4)       If the Participant’s
surviving spouse is the Participant’s sole Designated Beneficiary and the
surviving spouse dies after the Participant but before distributions to the
surviving spouse begin, this Section 6.16(b)(ii), other than Section
6.16(b)(ii)(1), will apply as if the surviving spouse were the Participant.


 


For purposes of this
Section 6.16(b)(ii) and Section 6.16(d), unless Section 6.16(b)(ii)(4) applies,
distributions are considered to begin on the Participant’s Required Beginning
Date. If Section 6.16(b)(ii)(4) applies, distributions are considered to begin
on the date distributions are required to begin to the surviving spouse under
Section 6.16(b)(ii)(1).


 


(iii)      Forms of Distribution.
Unless the Participant’s interest is distributed in a single sum on or before
the Required Beginning Date, as of the first Distribution Calendar Year
distributions will be made in accordance with Sections 6.16(c) and 6.16(d).


 


(c)       Required Minimum
Distributions During Participant’s Lifetime.


 


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


 


(1)       the quotient obtained by
dividing the Participant’s Account Balance by the distribution period in the
Uniform Lifetime Table set forth in Section 1.401(a)(9)-9 of the Treasury
regulations, using the Participant’s age as of the Participant’s birthday in
the Distribution Calendar Year; or


 


(2)       if the Participant’s sole
Designated Beneficiary for the Distribution Calendar Year is the Participant’s
spouse, the quotient obtained by dividing the Participant’s Account Balance by
the number in the Joint and Last Survivor Table set forth in Section
1.401(a)(9)-9 of the Treasury regulations, using the Participant’s and spouse’s
attained ages as of the Participant’s and spouse’s birthdays in the
Distribution Calendar Year.


 


42

















 


(ii)       Lifetime Required
Minimum Distributions Continue Through Year of Participant’s Death.
Required minimum distributions will be determined under this Section 6.16(c)
beginning with the first Distribution Calendar Year and up to and including the
Distribution Calendar Year that includes the Participant’s date of death.


 


(d)       Required Minimum
Distributions After Participant’s Death.


 


(i)        Death On or After Date
Distributions Begin.


 


(1)       Participant Survived by
Designated Beneficiary. If the Participant dies on or after the date
distributions begin and there is a Designated Beneficiary, the minimum amount that
will be distributed for each Distribution Calendar Year after the year of the
Participant’s death is the quotient obtained by dividing the Participant’s
Account Balance by the longer of the remaining Life Expectancy of the
Participant or the remaining Life Expectancy of the Participant’s Designated
Beneficiary, determined as follows:


 


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


 


(B)      If the Participant’s
surviving spouse is the Participant’s sole Designated Beneficiary, the
remaining Life Expectancy of the surviving spouse is calculated for each
Distribution Calendar Year after the year of the Participant’s death using the
surviving spouse’s age as of the spouse’s birthday in that year. For
Distribution Calendar Years after the year of the surviving spouse’s death, the
remaining Life Expectancy of the surviving spouse is calculated using the age
of the surviving spouse as of the spouse’s birthday in the calendar year of the
spouse’s death, reduced by one for each subsequent calendar year.


 


(C)      If the Participant’s
surviving spouse is not the Participant’s sole Designated Beneficiary, the
Designated Beneficiary’s remaining Life Expectancy is calculated using the age
of the beneficiary in the year of the Participant’s death, reduced by one for
each subsequent year.


 


(2)       No Designated
Beneficiary. If the Participant dies on or after the date distributions
begin and there is no Designated Beneficiary as of September 30 of the year
after the year of the Participant’s death, the minimum amount that will be
distributed for each Distribution Calendar Year after the year of the
Participant’s death is the quotient obtained by dividing the Participant’s Account
Balance by


 


43

















 


the Participant’s
remaining Life Expectancy calculated using the age of the Participant in the
year of death, reduced by one for each subsequent year.


 


(ii)       Death Before Date
Distributions Begin.


 


(1)       Participant Survived by
Designated Beneficiary. If the Participant dies before the date
distributions begin and there is a Designated Beneficiary, the minimum amount
that will be distributed for each Distribution Calendar Year after the year of
the Participant’s death is the quotient obtained by dividing the Participant’s
Account Balance by the remaining Life Expectancy of the Participant’s
Designated Beneficiary, determined as provided in Section 6.16(d)(i).


 


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


 


(3)       Death of Surviving
Spouse Before Distributions to Surviving Spouse Are Required to Begin. If
the Participant dies before the date distributions begin, the Participant’s
surviving spouse is the Participant’s sole Designated Beneficiary, and the
surviving spouse dies before distributions are required to begin to the
surviving spouse under Section 6.16(b)(ii)(1), this Section 6.16(d)(ii) will
apply as if the surviving spouse were the Participant.


 


(e)       Definitions. The following
definitions shall apply for purposes of this Section 6.16:


 


(i)        ‘Designated Beneficiary’
means the individual who is designated as the beneficiary under Section 6.13
and is the designated beneficiary under Section 401(a)(9) of the Internal
Revenue Code and Section 1.401(a)(9)-1, Q&A-4, of the Treasury regulations.


 


(ii)       ‘Distribution Calendar Year’
means a calendar year for which a minimum distribution is required. For
distributions beginning before the Participant’s death, the first Distribution
Calendar Year is the calendar year immediately preceding the calendar year
which contains the Participant’s Required Beginning Date. For distributions
beginning after the Participant’s death, the first Distribution Calendar Year
is the calendar year in which distributions are required to begin under Section
6.16(b)(ii). The required minimum distribution for the Participant’s first
Distribution Calendar Year will be made on or before the Participant’s Required


 


44

















 


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.


 


(iii)      ‘Life Expectancy’ means life
expectancy as computed by use of the Single Life Table in Section 1.401(a)(9)-9
of the Treasury regulations.


 


(iv)     ‘Participant’s Account
Balance’ means the account balance as of the last valuation date in the
calendar year immediately preceding the Distribution Calendar Year (valuation
calendar year) increased by the amount of any contributions made and allocated
or forfeitures allocated to the account balance as of dates in the valuation
calendar year after the valuation date and decreased by distributions made in
the valuation calendar year after the valuation date. The account balance for
the valuation calendar year includes any amounts rolled over or transferred to
the plan either in the valuation calendar year or in the Distribution Calendar
Year if distributed or transferred in the valuation calendar year.


 


(v)      ‘Required Beginning Date’
means the date specified in Section 6.07(h) of the Plan.


 


Article
7


 


ADMINISTRATION
OF THE PLAN


 


7.01     Named Fiduciaries. The
following parties are named as Fiduciaries of the Plan and shall have the
authority to control and manage the operation and administration of the Plan:


 


(i)        The Company;


 


(ii)       The Trustee;


 


(iii)      The Plan Administrator.


 


The Fiduciaries
named above shall have only the powers and duties expressly allocated to them
in the Plan and in the Trust Agreement and shall have no other powers and
duties in respect of the Plan; provided, however, that if a power or
responsibility is not expressly allocated to a specific named fiduciary, the
power or responsibility shall be that of the Company. No Fiduciary shall have
any liability for, or responsibility to inquire into, the acts and omissions of
any other Fiduciary in the exercise of powers or the discharge of
responsibilities assigned to such other Fiduciary under this Plan or the Trust
Agreement.


 


7.02     Company. The Company:


 


(i)        shall be the Plan
Administrator, or shall appoint the Plan Administrator as provided in Section
7.03(a);


 


45

















 


(ii)       shall cause Employers to
make contributions to the Plan, as required in the Plan;


 


(iii)      shall appoint and remove the
individuals, banks, or other entities who serve as Trustee, and the members of
the Committee, as provided herein; and


 


(iv)      may amend any or all of the
provisions of the Plan and to terminate the Plan, in whole or in part, pursuant
to the procedures provided hereunder.


 


7.03     Trustee. The Trustee
shall exercise all of the powers and duties assigned to the Trustee as set
forth in the Trust Agreement. The Trustee shall have no other responsibilities
with respect to the Plan.


 


7.04     Plan Administrator.


 


(a)       The Plan Administrator
shall be the Company, or such person (including any entity or committee) as the
Company may designate as Plan Administrator by action of its Board of Trustees.
The authority of the Company shall be exercised by the Committee, or by
officers, employees and agents of the Company, as set forth in this Section
7.04; provided, however, that the fact that the Company has delegated a portion
of its authority as Plan Administrator to another person shall not cause such
person to become the Plan Administrator unless such person is specifically so
designated and acknowledges such designation in writing.


 


(b)       The Company may appoint a
Committee to act as its agent in the administration of the Plan in accordance
with the provisions of this Section 7.04. The Committee shall consist of a
number of members determined by the Company, who shall be appointed by and
serve at the pleasure of the Company. Any Participant, officer, or director of
the Employer shall be eligible to be appointed a member of the Committee and
all members shall serve as such without compensation. Upon termination of his
employment with the Employer, or upon ceasing to be an officer or director, if
not an Employee, he shall cease to be a member of the Committee. The Company
shall have the right to remove any member of the Committee at any time. A
member may resign at any time by written notice to the Committee. If a vacancy
in the Committee should occur, a successor shall be appointed by the Company.


 


(c)       The Company may appoint a
Chairman and a Secretary from among the members of the Committee. All
resolutions, determinations and other actions shall be by a majority vote of
all members of the Committee. Any individual member of the Committee shall have
the authority to take any action on behalf of the Committee which such member
determines in good faith to be ministerial in nature, or which is necessary or
appropriate to carry out determinations of the Committee, or to protect the
Plan and the Fund in a situation in which it is not practical to convene a
meeting of the Committee. The Committee may appoint such agents, who need not
be members of the Committee, as it deems necessary for the effective
performance of its duties, and may delegate to such agents such powers and
duties, whether ministerial or discretionary, as the Committee deems expedient
or appropriate. The compensation of such agents shall be fixed by the
Committee; provided, however, that in no event shall compensation be paid if
such payment


 


46

















 


violates the provisions
of Section 406 of the Act and is not exempted from such prohibitions by Section
408 of the Act.


 


(d)       The Plan Administrator
shall be the “plan administrator” and the “administrator” as defined in Code
Section 414(g) and Section 3(16)(A) of the Act, shall have complete control of
the administration of the Plan, with all powers necessary to enable it to
properly carry out the provisions of the Plan and not inconsistent with any of
the provisions hereof, whether or not such powers and duties are specifically
set forth herein. In furtherance thereof, the Committee shall have the
discretionary authority to determine all questions arising in administration of
the Plan and to determine all facts pertinent thereto, including without
limitation the power to determine the rights or eligibility of Employees,
Participants, and their Beneficiaries, and the amount and form of their
respective interests; and the decision thereon of the Committee shall be final
and conclusive and binding upon all persons to the extent permitted by law. Not
in limitation but in amplification of the foregoing, the Committee shall have
the following specific powers and responsibilities:


 


(i)        To adopt such rules,
procedures and regulations as in its opinion may be necessary for the proper
and efficient administration of the Plan, which may alter any provision of the
Plan that is ministerial or administrative in nature (including the time or
method for performing any act) without the need for a formal amendment;


 


(ii)       to keep records of all acts
and determinations of the Committee, and to keep all such records, books of
accounts, data and other documents as may be necessary for the proper
administration of the Plan;


 


(iii)      to prepare and distribute to
all Plan Participants and Beneficiaries information concerning the Plan and
their rights under the Plan, including, but not limited to, all information
which is required to be distributed by the Act, the regulations thereunder, or
by any other applicable law;


 


(iv)      to file with the Secretary
of Labor such reports and additional documents as may be required by the Act
and regulations issued thereunder, including, but not limited to, a plan
description, annual reports, terminal reports and supplementary reports;


 


(v)       to file with the Secretary
of the Treasury and the Pension Benefit Guaranty Corporation all reports and
information required to be filed by the Internal Revenue Code, the Act and
regulations issued under each;


 


(vi)      to exercise any authority of
a “plan administrator” or an “administrator” as defined in Code Section 414(g)
and Section 3(16)(A) of the Act; and


 


(vii)     to do all things necessary to
operate and administer the Plan in accordance with its provisions and in
compliance with applicable provisions of federal law.


 


47

















 


(e)       To enable the Committee to
perform its functions, the Company shall supply, or cause to be supplied, full
and timely information of all matters relating to the compensation and length
of service of all Participants, their retirement, death or other cause of
termination of employment, and such other pertinent facts as the Committee may
require. The Committee shall advise the Trustee of such facts and issue to the
Trustee such instructions as may be required by the Trustee in the
administration of the Plan. The Committee and the Company shall be entitled to
rely upon all certificates and reports made by a Certified Public Accountant
selected or approved by the Company. The Committee, the Company and its
officers and the Trustee, shall be fully protected in respect of any action
suffered by them in good faith in reliance upon the advice or opinion of any
accountant or attorney, and all action so taken or suffered shall be conclusive
upon each of them and upon all other persons interested in the Plan.


 


(f)        The Company, by action of
its Board of Trustees, Chief Executive Officer, or any person to whom the Board
of Trustees or Chief Executive Officer has delegated such authority, may
designate any person or committee other than the Committee to exercise any of
its authority as plan administrator. If at any time a Committee has not been
appointed, or for any reason is not functioning, under this Section 7.04, and
no other officer has been specifically designated, the authority of the Company
as plan administrator shall be exercised by the Company’s senior officer
responsible for human resources, or persons acting under such officer’s
authority and supervision. In such event, all references in this Plan or the
Trust to the “Committee” shall be deemed to refer instead to the person or body
so authorized to exercise the Company’s authority as plan administrator. Even
if the Committee is functioning, such officer, or persons acting under his
authority and supervision, may also exercise any authority of the Plan
Administrator that is necessary or convenient for the routine administration
and maintenance of the Plan or the protection of Plan assets, and any such
exercise of authority by a person acting within the scope of his normal duties
shall be presumed authorized, subject to the review of his supervisors and the
Committee.


 


7.05     Standard of Fiduciary Duty.
Any Fiduciary, or any person designated by a Fiduciary to carry out fiduciary
responsibilities with respect to the Plan, shall discharge his duties solely in
the interests of the Participants and Beneficiaries for the exclusive purpose
of providing them with benefits and defraying the reasonable expenses of
administering the Plan. Any Fiduciary shall discharge his duties 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 matter would use
in the conduct of an enterprise of a like character and with like aims. Any
Fiduciary shall discharge his duties in accordance with the documents and
instruments governing the Plan insofar as such documents and instruments are
consistent with the provisions of the Act. Notwithstanding any other provisions
of the Plan, no Fiduciary shall be authorized to engage in any transaction
which is prohibited by Section 406 of the Act, or Section 4975 of the Code, in
the performance of its duties hereunder.


 


7.06     Claims Procedure. Any
Participant, Former Participant, Beneficiary or authorized representative of
any such person (hereinafter referred to as “Claimant”), may file a claim for
benefits under the Plan by submitting to the Committee a written statement
describing the nature of the claim and requesting a determination of its
validity under the terms of the Plan. Within 90 days after the date such claim
is received by the Committee, it shall issue a ruling with respect to the
claim. Such 90 day period may be extended by up to an additional 90 days if
notice of the


 


48
















 


extension is given to the
Claimant by the end of the first 90 day period. If the claim is wholly or
partially denied, written notice shall be furnished to the Claimant, which
notice shall set forth in a manner calculated to be understood by the Claimant:


 


(i)                        the
specific reason or reasons for denial;


 


(ii)                     specific
reference to pertinent Plan provisions on which the denial is based;


 


(iii)                  A description of
any additional material or information necessary for the Claimant to perfect
the claim and an explanation of why such material or information is necessary;


 


(iv)                 an explanation of
the claims review procedures and the time limits applicable to such procedures;
and


 


(v)                    for claims
filed on or after January 1, 2002, an explanation of the Claimant’s right to
bring an action under Section 502(a) of the Act following an adverse
determination on review.


 


For any claim that
involves a determination of Permanent Disability, the Committee shall issue a
ruling with respect to the claim within 45 days after the date such claim is
received by the Committee. This period may be extended for up to 30 days if
notice of the extension is given to the Claimant by the end of the first 45 day
period. If, prior to the end of the first 30 day extension period, the Plan
Administrator determines that, due to matters beyond the control of the Plan, a
decision cannot be rendered within that extension period, the period for making
the determination may be extended for up to an additional 30 days, provided
that the Plan Administrator notifies the claimant, prior to the expiration of
the first 30 day extension period, of the circumstances requiring the extension
and the date as of which the plan expects to render a decision. In the case of
any extension under this paragraph, the notice of extension shall specifically
explain the standards on which entitlement to a benefit is based, the
unresolved issues that prevent a decision on the claim, and the additional
information needed to resolve those issues, and the Claimant shall be afforded at
least 45 days within which to provide the specified information.


 


Any Claimant whose
claim for benefits has been denied, may appeal such denial by resubmitting to
the Committee, within 60 days of the date the Claimant receives notice of such
denial, a written statement requesting a further review of the decision. Such
statement shall set forth the reasons supporting the claim, the reasons such
claim should not have been denied, and any other issues or comments which the
Claimant deems appropriate with respect to the claim.


 


If the Claimant
shall request in writing, the Committee shall make available for examination of
the Claimant free of charge, reasonable access to and copies of the Plan
documents and any other evidence which was considered by the Committee and
pertinent to his claim or, effective for claims filed on or after January 1,
2002, any documents, records or other information that is relevant to his
claim.


 


49

















 


Within 60 days
after the request for further review is received, the Committee shall review
its determination of benefits and the reasons therefor and notify the Claimant
in writing of its final decision. Such 60 day period may be extended by up to
an additional 60 days if the Committee determines that such extension is
necessary and notice of the extension is given to the Claimant by the end of
the first 60 day period Such written notice shall include specific reasons for
the decision, written in a manner calculated to be understood by the Claimant,
with specific references to the pertinent Plan provisions on which the decision
is based.


 


Article 8


 


AMENDMENT AND TERMINATION


 


8.01     Right to Amend. The Company intends
for the Plan to be permanent so long as the Company exists; however, it reserves
the right to modify, alter, or amend this Plan from time to time, to any extent
that it may deem advisable, including, but not limited to any amendment deemed
necessary to insure the continued qualification of the Plan under Section
401(a) of the Code or to insure compliance with the Act; provided, however,
that the Employer shall not have the authority to amend the Plan in any manner
which will:


 


(i)                        Permit any
part of the Fund (other than such part as is used to pay taxes and
administrative expenses) to be used for or diverted to purposes other than for
the exclusive benefit of the Participants or their Beneficiaries;


 


(ii)                     Cause or
permit any portion of the assets of the Fund to revert to or become the
property of the Employer, other than as already provided under the Plan;


 


Amendments to the
Plan shall be adopted by the Board of Trustees of the Company or any person to
whom the Board may delegate the authority to amend; provided that the Chief
Executive Officer of the Company or the senior officer of the Company
responsible for human resources matters may approve any amendment to the Plan
that he reasonably determines to be administrative, ministerial or technical in
nature, necessary or appropriate to implement a resolution adopted by the Board
of Trustees, or necessary to preserve the tax qualified status of the Plan or
comply with any applicable law.


 


8.02     Termination and Discontinuance of
Contributions.


 


(a)       The Company shall have the right at any
time to terminate this Plan or to discontinue permanently its contributions
hereunder (hereinafter referred to as a “Plan Termination”). Plan Termination
shall be effective as of the date stated in a resolution of the Company (or its
designated agent) to that effect.


 


(b)       Subject to the provisions of Subsection
(c) below, the Plan will terminate as to an individual Employer on the first to
occur of the following:


 


(i)                        The date
it is terminated by that Employer if thirty days’ advance written notice of the
termination is given to the Committee, the Trustees and the other Employers.


 


50

















 


(ii)                     The date it
is terminated with respect to that Employer by the Company, if thirty days’
advance written notice of the termination is given to that Employer, the
Committee, the Trustees and the other Employers.


 


(iii)                  The date that
Employer is judicially declared bankrupt or insolvent.


 


(iv)                 The date that
Employer completely discontinues its contributions under the Plan.


 


(v)                    The
dissolution, liquidation, merger, consolidation or reorganization of that
Employer, or the sale by that Employer of all or substantially all of its
assets.


 


(c)       The provisions of Subsection (b) above
shall be subject to the following:


 


(i)                        If an
Employer is dissolved, liquidated, merged, consolidated or reorganized, or if
an Employer sells all or substantially all of its assets, arrangements may be
made with the consent of the Company whereby the Plan will be continued by any
successor to that Employer or any purchaser of all or substantially all of that
Employer’s assets, in which event the successor or purchaser will be
substituted for that Employer under the Plan and the Plan shall continue in
effect without a termination thereof as to that Employer.


 


(ii)                     If any
Employer is dissolved, liquidated, merged or in any way reorganized into, or is
consolidated with, any other Employer, the Plan as applied to the former
Employer will automatically continue in effect without a termination thereof.


 


(iii)                  If any of the
events described in Subsection (b) should occur but some or all of the
Participants employed by the Employer are transferred to employment with one or
more other Employers coincident with or immediately following the occurrence of
such event, the Plan as applied to those Participants will automatically
continue in effect without a termination thereof.


 


(d)       If the Plan as applied to all Employers,
or as applied to any individual Employer, is terminated or partially terminated
for any reason, or contributions to the Plan are discontinued, the date of such
termination or partial termination or complete discontinuance of contributions
shall be a Valuation Date and all adjustments required under the Plan as of a
Valuation Date which is the last day of the Plan Year then shall be made. The
Accounts of Participants with respect to whom there has been a termination of
the Plan or a partial termination of the Plan shall become nonforfeitable as of
that date.


 


(e)       The termination or discontinuance
pursuant to this Section shall not terminate the Trust or operate to accelerate
any payments or distributions hereunder, and the Trustee shall continue to
administer the Trust in accordance with its terms and the provisions hereof.
Notwithstanding the foregoing, on and after the date of termination of the Plan
or permanent


 


51

















 


discontinuance of
contributions, as aforesaid, the Committee, in its discretion, may, subject to
Section 401(k)(10) of the Code, provide for distributions of the amounts in the
Accounts of any Participant at the end of any Plan Year before the occurrence
of any of the events described in Article 6 which trigger distribution rights.
At such time as settlement has been completed with respect to all persons
entitled to any portion of the Trust Fund, the Trust shall terminate and the
Trustee shall be discharged.


 


Article 9


 


MISCELLANEOUS


 


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


 


9.02     Action by Employer. Any action by an
Employer under this Plan shall be by resolution of the Employer, by its board
of directors or trustees, if applicable, or by any person or persons duly
authorized to take such action.


 


9.03     Spendthrift Clause. Except as
otherwise provided by law, none of the benefits, payments, proceeds or
distributions under this Plan shall be subject to the claim of any creditor of
any Participant or Beneficiary, or to any legal process by any creditor of such
Participant or Beneficiary, and none of them shall have any right to alienate,
commute, anticipate or assign any of the benefits, payments, proceeds or
distributions under this Plan, except to the extent expressly provided herein
to the contrary.


 


This Section shall
not apply to any benefit payable under the Plan to a Participant to the extent
such benefit is payable, in whole or in part, to any person other than a
Participant or Beneficiary pursuant to a “qualified domestic relations order”
(as defined in Section 414(p) of the Code). The Committee shall adopt rules for
determining whether a court order is a “qualified domestic relations order” and
for administering benefits and Plan assets pending such determinations and
pursuant to “qualified domestic relations orders.” Amounts may be distributed
pursuant to a qualified domestic relations order notwithstanding the fact that
the Participant has not incurred a Termination of Employment or attained the
age of 55.


 


9.04     Discrimination. The Company, the
Committee, the Trustee and all other persons involved in the administration and
operation of the Plan shall administer and operate the Plan and Trust in a
uniform and consistent manner with respect to all Participants similarly
situated and shall not permit discrimination in favor of officers,
stockholders, or highly paid Employees.


 


9.05     Release. Any payment to a
Participant or Beneficiary, or to their legal representatives, in accordance
with the provisions of this Plan, shall to the extent thereof be in full
satisfaction of all claims hereunder against the Trustee, Committee and any
Employer, any of whom may require such Participant, Beneficiary, or legal
representative, as a condition precedent to such payment, to execute a receipt
and release therefor in such form as shall be determined by the Trustee, the
Committee or the Employer, as the case may be.


 


52

















 


9.06     Compliance with Applicable Laws. The
Committee shall interpret and administer the Plan in such manner that the Plan
and Trust shall remain in compliance with the Code, the Act and all other
applicable laws, regulations, and rulings.


 


9.07     Agent for Service of Process. The
agent for service of process of this Plan shall be the person listed from time
to time in the current records of the Secretary of State of Illinois as the
agent for the service of process for The Equity Residential Properties Trust.


 


9.08     Merger.


 


(a)       In the event of any merger or
consolidation of the Plan with any other qualified plan, or the transfer of
assets or liabilities between the Plan and any other qualified plan, each
affected participant must receive (assuming that the recipient plan would
terminate) the benefit immediately after the merger, consolidation, or transfer
that is equal to or greater than the benefit such participant would have been
entitled to receive immediately before the merger, consolidation, or transfer
(assuming that the plan in which the participant had been participating had
then terminated).


 


(b)       No cutback in accrued benefit rights that
would violate Section 411(d)(6) of the Code shall be permitted in connection
with any merger, consolidation or transfer under this Section 9.08 and any
accrued benefit rights set forth in any other plan and not specifically set
forth in this Plan shall be deemed incorporated into this Plan, solely to the
extent necessary to satisfy the condition of this sentence.


 


9.09     Governing Law. The Plan shall be
governed by the laws of the State of Illinois to the extent that such laws are
not preempted by Federal law.


 


9.10     Absence of Guarantee. Neither the
Fiduciaries nor the Employers in any way guarantee the Trust Fund from loss or
depreciation. While it is the intention of the Employers that the Plan be
permanent, the Employers do not guarantee the continuation thereof or
contributions thereto for any Plan Year. All payments to be made under the Plan
shall be made solely out of the Trust Fund and neither the Employers nor the
Trustee in any way guarantee, or shall be personally responsible for, the
payment of any amount which may be or become due to any person from the Trust
Fund. The Employers and the Committee shall not incur any liability for any act
or omission of any Trustee, nor shall any Trustee incur any liability for any
act or omission of the Employers or the Committee or of another Trustee.


 


9.11     Litigation. In any action or
proceeding regarding the assets or administration of the Plan, Participants,
Employees or former Employees, Beneficiaries or any other persons having or
claiming to have an interest in the Plan shall not be necessary parties and
shall not be entitled to any notice or process. Any final judgment which is not
appealed or appealable and may be entered in any such action or proceeding
shall be binding and conclusive on the parties hereto and all persons having or
claiming to have any interest in this Plan. To the extent permitted by law, if
a legal action is begun against the Company, any Employer, the Trustee, members
of the Committee, or their respective employees or agents by or on behalf of
any person, and such action results adversely to such person, or if a legal
action arises because of conflicting claims to a Participant’s or other
person’s benefits, the costs to such person defending


 


53

















 


the action will be
charged to the amounts, if any, which were involved in the action or were
payable to the Participant or other person concerned. To the extent permitted
by applicable law, acceptance of participation in this Plan shall constitute a
release of the Company, each Employer, the Trustee, the members of the
Committee and their respective employees and agents from any and all liability
and obligation not involving willful misconduct or gross neglect.


 


Article 10


 


TOP HEAVY RULES


 


10.01   General Rule. If the Plan is or
becomes top-heavy in any Plan Year, the provisions of this Article 10 will
supersede any conflicting provision in the Plan.


 


10.02   Definitions.


 


(a)       Key Employee, effective January 1,
2002, shall mean any Employee or former Employee (and the Beneficiaries of such
Employee) who at any time during the Plan Year was an officer of an Employer
whose annual compensation exceeded $130,000 (as indexed pursuant to Section
416(i) of the Code, a 5-percent owner of an Employer, or a 1-percent owner of
an Employer who has annual compensation of more than $150,000. Not more than 50
Employees (or, if less, the greater of three or 10 percent of all Employees)
shall be treated as officers. The determination of who is a Key Employee will
be made in accordance with Section 416(i)(1) of the Code and the regulations
thereunder.


 


(b)       Top-Heavy Plan: For any Plan Year,
this Plan is top-heavy if any of the following conditions exist:


 


(i)                        If the
Top-Heavy Ratio for this Plan exceeds 60 percent and this Plan is not part of
any Required Aggregation Group or Permissive Aggregation Group of plans.


 


(ii)                     If this 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 Required Aggregation Group of
plans exceeds 60 percent.


 


(iii)                  If this 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 percent.


 


(c)       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 Sections 401(a)(4) and 410 of the
Code.


 


(d)       Required Aggregation Group: (1)
Each qualified plan of the Employer in which at least one Key Employee
participates, and (2) any other qualified plan of the Employer which enables a
plan described in (d)(1) to meet the requirements of Sections 401(a)(4) or 410
of the Code.


 


54

















 


(e)       Top-Heavy Ratio: The Top-Heavy
Ratio for any Plan Year is the ratio of the total account balances of all Key
Employees to the total account balances of all Participants as of the last day
of the immediately preceding Plan Year. Any distribution made to an Employee
within one year prior to such date (five years if the distribution was made for
any reason other than separation from service, disability or death), including
any distribution from a terminated plan which, if it had not been terminated,
would be part of a Required Aggregation Group, shall be included in the
Employee’s account balance. If any defined benefit plan is included in an
Aggregation Group, the present value of benefits under such plan, determined
using the actuarial assumptions in effect under such plan, shall be used
instead of account balances.


 


(f)        Compensation: For purposes of
this Article 10, compensation shall mean all amounts paid or made available to
the Participant by the Employer during the Plan Year for services as an
Employee as reported on Form W-2 (or such other form as may be prescribed
pursuant to §6041(d) and §6051(a)(3) of the Code). Compensation shall also
include any elective contributions excluded from income under §125 of the Code
(relating to cafeteria plans), §402(e)(3) of the Code (relating to 401(k)
plans), including Pre-Tax Contributions under this Plan, §402(h) of the Code
(relating to simplified employee pension plans), or §132(f)(4) of the Code
(relating to elective transportation fringe benefits).


 


Any Employee’s
compensation for any Plan Year in excess of $170,000 (or such other amount
provided pursuant to Section 401(a)(17) of the Code) shall be disregarded for
all purposes under the Plan. Effective January 1, 2002, $200,000 shall be
substituted for $170,000 in the preceding sentence. If an Employee receives
compensation from more than one Employer for a Plan Year, then his compensation
from all such Employers shall be aggregated for purposes of applying the limit
of Section 401(a)(17) of the Code for that Plan Year. Commencing January 1,
1997, the rules requiring the aggregation of compensation paid to certain
family members of Highly Compensated Employees as set forth in the Plan prior
to the Effective Date shall no longer apply.


 


10.03   Minimum Allocation.


 


(a)       The Employer Contributions, less
Forfeitures allocated under Section 6.06, allocated on behalf of any
Participant who is not a Key Employee shall not be less than the lesser of
three percent (3%) of such Participant’s Compensation or, in the case where the
Employer has no defined benefit plan which designates this Plan to satisfy
Section 401 of the Code, the largest percentage of Employer Contributions and Forfeitures,
as a percentage of the Key Employee’s Compensation, allocated on behalf of any
Key Employee for that year. The minimum allocation (to be known as the
“Employer Top-Heavy Contribution”) is determined without regard to any Social
Security contribution. The Employer Top-Heavy Contribution shall be made 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 of (i) the Participant’s failure to complete 1,000 Hours
of Service (or any equivalent provided in the Plan), (ii) the Participant’s
failure to make Employee Contributions to the Plan, or (iii) Compensation less
than a stated amount.


 


(b)       The provisions of paragraph (a) above shall
not apply to any Participant who was not employed by an Employer on the last
day of the Plan Year.


 


55

















 


10.04   Nonforfeitability of Employer Top-Heavy
Contribution. To the extent it is required to be nonforfeitable under
Section 416(b) of the Code, any Employer Top-Heavy Contribution may not be
forfeited under Sections 411(a)(3)(B) or 411(a)(3)(D) of the Code.


 


10.05   Vesting. For any Plan Year in which
the Plan is top-heavy, the vesting schedules with respect to Employer Profit
Sharing and Matching Contributions shall be based on completed Years of
Credited Service then standing to the Participant’s credit:


 




	
  Years of Credited Service

  	
   

  	
  Vested Percentage

  
	
  0-1

  	
   

  	
  0%

  
	
  2

  	
   

  	
  25%

  
	
  3

  	
   

  	
  50%

  
	
  4

  	
   

  	
  75%

  
	
  5 or more

  	
   

  	
  100%

  






 


No change in the vesting
schedule due to this Section shall operate to reduce any Participant’s vested
interest in any of his Accounts.


 


56
















 


IN WITNESS
WHEREOF, the Company has caused this amended and restated Plan to be executed
below by its duly authorized officers on this 1 day of January, 2004, to be
effective as of January 1, 2004.


 


	
   

  	
  EQUITY RESIDENTIAL

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Catherine M.
  Carraway

  
	
   

  	
   

  	
   

  
	
   

  	
  Its:

  	
  1st VP HR
  Operations

  



 


 

















 


SCHEDULE B


 


PARTICIPATING
EMPLOYERS


 


Equity Residential


 


Equity Residential
Properties Management Corp.


 


Evans Withycombe
Management


 


Equity Corporate Housing,
Inc.


 

















 


THE EQUITY RESIDENTIAL PROPERTIES TRUST


 


ADVANTAGE RETIREMENT SAVINGS PLAN


 


(Amendment and Restated Effective January l, 2004)