exv10w16



 





Exhibit 10.16




CHICAGO BRIDGE & IRON SAVINGS PLAN




As amended and restated as of January 1, 1997

and including the First, Second, Third, Fourth, Fifth, Sixth and Seventh Amendments




 









 





Table of Contents




	 	 	 	 	 
	 
	 	 	PAGE	 
	 
	 	 	 	 
	ARTICLE I Adoption
	 	 	1	 
	1.01 Adoption, Amendment and Restatement
	 	 	1	 
	 
	 	 	 	 
	ARTICLE II Definitions
	 	 	1	 
	2.01 “Account”
	 	 	1	 
	2.02 “Accrued Benefit”
	 	 	1	 
	2.03 “Active Account”
	 	 	1	 
	2.04 “Active Participant”
	 	 	2	 
	2.05 “Authorized Leave of Absence”
	 	 	2	 
	2.06 “Beneficiary”
	 	 	2	 
	2.07 “Board”
	 	 	2	 
	2.08 “Code”
	 	 	2	 
	2.09 “Company”
	 	 	3	 
	2.10 “Company Contributions”
	 	 	3	 
	2.11 “Company Stock”
	 	 	3	 
	2.12 “Company Stock Fund”
	 	 	3	 
	2.13 “Compensation”
	 	 	3	 
	2.14 “Compensation Limit”
	 	 	4	 
	2.15 “Disability” or “Disabled”
	 	 	5	 
	2.16 “Dollar Limit”
	 	 	5	 
	2.17 “Effective Date”
	 	 	5	 
	2.18 “Elective Deferrals”
	 	 	5	 
	2.19 “Eligible Employee”
	 	 	5	 
	2.20 “Employee”
	 	 	6	 
	2.21 “Employer” or “Employers”
	 	 	6	 
	2.22 “Employer Stock”
	 	 	6	 
	2.23 “ERISA”
	 	 	6	 
	2.24 “Field Employee”
	 	 	6	 
	2.25 “Forfeiture”
	 	 	6	 
	2.26 “Former Plan”
	 	 	6	 
	2.27 “Hardship”
	 	 	7	 
	2.28 “Highly Compensated Employee”
	 	 	7	 
	2.29 “Hour of Service”
	 	 	8	 
	2.30 “Hourly Plan”
	 	 	9	 
	2.31 “Inactive Account”
	 	 	9	 
	2.32 “Investment Committee”
	 	 	9	 
	2.33 “Investment Fund”
	 	 	9	 
	2.34 “Investment Manager”
	 	 	10	 
	2.35 “Matching Contributions”
	 	 	10	 
	2.36 “Maternity or Paternity Leave”
	 	 	10	 
	2.37 “Normal Retirement Date”
	 	 	10	 
	2.38 “Participant”
	 	 	10	 
	2.39 “Period of Severance”
	 	 	10	 






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(continued)





	 	 	 	 	 
	 
	 	 	PAGE	 
	 
	 	 	 	 
	2.40 “Plan”
	 	 	10	 
	2.41 “Plan Administrator”
	 	 	10	 
	2.42 “Plan Year”
	 	 	11	 
	2.43 “QMAC”
	 	 	11	 
	2.44 “Qualified Military Leave”
	 	 	11	 
	2.45 “QNEC”
	 	 	11	 
	2.46 “Reduction-in-Force Termination”
	 	 	11	 
	2.47 “Related Company”
	 	 	11	 
	2.48 “Related Plan”
	 	 	12	 
	2.49 “Required Distribution Date”
	 	 	12	 
	2.50 “Restricted Account”
	 	 	12	 
	2.51 “Retirement”
	 	 	12	 
	2.52 “Rollover Contribution”
	 	 	12	 
	2.53 “Salary Reduction Agreement”
	 	 	12	 
	2.54 “Service”
	 	 	12	 
	2.55 “Termination of Employment”
	 	 	13	 
	2.56 “Transferor Plan”
	 	 	13	 
	2.57 “Traveler”
	 	 	13	 
	2.58 “Traveler Contributions”
	 	 	14	 
	2.59 “True-Up” Contributions”
	 	 	14	 
	2.60 “Trust”
	 	 	14	 
	2.61 “Trust Agreement”
	 	 	14	 
	2.62 “Trust Fund”
	 	 	14	 
	2.63 “Trustee”
	 	 	14	 
	2.64 “Valuation Date”
	 	 	14	 
	 
	 	 	 	 
	ARTICLE III Participation
	 	 	14	 
	3.01 Participation.
	 	 	14	 
	3.02 Duration of Participation
	 	 	15	 
	3.03 Participation Upon Re-Employment
	 	 	15	 
	3.04 Participation Forms
	 	 	15	 
	 
	 	 	 	 
	ARTICLE IV Contributions and Vesting
	 	 	15	 
	4.01 Elective Deferrals
	 	 	15	 
	4.02 Matching Contributions
	 	 	17	 
	4.03 Company Contributions
	 	 	18	 
	4.04 Traveler Contributions
	 	 	18	 
	4.05 Rollover Contributions into the Plan
	 	 	19	 
	4.06 Special Contributions; QNECs and QMACs
	 	 	19	 
	4.07 Crediting of Contributions
	 	 	21	 
	4.08 Determination and Amount of Employer Contributions
	 	 	21	 
	4.09 Condition on Company Contributions
	 	 	21	 
	4.10 Form of Company Contributions
	 	 	21	 






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(continued)





	 	 	 	 	 
	 
	 	 	PAGE	 
	 
	4.11 Vesting
	 	 	22	 
	4.12 Catch-Up Deferrals
	 	 	23	 
	 
	 	 	 	 
	ARTICLE V Limitations on Contributions
	 	 	25	 
	5.01 Excess Deferrals
	 	 	25	 
	5.02 Excess Contributions: The ADP Test
	 	 	25	 
	5.03 Excess Aggregate Contributions: The ACP Test
	 	 	28	 
	5.04 [Reserved]
	 	 	31	 
	5.05 Order of Application of Limitations
	 	 	31	 
	5.06 Allocation of Income or Loss
	 	 	31	 
	5.07 Section 415 Limitation on Contributions
	 	 	31	 
	 
	 	 	 	 
	ARTICLE VI Trustee and Trust Fund
	 	 	34	 
	6.01 Trust Agreement
	 	 	34	 
	6.02 Selection of Trustee
	 	 	34	 
	6.03 Plan and Trust Expenses
	 	 	34	 
	6.04 Trust Fund
	 	 	34	 
	6.05 Separate Accounts
	 	 	34	 
	6.06 Investment Committee
	 	 	35	 
	6.07 Investment Funds
	 	 	35	 
	6.08 Investment of Participants’ Accounts
	 	 	36	 
	6.09 Shareholder Rights in Company Stock
	 	 	37	 
	6.10 Trust Income
	 	 	38	 
	6.11 Correction of Error
	 	 	38	 
	6.12 Right of the Employers to Trust Assets
	 	 	38	 
	 
	 	 	 	 
	ARTICLE VII Loans and Withdrawals
	 	 	39	 
	7.01 Participant Withdrawals
	 	 	39	 
	7.02 Participant Loans
	 	 	40	 
	7.03 Request for Distribution
	 	 	43	 
	 
	 	 	 	 
	ARTICLE VIII Benefits
	 	 	43	 
	8.01 Payment of Benefits in General
	 	 	43	 
	8.02 Payment on Termination of Employment
	 	 	43	 
	8.03 Time of Payment
	 	 	43	 
	8.04 Lump Sum Payment Without Election
	 	 	44	 
	8.05 Payment Upon Death
	 	 	45	 
	8.06 Minimum Distribution Requirements
	 	 	47	 
	8.07 Facility of Payment
	 	 	49	 
	8.08 Form of Payment
	 	 	49	 
	8.09 Direct Rollover to Another Plan
	 	 	50	 
	8.10 Deduction of Taxes from Amounts Payable
	 	 	51	 






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TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 
	 	 	PAGE	 
	 
	 	 	 	 
	ARTICLE IX Administration
	 	 	51	 
	9.01 Sponsor Rights and Duties
	 	 	51	 
	9.02 Plan Administrator Rights and Duties
	 	 	51	 
	9.03 Plan Administrator Bonding and Expenses
	 	 	52	 
	9.04 Information To Be Supplied by Participants
	 	 	52	 
	9.05 Information To Be Supplied by Employers
	 	 	52	 
	9.06 Records
	 	 	53	 
	9.07 Electronic Media
	 	 	53	 
	9.08 Plan Administrator Decisions Final
	 	 	53	 
	 
	 	 	 	 
	ARTICLE X Claims Procedure
	 	 	53	 
	10.01 Initial Claim for Benefits
	 	 	53	 
	10.02 Review of Claim Denial
	 	 	54	 
	 
	 	 	 	 
	ARTICLE XI Amendment, Merger and Termination of the Plan
	 	 	54	 
	11.01 Amendments
	 	 	54	 
	11.02 Plan Merger
	 	 	55	 
	11.03 Plan Termination
	 	 	56	 
	11.04 Payment Upon Termination
	 	 	56	 
	11.05 Withdrawal from the Plan by an Employer
	 	 	56	 
	 
	 	 	 	 
	ARTICLE XII Top Heavy Provisions
	 	 	56	 
	12.01 Application
	 	 	56	 
	12.02 Special Top Heavy Definitions
	 	 	56	 
	12.03 Special Top Heavy Provisions
	 	 	61	 
	 
	 	 	 	 
	ARTICLE XIII Miscellaneous Provisions
	 	 	64	 
	13.01 Employer Joinder
	 	 	64	 
	13.02 Non-Alienation of Benefits
	 	 	64	 
	13.03 Qualified Domestic Relations Order
	 	 	65	 
	13.04 Unclaimed Amounts
	 	 	66	 
	13.05 No Contract of Employment
	 	 	66	 
	13.06 Recoupment of or Reduction for Overpayment
	 	 	66	 
	13.07 Employees’ Trust
	 	 	67	 
	13.08 Source of Benefits
	 	 	67	 
	13.09 Interest of Participants
	 	 	67	 
	13.10 Indemnification
	 	 	67	 
	13.11 Company Action
	 	 	67	 
	13.12 Company Merger
	 	 	67	 
	13.13 Multiple Capacity
	 	 	67	 
	13.14 Gender and Number
	 	 	67	 
	13.15 Headings
	 	 	68	 
	13.16 Uniform and Non-Discriminatory Application of Provisions
	 	 	68	 






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(continued)





	 	 	 	 	 
	 
	 	 	PAGE	 
	 
	13.17 Invalidity of Certain Provisions
	 	 	68	 
	13.18 Application to Merged Plans
	 	 	68	 
	13.19 Law Governing
	 	 	68	 





APPENDIX A

SCHEDULE 1





-v-









 








CHICAGO BRIDGE & IRON SAVINGS PLAN




ARTICLE I




Adoption




     1.01 Adoption, Amendment and Restatement. The Chicago Bridge & Iron Savings Plan was
originally established by the Company’s corporate predecessor effective June 16, 1964. Chicago
Bridge & Iron Company, a Delaware corporation, became the sponsor of the Plan effective March 18,
1997. The Company merges the CBI Hourly Employees’ Saving Plan into this Plan and amends and
restates the Plan effective January 1, 1997 (except as otherwise provided in this document) to read
as set forth in this document. The Company merges the Howe-Baker Engineers, Inc. Employees’
Profit-Sharing 401(k) Plan, the Matrix Engineering, Inc. Savings Plan, the A&B Builders, Inc.
Savings Plan, and the Callidus Technologies 401(k) Savings Plan, into this Plan effective December
31, 2000. The Plan is intended to be a qualified profit sharing plan described in Section 401(a)
of the Code with a qualified cash or deferred arrangement described in Section 401(k) of the Code.



ARTICLE II




Definitions




     The following terms, whenever used in the following capitalized form, shall have the meaning
set forth below, unless the context clearly indicates otherwise:



     2.01 “Account” means an Active Account or an Inactive Account, each comprising a record of
a Participant’s undivided share in the Trust plus income and gains thereon, and less expenses,
losses and distributions therefrom: The Plan Administrator may maintain (or cause the Trustee to
maintain) such subaccounts within any Account as the Plan Administrator deems necessary or
desirable for purposes of this Plan. If assets and liabilities of a Transferor Plan or portion
thereof are transferred to this Plan pursuant to Section 11.02, the Plan Administrator may
establish additional Inactive Accounts for such assets and liabilities, or may allocate such assets
and liabilities to an existing Active or Inactive Account, all as the Plan Administrator in its
discretion determines is necessary or desirable for the purposes of this Plan.



     2.02 “Accrued Benefit” means a Participant’s total interest in the Trust composed of the
aggregate balance of all such Participant’s Accounts. The value of an Accrued Benefit at any time
during any Plan Year shall be its value as adjusted on the coinciding or immediately preceding
Valuation Date.



     2.03 “Active Account” means any one or more of the following five (5) separate Accounts to
which Elective Deferrals, Company Matching Contributions, Company Contributions, Travelers
Contributions, and Rollover Contributions, if any, may currently be allocated:



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     (a) “Employee 401(k) Account” credited with Elective Deferrals made in
accordance with Section 4.01.




     (b) “Company Matching Account” credited with Matching Contributions made in
accordance with Section 4.02.




     (c) “Company Contribution Account” credited with Company Contributions, if any,
made in accordance with Section 4.03. Effective January 1, 2001, Company Matching Accounts
for pre-2001 Matching Contributions shall become Inactive Accounts, and new Company Matching
Accounts shall be established as of January 1, 2001.




     (d) “Travelers Benefit Account” credited for Plan Years ending on or before
December 30, 2000, with Traveler Contributions, if any, made in accordance with Section
4.04. Effective January 1, 2001, Travelers Benefit Accounts shall be maintained as Inactive
Accounts.




     (e) “Prior Plan and Rollovers Account” credited with Rollover Contributions, if
any, made in accordance with Section 4.05.



     2.04 “Active Participant” for a Plan Year means a Participant who is employed by an
Employer as an Eligible Employee for any portion of the Plan Year; provided,
however that (i) for purposes of making Elective Deferrals under Section 4.01, a
Participant will not be an Active Participant for a Plan Year unless he or she has Compensation in
the Plan Year; (ii) for purposes of Company Contributions under Section 4.03, Traveler
Contributions under Section 4.04(a)(ii), and any minimum contributions required under Article XII,
a Participant will not be an Active Participant for the Plan Year unless he or she is an Employee
on the last day of the Plan Year or had a Termination of Employment during the Plan Year by reason
of Retirement, Disability, death, a Reduction-in-Force Termination or lay-off; and (iii) for
purposes of Company Contributions under Section 4.03, a Participant will not be Active Participant
for the Plan Year unless he or she has completed 1,000 or more Hours of Service during the Plan
Year, or had a Termination of Employment during the Plan Year by reason of Retirement, Disability,
death, or a Reduction-in-Force Termination.



     2.05 “Authorized Leave of Absence” means an absence with or without pay, authorized by an
Employer on a non-discriminatory basis, for Disability, accident, jury duty, military duty, or
other reasons.



     2.06 “Beneficiary” means any person affirmatively designated by a Participant pursuant to
Section 8.05(c) to receive death benefits under the Plan (a “Designated Beneficiary”) or if there
is no Designated Beneficiary or the designation is ineffective under Section 8.05, the person or
persons entitled to receive death benefits under the Plan by default under Section 8.05.



     2.07 “Board” means the board of directors of the Company.



     2.08 “Code” means the Internal Revenue Code of 1986, as amended, or any succeeding Internal
Revenue Code. References to sections of the Code shall be include any such sections as amended,
modified or renumbered.



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     2.09 “Company” means (a) before March 18, 1997, Chi Bridge Holdings, Inc., a Delaware
corporation, and (b) on and after March 18, 1997, Chicago Bridge & Iron Company, a Delaware
corporation, a wholly-owned subsidiary of Chicago Bridge & Iron Company N.V., a Netherlands
corporation; or any successor corporation, by merger, consolidation, purchase or otherwise, which
elects to adopt the Plan and the Trust.



     2.10 “Company Contributions” means the contributions made from time to time by an Employer
to the Trustee in accordance with Section 4.03.



     2.11 “Company Stock” means the publicly traded common shares of the Company’s parent
corporation, Chicago Bridge & Iron Company N.V., a Netherlands corporation.



     2.12 “Company Stock Fund” means an Investment Fund designated for investment in Company
Stock. Up to 100% of the assets of the Company Stock Fund may be invested in Company Stock.



     2.13 “Compensation” means the amounts below:




     (a) Compensation. Except as provided in subsection (b), Compensation means the
total cash salary and wages paid by the Employer through the U.S. payroll system of an
Employer to a Participant while an Eligible Employee, or paid by the Employer through its
payroll system for U.S. Expatriate Employees (as defined in Section 2.19) to a Participant
while an Eligible Employee and a U.S. Expatriate Employee, (i) including short-term
disability payments made directly from the assets of the Employer, overtime, and cash
bonuses under any annual or other short-term incentive pay or bonus plan, (ii) excluding
long-term incentives, stock options, restricted stock, similar non-cash benefits,
contributions or benefits under any employee benefit plan and special allowances provided to
U.S. Expatriate Employees for the purpose of equalizing their salary and wages, (iii)
increased by the amount of any Elective Deferrals under this
Plan and any other elective contributions or deferrals made by an Employer on behalf of
an Employee that are excluded from the Participant’s income by Section 125, Section 132(f),
Section 402(e)(3), Section 402(h)(1)(B), Section 403(b), Section 408(p)(2)(A)(i) or Section
457 of the Code, and (iv) excluding all compensation in excess of the Compensation Limit.




     (b) Statutory Compensation. For purposes of applying the limitations of
Article V (including the identification of Highly Compensated Employees), and applying the
requirements of Article XII (including the identification of Key Employees), subject to the
exceptions below, Statutory Compensation means compensation as defined for purposes of
Section 415(c)(3) and Treasury Regulations Sections 1.415-2(d)(11)(i) thereunder, including
wages within the meaning of Section 3401(a) of the Code and all other payments of
compensation to an employee by his employer (in the course of the employer’s trade or
business) for which the employer is required to furnish the employee a written statement
under sections 6041(d), 6051(a)(3), and 6052 of the Code, determined without regard to any
rules under section 3401(a) that limit the remuneration included in wages based on the
nature or location of the employment or the services



-3-









 






performed (such as the exception for
agricultural labor in section 3401(a)(2). Notwithstanding the foregoing:




     (1) For purposes of the identification of Highly Compensated Employees under
Section 2.28 for Plan Years beginning before January 1, 1998, Statutory Compensation
means compensation as defined for purposes of Section 415(c)(3) of the Code and
Treasury Regulations Sections 1.415-2(d)(2), (3) and (10) thereunder, (i) including
wages, salaries, fees for professional services, and other amounts received (without
regard to whether or not an amount is paid in cash) for personal services actually
rendered in the course of employment with the Employer or any Related Company to the
extent that the amounts are included in gross income (including, but not limited to,
commissions paid salesmen, compensation for services on the basis of a percentage of
profits, commissions on insurance premiums, tips, bonuses, fringe benefits and
reimbursements or other expense allowances under a nonaccountable plan), but (ii)
excluding contributions of the Employer or a Related Company to (unless includible
in the gross income of the Employee for the taxable year when contributed), or
distributions from, a plan of deferred compensation (other than an unfunded
nonqualified plan), amounts realized from the exercise of a non-qualified stock
option or when restricted stock (or property) held by an Employee either becomes
freely transferable or is no longer subject to a substantial risk of forfeiture (as
determined under Section 83 of the Code), amounts realized from the sale, exchange
or other disposition of stock acquired under an incentive stock option, and other
amounts which receive special tax benefits.




     (2) In applying Statutory Compensation for purposes of determining whether an
Employee is a Highly Compensated Employee under Section 2.28 or a Key Employee under
Section 12.02(d), for purposes of determining the Actual Deferral Percentage under
Section 5.02 and the Actual Contribution Percentage under Section 5.03, and for
purposes of determining for Plan Years beginning on
or after January 1, 1998 the limitations under Section 5.07 and Minimum
Employer Contributions under Section 12.03(a), Statutory Compensation under this
subsection shall be increased by the amount of Elective Deferrals under this Plan
and any other elective contributions or deferrals made by an Employer or Related
Company on behalf of an Employee that excluded from the Participant’s income by
Section 125, Section 132(f), Section 402(e)(3), Section 402(h)(1)(B), Section
403(b), Section 408(p)(2)(A)(i) or Section 457 of the Code.




     (3) Except for purposes of determining Highly Compensated Employees under
Section 2.28, Key Employees under Section 12.02(d), and the limitations under
Section 5.07, Statutory Compensation will not exceed the Compensation Limit.



     2.14 “Compensation Limit” means $200,000 (for 2002), as adjusted for increases in the
cost-of-living in accordance with Section 401(a)(17)(B) of the Code. The cost-of-living adjustment
in effect for a calendar year applies to any determination period beginning in such calendar year.
If a determination period consists of fewer than 12 months, the annual



-4-









 







Compensation Limit is an
amount equal to the otherwise applicable annual Compensation Limit multiplied by a fraction, the
numerator of which is the number of months in the short determination period, and the denominator
of which is 12.



     2.15 “Disability” or “Disabled” means a Participant’s inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental impairment
that can be expected to result in death or to last for a continuous or indefinite period of at
least twelve (12) months, and which is substantiated by proof of disability satisfactory to the
Plan Administrator (which proof shall include a written statement of licensed physician or other
appropriate medical care provider appointed or approved by the Employer).



     2.16 “Dollar Limit” has the meaning defined for such term in Section 5.01.



     2.17 “Effective Date” means January 1, 1997, the effective date of this amendment and
restatement. The original effective date of the Plan was June 16, 1964.



     2.18 “Elective Deferrals” means the contributions made by an Employer to the Trustee on
behalf of an Active Participant attributable to reductions in the Participant’s Compensation
pursuant to a Salary Reduction Agreement in accordance with Section 4.01.



     2.19 “Eligible Employee”
means (i) any Employee who is employed by an Employer and paid through the U.S. payroll system
of the Employer, including an Employee transferred from the United States to work outside the
United States but retained on the U.S. payroll system of the Employer, and (ii) any Employee who is
employed by a non-U.S. Employer whose salary and wages are not paid through the U.S. payroll system
but who is considered to be a considered to be a U.S. expatriate employee under such Employer’s
employment and personnel policies (a “U.S. Expatriate Employee”), but excluding:




     (a) Union Employees. Any Employee who is a member of a collective bargaining
unit of employees represented by a collective bargaining agent with which an Employer or a
Related Company has a bargaining agreement, unless that agreement requires inclusion of the
Employee in this Plan.




     (b) Nonresident Aliens. Any Employee who (i) (A) is neither a citizen nor
resident of the United States or (B) is first employed by an Employer or Related Company
outside the United States other than as a U.S. Expatriate Employee, and (ii) receives no
earned income (within the meaning at Section 911(d)(2) of the Code) from the Employer or a
Related Company from sources within the United States (within the meaning of Section
861(a)(3) of the Code).




     (c) Leased Employees. Any individual who is classified by the Employer at the
relevant time as a Leased Employee (defined below), even if such person is subsequently
determined to be, or to have been, a common-law employee of an Employer. For this purpose
“Leased Employee” means a person who is not an employee of a recipient and who provides
services to the recipient if:




     (1) such services are provided pursuant to an agreement between the recipient
and any other person,



-5-









 






               (2) such person has performed such services for the recipient (or for the
recipient and related persons) on a substantially full-time basis for a period of a
least 1 year, and




               (3) such services are performed under the primary direction and control of the
recipient.




     (d) Independent Contractors. Any individual who is classified by the Employer
at the relevant time as an independent contractor, even if such person is subsequently
determined to be, or to have been, a common-law employee of an Employer.




     (e) Field Employees. For Plan Years ending on or before December 31, 2000, any
Field Employee who at the relevant time has not yet qualified as a Traveler.




     (f) Part-Time and Temporary Workers. Any Employee who is not classified by the
Employer at the relevant time as either a regular full-time or regular part-time employee.
For this purpose an eligible “regular part-time employee” must have a normal scheduled work
week of at least 20 Hours of Service or actually perform more than 1,000
Hours of Service in the 12-month period measured from the date he or she first performs
an Hour of Service or in any Plan Year ending after that date. A temporary or summer
employee shall not be an Eligible Employee.



     2.20 “Employee” means any common law employee of an Employer or a Related Company, and any
leased employee (within the meaning of Section 414(n)(2) of the Code) of an Employer or any Related
Company.



     2.21 “Employer” or “Employers” means the Company and any Related Company which has
adopted the Plan pursuant to Section 13.01.



     2.22 “Employer Stock” means Company Stock, and stock of a Participant’s former employer
accumulated in an account for the Participant under a Transferor Plan that is maintained as an
Inactive Account under this Plan.



     2.23 “ERISA” means the Employee Retirement Income Security Act of 1974, as amended.



     2.24 “Field Employee” means an employee of an Employer or a Related Company, who is paid on
an hourly basis from the “field payroll”, and whose duties consist of transient construction or
related services performed on-site in the field and not at a permanent office, manufacturing or
warehouse facility of the Employer or a Related Company.



     2.25 “Forfeiture” means the portion of a Participant’s Accrued Benefit that is forfeited as
provided in Sections 4.10, 5.01, 5.02(c), or 13.04.



     2.26 “Former Plan” means this Plan, then known as the CBI 401(k) Pay Deferral Plan, as in
effect immediately before the Effective Date of this amendment and restatement, and including, to
the extent relevant for administering this Plan, the Hourly Plan.



-6-









 





     2.27 “Hardship” means an immediate and heavy financial need of the Participant on account
of:




     (a) Medical Expenses. Expenses for medical care described in Section 213(d) of
the Code previously incurred by the Participant, the Participant’s spouse or any
dependents of the Participant (as defined in Section 152 of the Code) or amounts
necessary for these persons to obtain medical care described in Section 213(d) of the Code.




     (b) Home Purchase. Costs directly related to the purchase of a principal
residence for the Participant (excluding mortgage payments).




     (c) Educational Expenses. Payment of tuition, related educational fees and
room and board expenses for the next 12 months of post-secondary education for the
Participant, his or her spouse, children or dependents (as defined in Section 152 of the
Code).




     (d) Prevention of Eviction or Foreclosure. Payments necessary to prevent the
eviction of the Participant from his or her principal residence or foreclosure on the
mortgage of the Participant’s principal residence.




     (e) Other Deemed Hardship Events Designated by the Internal Revenue Service.
Such other events, if any, that are designated by the Internal Revenue Service as
constituting deemed immediate and heavy financial needs in regulations, revenue rulings,
notices, or other documents of general applicability.



     2.28 “Highly Compensated Employee” means, for any Plan Year, any individual who is an
Employee described in subsection (a) or (b) below, or who is a former Employee described in
subsection (c) below:




     (a) An Employee who at any time during the current Plan Year or the preceding Plan Year
is a more than five percent (5%) owner (or is considered as owning more than five percent
(5%) within the meaning of Section 318 of the Code) of the Employer or a Related Company
(“5% Owner”).




     (b) An Employee who received Statutory Compensation during the preceding Plan Year in
excess of $80,000 (as adjusted in accordance with regulations and rulings under Section
414(q) of the Code), and is in the group consisting of the top twenty percent (20%) of the
total number of persons employed by the Employer and Related Companies when ranked on the
basis of Statutory Compensation paid during the preceding Plan Year, provided,
however, that, for purposes of determining the total number of persons employed by
the Employer and Related Companies, the following Employees shall be excluded:




     (i) Employees who have not completed an aggregate of six (6) months of service
during the preceding Plan Year,



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     (ii) Employees who work less than seventeen and one-half (171/2) hours per week
for 50% or more of the total weeks worked by such employees during the preceding
Plan Year,




     (iii) Employees who normally work during not more than six (6) months during
any year,




     (iv) Employees who have not attained age twenty-one (21) by the end of the
preceding Plan Year,




     (v) Employees who are nonresident aliens and who receive no earned income
(within the meaning of Section 911(d)(2) of the Code) from the Employer or Related
Companies which constitutes income during the preceding Plan Year from sources
within the United States (within the meaning of Section 861(a)(3) of the Code), and




     (vi) Except to the extent provided in regulations prescribed by the Secretary
of the Treasury, Employees who are members of a collective bargaining unit
represented by a collective bargaining agent with which an Employer or Related
Company has or has had a bargaining agreement.




     (c) A former Employee of an Employer or any Related Company if such former Employee was
a Highly Compensated Employee at the time he or she had a Termination of Employment, or at
any time after he or she attains age 55. For purposes of this subsection, (i) an Employee
who performs no services for the Employer or a Related Company during a Plan Year (for
example, an Employee who is on an Authorized Leave of Absence throughout the Plan Year)
shall be treated as having had a Termination of Employment in the Plan Year in which he last
performed services for the Employer or a Related Company and (ii) an Employee who performs
services for the Employer or a Related Company during a Plan Year shall nevertheless be
deemed to have had a Termination of Employment (solely for purposes of determining whether
such Employee is a Highly Compensated Employee for any period after he or she has an actual
Termination of Employment) if (1) in a Plan Year prior to his or her attainment of age 55,
the Employee receives Statutory Compensation in an amount less than 50% of his or her
average annual Statutory Compensation for the three consecutive calendar years preceding
such Plan Year during which his or her Statutory Compensation was the greatest (or the total
period of the Employee’s service with the Employer and Related Companies, if less), and (2)
after such Plan Year in which the Employee is deemed to have had a Termination of Employment
and before the Plan Year in which the Employee has an actual Termination of Employment, the
Employee’s services for and Compensation from the Employer and Related Companies do not
increase significantly.



     2.29 “Hour of Service” means each hour for which an Employee is paid, or entitled to
payment, by an Employer or a Related Company:




     (a) for the performance of duties;



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     (b) on account of a period of time during which no duties were performed;
provided, however, that (i) no more than 501 Hours of Service shall be
credited for any single continuous period during which an Employee performs no duties, and
(ii) no Hours
of Service shall be credited for payments made or due under a plan maintained solely
for the purpose of complying with applicable workers’ compensation, unemployment
compensation or disability insurance laws, or for reimbursement of medical expenses; and




     (c) for which back pay, irrespective of mitigation of damages, is awarded or agreed to
by the Employer or Related Company; provided, however, that (i) no more than
501 Hours of Service shall be credited for any single continuous period of time during which
the Employee did not or would not have performed duties, and (ii) Hours of Service credited
under (a) or (b) shall not also be credited under (c).


The determination of Hours of Service for reasons other than the performance of duties shall be
determined in accordance with the provisions of Labor Department Regulations Section
2530.200b-2(b), and Hours of Service shall be credited to computation periods in accordance with
the provisions of Labor Department Regulations Section 2530.200b-2(c).




     2.30 “Hourly Plan” means the CBI Hourly Employees’ Savings Plan as in effect immediately
prior to the Effective Date.



     2.31 “Inactive Account” means an separate Account maintained under this Plan (including any
account transferred from a Transferor Plan) to which no further Elective Deferrals, Matching
Contributions, Company Contributions, Travelers Contributions or Rollover Contributions are
currently allocated, but which the Plan Administrator in its discretion maintains as a separate
Account to reflect any special vesting schedule applicable to the Account, any special distribution
options required or permitted for such Account, and any other special benefits, rights or features
pertaining to such Account. Schedule 1 sets forth the Accounts, including Inactive Accounts (and
their vesting schedules, special distribution options, and other salient benefits, rights and
features) maintained under this Plan from time to time.



     2.32 “Investment Committee” means the committee appointed by the Company pursuant to
Section 6.06 to act on behalf of the Company with respect to the investment of Plan assets.



     2.33 “Investment Fund” means each pooled or commingled investment fund or investment
arrangement designated or authorized by the Investment Committee pursuant to Section 6.07 from
among (i) regulated investment companies registered under the Investment Company Act of 1940; (ii)
common trust funds or collective investment funds qualified under Sections 401 and 501 of the Code;
(iii) a discount brokerage account provided by a brokerage firm that is a member of NASD/SIPC
designated or authorized by the Investment Committee to provide individually directed accounts for
purposes of this Plan; (iv) any other funding vehicle (including, but not limited to, a limited
partnership); (v) the Company Stock Fund; (vi) any other fund for the holding of other Employer
Stock maintained in connection with an Inactive Account transferred from a Transferor Plan, and
(vii) for former participants in the Hourly Plan, guaranteed investment contracts issued by
Principal Mutual Life Insurance Company. Solely for



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the purpose of segregating notes representing
loans to a Participant under Section 7.02, the Trustee and Plan Administrator shall hold such notes
as a separate Investment Fund pursuant to Section 7.02(f).



     2.34 “Investment Manager” means a person who has acknowledged in writing that he, she or it
is a fiduciary with respect to this Plan and who (i) is registered as an investment adviser under
the Investment Advisers Act of 1940 (the “Act”), or (ii) is not registered as an investment adviser
under such Act by reason of paragraph (1) of Section 203(A) of such Act but is registered as an
investment adviser under the laws of the state in which such person maintains his, her or its
principal office and place of business, and who, at the time such person last filed with such state
the most recent the registration form required to maintain such person’s registration under the
laws of such state also filed a copy of such form with the Secretary of Labor, or (iii) is a bank
as defined in the Act, or (iv) is an insurance company qualified to perform investment management
or investment advisory services under the laws of more than one state.



     2.35 “Matching Contributions” means the contributions made from time to time by an Employer
to the Trustee in accordance with Section 4.02.



     2.36 “Maternity or Paternity Leave” means an absence from work (i) by reason of pregnancy
of the individual; (ii) by reason of a birth of a child of the individual; (iii) by reason of the
placement of a child with the individual in connection with the adoption of such child by such
individual; or (iv) for purposes of caring for such child for a period beginning immediately
following such birth or placement. The Participant shall give the Plan Administrator such timely
information as the Plan Administrator may reasonably require to establish that the absence from
work is for one of the foregoing reasons and to establish the number of days for which there was
such an absence.



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



     2.38 “Participant” means a current or former Eligible Employee participating in the Plan as
provided in Article III.



     2.39 “Period of Severance” means the period of time from the earliest of (i) an Employee’s
Termination of Employment, or (ii) the first anniversary of an Employee’s first absence from work
for any reason other than a Termination of Employment, until the date the Employee is credited with
an Hour of Service upon reemployment by or return to service with an Employer or a Related Company.
However
if one of the reasons for an Employee’s Termination of Employment or other absence was Maternity or
Paternity Leave, the Period of Severance shall not include the first year that would otherwise be
included in that Period of Severance.



     2.40 “Plan” means this Chicago Bridge & Iron Savings Plan as set forth in this document and
as from time to time amended; including, for periods prior to the Effective Date, the Former Plan.



     2.41 “Plan Administrator” means the person appointed by the Company in accordance with
Section 9.01 to serve as the plan administrator within the meaning of Section 414(g) of the Code
and as the administrator within the meaning of Section 3(16)(A) of ERISA.



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     2.42 “Plan Year” means the calendar year.



     2.43 “QMAC” means the qualified matching contribution made from time to time by an Employer
to the Trustee in accordance with Section 4.06



     2.44 “Qualified Military Leave” means an absence due to service in the uniformed services
(as defined in chapter 43 of the United States Code) by any Employee provided the Employee returns
to employment with the Company or Related Employer with re-employment rights provided by law.



     2.45 “QNEC” means the qualified non-elective contribution made from time to time by an
Employer to the Trustee in accordance with Section 4.06.



     2.46 “Reduction-in-Force Termination” means any permanent Termination of Employment of an
Employee initiated by the Company or any Related Company, including any Termination of Employment
caused by the sale by the Company or a Related Company of an ownership interest in a Related
Company or the assets of a business or business segment, causing the sold Related Company, business
or business segment to cease being (or being part of) a Related Company, but excluding:




     (a) any Termination of Employment by Retirement, or by early retirement under any
retirement arrangement of an Employer applying to that Employee, elected by the Employee
before being given notice of any impending Termination of Employment, or pursuant to an
election under any special program of retirement incentive offered by
the Company or Related Employer prior to any notice of impending Termination of
Employment;




     (b) any Termination of Employment by reason of Disability or death;




     (c) any Authorized Leave of Absence;




     (d) any Termination of Employment for or after “Cause,” as “Cause” is defined in the
Chicago Bridge & Iron Salaried Employee Severance Pay Plan as from time to time in effect
(the “Severance Plan”), whether or not the Severance Plan applies to the Employee;




     (e) any voluntary resignation by the Employee; or




     (f) any event that is not a Termination of Employment as defined in Section 2.55.



     2.47 “Related Company” means a corporation, trade, or business however organized (including
any limited liability company) during the time that it and an Employer are (i) members of a
controlled group of corporations as defined in Section 414(b) of the Code; (ii) under common
control as defined in Section 414(c) of the Code, (iii) members of an affiliated service group as
defined in Section 414(m) of the Code, or (iv) members of a group the members of which are required
to be aggregated pursuant to regulations under Section 414(o) of the Code; provided,
however, that for purposes of determining applying Section 5.07, the



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standard of control
under Sections 414(b) and 414(c) of the Code (and thus also Company and Related Plans) shall be
determined as provided in Section 5.07(e).



     2.48 “Related Plan” means any other defined contribution plan or any defined benefit plan
(as defined in Sections 414(i), (j) and (k) of the Code) maintained by an Employer or a Related
Company and intended to qualify under Section 401(a) of the Code, respectively called a
“Related Defined Contribution Plan” and “Related Defined Benefit Plan.”



     2.49 “Required Distribution Date” means April 1 of the calendar year following the later of
(i) the calendar year in which the Participant attains age 70-1/2, or (ii) the calendar year in
which the Participant has a Termination of Employment; provided, however, that this
clause (ii) shall not apply (A) if the Participant is a five percent (5%) owner (as determined
under Code Section 416(i)) of the Employer or a Related Company at any time during the Plan Year
ending with or within the calendar year in which he or she attains age 70-1/2, or (B) to a
Participant who attained age 70-1/2 before January 1, 1999.



     2.50 “Restricted Account”
means an Inactive Account that is subject to the survivor annuity requirements of Section 417
of the Code.



     2.51 “Retirement” means a Termination of Employment on or after the date a Participant (i)
has attained age 55 and has completed 10 years of Service, (ii) has completed 30 years of Service,
or (iii) has attained his or her Normal Retirement Date.



     2.52 “Rollover Contribution” means a contribution made from time to time by an Eligible
Employee to the Trustee in accordance with Section 4.05 of the Plan (i) from a qualified trust as
described in Section 402(c) of the Code, an annuity contract described in Section 403(b) of the
Code or an eligible plan under Section 457(b) of the Code which is maintained by a state, political
subdivision of a state, or any agency or instrumentality of a state or political subdivision of a
state; or (ii) from an individual retirement account or individual retirement annuity (“IRA”) as
described in Section 408(d)(3) of the Code if the sole source of contributions to such IRA was one
or more rollover contributions from a qualified trust described in Section 402(c) of the Code. A
Rollover Contribution shall include any direct transfer of an eligible rollover distribution
described in Section 401(a)(31) of the Code from a qualified trust, annuity contract, eligible
governmental plan or IRA described in the preceding sentence.



     2.53 “Salary Reduction Agreement” means the properly completed and executed form provided
by the Plan Administrator which has been filed by the Participant with the Plan Administrator as
provided in Section 4.01.



     2.54 “Service” means the aggregate of all periods of employment of an Employee by an
Employer or Related Company (including periods of Authorized Leave of Absence) measured from the
date an Employee first performs an Hour of Service upon employment or reemployment to the date of
the Employee’s Termination of Employment, but excluding any Period of Severance other than an
Authorized Leave of Absence; provided, however, that (i) an Employee shall not be
credited with more than 12 months of Service with respect to any single period of Authorized Leave
of Absence; and (ii) if an Employee who has a Termination of Employment is reemployed by an
Employer or a Related Company and performs an Hour of Service before he



-12-









 







or she incurs a one-year
Period of Severance, such Termination of Employment shall be disregarded and his or her Service
shall be treated as continuous through the date he or she resumes employment as an Employee. An
Employee shall receive credit for 1/12 of a year of Service for each full or partial calendar month
of Service. Service once credited under this Section shall not be disregarded by reason of any
subsequent Period of Severance; except that if a Participant has five consecutive one-year
Periods of Severance, Service after such five-year period shall not be taken into account for
purposes of Section 4.10 in determining the nonforfeitable percentage of his or her Accrued Benefit
derived from Employer contributions which accrued before such five-year period. For purposes of
determining whether or to what extent a Participant’s Accounts transferred from a Transferor Plan
are vested and nonforfeitable under Section 4.11, Service of a Participant who
was a participant in a Transferor Plan shall include service with the predecessor employer credited
for vesting purposes under the Transferor Plan. Notwithstanding any provision of this Plan to the
contrary, contributions, benefits and service credit with respect to Qualified Military Leave shall
be provided in accordance with Section 414(u) of the Code, effective as of December 12, 1994.



     2.55 “Termination of Employment” occurs when for any reason ( other than a layoff for lack
of work with recall rights) an individual is no longer an Employee of an Employer or any Related
Company, except that




     (a) If an individual incurs a layoff for lack of work with recall rights, a Termination
of Employment shall occur on the first anniversary of the date of layoff, unless the
individual has in the interim been recalled to employment with the Employer or a Related
Company.




     (b) A Participant’s Elective Deferrals, QNECs, QMACs, and earnings attributable to
these contributions shall be distributed on account of the Participant’s severance from
employment satisfying the requirements of Section 401(k)(10) of the Code and Treasury
Regulations and rulings thereunder, all as in effect at the time of such severance from
employment, as determined in the sole discretion of the Plan Administrator. However, such a
distribution shall be subject to the other provisions of the Plan regarding distributions,
other than provisions that require a separation from service before such amounts may be
distributed.



     2.56 “Transferor Plan” means an employee benefit plan that is qualified under Section
401(a) of the Code and that transfers part or all of its assets and liabilities to, or merges or
consolidates into, this Plan in a trust-to-trust transfer described in Section 414 (l) of the Code.



     2.57 “Traveler” means a Field Employee who (i) has worked, within a twenty-six week period,
for the Employer or Related Company, in at least two separate physical locations, one of which is
no less than 50 miles from either the other or from such Field Employee’s permanent residence; (ii)
has worked during a minimum of twenty weeks within a twelve-month period at least two separate
physical locations no less than 50 miles apart on projects consisting of significant manufacturing,
refining or processing plan repairs or renovations (commonly known in the industry as “turnaround
contracts”) or (iii) has worked as a field superintendent, weld supervisor, safety supervisor,
pusher or non-destructive examination supervisor continuously for at least thirty calendar days.



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     2.58 “Traveler Contributions” means the contributions for Plan Year’s ending on or before
December 31, 2000 made from time to time by an Employer to the Trustee in accordance with Section
4.04.



     2.59 “True-Up” Contributions”
has the meaning defined for such term in Section 4.02(d).



     2.60 “Trust” means the trust established under the Trust Agreement by which contributions
shall be received, held, invested and distributed to or for the benefit of Participants and
Beneficiaries.



     2.61 “Trust Agreement” means the trust agreement dated December 31, 1996, by and between
the Company and T. Rowe Price Trust Company, a Maryland limited trust company, as Trustee, and any
amendments thereto or successor or supplemental agreements



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



     2.63 “Trustee” means the corporation, bank, trust company, individual or individuals who
accept appointment as trustee to execute the duties of the Trustee set forth in the Trust
Agreement.



     2.64 “Valuation Date” means the last business day of each calendar year and such additional
dates as the Plan Administrator shall deem appropriate. The Plan Administrator may designate
different additional Valuation Dates for different Investment Funds and for different purposes
under the Plan.



ARTICLE III




Participation




     3.01 Participation.




     (a) Each Eligible Employee who was a Participant in the Former Plan immediately before
the Effective Date shall continue as a Participant in the Plan from and after the Effective
Date.




     (b) Except as provided in subsection (c), each other Eligible Employee shall become a
Participant on the first day on which he or she is an Eligible Employee.




     (c) An Eligible Employee who is a shop employee at the Clive, Provo or Warren Shops or
whose participation in this Plan is governed by a collective bargaining
agreement that provides for an Eligibility Period of Service (defined below) shall
become a Participant on the date he or she completes an Eligibility Period of Service, if he
or she is then employed by an Employer as an Eligible Employee. If he or she is not then
employed by an Employer as an Eligible Employee on such date he or she shall become a
Participant on the first day thereafter that he or she is an employed by an Employer as an
Eligible Employee, unless he or she had a Period of Severance of at least five consecutive



-14-









 






years before again becoming an Eligible Employee; in which case he or she will not become a
Participant until the date he or she completes an new Eligibility Period of Service under
this subsection after the Period of Severance. For purposes of this subsection an
“Eligibility Period of Service” is a one-year period beginning on the date the Employee
first completes an Hour of Service (determined without regard to whether the Employee is an
Eligible Employee on the first or last day of such period or the number of Hours of Service
in such Period).



     3.02 Duration of Participation. An Eligible Employee who becomes a Participant shall
continue to be a Participant until the later of (i) his or her Termination of Employment, or (ii)
the distribution of his or her entire vested Accrued Benefit from the Plan.



     3.03 Participation Upon Re-Employment. A Participant who has a Termination of Employment,
and thereafter resumes employment with an Employer as an Eligible Employee shall again become a
Participant immediately upon becoming an Eligible Employee. An Eligible Employee described in
Section 3.01(c) who has a Termination of Employment before becoming a Participant and thereafter
resumes employment with an Employer as an Eligible Employee shall again become a Participant in
accordance with Section 3.01.



     3.04 Participation Forms. A Participant shall not be eligible to make Elective Deferrals
(or to receive an allocation of Matching Contributions) until the effective date of his or her
Salary Reduction Agreement as determined under Section 4.01(c). A Participant shall execute and
deliver to the Plan Administrator a Beneficiary designation and an investment election, on such
form or forms provided or permitted by the Plan Administrator, and in such manner, as the Plan
Administrator may prescribe.



ARTICLE IV




Contributions and Vesting




     4.01 Elective Deferrals.




     (a) General. Each Active Participant may elect to make Elective Deferrals from
his or her Compensation by executing and filing an appropriately completed Salary Reduction
Agreement with the Plan Administrator on such form or forms provided or permitted by the
Plan Administrator and in such manner as the Plan Administrator may prescribe. The Salary
Reduction Agreement shall specify the percentage of Compensation to be contributed to the
Plan as Elective Deferrals. That percentage shall not be more than the maximum percentage
for Elective Deferrals prescribed by the Plan Administrator from time to time uniformly
applicable to all Participants and effective from and after the date prescribed. The
Employer shall reduce each Participant’s Compensation by, and contribute to the Trust as
Elective Deferrals on behalf of such Participant, the amount (if any) by which such
Participant’s Compensation has been reduced under such Participant’s Salary Reduction
Agreement. A Participant’s Salary Reduction Agreement shall continue in effect, subject to
subsection (e) below, notwithstanding any change in his or her Compensation, until he or she
changes or revokes his or her Salary Reduction Agreement.



-15-









 






     (b) Changes of Salary Reduction Agreements. A Participant may change his or
her rate of Elective Deferrals by executing and filing a new Salary Reduction Agreement with
the Plan Administrator on such form provided or permitted by the Plan Administrator and in
such manner as the Plan Administrator may prescribe.




     (c) Effective Date of Salary Reduction Agreement. A Salary Reduction Agreement
or a change thereof shall apply solely to Compensation not yet paid or payable as of the
date such new or changed Salary Reduction Agreement is filed with the Plan Administrator.
Subject to the foregoing requirement, a Salary Reduction Agreement or change thereof shall
take effect on the first day of the payroll period as of which the start or change of the
Participant’s Elective Deferrals is administratively practicable (determined under
procedures established by the Plan Administrator) after the Participant has executed and
filed an initial or changed Salary Reduction Agreement with the Plan Administrator as
provided in subsection (a) or (b) of this Section 4.01.




     (d) Revocations of Salary Reduction Agreements. A Participant may revoke a
Salary Reduction Agreement with respect to Compensation not paid or payable as of the date
of such revocation by executing and filing a revocation of such Salary Reduction Agreement
on such form provided or permitted by the Plan Administrator and in such manner as the Plan
Administrator may prescribe. Revocation of a Salary Reduction Agreement shall take effect
on the first day of the payroll period as of which implementing the revocation is
administratively practicable (determined under procedures established by the Plan
Administrator) after the Participant has executed and filed such revocation with the Plan
Administrator. A Participant’s Salary Reduction Agreement shall become ineffective upon his
or her ceasing to be an Active Participant. But the Participant may make a new Salary
Reduction Agreement in accordance with subsection (a) upon again becoming an Active
Participant.




     (e) Other Reductions and Limitations. Elective Deferrals shall not exceed the
lowest maximum amount permitted by Article V. Notwithstanding anything in a Salary
Reduction Agreement, the Plan Administrator may reduce the Elective Deferrals and
amend the Salary Reduction Agreement of any Participant to prevent a reasonably
anticipated violation of the limitations of Section 5.07, and may reduce the Elective
Deferrals and Salary Reduction Agreement of any Participant who is a Highly Compensated
Employee to prevent a reasonably anticipated violation of the limitations of Sections 5.01
or 5.02. If a Participant receives a Hardship distribution pursuant to Section 7.01, his or
her Salary Reduction Agreement shall be suspended in accordance with Section 7.01(b)(4).
The Plan Administrator may, in its discretion, impose such additional rules, regulations and
limitations on the amount of Elective Deferrals that may be elected, including limitations
on the amount of Elective Deferrals that an Active Participant may elect for each payroll
period to a pro-rata portion of the Dollar Limit, and limitations on the amount of Elective
Deferrals that a Highly Compensated Employee may elect, to ensure that the limitations of
Article V are not exceeded.




     (f) Time for Contributing Elective Deferrals. For each payroll period during a
Plan Year, each Employer shall pay the Elective Deferrals of Participants who are its
Employees over to the Trustee as of, or as soon as reasonably possible after, the date such



-16-









 






amount would otherwise have been paid to the Participant in cash, but not later than the
15th business day of the month following the month in which such amount would otherwise have
been paid to the Participant in cash.




     (g) Allocation of Elective Deferrals. Elective Deferrals shall be allocated to
the Employee 401(k) Account of each Participant on whose behalf such Elective Deferrals were
made.



     4.02 Matching Contributions.




     (a) General. Subject to Sections 11.01, 11.02 and 11.04, for each Plan Year,
each Employer shall contribute on behalf of each Participant employed by the Employer on
whose behalf Elective Deferrals are made, an amount equal to one hundred percent (100%) of
so much of the Participant’s Elective Deferrals for the Plan Year as do not exceed three
percent (3%) of the Participant’s Compensation for the Plan Year, or such larger or smaller
percentages as each Employer may determine uniformly for the Participants who are its
Employees. An Employer may change such percentages from time to time during the Plan Year,
provided that the Employer may not retroactively decrease the percentages of its Matching
Contributions or the percentage of Elective Deferrals subject to Matching Contributions.




     (b) Time for Contributing Matching Contributions. Matching contributions shall
be determined and made, on the basis of Elective Deferrals, for each payroll period, subject
to the subsection (d) below. However the Employer may pay its Matching Contributions over
to the Trustee at any time not later than the due date for the filing of the federal income
tax return (including any extensions) of the Employer for the tax year during which occurs
the last day of the Plan Year containing the last day of such payroll period.




     (c) Allocation of Matching Contributions. Matching Contributions shall be
allocated to the Company Matching Account of each Participant on whose behalf such Matching
Contributions were made; provided, however, that effective January 1, 2001, a Participant’s
Company Matching Account as of December 31, 2000 shall become an Inactive Account for
pre-2001 Matching Contributions (including accumulated and future earnings thereon), as
indicated in Schedule 1, and a new Company Matching Account shall be established for each
such Participant as of January 1, 2001.




     (d) True-Up Contributions. As of the last day of each Plan Year, the
applicable Matching Contributions formula under subsection (a) shall be applied to the total
of the Participant’s Elective Deferrals for the Plan Year then ending, and each Employer
shall contribute (within the time specified by subsection (b)), on behalf of each
Participant on whose behalf Elective Deferrals are made, the amount, if any (the “True-Up
Contribution”), by which the total Matching Contributions so required exceed the actual
Matching Contributions previously determined on the basis of payroll periods for such Active
Participant during the course of the Plan Year. If an Employer has changed its
determination of percentages for its matching contribution formula during the Plan



-17-









 






Year, the
amount of the True-Up Contribution shall be determined separately for each portion of a Plan
Year during which a given matching contribution formula was in effect.



     4.03 Company Contributions.




     (a) General. Subject to Sections 11.01, 11.02 and 11.04, for each Plan Year
for which the Company elects in its sole discretion for Employers to make a Company
Contribution, each Employer shall make a Company Contribution for each Active Participant
employed by the Employer (other than, for Plan Years ending on or before December 31, 2000,
a Traveler entitled to an allocation of Traveler Contributions pursuant to Section 4.04) who
is an Employee on the last day of the Plan Year or had a Termination of Employment during
the Plan Year by reason of Retirement, Disability, death or a Reduction-in-Force
Termination. The Amount of the Company Contribution shall be (i) a percentage, determined
by the Company in its discretion and uniformly applicable to all such Active Participants
that is not less than five percent (5%), and not more than twelve percent (12%), or such
larger or smaller percentage as each Employer may determine in its discretion and make
uniformly applicable to all Active Participants employed by it, of (ii) the Compensation of
each Active Participant for the portion of the Plan Year during which the Participant is an
Active Participant (other than such a Traveler). If an Employer has changed its
determination of the percentage of its Company Contribution during the Plan Year, the amount
of the Company Contribution shall be determined separately for each portion of a Plan Year
during which a given percentage was in effect.




     (b) Time for Company Contributions. For each Plan Year, each Employer shall pay
its Company Contributions over to the Trustee not later than the due date for the filing of
the federal income tax return (including any extensions) of the Employer for the tax year
during which the last day of such Plan Year occurs.




     (c) Allocation of Company Contributions. Company Contributions shall be
allocated to the Company Contribution Account of each Active Participant eligible for such
allocation under subsection (a) in the same ratio that the eligible Compensation of such
Active Participant bears to the total eligible Compensation of all Active Participants.



     4.04 Traveler Contributions.




     (a) Traveler Contributions. Subject to Sections 11.01, 11.02 and 11.04, for
each Plan Year ending on or before December 31, 2000, for which the Company elects to make a
Company Contribution, each Employer shall contribute for each Active Employee employed by
the Employer who is a Traveler an amount equal to (i) one dollar ($1.00) for each Hour of
Service performed by a Traveler (as a Traveler) described in clauses (i) or (ii) of Section
2.57, during the Plan Year, and (ii) five percent (5%) of the Compensation of a Traveler (as
a Traveler) described in clause (iii) of Section 2.57 for the Plan Year.




     (b) Time for Traveler Contributions. Each Employee shall pay over to the
Trustee the Traveler Contribution for each Plan Year not later than the due date for the



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filing of the federal income tax return (including extensions) of the Employer for the tax
year during which the last day of such Plan Year occurs.




     (c) Allocation of Traveler Contributions. Traveler Contributions shall be
allocated to the Travelers Benefit Account of each Traveler eligible for such allocation
under subsection (a) in the amount specified for such Traveler in subsection (a).



     4.05 Rollover Contributions into the Plan. At the request of any Eligible Employee the
Plan Administrator shall direct the Trustee to accept a Rollover Contribution on behalf of the
Eligible Employee. A Rollover Contribution shall be held in the Prior Plan and Rollovers Account
for the Eligible Employee. If the Rollover Contribution includes amounts that would not be
includible in gross income (except as provided by Sections 402(c), 403(a)(4), 403(b)(8) and
457(e)(16) of the Code) if not transferred as an Rollover Contribution, the Plan Administrator
shall separately account for the portion of the Rollover Contribution which is so includible in
gross income and the portion of such Rollover Contribution which is not so includible. Each
Rollover Contribution shall be made in cash, in notes representing a loan to the Participant from a
qualified trust under provisions of such qualified trust similar to Section 7.02, or in property
(which may be stock or securities issued by the former employer) acceptable to the Trustee in its
sole discretion for purposes of this Plan. Prior to accepting a Rollover Contribution, the Plan
Administrator may require that the Eligible Employee who wants to make the Rollover Contribution
shall provide evidence reasonably satisfactory to the Plan Administrator that such Contribution
qualifies as a Rollover Contribution. Acceptance of a Rollover Contribution shall not in any
manner guarantee the result of such contribution under any tax laws; and neither the Company, the
Investment Committee, any Employer, the Plan Administrator, the Trustee nor any Investment Manager,
shall be responsible for such tax results. If the Plan Administrator determines after any Rollover
Contribution that such contribution did not in fact qualify as a Rollover Contribution, the amount
of the Rollover Contribution, increased by income and gains and reduced (but not below zero) by
losses and expenses, shall be returned to the Eligible Employee.



     4.06 Special Contributions; QNECs and QMACs.




     (a) QNECs and QMACs. For each Plan Year, the Company may elect to have the
Company and the other Employers make a special contribution in such amount (if any) as the
Company may determine as QNECs and/or QMACs. In any Plan Year in which the Company elects
to have such a QNEC or QMAC made, each Employer shall contribute a fractional portion of the
QNEC or QMAC in such amount as the Company shall determine to be appropriate in the
circumstances.




     (b) Time for QNECs or QMACs. Each Employer shall pay its QNECs or QMACs for a
Plan Year over to the Trustee not later than the last day of the following Plan Year;
provided, however, that if the Employer intends to deduct such QNEC or QMAC in the tax year
in which the last day of the Plan Year for which such QNEC or QMAC was made occurs, the
Employer shall pay its QNEC or QMAC over to the Trustee on or before the due date for the
filing of the federal income tax return (including any extensions) of the Employer for such
tax year.



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     (c) Allocation of QNECs or QMACs. As of the last day of each Plan Year, any
QNECs or QMACs made to the Plan for the Plan Year shall be allocated to the Employee 401(k)
Account of each Designated Participant (as defined below) who is an Active Participant, as
determined by the Company in its discretion, in whichever one or more of the following
methods as the Company shall determine:




          (i) Compensation-Based QNEC.




     (A) Compensation-based QNECs may be allocated to the Employee 401(k)
Account of each Designated Participant who has Compensation not in excess of
an amount specified by the Company in the ratio that such Participant’s
Compensation for the Plan Year bears to the total Compensation of all such
Participants for the Plan Year.




     (B) Compensation-based QNECs may be allocated to the Employee 401(k)
Account of each Designated Participant who has Compensation not in excess of
an amount specified by the Company in the ratio that such Participant’s
Compensation for the Plan Year bears to the total Compensation of all such
Participants for the Plan Year.




     (C) A Section 415-based QNEC may be allocated to the Employee 401(k)
Account of each Designated Participant in an amount that maximizes each such
Participant’s annual additions under Code Section 415(c) of the code.




     (ii) Per Capita-Based QNEC. A per capita-based QNEC may be allocated
to the Employee 401(k) Account of each Designated Participant in an amount equal to
the total per capita-based QNEC divided by the total number of such Participants for
the Plan Year.




     (iii) Section 401(k)-Based QMAC. A Section 401(k)-based QMAC may be
allocated to the Employee 401(k) Account of each Designated Participant in the ratio
that the amount of Elective Deferrals made to the Plan for such Plan Year on behalf
of such Participant bears to the total amount of Elective Deferrals made to the Plan
for such Plan Year on behalf of all such Participants, based on Elective Deferrals
up to a specified percentage or dollar amount of Compensation, as determined by the
Plan Administration.




     (d) Definition of Designated Participant. With respect to any QNEC or QMAC, a
Designated Participant is a Participant who is not a Highly Compensated Employee for the
Plan Year and who is designated by the Plan Administrator on the basis of any one or more of
the following:




     (i) such Participant’s level of Compensation;




     (ii) such Participant’s employment on the last day of the Plan Year;




     (iii) such Participant’s completion of a Year of
Vesting Service;



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     (iv) such Participant’s making of a Salary Reduction Agreement Election; or




     (v) such Participant’s job classification that satisfies the nondiscriminatory
classification test.



     4.07 Crediting of Contributions. Contributions to be allocated to a Participant’s Account
shall be credited to such Account (and available for Participant direction of investment pursuant
to Section 6.08(a) and loans, withdrawals and benefits pursuant to Articles VII and VIII) on or as
soon as reasonably practicable (under procedures established or approved by the Plan Administrator)
after the contributions (and a reconciliation of the contributions to Participants’ Accounts) are
actually received by the Trustee from time to time during or after the Plan Year. However, for
purposes of determining the Accrued Benefit to which a Participant is entitled, contributions made
or to be made for a particular Plan Year but credited under this Section after the last day of such
Plan Year shall nevertheless be deemed made and allocated on such last day of such Plan Year.



     4.08 Determination and Amount of Employer Contributions. Subject to the Company’s
determination of the rate (if any) of Company Contributions pursuant to Section 4.03, the Plan
Administrator shall determine the amount of any contribution to be made by the Company and each
Employer hereunder. In making such determination, the Plan Administrator shall be entitled to rely
upon the estimates of Compensation made by the
accounting officers of each respective Employer with respect to the Employees of that Employer.
Such determination shall be binding on all Participants, all Employers, and the Trustee. Under no
circumstances shall any Participant or Beneficiary have any right to examine the books and records
of any Employer.



     4.09 Condition on Company Contributions. All contributions of Elective Deferrals, Matching
Contributions, Company Contributions, Traveler Contributions, QNECs or QMACs by the Company or any
other Employer under this Plan are hereby expressly conditioned upon their being deductible for
federal income tax purposes under Section 404 of the Code; and notwithstanding anything else in the
Plan shall not exceed the amount so deductible.



     4.10 Form of Company Contributions. Contributions of the Company or any other Employer
under this Plan shall be in the form of cash if they are (i) Elective Deferrals, (ii) Company
Contributions to the extent not in excess of 5% of the Compensation of Participants entitled to an
allocation of such Company Contributions, or (iii) Traveler Contributions. All other contributions
of the Company or any other Employer under this Plan (including that portion of any Company
Contributions in excess of 5% of the Compensation of Participants entitled to an allocation of such
Company Contributions) may in the discretion of the Company be made in cash, in Company Stock that
is a qualifying employer security (as defined in Section 407(d)(5) of ERISA), or in other property
acceptable to the Trustee in its sole discretion.



-21-









 





     4.11 Vesting.




     (a) Vesting Upon Normal Retirement Date, Death or Disability. A Participant’s
Accrued Benefit shall be fully vested and nonforfeitable if and when the Participant attains
his or her Normal Retirement Date, dies or becomes Disabled on or before the date he or she
has a Termination of Employment, or incurs a Termination of Employment by reason of a
Reduction-In-Force Termination.




     (b) Fully Vested Accounts. A Participant’s Accrued Benefit shall be fully
vested and nonforfeitable at all times to the extent represented by the balance of his or
her Employee 401(k) Account, Travelers Benefit Account, and Rollover Account.




     (c) Other Termination. Except as provided in subsection (a):




     (1) The vested and nonforfeitable portion of a Participant’s Accrued Benefit
attributable to his or her Company Contribution Account shall be the percentage of
such Account determined in accordance with the vesting schedule specified below:



	 	 	 	 	 
	Years of	 	Vested
	Service	 	Percentage
	Less than five years

	 	 	0	%
	Five years or more

	 	 	100	%







     (2) The vested and nonforfeitable portion of a Participant’s Accrued Benefit
attributable to his or her Company Matching Account (excluding his or her Inactive
Account for pre-2001 Matching Contributions) shall be the percentage of such Account
determined in accordance with the vesting schedule specified below:



	 	 	 	 	 
	Years of	 	Vested
	Service	 	Percentage
	Less than three years

	 	 	0	%
	Three years or more

	 	 	100	%,







     (d) Inactive Accounts. A Participant’s Accrued Benefit shall be fully
vested and nonforfeitable at all times to the extent represented by an Inactive Account
(including the Participant’s Inactive Account for pre-2001 Matching Contributions, if any),
other than an Inactive Account that comprises contributions (including
matching contributions) made by an employer under a Transferor Plan. The nonforfeitable
percentage of an Inactive Account that comprises contributions (including matching
contributions) made by an employer under a Transferor Plan shall be determined under the
vesting schedule specified in the applicable Transferor Plan for accounts containing such
contributions, as shown on Schedule 1, taking into account (without duplication) all of the
Participant’s Years of Service including service with the predecessor employer credited for
vesting purposes under the Transferor Plan.



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     (e) Forfeitures. If a Participant has a Termination of Employment, then that
portion of the Participant’s Accrued Benefit which is not vested as of his or her
Termination of Employment shall become a Forfeiture as soon as administratively practicable
after the earliest of (i) the date on which the balance of the Participant’s Accounts is
distributed, (ii) the last day of the Plan Year in which the Participant incurs a one year
Period of Severance, or (iii) the date of Termination of Employment; provided,
however, if the Participant has no vested interest in any Accounts, such portion
shall become a Forfeiture on the date of Termination of Employment.




     (f) Return to Employment. If a Participant or a former Participant resumes
service with an Employer as an Employee before incurring a Period of Severance lasting five
or more years, the amount forfeited under subsection (e) (without adjustment for interest,
gains or losses) shall be reinstated to the Participant’s or former Participant’s Account(s)
from which the Forfeiture arose, as soon as administratively practicable after the
Participant resumes service with an Employer as an Employee, first out of Forfeitures for
the Plan Year in which reemployment occurs, and to the extent that Forfeitures for such Plan
Year are not sufficient, out of the Trust Fund as an administrative expense of the
Trust. If a former Participant does not resume employment with an Employer before the
end of a Period of Severance lasting at least five years, the amounts forfeited under
subsection (e) shall not be reinstated.




     (g) Application of Forfeitures. Forfeitures arising pursuant to Sections
4.10(e), 5.01, 5.02(c), or 13.04 during a Plan Year shall be applied first to restore any
Forfeitures that are reinstated during the Plan Year pursuant to Sections 4.10(f) or 13.04;
second, to correct in such Plan Year any errors in the adjustment of Participants’ Accounts
pursuant to Section 6.11, third, to the payment of expenses of administering the Plan and
the Trust pursuant to Section 6.03, and fourth, toward the payment of Company Contributions.
Forfeitures that are applied toward payment of Company Contributions shall be considered to
be Company Contributions, shall reduce the amount of Company Contributions otherwise
required to be made to the Trust, and shall be allocated in accordance with Section 4.03(c).



     4.12 Catch-Up Deferrals. Effective for Plan Years beginning on or after January 1, 2002,
each Participant who is an “Eligible Active Participant” (as defined in subsection (a)) may elect
to make Catch-Up Deferrals from his or her Compensation by written election on a Salary Reduction
Form filed with the Plan Administrator in such manner as the Plan Administrator may prescribe. The
Employer shall reduce each Eligible Active Participant’s Compensation by, and contribute to the
Trust as Catch-Up Deferrals on behalf of such Participant, the amount (if any) of the Participant’s
Catch-Up Deferrals. For purposes of this Section 4.12:




     (a) An “Eligible Active Participant” is a Participant who:




     (1) will have attained age 50 on or before the last day of the Plan Year; and



-23-









 







     (2) has made Elective Deferrals for the Plan Year that are the maximum Elective
Deferrals allowed under the Plan, taking into account the provisions of Article V.




     (b) For each Plan Year, the amount of the Catch-Up Deferrals made on behalf of a
Participant who is an Eligible Active Participant shall be equal to the dollar amount or
percentage (in increments of 1%) of the Participant’s Compensation specified by the
Participant for Catch-Up Deferrals on his or her Salary Reduction Form, provided that such
Catch-Up Deferrals may not exceed the lesser of the following for a Plan Year:




     (1) $1,000 for 2002, $2,000 for 2003, $3,000 for 2004, $4,000 for 2005, $5,000
for 2006, and $5,000 for Plan Years after 2006 as adjusted for cost-of-living
increases by the Secretary of the Treasury or his delegate pursuant to the
provisions of Section 414(v)(2)(C) of the Code; or




     (2) The excess of (i) the Participant’s Statutory Compensation for the Plan
Year as determined under Section 2.13(b) (as applied for purposes of
Sections 5.02 and 5.03), over (ii) the Participant’s Elective Deferrals for the
Plan Year.




     (c) A Participant’s initial Catch-Up Deferral election shall be effective for
Compensation payable on or after the date on which such election is made and shall remain in
effect until changed or revoked. Thereafter, changes in the percentage (solely in
increments or decrements of 1%) or dollar amount of Compensation to be deferred or
revocation of any such election, may be made by written election on a Salary Reduction Form
filed with the Plan Administrator in such manner as the Plan Administrator may prescribe.




     (d) The Catch-Up Deferrals for the Plan Year shall be credited to the Participants’
Employee 401(k) Accounts in the amounts of their respective Catch-Up Deferral elections for
such Plan Year and shall be fully vested and nonforfeitable.




     (e) Catch-Up Deferrals shall not be subject to any of the limitations under Article V.




     (f) The Plan Administrator may specify rules from time to time governing Catch-Up
Deferrals, including, but not limited to, rules regarding the timing, method, and
implementation dates of Catch-Up Deferral elections and the return or recharacterization of
Catch-Up Deferrals as Elective Deferrals. Such rules shall be in compliance with any
applicable guidance issued by the Secretary of the Treasury, and, to the extent deemed
advisable by the Plan Administrator in order to comply with such guidance, such rules may
override any of the preceding provisions of this Section 4.12.




     (g) Catch-Up Deferrals will be treated as Elective Deferrals for all purposes of this
Plan; other than Section 4.02 (relating to Matching Contributions) and
Article V (relating to Limitations on Contributions); provided, however,
that Catch-Up Deferrals recharacterized under subsection (f) as Elective Deferrals will be
eligible for Matching Contributions to the extent provided for Elective Deferrals in Section
4.02



-24-









 





ARTICLE V




Limitations on Contributions




     5.01 Excess Deferrals. Notwithstanding Section 4.01 or anything in a Participant’s Salary
Reduction Agreement, the sum for any calendar year of (i) Elective Deferrals of any Participant
under this Plan, (ii) any elective deferrals excluded from the Participant’s gross income made
under a Related Plan, and (iii) the amount of elective deferrals under any other plan if the
Participant notifies the Plan Administrator in writing by March 1 of the following calendar year
that such other plan exists under which elective deferrals were excluded from the Participant’s
gross income and the amount of such elective deferrals (excluding in every case Catch-Up Deferrals
made under Section 4.12 of this Plan or corresponding provisions authorized by Section 414(v) of
the Code
of any Related Plan or other plan), shall not exceed the applicable Dollar Limit. The “Dollar
Limit” is $11,000 for 2002, $12,000 for 2003, $13,000 for 2004, $14,000 for 2005, $15,000 for
2006, and for years after 2006 is $15,000 as adjusted for cost-of-living increases by the Secretary
of the Treasury or his or her delegate pursuant to Sections 402(g)(4) and 415(d) of the Code;
increased in each year to the extent applicable in accordance with applicable regulations and
rulings under Section 402(g)(7) of the Code. If the sum of such amounts exceeds the Dollar Limit
for a calendar year, the Plan Administrator shall, not later than the April 15 following the close
of such calendar year, distribute to the Participant all or such portion of the Participant’s
Elective Deferrals in excess of the Dollar Limit (by first distributing unmatched Elective
Deferrals and then matched Elective Deferrals) for such calendar year in an amount equal to the
greater of (i) the amount the Plan Administrator determines is necessary to eliminate the excess of
the sum of the amount described in clauses (i) and (ii) above over the, including net income and
minus any loss allocable to such amount determined in accordance with Section 5.06, or (ii) the
amount requested in writing by the Participant on or before the March 1 following the close of such
calendar year. Any Matching Contributions (including any net income and minus any loss allocable
thereto determined in accordance with Section 5.06) made with respect to such distributed Elective
Deferrals matched Plan Administrator shall be forfeited and allocated in accordance with Section
4.10(f).



     5.02 Excess Contributions: The ADP Test. Notwithstanding Section 4.01 or anything in a
Participant’s Salary Reduction Agreement, a Participant’s Elective Deferrals shall not exceed the
amounts permitted under the non-discrimination rules of Section 401(k) of the Code as set forth in
this Section.




     (a) Imposition of Limit. Elective Deferrals made with respect to a Highly
Compensated Employee for a Plan Year shall not exceed such amount as the Plan Administrator
determines is necessary to cause the Average ADP (as defined in subsection (d) below) of
Active Participants who are Highly Compensated Employees to not exceed the greater of the
following limits (the “Required ADP Test”):




     (1) General Limit. The Average ADP of the Highly Compensated Employees
for such Plan Year shall not be more than the Average ADP of all other Active
Participants for such Plan Year multiplied by 1.25; or



-25-









 






     (2) Alternative Limit. The excess of the Average ADP of Highly
Compensated Employees for such Plan Year over the Average ADP of all other Active
Participants for such Plan Year shall not be more than two percentage points, and
the Average ADP of the Highly Compensated Employees for such Plan Year shall be not
more than the Average ADP of all other Active Participants for such Plan Year
multiplied by two.




If the Plan Administrator so elects by amendment to this Plan, it may apply the limits set
forth in paragraphs (1) and (2) of this subsection (a) by using the Average ADP of Active
Participants (other than Highly Compensated Employees) for the Plan Year preceding the Plan
Year for which the determination is made rather than for the current Plan Year;
provided that such election may not be changed except as provided by the Secretary of the
Treasury.




     (b) Manner of Reduction to Satisfy Limit. To the extent the Plan Administrator
determines is necessary to pass the Required ADP Test, Elective Deferrals (and Matching
Contributions allocated with respect to Elective Deferrals that are reduced) shall be
reduced for Highly Compensated Employees in the following steps:




     Step 1: The Plan Administrator shall first determine the dollar amount of the
reductions which would have to be made to the Elective Deferrals of each Highly Compensated
Employee who is an Active Participant for the Plan Year in order for the Average ADP of the
Highly Compensated Employees for the Plan Year to satisfy the Required ADP Test. Such
amount shall be calculated by first determining the dollar amount by which the Elective
Deferrals of Highly Compensated Employees who have the highest Actual Deferral Percentage
(as defined in subsection (d)) would have to be reduced until the first to occur of: (i)
such Employees’ Actual Deferral Percentage would equal the Actual Deferral Percentage of the
Highly Compensated Employee or group of Highly Compensated Employees with the next highest
Actual Deferral Percentage; or (ii) the Average ADP of all of the Highly Compensated
Employees, as recalculated after the reductions made under this Step 1, satisfies the
Required ADP Test. Then, unless the recalculated Average ADP of the Highly Compensated
Employees satisfies the Required ADP Test, the reduction process shall be repeated by
determining the dollar amount of reductions which would have to be made to the Elective
Deferrals of the Highly Compensated Employees who, after the prior reductions made in this
step 1, would have the highest Actual Deferral Percentage until the first to occur of: (iii)
such Employees’ Actual Deferral Percentage, after the current and all prior reductions under
this Step 1, would equal the Actual Deferral Percentage of the Highly Compensated Employee
or group of Highly Compensated Employees with the next highest Actual Deferral Percentage;
or (iv) the Average ADP of all of the Highly Compensated Employees, as recalculated after
the current and all prior reductions made under this Step 1, satisfies the Required ADP
Test. This process is repeated until the Average ADP of all of the Highly Compensated
Employees, after all reductions, satisfies the Required ADP Test.




     Step 2. Next, the Plan Administrator shall determine the total dollar amount
of reductions to the Elective Deferrals calculated under Step 1 (“Total Excess
Contributions”).



-26-









 






     Step 3. Finally, the Plan Administrator shall reduce the Elective Deferrals of
the Highly Compensated Employees with the highest dollar amount of Elective Deferrals by the
lesser of the dollar amount which: (i) causes each such Highly Compensated Employee’s
Elective Deferrals to equal the dollar amount of the Elective Deferrals of the Highly
Compensated Employee or group of Highly Compensated Employees with the next highest dollar
amount of Elective Deferrals; or (ii) reduces the Highly Compensated Employees’ Elective
Deferrals by the Total Excess Contributions. Then, unless the total amount of reductions
made to Highly Compensated Employees’ Elective Deferrals under this Step 3 equals the amount
of the Total Excess Contributions, the reduction process shall be repeated by reducing the
Elective Deferrals of the group of Highly Compensated
Employees with the highest dollar amount of Elective Deferrals, after the prior
reductions made in this Step 3, by the lesser of the dollar amount which: (iii) causes each
such Highly Compensated Employees’ Elective Deferrals, after the current and all prior
reductions under this Step 3 to equal the dollar amount of the Elective Deferrals of the
Highly Compensated Employees with the next highest dollar amount of Elective Deferrals; or
(iv) causes total reductions to equal the Total Excess Contributions. This process is
repeated with each successive group of Highly Compensated Employees with the highest dollar
amount, after all reductions, of the Elective Deferrals until the total reductions made
under this Step 3 is equal to the Total Excess Contributions.




     (c) Distribution of Excess Deferrals. The Plan Administrator shall, not later
than the last day of the Plan Year next following the Plan Year in which such amounts are
contributed, distribute the Total Excess Contributions (including any income earned and
minus any loss allocable to such amounts determined in accordance with Section 5.6) to the
Highly Compensated Employees on whose behalf such Elective Deferrals were made. Any
Matching
Contributions (including any income earned and minus any loss allocable thereto
determined in accordance with Section 5.6) made with respect to such distributed Elective
Deferrals shall be forfeited and allocated in accordance with Section 4.10(f).




     (d) Average ADP; Actual Deferral Percentage. The “Average ADP” for a
specified group of Active Participants for a Plan Year shall be the average of the Actual
Deferral Percentages (as defined below) of the members of such group. The “Actual
Deferral Percentage” of an Active Participant is the ratio of the amount of Elective
Deferrals actually paid over to the Plan on behalf of such Active Participant for such Plan
Year divided by the Active Participant’s Statutory Compensation for the Plan Year, or, at
the discretion of the Plan Administrator to the extent not prohibited by regulations
prescribed by the Secretary of the Treasury or his or her delegate, the sum of (i) Elective
Deferrals (to the extent not included in the Actual Contribution Percentage under Section
5.03(d)), and (ii) any portion on all of the QNECS and QMACS actually paid over to the Plan
on behalf of such Active Participant for the Plan Year, divided by the Active Participant’s
Compensation for the Plan Year.




     (e) Aggregation Rules. The Actual Deferral Percentage for any Active
Participant who is a Highly Compensated Employee for the Plan Year and who is eligible to
have Elective Deferrals allocated under this Plan and is also eligible to have elective
deferrals (within the meaning of Section 401(m)(4)(B) of the Code), qualified matching



-27-









 






contributions (within the meaning of Treasury Regulation Section 1.401(k)-1(g)(13)(i)) or
qualified nonelective contributions (within the meaning of Treasury Regulation Section
1.401(k)-1(g)(13)(ii)), allocated pursuant to a cash or deferred arrangement under one or
more Related Plans shall be determined as if such elective deferrals, qualified matching
contributions and qualified nonelective contributions were made under a single arrangement.
If a Highly Compensated Employee participates in two or more cash or deferred arrangements
that have different plan years, all cash or deferred arrangements ending with or within the
same calendar year shall be treated as a single arrangement.




     In the event this Plan satisfies the requirements of Section 401(k), 401(a)(4) or
410(b) of the Code only if aggregated with one or more Related Plans, or if one or more
Related Plans satisfy the requirements of such sections of the Code only if aggregated with
this Plan, then this Section shall be applied by determining the Actual Deferral Percentages
of Participants as if this Plan and all such Related Plans were a single plan; provided,
however, that the Plan and one or more Related Plans may be aggregated in order to satisfy
the non-discrimination rules of Section 401(k) of the Code only if such plans have the same
plan year.



     5.03 Excess Aggregate Contributions: The ACP Test. Notwithstanding Section 4.2, Matching
Contributions shall not exceed the amounts permitted under the non-discrimination rules of Section
401(m) of the Code as set forth in this Section.




     (a) Imposition of Limit. Matching Contributions made on behalf of Highly
Compensated Employees for a Plan Year shall not exceed such amount as the Plan Administrator
determines is necessary to cause the Average ACP (as defined in subsection (d) below) of
Active Participants who are Highly Compensated Employees not to exceed the greater of the
following limits (the “Required ACP Test”):




          (1) General Limit. The Average ACP of the Highly Compensated Employees
for such Plan Year shall not be more than the Average ACP of all other Active
Participants for such Plan Year Multiplied by 1.25; or




          (2) Alternative Limit. The excess of the Average ACP for Highly
Compensated Employees for such Plan Year over the Average ACP of all other Active
Participants for such Plan Year shall not be more than two percentage points, and
the Average ACP of the Highly Compensated Employees for such Plan Year shall not be
more than the Average ACP of all other Active Participants for such Plan Year
multiplied by two.




If the Plan Administrator so elects, it may apply the limits set forth in paragraphs (1) and
(2) of this subsection (a) by using the Average ACP of all other Active Participants (other
than Highly Compensated Employees) for the Plan Year preceding the Plan Year for which the
determination is made rather than for the current Plan Year; provided that such election may
not be changed except as provided by the Secretary of the Treasury.




     (b) Manner of Reduction to Satisfy Limit. To the extent that the Plan
Administrator, after giving effect to any reduction in the amount of Matching



-28-









 






Contributions
pursuant to Section 5.02(c), determines is necessary to pass the Required ACP Test, Matching
Employer Contributions shall be reduced for Highly Compensated Employees in the following
steps:




     Step 1: The Plan Administrator shall first determine the dollar amount of the
reductions which would have to be made to the Matching Contributions of each Highly
Compensated Employee who is an Active Participant for the Plan Year in order for the Average
ACP of the Highly Compensated Employees to satisfy the Required ACP Test. Such amount shall
be calculated by first determining the dollar amount by which the
Matching Contributions of the Highly Compensated Employees who have the highest Actual
Contribution Percentage (as defined in subsection (d)) would have to be reduced until the
first to occur of: (i) such Employees’ Actual Contribution Percentage would equal the
Actual Contribution Percentage of the Highly Compensated Employee or group of Highly
Compensated Employees with the next highest Actual Contribution Percentage; or (ii) the
Average ACP of all of the Highly Compensated Employees, as recalculated after the reductions
made under this Step 1, satisfies the Required ACP Test. Then, unless the recalculated
Average ACP of the Highly Compensated Employees satisfies the Required ACP Test, the
reduction process shall be repeated by determining the dollar amount of reductions which
would have to be made to the Matching Contributions of the Highly Compensated Employees who,
after the prior reductions made in this Step 1 would have the highest Actual Contribution
Percentage until the first to occur of: (iii) such Employees Actual Contribution Percentage,
after all the current and prior reductions under this Step 1 would equal the Actual
Contribution Percentage of the Highly Compensated Employee or group of Highly Compensated
Employees with the next highest Actual Contribution Percentage; or (iv) the Average ACP of
all of the Highly Compensated Employees, as recalculated after the current and all prior
reductions under this Step 1, satisfies the Required ACP Test. This process is repeated
until the Average ACP of all of the Highly Compensated Employees, as recalculated after all
reductions made under this Step 1, satisfies the Required ACP Test.




     Step 2. Next, the Plan Administrator shall determine the total dollar amount
of reductions to the Matching Employer Contributions calculated under Step 1 (“Total
Excess Aggregate Contributions”).




     Step 3. Finally, the Plan Administrator shall reduce the Matching Employer
Contributions of the Highly Compensated Employees with the highest dollar amount of Matching
Employer Contributions by the lesser of the dollar amount which: (i) causes each such
Highly Compensated Employee’s Matching Contributions to equal the dollar amount of the
Matching Employer Contributions of the Highly Compensated Employee or group of Highly
Compensated Employees with the next highest dollar amount of Matching Contributions; or (ii)
reduces the Highly Compensated Employees’ Matching Contributions by the Total Excess
Aggregate Contributions. Then, unless the total amount of reductions made to Highly
Compensated Employees’ Matching Employer Contributions under this Step 3 equals the amount
of Total Excess Aggregate Contributions, the reduction process shall be repeated by reducing
the Matching Contributions of the group of Highly Compensated Employees with the highest
dollar amount of Matching Employer Contributions, after the prior reductions made in this
Step



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3, by the lesser of the dollar amount which: (iii) causes each such Highly Compensated
Employee’s Matching Contributions, after the current and cell prior reductions under this
Step 3, to equal the dollar amount of the Matching Contributions of Highly Compensated
Employees with the next highest dollar amount of Matching Contributions; or (iv) causes
total reductions to equal the Total Excess Aggregate Contributions. This process is
repeated with each successive group of Highly Compensated Employees with the highest dollar
amount, after all reductions, of the Matching Contributions until the total reductions made
under this Step 3 is equal to the Total Excess Aggregate Contributions.




     (c) Distribution of Excess Contributions. The Plan Administrator shall, not
later than the last day of the Plan Year next following the Plan Year in which such amounts
are contributed, distribute the Total Excess Aggregate Contributions (including any income
earned and minus any loss allocable to such amounts determined in accordance with Section
5.06), to the Highly Compensated Employees on whose behalf such Matching Contributions were
made.




     (d) Average ACP; Actual Contribution Percentage. The “Average ACP” for
a specified group of Active Participants for a Plan Year shall be the average of the Actual
Contribution Percentages (as defined below) of the members of such group. The “Actual
Contribution Percentage” of an Active Participant is the ratio of the amount of Matching
Employer Contributions actually paid over to the Plan on behalf of such Active Participant
for such Plan Year divided by the Active Participant’s Statutory Compensation for the Plan
Year, or at the discretion of the Plan Administrator to the extent not prohibited by
regulations prescribed by the Secretary of Treasury or his or her delegate, the sum of (i)
Matching Contributions (and QMACs to the extent not included in the Actual Deferral
Percentage under Section 5.02(d)), and (ii) any portion or all of the Elective Deferrals or
QNECs (to the extent not included in the Actual Deferral Percentage under Section 5.02(d))
actually paid over to the Plan on behalf of such Active Participant for the Plan Year,
divided by the Active Participant’s Statutory Compensation during the Plan Year.




     (e) Aggregation Rules. The Actual Contribution Percentage for any Active
Participant who is a Highly Compensated Employee for the Plan Year and who is eligible to
have Matching Contributions allocated under this Plan and is also eligible to make employee
nondeductible contributions or to have matching contributions (within the meaning of Section
401(m)(4)(A) of the Code) allocated under one or more Related Plans shall be determined as
if the total of such Matching Employer Contributions, employee nondeductible contributions,
and matching contributions were made under a single arrangement.




     In the event that this Plan satisfies the requirements of Section 401(m), 401(a)(4) or
410(b) of the Code only if aggregated with one or more Related Plans, or if one or more
Related Plans satisfy the requirements of such sections of the Code only if aggregated with
this Plan, then this Section shall be applied by determining the Actual Contribution
Percentages of Participants as if this Plan and all such Related Plans were a single plan;
provided, however, that the Plan and one or more Related Plans may be



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aggregated in order to
satisfy the non-discrimination requirements of Section 401(m) of the Code only if such plans
have the same plan year.



     5.04 [Reserved]



     5.05 Order of Application of Limitations. Section 5.01 shall be first applied to contributions under the Plan; second, Section 5.02 shall
be applied to contributions under the Plan; third, Section 5.03 shall be applied to contributions
under the Plan; and last, Section 5.04 shall be applied to contributions under the Plan. Section
5.07 shall be applied to contributions under the Plan without regard to Sections 5.01, 5.02 or
5.03.



     5.06 Allocation of Income or Loss. Any income or loss attributable to contributions
distributed pursuant to Sections 5.01, 5.02 or 5.03 shall be distributed or forfeited, as
applicable. Such distributable income or loss shall be determined as follows:




     (a) Income or Loss for Plan Year. The Plan Administrator shall compute income
or loss attributable to distributed contributions for a completed Plan Year using any
reasonable method permitted under Treasury Regulations Sections 1.401(k)-1(f)(4)(ii),
1.401(m)-1(e)(3)(ii) and 1.402(g)-1(e)(5), as applicable; provided that the method does not
violate Section 401(a)(4) of the Code, is used consistently for all Participants and for all
corrective distributions under the Plan for the Plan Year, and is used by the Plan for
allocating income to Participants’ Accounts.




     (b) Income or Loss for Period Between End of Plan Year and Distribution. The
Plan Administrator shall compute income or loss attributable to distributed contributions
for the period between the end of the Plan Year and the date of distribution (the “Gap
Period”) using any reasonable method permitted under Treasury Regulations Sections
1.401(k)-1(f)(4)(ii), 1.401(m)-1(e)(3)(ii) and 1.402(g)-1(e)(5), as applicable; provided
that the method does not violate Section 401(a)(4) of the Code, is used consistently for all
Participants and for all corrective distributions under the Plan for the Gap Period, and is
used by the Plan for allocating income to Participants’ Accounts.



     5.07 Section 415 Limitation on Contributions.




     (a) Limitations on Contributions. Notwithstanding any provisions of this Plan
to the contrary, a Participant’s Annual Additions (as defined in subsection (b)(1) below)
for any Plan Year shall not exceed his or her Maximum Annual Additions (as defined in
subsection (b)(2) below) for the Plan Year. If a Participant’s Annual Additions exceed his
or her Maximum Annual Additions, the Participant’s Annual Additions for the Plan Year shall
be reduced according to subsection (c) below by the amount necessary to eliminate such
excess (the “Annual Excess”).



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     (b) Definitions.




     (1) “Annual Additions” of a Participant for a Plan Year means the sum
of the following:




     (A) Elective Deferrals, Matching Contributions, Company Contributions,
Travelers Benefits, QNECs, QMACs, and Minimum Top
Heavy Employer Contributions (if any, as determined under Article XII)
and any Forfeitures thereof, allocated for the Plan Year.




     (B) All employer contributions, non-deductible employee contributions
and forfeitures for such Plan Year allocated to such Participant’s accounts
for such Plan Year under any Related Defined Contribution Plan,




     (C) contributions allocated to any individual medical account (as
defined in Code Section 401(h)) established for the Participant which is
part of a Related Defined Benefit Plan as provided in Code Section 415(l)
and any amount attributable to post-retirement medical benefits allocated to
an account established under Code Section 419A(d)(1) for the Participant;
provided, however, that the limitation in Section (b)(2)(A)
below shall not apply to any amounts treated as an Annual Addition under
this subsection (b)(1)(C).




A Participant’s Annual Additions shall include amounts described in this subsection
(b)(1) that are determined to be excess contributions as defined in Section
401(k)(8)(B) of the Code, excess aggregate contributions as defined in Section
401(m)(6)(B) of the Code, and excess deferrals as described in Section 402(g) of the
Code, regardless of whether such amounts are distributed or forfeited. Rollover
Contributions and trust-to-trust transfers shall not be included as part of a
Participant’s Annual Additions. The Annual Additions for any Plan Year beginning
before January 1, 1987 shall not be recomputed to treat all non-deductible employee
contributions as Annual Additions.




     (2) “Maximum Annual Additions” of a Participant for a Plan Year means
the lesser of (A) or (B) below:




     (A) Percentage Limitation. 100% of the Participant’s Statutory
Compensation during the Plan Year; or




     (B) Dollar Limitation. $40,000 (in 2002, as adjusted for
cost-of-living increases in accordance with regulations prescribed by the
Secretary of the Treasury or his or her delegate pursuant to the provisions
of Section 415(d) of the Code).




     (c) Elimination of Annual Excess. If a Participant has an Annual Excess for a
Plan Year, such excess shall not be allocated to the Participant’s Accounts but shall be
eliminated as follows:



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     (1) Unmatched Elective Deferrals Participant Contributions. The
Participant’s unmatched Elective Deferrals for the Plan Year shall be reduced to the
extent necessary to eliminate the Annual Excess.




     (2) Matched Elective Deferrals and Related Matching Contributions. If
any Annual Excess remains, the Participant’s matched Elective Deferrals and
the related Matching Contributions for the Plan Year shall be reduced in
proportionate amounts to the extent necessary to eliminate the Annual Excess.




     (3) Company Contributions. If any Annual Excess remains, the Company
Contributions for the Plan Year shall be reduced to the extent necessary to
eliminate the Annual Excess.




     (4) QNECs or QMACs. If any Annual Excess remains, the Participant’s
QNECs or QMACs for the Plan Year shall be reduced to the extent necessary to
eliminate the Annual Excess.




     Any Elective Deferrals reduced or eliminated under this Section shall be distributed to
the Participant. Any allocations of Matching Contributions, Company Contributions, QNECs or
QMACs reduced or eliminated under this Section shall be held, subject to the limits of this
Section, in a suspense account and applied to reduce the Matching Contributions, Company
Contributions, QNECs and QMACs for the next succeeding Plan Year of the Employer of the
Participant with respect to which such reductions have occurred. On Plan termination any
amounts held in a suspense account which may not be allocated to Participants in the Plan
Year of the termination under this Section shall be returned to the Employers in such
proportions as shall be determined by the Plan Administrator.




     (d) Combined Limitations. Effective for Plan Years beginning before January 1,
2000, if a Participant participates or has participated in any Related Defined Benefit Plan,
the sum of the Defined Benefit Plan Fraction (as defined in Section 415(e)(2) of the Code)
and the Defined Contribution Plan Fraction (as defined in Section 415(e)(3) of the Code) for
such Participant shall not exceed 1.0 (called the “Combined Fraction”). If the Combined
Fraction of such Participant exceeds 1.0 for any Plan Year commencing prior to January 1,
2000, the Participant’s Defined Benefit Plan Fraction shall be reduced (a) first, by
limiting the Participant’s annual benefits payable from the Related Defined Benefit Plan in
which he participates to the extent provided therein and (b) second, by reducing the
Participant’s Annual Additions to the extent necessary to reduce the Combined Fraction of
such Participant to 1.0.




     (e) Standard of Control. For purposes of this Section 5.07, the standard of
control for determining a Related Company under Sections 414(b) and 414(c) of the Code (and
thus also Related Plans) shall be deemed to be “more than 50%” rather than “at least 80%.”



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ARTICLE VI




Trustee and Trust Fund




     6.01
Trust Agreement. The Company and the Trustee have entered into a Trust Agreement which provides for the
investment of the assets of the Plan and administration of the Trust Fund. The Trust Agreement, as
from time to time amended, shall continue in force and shall be deemed to form a part of the Plan
and any and all rights or benefits which may accrue to any person under the Plan are subject to all
the terms and provisions of the Trust Agreement.



     6.02 Selection of Trustee. The Company shall select and may remove the Trustee and the
Trustee may resign in accordance with the Trust Agreement. The resignation or removal of a Trustee
and the appointment of a successor Trustee and the approval of his, her or its accounts shall be
accomplished in the manner provided in the Trust Agreement.



     6.03 Plan and Trust Expenses. All expenses incurred by the Trustee or the Plan
Administrator in the administration of the Plan and the Trust (including compensation of the
Trustee, accountants, attorneys and other persons who render advice or services to the Plan or
Trust, if any) shall be paid by the Trust except to the extent paid by the Company. Expenses
uniquely attributable to the Accounts of a particular Participant (and not paid by the Company),
including but not limited to expenses of a discount brokerage account, shall, to the extent
permitted by law, be charged to such Account and shall not be treated as a general Trust expense
chargeable to the Accounts of all Participants. Expenses uniquely attributable to a particular
Investment Fund (and not paid by the Company) shall be charged to such Investment Fund and shall
not be treated as a general expense chargeable to the Accounts of all Participants.



     6.04 Trust Fund. The Trust under this Plan shall be a separate entity aside and apart from
Employers or their assets. All Elective Deferrals, Matching Contributions, Company Contributions,
Traveler Contributions and Rollover Contributions to the Plan shall be paid into the Trust, and all
benefits payable under the Plan shall be paid from the Trust. An Employer shall have no rights or
claims of any nature in or to the assets of the Trust Fund except (1) the right of the Company to
require the Trustee to hold, use, apply and pay such assets held by the Trustee, in accordance with
the directions of the Plan Administrator, for the exclusive benefit of the Participants and their
Beneficiaries, and (2) the Employers’ rights of reversion as provided in Sections 5.07 and 6.11.
The Trust, and the corpus and income thereof, shall in no event and in no manner whatsoever be
subject to the rights or claims of any creditor of any Employer.



     6.05 Separate Accounts. The Plan Administrator shall maintain separate Accounts for each
Participant as described in Section 2.01 hereof. Contributions shall be credited to Participant’s
Accounts in accordance with Section 4.06. Withdrawals and distributions shall be charged to a
Participant’s Accounts on the Valuation Date coinciding with or next preceding the date
such
withdrawal or distribution is made from the Participant’s Accounts. Earnings, gains and losses
shall be credited or charged to a Participant’s Accounts on the Valuation Date coinciding with or
next following the date such amounts are actually credited or charged by the Investment Fund in
which such Participant’s
Accounts are invested. Expenses shall be charged to a Participant’s Accounts on the Valuation Date
coinciding with or next preceding the date



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such expenses are actually paid by the Investment Fund
in which such Participant’s Accounts are invested.



     6.06 Investment Committee. The Company shall appoint an Investment Committee composed of
one (1) or more persons who are officers, directors or employees of the Company or a Related
Company to select Investment Funds, to appoint and remove any Investment Manager, to engage
consultants, to formulate an investment policy, to monitor the performance of Investment Funds and
Investment Managers, and to perform such other functions with respect to the investment of the
assets of the Plan as the Company may direct. Each member of the Committee shall serve until
death, resignation, removal, or until he or she ceases to be an officer, director or employee of
any of the Company and any Related Company. Any member of the Committee may resign upon fifteen
(15) days written notice to the Company. The Company may remove any member of the Committee upon
fifteen (15) days written notice to such member and all other members of the Committee. If a
vacancy occurs in the membership of the Committee the Company may (and if there would otherwise be
no members of the Committee, shall) appoint a successor member of the Committee who shall have the
same powers and duties as those conferred upon his or her predecessor(s). The Company shall advise
the Trustee, any Investment Manager and the Plan Administrator of the membership of the Committee
and of any change therein; and the Trustee, any Investment Manager and the Plan Administrator shall
be protected in reliance on any such notice. The Committee shall act at a meeting, or in writing
without a meeting, by the vote or concurrence of a majority of its members; provided,
however, that no member of the Committee who is a Participant shall take part in any action
having particular reference to his or her own benefits hereunder. All written directions by the
Committee may be made over the signatures of a majority or its members and all persons shall be
protected in relying on such written directions.



     6.07 Investment Funds. The assets of the Trust Fund shall be invested in the Investment
Funds authorized by the Investment Committee for the investment of Participants’ Accounts. The
Investment Committee may, from time to time, authorize additional Investment Funds with such
investment characteristics, as it deems appropriate. The Investment Committee may also terminate
the use of any Investment Fund by this Plan as it deems appropriate. The Trustee, Investment
Manager, or the manager of any Investment Fund, may modify the investment characteristics of any
Investment Fund as it deems appropriate. The designation, modification or termination of any
Investment Fund shall be reflected in the records of the Plan and shall be communicated promptly to
the Plan Administrator. Subject to the provisions of Section 6.08, up to 100% of a Participant’s
Accounts may be invested in the Company Stock Fund.



     In order to maintain appropriate or adequate liquidity and pending or pursuant to investment
directions, the Trustee, Investment Manager or the manager of any Investment Fund is authorized to
hold such portions of each of the Investment Funds as it deems necessary in cash or liquid
short-term cash equivalent investments or securities (including, but not limited to, United States
government treasury bills, commercial paper, and savings accounts and certificates of deposit, and
common or commingled trust funds invested in such securities).



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     6.08 Investment of Participants’ Accounts.




     (a) In General. Except as provided in subsections (b) or (c) below, a
Participant may direct the investment of his or her Accounts among the Investment Funds in
accordance with such rules and procedures as the Plan Administrator may establish or adopt.
A Participant’s investment election made pursuant to this Section shall continue in effect,
notwithstanding any change in the amount of contributions to the Plan, until such
Participant shall change his or her investment election in accordance with such rules and
procedures. If for any reason contributions are allocated to an Account of a Participant who
has not given such direction, such Account shall be invested in the T. Rowe Price Prime
Reserve Fund (or if that is not an available Investment Fund, then in such available
Investment Fund as has the most similar investment characteristics). Notwithstanding any
provision in this Section to this contrary, the Plan Administrator, the Trustee or the
manager of any Investment Fund may issue rules and regulations imposing such restrictions
and limitations on the investment of contributions in, and transfers of Account balances
among, the Investment Funds as it deems appropriate from time to time, consistent with the
investment objectives of the respective Investment Funds.




     (b) Company Stock. Notwithstanding the foregoing, if the Company in its sole
discretion makes Company Contributions or Matching Contributions in part or in whole in the
form of Company Stock, such Company Stock shall be held in the Company Stock Fund and shall
not be subject to a Participant’s or Beneficiary’s direction of investment. A Participant
may, in accordance with such rules and procedures as the Plan Administrator may establish or
adopt, direct the investment of Elective Deferrals, Matching Contributions, Company
Contributions and Rollover Contributions into the Company Stock Fund. A Participant may not
elect to transfer into the Company Stock Fund any portion of his or her Accounts that are
invested in another investment Fund. Moreover, a Participant may elect to transfer all or a
portion of his or her Accounts that are invested in the Company Stock Fund (other than the
portion that is restricted under this subsection) into another Investment Fund in accordance
with such rules and procedures as the Plan Administrator may establish or adopt. The Plan
Administrator shall maintain appropriate accounts or subaccounts to reflect the portion of
any Participants’ or Beneficiary’s Accounts’ investment in the Company Stock Fund which is
restricted under this subsection and the portion which is unrestricted. Cash dividends and
other cash distributions received with respect to the portion of a Participant’s or
Beneficiary’s Accounts invested in the Company Stock Fund shall be retained in the Company
Stock Fund and reinvested in Company Stock.




     (c) Other Employer Stock. If a Participant has an Inactive Account invested in
Employer Stock other than Company Stock, he or she may, in accordance with such procedures
as the Plan Administrator may establish or adopt, elect to transfer all or a portion of such
Account into another Investment Fund. A Participant may not elect to transfer into Employer
Stock any portion of his or her Accounts that are invested in another Investment Fund, nor
to direct the investment of Elective Deferrals, Matching
Contributions, Company Contributions or Rollover Contributions into Employer Stock,
other than Company Stock as provided by subsection (c).



-36-









 






     (d) GICs. Accounts of former participants in the Hourly Plan invested in
guaranteed investment contracts (“GICs”) issued by the Principal Mutual Life Insurance
Company as of the Effective Date shall remain invested in such GICs until the GIC matures or
the Participant (or Beneficiary) elects to transfer part or all of his or her Account
balance from such GIC to another Investment Fund. No funds may be transferred into a GIC.
Unless otherwise elected by the Participant (or Beneficiary) in accordance with such rules
and procedures as the Plan Administrator may establish or adopt, amounts becoming available
from maturing GICs will be invested in the T. Rowe Price Prime Reserve Fund (or if that is
not an available Investment Fund, then in such available Investment Fund as has the most
similar investment characteristics).




     (e) Fiduciary Responsibility. Except as expressly limited by subsections (b)
and (c) above, the Participant has sole authority and discretion, fully and completely, to
select the Investment Fund(s) for the investment of his or her Accounts. The Participant
accepts full and sole responsibility for the success or failure of any selection he or she
makes. To the maximum extent permitted by Section 404(c) of ERISA, neither the Trustee, the
Company, the Investment Committee, any Investment Manager, the Plan Administrator, any
Employer, nor any other person shall be responsible for losses that are the direct and
necessary result of investment instructions given by any Participant.



     6.09 Shareholder Rights in Company Stock.




     (a) Participant Directions. Each Participant as a named fiduciary, shall have
the right to direct the Trustee as to the manner of voting and the exercise of all other
rights which a shareholder of record has (including, but not limited to, the right to sell
or retain shares in a public or private tender offer) with respect to shares (and fractional
shares) of Company Stock which have been allocated to the Participant’s Accounts in the
Company Stock Fund and not yet become a Forfeiture under Section 4.10(d). Subject to
subsection (c) below, the Trustee shall vote or exercise shareholder rights with respect to
all shares (and fractional shares) of Company Stock in the Company Stock Fund for which the
Trustee received timely directions from Participants in accordance with such Participants’
directions. The Trustee shall vote all shares (and fractional shares) of Company Stock in
the Company Stock Fund for which the Trustee has not received timely voting instructions in
the Trustee’s sole discretion. In the event of a tender offer for Company Stock, the
Trustee shall determine in its sole discretion whether to tender any shares (or fractional
shares) of Company Stock in the Company Stock Fund for which the Trustee does not receive a
timely direction from the Participant or Beneficiary as to whether to tender such shares
(and fractional shares).




     (b) Confidentiality. The Trustee shall solicit the directions of Participants
in accordance with Section 6.09(a) and shall follow such directions by delivering aggregate
votes to the Company or otherwise implementing such directions in any convenient
manner that preserves the confidentiality of the votes or other directions of
individual Participants, except to the extent necessary to comply with applicable federal
laws or state laws that are not preempted by ERISA. Any designee of the Trustee who assists
in the solicitation or tabulation of the directions of Participants shall certify in writing
that he, she or it will maintain the confidentiality of all directions given.



-37-









 






     (c) Fiduciary Override. Notwithstanding the foregoing, in the event that the
Trustee determines that the manner of voting and the exercise of other shareholder rights
with respect to shares of Company Stock held in the Company Stock Fund is not proper or is
contrary to the provisions of ERISA (including, without limitation, the fiduciary
responsibility requirements of Section 404 of ERISA), the Trustee shall disregard such
direction and assume responsibility for the voting or exercise of other shareholder rights
with respect to such shares of Company Stock held in the Company Stock Fund.



     6.10 Trust Income. As of each Valuation Date, the fair market value of the Trust and of
each Investment Fund shall be determined (other than the value of GICs, which shall be as
determined by Principal Mutual Life Insurance Company) and recorded by the Trustee. The Trustee’s
(or Principal Mutual Life Insurance Company’s) determination of fair market value shall be final
and conclusive on all persons. As of each Valuation Date, the Trustee shall determine the net
income, gains or losses of the Trust Fund and of each separate Investment Fund since the preceding
Valuation Date. The net income, gains or losses thus derived from the Trust shall be accumulated
and shall from time to time be invested as a part of the Trust Fund. The Trustee shall
proportionately allocate the net income, gains or losses of each Investment Fund among (a) the
Participants’ Accounts and (b) the suspense account maintained under Section 5.07(c) for
unallocated Employer contributions, all as valued as of the preceding Valuation Date (reduced by
any distributions therefrom since the preceding Valuation Date) by crediting (or charging) each
such Account by an amount equal to the net income, gains or losses of each Investment Fund
multiplied by a fraction, the numerator of which is the balance of such Account invested in such
Investment Fund as of the preceding Valuation Date (reduced by any distributions therefrom since
the preceding Valuation Date) and the denominator of which is the total value of all Accounts
invested in such Investment Fund as of the preceding Valuation Date (reduced by any distributions
therefrom since the preceding Valuation Date). Not later than 90 days after the last day of the
Plan Year (or after such additional date or dates as the Plan Administrator in its discretion may
request), the Trustee shall provide the Plan Administrator and the Investment Committee with a
written report detailing the fair market value of the Trust and of each Investment Fund as of the
last day of the Plan Year (or as of such other date or dates as the Plan Administrator in its
discretion may request).



     6.11 Correction of Error. In the event of an error in the administration or the Plan or
otherwise in maintaining a Participant’s Accounts that is not otherwise corrected in accordance
with Sections 5.01, 5.02(c), 5.03(c) or 5.07(c), the Company may in its sole discretion elect for
one or more Employers to contribute such amount as it shall determine is necessary and appropriate
to correct the error. Unless the Company so elects, the Plan Administrator, in its sole
discretion, may correct such
error by either (i) in the case of an error resulting in reducing a Participant’s Account balance,
allocating Forfeitures for the Plan Year to such Participant’s Accounts in such amount as he shall
determine to be needed to correct the error, or (ii) crediting or charging the adjustment required
to make such correction to or against income or as an expense of the Trust for the Plan Year in
which the correction is made. Except as provided in this Section, the Accounts of other
Participants shall not be readjusted on account of such error.



     6.12 Right of the Employers to Trust Assets. Except as provided in Section 5.07(c) and
subject to (a) and (b) below, the Employers shall have no right or claims to the Trust Fund except
the right to require the Trustee to hold, use, apply, and pay such assets in its possession in



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accordance with the Plan for the exclusive benefit of the Participants or their Beneficiaries and
for defraying the reasonable expenses of administering the Plan and Trust.




     (a) Return of Contributions Where Deduction is Disallowed. If, and to the
extent that, a deduction for Elective Deferrals, Matching Contributions, Company
Contributions, Traveler Contributions, QNECs or QMACs is disallowed under Section 404 of the
Code, Elective Deferrals conditioned on deductibility will be distributed to the appropriate
Participant and Matching Contributions, Company Contributions, Traveler Contributions, QNECs
and QMACs conditioned upon deductibility will be returned to the appropriate Employer (as
determined by the Plan Administrator) within one year after the disallowance of the
deduction.




     (b) Return of Contributions Made Through Mistake of Fact. If, and to the
extent that, a contribution of Elective Deferrals, Matching Contributions, Company
Contributions Traveler Contributions, QNECs or QMACs is made through mistake of fact,
Elective Deferrals will be distributed to the appropriate Participant and Matching
Contributions, Company Contributions, Travelers Contributions, QNECs and QMACs will be
returned to the appropriate Employer (as determined by the Plan Administrator) within one
year of the payment of the contribution.



ARTICLE VII




Loans and Withdrawals




     7.01 Participant Withdrawals. A Participant may, in accordance with this Section, withdraw
all or a portion of his or her Accounts pursuant to Subsection (a), (b) or (c); provided,
however, that the amount withdrawn pursuant to this Section 7.01 shall not be greater than
the amount of the Participant’s vested Accrued Benefit available for withdrawal under this Section.
Withdrawals shall be made pro rata from each Investment Fund in which the Account or Accounts from
which the withdrawal is paid are invested.




     (a) In-Service Withdrawals from Rollover Account and Certain Prior Plan
Accounts. A Participant may withdraw, in accordance with Section 7.03, for any reason,
all or any portion of his or her Rollover Account and, subject to the restrictions imposed
by Appendix A and Schedule 1, any other Inactive Account comprising Rollover Contributions
or after-tax employee contributions made under this Plan or a Transferor Plan.




     (b) Age 59-1/2 Withdrawals. A Participant who has attained age 59-1/2 may
withdraw, in accordance with Section 7.03, for any reason, all or any part of all of his or
her Vested Accrued Benefits in any or all of his or her Accounts, other than an Account
arising under a Transferor Plan that was subject to Section 412 of the Code.




     (c) Hardship Withdrawal. A Participant may withdraw, in accordance with
Section 7.03, for reasons of Hardship, that portion of his or her Employee 401(k) Account
excluding any income or gain credited to his or her Employee 401(k) Account for any period
after December 31, 1988; subject to the following requirements:



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     (1) Maximum Amount. The maximum amount available for a Hardship
withdrawal is 50% of the sum of (i) the balance of the Participant’s Employee 401(k)
Account as of December 31, 1988, plus (ii) the dollar amount of Elective Deferrals
made after December 31, 1988, minus (iii) previous Hardship withdrawals of Elective
Deferrals or of income or gain thereon.




     (2) Necessary to Satisfy Immediate and Heavy Financial Need. The
amount of the withdrawal on account of Hardship shall not exceed the amount
necessary to satisfy the Participant’s immediate and heavy financial need arising by
reason of a Hardship, including the amount needed to pay any federal, state and
local income taxes and penalties reasonably expected to be incurred by reason of the
withdrawal;




     (3) Exhaustion of Other Sources of Funds. The Participant must have
obtained all distributions and withdrawals other than Hardship distributions or
withdrawals, and all non-taxable loans currently available under the Plan and all
Related Plans and the Participant must have exercised all options to acquire Company
Stock granted under an equity incentive or any similar plan maintained by an
Employer or any Related Company if such options are currently exercisable and if the
fair market value of Company Stock exceeds the exercise price of the option;




     (4) Twelve Month Suspension of Elective Deferrals. The Participant’s
Elective Deferrals under the Plan, and voluntary participant contribution and
elective deferrals under all other qualified and nonqualified plans of deferred
compensation (including equity incentive or any similar plans, and cash or deferred
arrangements which are part of a cafeteria plan within the meaning of Section 125 of
the Code but excluding health or welfare benefits and flexible spending arrangements
that are part of a cafeteria plan) maintained by an
Employer or a Related Company, shall be suspended for a period of six (6)
months following the receipt of the Hardship withdrawal; and




     (5) Limitation on Elective Deferrals in the Year Following the Hardship
Withdrawal. The Elective Deferrals under the Plan and elective deferrals (as
defined in Section 402(g) of the Code) under any Related Plan for the Participant’s
taxable years immediately following the taxable year of the Hardship withdrawal
shall not exceed the maximum amount described in Section 5.01 for such next taxable
year less the amount of such Participant’s Elective Deferrals under the Plan and
elective deferrals under any Related Plan for the taxable year of the Hardship
withdrawal.



     7.02 Participant Loans. Upon proper application of a Participant for any reason, the Plan
Administrator shall grant a loan to such Participant on such terms and conditions, consistent with
this Section, as the Plan Administrator shall determine.



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     (a) Loan Amount. The maximum loan amount, when added to all outstanding
amounts loaned to the Participant from the Plan and all Related Plans shall not exceed the
least of:




     (1) $50,000, reduced by the excess (if any) of:




     (A) the Participant’s highest outstanding balance of loans from the
Plan and all Related Plans during the one-year period ending on the day
before the date on which such loan is made, over




     (B) the Participant’s outstanding balance of loans from the Plan and
all Related Plans on the date on which such loan is made;




     (2) 50% of the Participant’s vested Accrued Benefit valued as of the most
recent Valuation Date for which a valuation has been completed preceding the date of
disbursement of the loan.




The minimum loan amount shall be one thousand dollars ($1,000). No loan shall be available
to a Participant unless the maximum loan available under this subsection (a) exceeds one
thousand dollars ($1,000). A Participant may not have more than one loan from the Plan
outstanding at any time.




     (b) Loan Terms. Any loan made under this Section 7.02 shall, by its terms, be
required to be repaid within five (5) years, unless the loan is used to acquire a dwelling
unit which within a reasonable time is to be used (determined at the time the loan is made)
as a principal residence of the Participant, in which case the loan shall, by its terms, be
required to be repaid within fifteen (15) years.




     (c) Level Amortization. All loans, except as provided in the regulations
prescribed by the Secretary of the Treasury, shall be amortized over the term of the loan
in substantially level payments not less frequently than quarterly. A Participant’s
loan shall be repaid by means of payroll deduction.




     (1) Authorized Leave of Absence. Notwithstanding the foregoing
provisions of this Section, a Participant’s loan payments shall be suspended for a
period of up to one year while the Participant is on an unpaid Authorized Leave of
Absence (other than a military leave described in clause (2) below); provided that
the loan must be repaid within the term specified in subsection (b) and the
installments due after the earlier of the Participant’s resumption of active service
or the first anniversary of the commencement of the Authorized Leave of Absence may
not be less than the installments payable immediately prior to the commencement of
the Authorized Leave of Absence.




     (2) Military Leave. Notwithstanding the provisions of subsection (b)
and (a), a Participant’s loan repayments shall be suspended as permitted under
Section 414(u)(4) of the Code during periods of absence from employment due to
Qualified Military Leave effective as of December 12, 1994.



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     (d) Loans Granted on a Reasonably Equivalent Basis. The Plan Administrator may
grant such loans and may direct the Trustee to lend Trust Fund assets to such Participant,
provided that such loans are available to all Participants on a reasonably equivalent basis,
are not made available to Highly Compensated Employees in amounts greater than the amounts
made available to other Employees, bear a reasonable rate of interest, and are adequately
secured.




     (e) Pledge of Accounts. Any loan made pursuant to this Section 7.02 shall be
made pro rata from the Participant’s Accounts. If a Participant’s Account is invested in
more than one Investment Fund at the time of the loan, the loan shall be made pro rata from
each Investment Fund (other than the Company Stock Fund) in which the Accounts from which
the loan is disbursed are invested, except to the extent an Inactive Account is not
available for loans as set forth in Schedule 1. Such loan and any accrued but unpaid
interest with respect thereto, shall constitute a first lien upon the interest of such
Participant in the Accounts from and to the extent to which the loan is made and, to the
extent that the loan may be unpaid at the time the Participant’s Accounts become payable,
shall be deducted from the amount payable to such Participant or his Beneficiary at the time
of distribution of any portion of his or her Accounts. In the event that a Participant
fails to repay a loan according to its terms and foreclosure occurs, the Plan may foreclose
on the portion of the Participant’s Accounts which secure the loan and which would be
distributable to the Participant as of the earliest date on which the Participant could
elect a distribution or withdrawal pursuant to this Article or Article VII. Such foreclosed
amount shall be deemed to be a distribution.




     (f) Loan Earmarked as a Separate Investment for Participant’s Accounts. The
note representing the loan shall be segregated as a separate Investment Fund held by the
Trustee as a separate earmarked investment solely for the account of the Participant.
Interest and principal payments on a Participant’s loan shall be credited to each of the
Participant’s Accounts in the ratio that the amount of the loan borrowed from the
Account bears to the total amount of the loan borrowed from all of the Participant’s
Accounts. Interest and principal payments shall be invested in accordance with the
Participant’s investment election under Section 6.08 in effect at the time such interest and
principal payment is made.




     (g) Spousal Consent. If any part of the loan will be disbursed from a
Restricted Account, the Participant must obtain the consent of his or her spouse, if any, to
use of his or her Accounts as security for the loan. Spousal consent shall be obtained no
earlier than the beginning of the 90-day period that ends on the date on which the loan is
to be so secured. The consent must be in writing, must acknowledged the effect of the loan
and must be witnessed by a notary public. Such consent shall thereafter be binding with
respect to the consenting spouse or any subsequent spouse with respect to that loan. A new
consent shall be required if the Accounts are used as security for the renegotiation,
extension, renewal or other revision of the loan.




     (h) Loans Subject to Terms and Conditions Imposed by Plan Administration. Any
loan made pursuant to this Section, subject to the foregoing requirements, shall be subject
to such origination fee and other terms and conditions as the Plan Administrator



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may in its
discretion impose. The Plan Administrator may adopt such non-discriminatory rules and
regulations relating to loans to Participants as it may deem appropriate.



     7.03 Request for Distribution. A withdrawal or loan shall be paid only if the Participant
or Beneficiary files a written request for a withdrawal with the Plan Administrator on such form as
the Plan Administrator shall provide or permit and in accordance with such rules and regulations as
the Plan Administrator may prescribe. A withdrawal or loan disbursed to a married participant from
a Restricted Account shall require the consent of the participant’s spouse in accordance with
Appendix A. A withdrawal or loan shall be paid as soon as administratively feasible after the
first Valuation Date that after the Plan Administrator receives a valid written request for a
withdrawal or loan.



ARTICLE VIII




Benefits




     8.01 Payment of Benefits in General. Subject to the special rules applicable to a
Restricted Accounts set forth in Appendix A, a Participant’s benefits under this Plan shall be
payable in accordance with the provisions of this Article. Except as otherwise specifically
provided, the provisions of this Article shall apply to all distributions occurring on or after the
Effective Date including distributions to Participants (or to the Beneficiaries of deceased
Participants) who had a Termination of Employment prior to the Effective Date.



     8.02 Payment on Termination of Employment. If a Participant has a Termination of Employment, the Participant (or if the Participant has
died, his or her Beneficiary) shall be entitled to a distribution of the vested portion of the
Participant’s Accrued Benefit in such one of the following methods as the Participant (or if the
Participant has died and has not elected a form of distribution which precludes his or her
Beneficiary from making a subsequent election, the Participant’s Beneficiary), may elect by written
notice to the Plan Administrator in a form acceptable to the Plan Administrator:




     (a) a single lump sum;





     (b) installments at monthly, quarterly or annual intervals over a period certain not
exceeding the period determined under Section 8.06(b) and in compliance with the
requirements of Section 8.06.


Notwithstanding the foregoing, if for any reason no election of a form of benefit is on file with
the Plan Administrator when payment of the Participant’s Accrued Benefit is required under Section
8.03, or if the Participant’s vested Accrued Benefit does not exceed $5,000 ($3,500 for the Plan
Year 1997), at the time of the Participant’s Termination of Employment the Trustee will pay the
Participant’s vested Accrued Benefit in a single lump sum.




     8.03 Time of Payment.




     (a) General. Distribution of a Participant’s benefits upon Termination of
Employment will normally be available as soon as reasonably practicable after the Valuation
Date coinciding or with or next following the Participant’s Termination of



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Employment, but
not more than 60 days following the end of the Plan Year in which his or her Termination of
Employment occurred. However, except as otherwise provided in this Section, a distribution
shall be paid only if and after the Participant or Beneficiary files a written request for a
distribution with the Plan Administrator on such form as the Plan Administrator shall
provide or permit and in accordance with such rules and regulations as the Plan
Administrator may prescribe. The time of any distribution is subject to subsection (b), (c)
and (d).




     (b) Consent Requirement. If the Participant’s distributable Account balance is
more than $5,000 ($3,500 for the Plan Year 1997), and if the Participant is living but has
not attained age 65, distribution will not be made before the Participant attains age 65 or
dies without the Participant’s prior written consent. The Plan Administrator will notify
each such terminated Participant of his or her right to give or withhold such consent at
least 30 days, but no more than 90 days, before the date distribution is made (if in a lump
sum) or begins (if in installments). Such distribution may be made less than 30 days after
such notice is given if the Plan Administrator clearly informs the Participant that the
Participant has a right to a period of at least 30 days after receiving the notice to
consider the decision whether to elect a distribution, and the Participant, after receiving
the notice, affirmatively elects a distribution.




     (c) Limitation on Mandatory Deferral. The making (if in a lump sum) or
commencement (if in installments) of any distribution shall not be delayed without the
consent of the Participant (or Beneficiary) beyond sixty (60) days after the close of
the Plan Year in which occurs the latest of (i) the Participant’s Termination of Employment,
or (ii) the Participant’s Normal Retirement Date. The failure of a Participant or
Beneficiary to otherwise elect payment in accordance with the provisions of the Plan shall
be deemed to be an election to defer the making or commencement of payment of benefits until
such Participant files a request in accordance with subsection (a) and (if applicable) a
consent in accordance with subsection (b), or until the Required Distribution Date as
provided in subsection (d) below.




     (d) Required Distribution Date. Notwithstanding any other provision of this
Plan or any Participant election, payment of benefits shall be made (if in a lump sum) or
shall commence (if in installments) not later than the Participant’s Required Distribution
Date, or such later date as the Secretary of the Treasury or his or her delegate shall by
applicable regulation, ruling or notice permit. If the payment is made in installments, the
installment schedule shall comply with Section 8.06. If the payment is made by reason of
the death of the Participant, the schedule shall comply with Section 8.05(d).



     8.04 Lump Sum Payment Without Election. Notwithstanding any other provision of this
Article VIII, if a Participant (or the Beneficiary of a deceased Participant) is entitled to a
distribution (including distributions with respect to Participants who had a Termination of
Employment prior to January 1, 1997) and if the value of a Participant’s vested Accrued Benefit
does not exceed $5,000 ($3,500 for the Plan Year 1997), the Plan Administrator shall direct the
immediate distribution of such benefit in a single lump sum regardless of any election or consent
of the Participant, his or her spouse or other Beneficiary; provided, however, that
no cash-out payment under this subsection shall be made after distribution of benefits has begun
without the



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consent of the Participant or (if the Participant has died and his or her surviving
spouse is his or her Beneficiary) his or her surviving spouse.



     8.05 Payment Upon Death.




     (a) Designated Beneficiary. Each Participant shall designate a Beneficiary to
receive payment of that portion, which may be all, of his or her Accrued Benefit that is
payable after the Participant’s death, on such form as the Plan Administrator shall provide
or permit and in accordance with such rules and regulations as the Plan Administrator may
prescribe. The Participant may change his or her Beneficiary from time to time by filing a
Beneficiary designation in writing with the Plan Administrator. No designation of
Beneficiary or change of Beneficiary shall be effective unless and until it is received by
the Plan Administrator during the Participant’s lifetime and, if applicable, unless and
until the consent of the Participant’s spouse (in accordance with subsection) is received by
the Plan Administrator.




     (b) Default Beneficiary. If a Participant shall fail to file a valid
Beneficiary designation, or if all persons designated as the Beneficiary shall have died,
(or, in the case
of a Beneficiary other than an individual, ceased to exist), or if, after a reasonable
search, the Plan Administrator is unable to locate the Participant’s Beneficiary within a
period of two years following the Participant’s death, the Participant’s Beneficiary shall
be the first of the following in order of precedence:




     (1) the Participant’s surviving spouse;




     (2) the Participants then-living descendants, if any, per stirpes;




     (3) the Participant’s then-living parent or parents, equally;




     (4) the estate of the last to die of the
Participant and any designated Beneficiary.




     (c) Spousal Consent. If the Participant is married, his or her designation of
a Beneficiary other than his or her surviving spouse will not be valid unless the spouse has
consented to such designation of Beneficiary. Such consent shall be:




     (1) in a writing acknowledging the effect of the consent;




     (2) signed by the Participant’s spouse and witnessed by a notary public or (if
the Plan Administrator is an individual employed by the Company or a Related
Employer) the Plan Administrator or an employee of the Company or a Related Employer
working under the organizational supervision of the Plan Administrator;




     (3) effective only for the spouse who gives the consent;




     (4) effective only with respect to the specific beneficiary named in the
consent unless the spouse voluntarily in such consent expressly permits



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subsequent
elections of Beneficiaries without further spousal consent and acknowledges the
spouse’s right to limit the consent to a specific Beneficiary; and




     (5) irrevocable unless and until the Participant revokes his or her designation
of Beneficiary.




     However, the consent of a Participant’s spouse shall not be required if (i) it is
established to the satisfaction of a Plan representative that such consent may not be
obtained because there is no spouse, or because the spouse cannot be located, (ii) the
Participant is legally separated or the Participant has been abandoned (within the meaning
of local law) and the Participant has a court order to such effect, or (iii) because of such
other circumstances as the Secretary of the Treasury may by regulations prescribe. If the
spouse is legally incompetent to give consent, the spouse’s legal guardian, even if the
guardian is the Participant, may give consent. To the extent provided in any Qualified
Domestic Relations Order (as defined in Section 13.03), the former spouse of a Participant
shall be treated as the surviving spouse of such Participant for purposes of providing
consent in accordance with this Section 8.05.




     (d) Time and Period of Distribution. Notwithstanding the foregoing provisions
of this Section 8.05, if a Participant dies before distributions begin, the Participant’s
entire interest will be distributed, or begin to be distributed, no later than as follows:




          (i) If the Participant’s surviving spouse is the Participant’s sole designated
Beneficiary, then distributions to the surviving spouse will begin no later than
December 31 of the calendar year immediately following the calendar year containing
the fifth anniversary of the Participant’s death, or by December 31 of the calendar
year in which the Participant would have attained age 70 1/2, if later,




          (ii) If the Participant’s surviving spouse is not the Participant’s sole
designated Beneficiary, or if there is no designated Beneficiary, then the
Participant’s entire interest will be distributed to the Beneficiary no later than
December 31 of the calendar year containing the fifth anniversary of the
Participant’s death. If the Participant’s surviving spouse is the Participant’s
sole designated Beneficiary and the surviving spouse dies after the Participant but
before distributions to either the Participant or the surviving spouse begin, then
this clause (ii) shall apply as if the surviving spouse were the Participant.




          (iii) Notwithstanding the foregoing provisions of this Article VIII or
Section 8.06, if for any reason any portion of a Participant’s vested Accrued
Benefit is to be paid after his or her death to a trust or to an estate,
distribution shall be made in the form of an immediate lump sum payment.



For purposes of this Section 805(d) and Section 8.06, distributions are considered to begin on the
Participant’s Required Distribution Date. If distributions under an annuity purchased from an
insurance company irrevocably commence to the Participant before the Participant’s Required



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Distribution Date (or to the Participant’s surviving spouse before the date distributions are
required to begin to the surviving spouse under clause (i)), the date distributions are considered
to begin is the date distributions actually commence. The minimum amount of distributions
beginning pursuant to this Section 8.05(d) shall be determined under Section 8.06(e)




     (e) Rights of Beneficiary. The Beneficiary of a Participant who has died shall
have the same rights and obligations as the Participant with respect to the portion of the
interest of the Participant as to which he or she is the Beneficiary, to direct the
investment of Accounts pursuant to Section 6.08 and to direct the Trustee with respect to
exercise of rights in Company Stock pursuant to Section 6.09.



     8.06 Minimum Distribution Requirements.




     (a) A Participant’s entire interest will be distributed, or begin to be distributed, to
the Participant no later than the Participant’s Required Distribution Date. Unless a
Participant’s interest is distributed in a single sum on or before his or her Required
Distribution Date, the amount required to be distributed for each calendar year, beginning
with distributions for the first distribution calendar year (as defined in subsection
(f)), will be made in accordance with this Section 8.06. If the Participant’s interest is
distributed in the form of an annuity purchased from an insurance company, distributions
thereunder will be made in accordance with the requirements of Section 401(a)(9) of the Code
and Treasury regulations




     (b) During the Participant’s lifetime, the minimum amount that will be distributed for
each distribution calendar year is the lesser of: (i) the quotient obtained by dividing the
Participant’s account balance by the distribution period in the Uniform Lifetime Table set
forth in 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 (ii) 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. Required minimum
distributions will be determined under this Section 8.06 beginning with the first
distribution calendar year and up to and including the distribution calendar year that
includes the Participant’s date of death




     (c) If a 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:




     (i) 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.



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     (ii) 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.




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




     (d) If the Participant dies on or after the date distributions begin and there is no
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 Participant’s remaining life
expectancy calculated using the age of the Participant in the year of death, reduced by one
for each subsequent year.




     (e) If the Participant dies before the date distributions begin then, subject to
Section 8.05(d):




     (i) If 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 subsection (d).




     (ii) If there is no designated Beneficiary, distribution of the Participant’s
entire interest will be completed by December 31 of the calendar year containing the
fifth anniversary of the Participant’s death.




     (iii) If 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 8.05(d), this section
8.06(e) will apply as if the surviving spouse were the Participant.




     (f) For purposes of this Section 8.05(d) and this Section 8.06:




     (i) “Designated Beneficiary” means the individual who is designated as the
Beneficiary under Section 8.05(a) of the Plan 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



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Participant’s
death, the first distribution calendar year is the calendar year immediately
preceding the calendar year which contains the Participant’s Required Distribution
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 8.05(d). The required minimum distribution for the
Participant’s first distribution calendar year will be made on or before the
Participant’s Required Distribution 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 Distribution 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.




     (g) The requirements of Section 8.05(d) and this Section 8.06 will take precedence over
any inconsistent provisions of the Plan. Distributions required under Section 8.05(d) and
this Section 8.06 will be determined and made in accordance with the Treasury Regulations
under Section 401(a)(9) of the Internal Revenue Code.



     8.07 Facility of Payment. If a Participant or Beneficiary is (i) declared an incompetent
or is a minor, (ii) a conservator, guardian, or other person legally charged with his or her care
has been appointed, and (iii) written notice of such incompetency and appointment is filed with the
Plan Administrator before distribution of benefits, then any benefits to which such Participant or
Beneficiary is entitled shall be payable to such conservator, guardian, or other person legally
charged with his or her care. Neither the Company, any Related Employer, the Trustee, the
Investment Committee, any Investment Manager, nor the Plan Administrator, shall be under any duty
to see to the proper application of such payments made to a Participant, conservator, guardian, or
relatives of a Participant.



     8.08 Form of Payment. Each distribution shall be paid in cash (including negotiable check
or other cash equivalent), except that a Participant or Beneficiary may elect in accordance with
such procedures as the Plan Administrator may establish or adopt to receive that portion of his or
her distributable Accounts invested in the Company Stock Fund or in other Employer Stock in the
form of whole shares (with cash in lieu of fractional shares) of such Company Stock or other
Employer Stock.



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     8.09 Direct Rollover to Another Plan. Notwithstanding any provision of this Plan to the
contrary, a Participant or other Distributee (as defined below), may elect, at such time and in
such manner as prescribed by the Plan Administrator, to have all or any portion of the benefits
payable to such Distributee which constitutes an Eligible Rollover Distribution (as defined below)
as paid by the Trustee directly to the Eligible Retirement Plan specified by such Distributee.
Such election shall be subject to such reasonable administrative requirements as the Plan
Administrator may from time to time establish which may include, but shall not be limited to,
requirements consistent with Treasury Regulations and other guidance issued by the Internal Revenue
Service permitting de minimis requirements for amounts eligible to be rolled over or paid partly to
the Participant and partly rolled over. An election may be made pursuant to this Section only
after the Distributee has met
otherwise applicable requirements for receipt of a distribution under the Plan, including any
applicable requirements of Appendix A. As used in this Section, the following terms shall have the
following meanings:




     (1) “Eligible Rollover Distribution” means any distribution of all or
any portion of the balance to the credit of the Distributee, except that an Eligible
Rollover Distribution does not include any distribution that is one of a series of
substantially equal periodic payments (not less frequently than annually) made for
the life (or life expectancy) of the Distributee or the joint lives (or joint life
expectancies) of the Distributee and the Distributee’s designated Beneficiary, or
for a specified period of ten years or more; any distribution to the extent such
distribution is required under Section 8.06(b); any distribution by reason of
Hardship pursuant to Section 7.01(b); and except as provided in the following
sentence the portion of any distribution that is not includable in gross income
(determined without regard to the exclusion for net unrealized appreciation with
respect to employer securities). A portion of a distribution shall not fail to be an
Eligible Rollover Distribution merely because the portion consists of after-tax
employee contributions which are not includable in gross income. However, such
portion may be transferred only to an individual retirement account or annuity
described in Section 408(a) or (b) of the Code, or to a qualified defined
contribution plan described in Section 401(a) or 403(a) of the Code that agrees to
separately account for amounts so transferred, including separately accounting for
the portion of such distribution which is includable in gross income and the portion
of such distribution which is not so includable.




     (2) “Eligible Retirement Plan” means an individual retirement account
described in Section 408(a) of the Code, an individual retirement annuity described
in Section 408(b) of the Code, an annuity plan described in Section 403(a) of the
Code, or a qualified trust described in Section 401(a) of the Code, that accepts the
Distributee’s Eligible Rollover Distributions. However, in the case of an Eligible
Rollover Distribution to a Participant’s surviving spouse or surviving former spouse
who is a Distributee pursuant to a Qualified Domestic Relations Order (as defined in
Section 13.03), an Eligible Retirement Plan is an individual retirement account or
individual retirement annuity. For purposes of this Section an Eligible Retirement
Plan shall also mean an annuity contract described in section 403(b) of the Code and
an eligible plan under section 457(b) of the Code which is maintained by a state,
political subdivision of a state, or any



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agency or instrumentality of a state or
political subdivision of a state and which agrees to separately account for amounts
transferred into such plan from this plan. The definition of Eligible Retirement
Plan shall also apply in the case of a distribution to a surviving spouse, or to a
spouse or former spouse who is the alternate payee under a qualified domestic
relation order, as defined in section 414(p) of the Code.




     (3) “Distributee” means a Participant. In addition, a Participant’s
surviving spouse and a former spouse who is the alternate payee under a Qualified
Domestic Relations Order are Distributees with regard to the interest of such
spouse or former spouse.




     (4) “Direct Rollover” means a payment by the Plan to the Eligible
Retirement Plan specified by the Distributee.



     8.10 Deduction of Taxes from Amounts Payable. The Trustee may deduct from any amounts to
be distributed under this Plan such amounts as the Trustee, in his, her or its sole discretion,
deems proper to protect the Trustee and the Trust against liability for the payment of death,
succession, inheritance, income, or other federal, state or local taxes, and out of the money so
deducted, the Trustee may discharge any such liability and pay the amount remaining to the
Participant or his or her Beneficiary, as the case may be.



ARTICLE IX




Administration




     9.01 Sponsor Rights and Duties. The Company shall have overall responsibility for the
administration and operation of the Plan, which the Company shall discharge by the appointment and
removal (with or without cause) of the Trustee, the Investment Committee and the Plan
Administrator.



     9.02 Plan Administrator Rights and Duties. The Plan Administrator shall administer and
enforce the Plan and the Trust in accordance with the terms of the Plan and the Trust Agreement and
shall have all powers necessary to accomplish that purpose, including but not by way of limitation,
the following, all to be exercised in the sole and absolute discretion of the Plan Administrator:




     (a) To issue rules, regulations and procedures and prescribe forms necessary for the
proper conduct and administration of the Plan and to change, alter, or amend such rules,
regulations and procedures and forms;




     (b) To construe the Plan and Trust Agreement;





     (c) To determine all questions arising in the administration of the Plan, including
those relating to the eligibility of persons to become Participants; the rights of
Participants, former Participants and their Beneficiaries; and Employer contributions,



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     (d) To determine and advise the Trustee of the amount and kind of benefits payable to
Participants or their Beneficiaries;




     (e) To authorize the Trustee to disburse funds from the Trust Fund in accordance with
the provisions of the Plan;




     (f) To employ and compensate such accountants and attorneys (who may but need not be
the accountants or attorneys of the Company) and other persons to render advice, and such
clerical employees as the Plan Administrator may deem necessary to the performance of his,
her or its duties;




     (g) To invest all or a portion of the Trust Fund in loans to Participants and to
segregate the notes representing such loan in a separate fund in accordance with Section
7.2;




     (h) To have prepared and furnished to Participants and Beneficiaries all information
required under federal law or provisions of this Plan to be furnished to them;




     (i) To have prepared and filed or published with the Department of Labor and the
Department of Treasury or other governmental agency all reports and other information
required under federal law;




     (i) To make available to Participants upon request, for examination during business
hours, such records as pertain exclusively to the examining Participant; and




     (j) To hear, review and determine claims for benefits.




     (k) To delegate his, her or its responsibilities under the Plan to such person or
persons as he, she or it may deem advisable;




     (l) To do all other acts and things necessary he, she or it deems in his, her or its
sole discretion to be necessary or appropriate for the administration of the Plan.



     9.03 Plan Administrator Bonding and Expenses. The Plan Administrator shall serve without
bond (except as otherwise required by federal law) and without compensation for his, her or its
service as such; but all expenses incurred in the administration of the Plan and the Trust shall be
paid by the Trust pursuant to Section 6.03 except to the extent paid by the Company.



     9.04 Information To Be Supplied by Participants. Participants and Beneficiaries shall
provide the Plan Administrator and the Trustee or their delegates with such information, as they
shall from time to time determine to be necessary in the discharge of their duties for the
administration of the Plan and the Trust. The Plan Administrator and the Trustee may rely
conclusively on the information certified to them by a Participant or Beneficiary.



     9.05 Information To Be Supplied by Employers. Employers shall provide the Plan
Administrator and the Trustee or their delegates with such information, as they shall from time to
time determine to be necessary in the discharge of their duties for the administration of the Plan



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and the Trust. The Plan Administrator and the Trustee may rely conclusively on the information
certified to them by an Employer.



     9.06 Records. The regularly kept records of the Plan Administrator, the Company and the
other Employers shall be conclusive evidence of the Service of a Participant, his or her
Compensation, his or her age, marital status, status as an Eligible Employee, and all other matters
contained in such records applicable to this Plan.



     9.07 Electronic Media. Under procedures authorized or approved by the Plan Administrator,
any form for any notice, election, designation, or similar communication required or permitted to
be given to or received from a Participant or Beneficiary under this Plan may be made available to
such Participant or Beneficiary in an electronic medium (including computer network, e-mail or
voice response system) and any such communication to or from a Participant or Beneficiary through
such electronic media shall be fully effective under this Plan for such purposes as such procedures
shall prescribe; provided, however, that the consent of a spouse under Section
7.02(g), 8.05(c), or Appendix A, shall be effective only if made in a written document. Any record
of such communication retrieved from such electronic medium under its normal storage and retrieval
parameters shall be effective as a fully authentic executed writing for all purposes of this Plan
absent manifest error in the storage or retrieval process.



     9.08 Plan Administrator Decisions Final. The Plan Administrator shall have discretion to
determine all matters within his, her or its jurisdictions. The decisions of the Plan
Administrator shall be final, binding and conclusive upon the Employers, and the Trustee and upon
each Employee, Participant, former Participant, Beneficiary and every other person or party
interested or concerned.



ARTICLE X




Claims Procedure




     10.01 Initial Claim for Benefits. Except as provided in Section 8.03 for requests for and
consents to distribution in certain circumstances, and in Appendix A, no claim shall be required
for benefits routinely due to be made or begin under this Plan. Any Participant or Beneficiary (a
“Claimant”) may submit to the Plan Administrator (or to such other person or persons as may be
designated by the Plan Administrator) a claim for benefits not received or received in an improper
amount. A claim shall be in writing in such form as is provided or approved by the Plan
Administrator. A Claimant shall have no right to seek review of a denial of benefits, or to bring
any action in any court to enforce a claim for benefits, prior to his or her filing a claim for
benefits under this Section 10.01 and exhausting his or her rights to review under Section 10.02.



     When a claim for benefits has been filed properly, the Plan Administrator shall evaluate such
claim for benefits and notify the Claimant of its approval or the denial within ninety (90)
days after the receipt of such claim unless special circumstances require an extension of time
for processing the claim. If such an extension of time for processing is required, the Plan
administrator shall furnish written notice of the extension to the Claimant prior to the
termination of the initial ninety (90) day period. The notice shall specify the special
circumstances requiring an extension and the date by which a final decision will be reached (which
date shall not be later



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than one hundred and eighty (180) days after the date on which the claim
was filed). The Plan Administrator shall give the Claimant written notice whether the claim is
granted or denied, in whole or in part. If a claim is denied, in whole or in part, the Plan
Administrator shall give the Claimant written notice which shall contain (1) the specific reasons
for the denial, (2) references to pertinent plan provisions upon which the denial is based, (3) a
description of any additional material or information necessary to perfect the claim and an
explanation of why such material or information is necessary, and (4) the Claimant’s rights to seek
review of the denial.



     10.02 Review of Claim Denial. If a claim is denied, in whole or in part (or if within the
time periods presented in Section 10.01 the Claimant has not received an approval or a denial and
the claim is therefore deemed denied), the Claimant shall have the right to request that the Plan
Administrator (or such other person or persons as may be designated by the Plan Administrator)
review the denial. The Plan Administrator may in the sole and absolute discretion of the Plan
Administrator appoint a third person other than the Plan Administrator, with such person’s consent
but without the consent of any Claimant, to make any decision on review of a claim under this
Section 10.02, provided such person acknowledges in writing that he, she or it is a fiduciary with
respect to this Plan for such purpose. A request for review shall be in writing and must be filed
with the Plan Administrator within sixty (60) days after the date on which the Claimant received
written notification of the denial. A Claimant (or his or her duly authorized representative) may
request and receive copies of pertinent documents and submit issues and comments in writing to the
Plan Administrator (or other designated person). Within sixty (60) days after such request for
review is received, the Plan Administrator (or other designated person) shall reconsider the
decision and advise the Claimant in writing of the decision on review, unless special circumstances
require an extension of time for processing the review, in which case the Plan Administrator (or
other designated person) shall give the Claimant a written notification within such initial sixty
(60) day period specifying the reasons for the extension and advising the Claimant when such review
shall be completed. Such review shall be completed within one hundred and twenty (120) days after
the date on which the request for review was filed. The Plan Administrator (or other designated
person) shall forward the decision on review to the Claimant in writing and shall include specific
reasons for the decision and references to plan provisions upon which the decision is based. A
decision on review shall be final and binding on all persons for all purposes. No action may be
brought in any court respecting benefits, which were the subject of a denial of a claim for
benefits (other than an action by the Plan Administrator to enforce such denial) more than one (1)
year after the denial of such claim. If a Claimant shall fail to file a request for review in
accordance with the procedures described in Sections 10.01 and 10.02, such Claimant shall have no
right to review and shall have no right to bring action in any court and the denial of the claim
shall become final and binding on all persons for all purposes.



ARTICLE XI




Amendment, Merger and Termination of the Plan




     11.01 Amendments. The Company may amend, modify, change, revise, discontinue or terminate
the Plan at any time prospectively or retroactively. Such amendment, modification, change,
revision, discontinuance or termination shall be done by written resolution of the Board of
Directors of the Company, except that (i) an amendment or modification required (in
the



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reasonable judgment of the Plan Administrator or the Company) to comply with changes in
applicable law or to permit the issuance of or conform to the conditions of a favorable
determination letter from the Internal Revenue Service on the qualification of the Plan under
Section 401(a) of the Code may be done by written instrument signed on behalf of the Company by the
Plan Administrator or officer of the Company; and (ii) the Plan Administrator may revise Schedule 1
from time to time to reflect the Accounts maintained from time to time under the Plan as long as
such revision does not have an effect prohibited by this Section or Section 11.02. However, except
as authorized or permitted by provisions of the Code, or any other statute relating to employees’
trusts, or regulations or ruling issued pursuant thereto, no amendment shall: (i) increase the
duties or liabilities of the Trustee or the Plan Administrator without the consent of the person
affected; (ii) have the effect of vesting in any Employer any interest in any funds, securities or
other property subject to the terms of this Plan and the Trust Agreement; or authorizing or
permitting at any time any part of the corpus or income of the Trust Fund to be used or diverted to
purposes other than for the exclusive benefit of Participants and their Beneficiaries, except as
provided in Sections 5.07 and 6.11 or applicable law as in effect from time to time, or (iii)
divest any Participant of his or her vested Account Balance, decrease the Accrued Benefit of any
Participant, or eliminate or reduce any early retirement benefit or retirement-type subsidy or
eliminate an optional form of benefit except as permitted by Section 411(d)(6) of the Code and
Treasury Regulations and rulings thereunder or other applicable law as in effect from time to time.



     11.02 Plan Merger. The Company may direct the merger or consolidation of this Plan with,
or transfer of assets from this Plan to, another employee benefit plan qualified under Section
401(a) of the Code (“Other Plan”), or may direct the Trustee to accept the merger or consolidation
of a Transferor Plan into, or a transfer of assets and liabilities, or portion thereof, from a
Transferor Plan to this Plan, on such terms and conditions as the Company in its sole discretion
deems desirable, in the same manner (and subject to the same conditions) as an amendment to this
Plan under Section 11.01. However, the Plan shall not merge or consolidate with, or transfer to or
receive from any Transferor Plan or Other Plan any assets or liabilities, (i) unless each
Participant would receive a benefit immediately after the merger, consolidation or transfer (if the
Plan were then terminated) which is equal to or greater than the benefit to which he would have
been entitled immediately before the merger, consolidation, or transfer (if the Plan were then
terminated), and (ii) the merger, consolidation or transfer of assets does not have an effect
prohibited by clause (iii) of
Section 11.01 above. The portion of any assets and liabilities received from a Transferor Plan
that was attributable to elective contributions, qualified non-elective contributions or qualified
non-elective contributions, or matching contributions (within the meaning of Treas. Reg. §
1.401(k)-1(g)(13) shall remain subject to the distribution restrictions of Treas. Reg. §
1.401(k)-1(d). The portion of any assets and liabilities received from a Transferor Plan that was
subject to Section 412 of the Code shall not be distributable before the earlier of the
Participant’s Normal Retirement Date or Termination of Employment except as otherwise required by
Section 401(a)(9) of the Code. No merger, consolidation, or transfer of assets shall impose on the
Company or any Related Company any liabilities or obligations of the sponsor of a Transferor Plan
respecting the Transferor Plan or accounts transferred from the Transferor Plan (including but not
limited to the obligation to make contributions to such accounts) unless the Company or Related
Company expressly assumes such liabilities or obligations.



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     11.03 Plan Termination. The Company, by resolution of the Board of Directors, may reduce,
suspend or discontinue Employer contributions hereunder, and terminate the Plan at any time in
whole or in part, provided, however, that the termination of the Plan or the reduction, suspension
or discontinuance of contributions hereunder shall not have any retroactive effect as to deprive
any Participant or Beneficiary of any benefit already accrued.



     11.04 Payment Upon Termination. Upon termination of the Plan or complete discontinuance of
Employer contributions, the unvested portion of each Participant’s Accrued Benefit that has not
been forfeited pursuant to Section 4.10 prior to the termination of the Plan or complete
discontinuance of Employer contributions shall become fully vested and nonforfeitable. Upon a
partial termination of the Plan, the Accrued Benefit of each former Active Participant who lost
status as an Active Participant because of such partial termination shall become fully vested and
nonforfeitable. In the event of termination of the Plan and after payment of all expenses, the
Plan Administrator may direct that either (1) each Participant and each Beneficiary of a deceased
Participant receive his or her entire Accrued Benefit as soon as reasonably possible or (2) the
Trust be continued and Participants’ Accrued Benefits be distributed at such times and in such
manner as provided in Article VIII, in which case continued allocations of net income, gains,
losses and expenses of the Trust Fund as provided in Article VI shall be made.



     11.05 Withdrawal from the Plan by an Employer. Any Employer other than the Company may
withdraw from the Plan and Trust Agreement, under such terms and conditions as the Board of
Directors may prescribe, by delivery to the Trustee and the Company of a resolution of its board of
directors electing to so withdraw. An Employer that ceases to be a Related Employer shall
automatically withdraw from the Plan effective as of the date such Employer ceases to be a Related
Employer unless then or thereafter such Employer affirmatively elects, and the Board of Directors
affirmatively consents, to such Employer continuing to be an Employer under this Plan.



ARTICLE XII




Top Heavy Provisions




     12.01 Application. The definitions in Section 12.02 shall apply under this Article XII and
the special rules in Section 12.03 shall apply, notwithstanding any other provisions of the Plan,
for any Plan Year in which the Plan is a Top Heavy Plan and for such other Plan Years as may be
specified herein. multiple employer plan as described in Code Section 413(c), the provisions of
this Article XII shall be applied separately to each Employer and Related Company taking account of
benefits under the Plan provided to employees of the Employer or Related Company because of service
with that Employer or Related Company.



     12.02 Special Top Heavy Definitions. The following special definitions shall apply under
this Article XI.




     (a) “Aggregate Employer Contributions” means the sum of all Employer
contributions under this Plan allocated for a Participant to the Plan and employer
contributions and forfeitures allocated for the Participant to all Related Defined



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Contribution Plans in the Aggregation Group. With respect to Non-Key Employees, Elective
Deferrals under the Plan and employer contributions attributable to salary reduction or
similar arrangement under any Related Defined Contribution Plans shall not be included in
Aggregate Employer Contributions. Matching Contributions under the Plan and employer
matching contributions (within the meaning of Section 401(m)(4)(A) of the Code) under any
Related Defined Contribution Plans shall be included in Aggregate Employer Contributions.
Matching Contributions that are used to satisfy the minimum contribution requirements of
Section 12.03(a) shall be treated as Matching Contributions for purposes of the actual
contribution percentage test of Section 5.03 of the Plan and other applicable requirements
of Section 401(m) of the Code.




     (b) “Aggregation Group” means the group of plans in a Mandatory Aggregation
Group, if any, that includes the Plan, unless the inclusion of Related Plans in the
Permissive Aggregation Group would prevent the Plan from being a Top Heavy Plan, in which
case “Aggregation Group” means the group of plans consisting of the Plan and each other
Related Plan in a Permissive Aggregation Group with the Plan.




     (1) “Mandatory Aggregation Group” means each plan (considering the Plan
and Related Plans) that, during the Plan Year that contains the Determination Date
or any of the four preceding Plan Years,




     (A) had a participant who was a Key Employee, or




     (B) was necessary to be considered with a plan in which a Key Employee
participated in order to enable the plan in which the Key
Employee participated to meet the requirements of Section 401(a)(4) or
410 of the Code.




If the Plan is not described in (A) or (B) above, it shall not be part of a
Mandatory Aggregation Group.




     (2) “Permissive Aggregation Group” means the group of plans consisting
of (A) the plans, if any, in a Mandatory Aggregation Group with the Plan, and (B)
any other Related Plan, that, when considered as a part of the Aggregation Group,
does not cause the Aggregation Group to fail to satisfy the requirements of Section
401(a)(4) and Section 410 of the Code. A Related Plan in (B) of the preceding
sentence may include a simplified employee pension plan, as defined in Code Section
408(k), and a collectively bargained plan, if when considered as a part of the
Aggregation Group such plan does not cause the Aggregation Group to fail to satisfy
the requirements of Section 401(a)(4) and Section 410 of the Code considering, if
the plan is a multiemployer plan as described in Code Section 414(f) or a multiple
employer plan as described in Code Section 413(c), benefits under the plan only to
the extent provided to employees of the employer because service with the employer
and, if the plan is a simplified employee pension plan, only the employer’s
contribution to the plan.



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     (c) “Determination Date” means, with respect to a plan year, the last day of
the preceding plan year or, in the case of the first plan year, the last day of such plan
year. If the Plan is aggregated with other plans in the Aggregation Group, the
Determination Date for each other plan shall be, with respect to any plan year, the
Determination Date for each such other plan which falls in the same calendar year as the
Determination Date for the Plan.




     (d) “Key Employee” means, for the Plan Year containing the Determination Date,
any Employee or former Employee (including any deceased employee) who at any time during
such Plan Year was:




     (1) an officer (including administrative executives as described in Treasury
Regulations Section 1.416-1(T-13)) of the Employer or a Related Company having
annual Compensation for the Plan Year greater than $130,000 (as adjusted under
Section 416(i) of the Code for Plan Years beginning after December 31, 2002);




     (2) a more than five percent (5%) owner (or is considered as owning more than
five percent (5%) within the meaning of Code Section 318) of the Employer or a
Related Company; or




     (3) a more than one percent (1%) owner (or is considered as owning more than
one percent (1%) within the meaning of Code Section 318) of the Employer or a
Related Company and has an annual Compensation for such Plan Year from the Employer
and Related Companies of more than $150,000.




     No more than a total of fifty (50) persons (or, if lesser, the greater of three
(3) persons or ten percent (10%) of all persons or beneficiaries of persons who are
employees or former employees) shall be treated as Key Employees under paragraph (1)
above for any Plan Year. If the number of persons who meet the requirements to be
treated as Key Employees under paragraph (1) exceeds such limitation those persons
with the highest annual Compensation in a Plan Year for which the requirements are
met and who are within the limitation on the number of Key Employees will be treated
as Key Employees. For purposes of determining the number of officers taken into
account hereunder, employees described in Section 2.26(b)(1) through (6) shall be
excluded. The determination of who is a Key Employee will be made in accordance
with Section 416(i) of the Code and the applicable regulations




     (e) “Non-Key Employee” means a person with an accrued benefit or account
balance in the Plan or any Related Plan in the Aggregation Group at any time during the
Measurement Period who is not a Key Employee, and any beneficiary of such a person.




     (f) “Present Value of Accrued Benefits” means, for any Plan Year, an amount
equal to the sum of (1), (2) and (3), subject to (4), for each person who, in the Plan Year
containing the Determination Date, was a Key Employee or a Non-Key Employee.



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     (1) The value of a person’s Accrued Benefit under the Plan and each Related
Defined Contribution Plan in the Aggregation Group, determined as of the valuation
date coincident with or immediately preceding the Determination Date, adjusted for
contributions due as of the Determination Date, as follows:




     (A) in the case of a plan not subject to the minimum funding
requirements of Section 412 of the Code, by including the amount of any
contributions actually made after the valuation date but on or before the
Determination Date, and, in the first plan year of a plan, by including
contributions made after the Determination Date that are allocated as of a
date in that first plan year; and




     (B) in the case of a plan that is subject to the minimum funding
requirements, by including the amount of any contributions that would be
allocated as of a date not later than the Determination Date, plus
adjustments to those amounts as required under applicable rulings, even
though those amounts are not yet required to be contributed or allocated
(e.g., because they have been waived) and by including the amount of any
contributions actually made (or due to be made) after the valuation date but
before the expiration of the extended payment period in Section 412(c)(10)
of the Code.




     (2) The sum of the actuarial present values of a person’s accrued benefits
under each Related Defined Benefit Plan in the Aggregation Group, expressed as a
benefit commencing at Normal Retirement Date (or the person’s attained age, if
later) determined based on the following actuarial assumptions:




     (A) Interest rate: 5%; and




     (B) Post Retirement Mortality: 1984 Unisex Pension Table;




     and determined in accordance with Code Section 416(g), provided, however, that the
accrued benefit of any Non-Key Employee shall be determined under the method which
is used for accrual purposes for all Related Defined Benefit Plans or, if no single
accrual method is used in all such plans, such accrued benefit shall be determined
as if such benefit accrued not more rapidly than the slowest accrual rate permitted
under Code Section 411(b)(1)(C). The present value of an accrued benefit for any
person who is employed by an employer maintaining a plan on the Determination Date
is determined as of the most recent valuation date which is within a 12-month period
ending on the Determination Date, provided however that:




     (C) for the first plan year of the plan, the present value for an
employee is determined as if the employee had a Termination of Employment
(i) on the Determination Date or (ii) on such valuation date but taking into
account the estimated accrued benefit as of the Determination Date; and



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     (D) for the second and subsequent plan years of the plan, the accrued
benefit taken into account for an employee is not less than the accrued
benefit taken into account for the first plan year unless the difference is
attributable to using an estimate of the accrued benefit as of the
Determination Date for the first plan year and using the actual accrued
benefit as of the Determination Date for the second plan year.




For purposes of this paragraph (2), the valuation date is the valuation date used by
the plan for computing plan costs for minimum funding, regardless of whether a
valuation is performed that year.




     If the plan provides for a nonproportional subsidy as described in Treasury
Regulations Section 1.416-1(T-27), the present value of accrued benefits shall be
determined taking into account the value of nonproportional subsidized early
retirement benefits and nonproportional subsidized benefit options.




     (3) Distributions made with respect to the Employee under the Plan and any
Related Plan within the Aggregation Group during the one-year period ending on the
determination date. The preceding sentence shall also apply to distributions under
a terminated plan which, had it not been terminated, would have been a Related Plan
within the Aggregation Group. In the case of a distribution for a reason other than
separation from service, death or disability, this provision shall be applied by
substituting “five-year period” for “one-year period.”




     (4) The following rules shall apply in determining the Present Value of Accrued
Benefits:




     (A) Amounts attributable to qualified voluntary employee contributions,
as defined in Section 219(e) of the Code, shall be excluded.




     (B) In computing the Present Value of Accrued Benefits with respect to
rollovers or plan-to-plan transfers, the following rules shall be applied to
determine whether amounts which have been distributed during the five (5)
year period ending on the Determination Date from or accepted into this Plan
or any plan in the Aggregation Group shall be included in determining the
Present Value of Accrued Benefits:




     (i) Unrelated Transfers accepted into the Plan or any plan in
the Aggregation Group after December 31, 1983 shall not be included.




     (ii) Unrelated Transfers accepted on or before December 31, 1983
and all Related Transfers accepted at any time into the Plan or any
plan in the Aggregation Group shall be included.



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     (iii) Unrelated Transfers made from the Plan or any plan in the
Aggregation Group shall be included.




     (iv) Related Transfers made from the Plan or any plan in the
Aggregation Group shall not be included by the transferor plan (but
shall be counted by the accepting plan).




     (C) The Accrued Benefit of any individual who has not performed
services for the Employer maintaining the Plan at any time during the one
(1) year period ending on the Determination Date shall be excluded.




     (g) “Related Transfer” means a rollover or a plan-to-plan transfer which is
either not initiated by the Employee or is made between plans each of which is maintained by
a Related Company.




     (h) A “Top Heavy Aggregation Group” exists in any Plan Year for which, as of
the Determination Date, the sum of the Present Value of Accrued Benefits for Key Employees
under all plans in the Aggregation Group exceeds sixty percent (60%) of the sum of the
Present Value of Accrued Benefits for all employees under all plans in the Aggregation
Group; provided that, for purposes of determining the sum of the Present Value of Accrued
Benefits for all employees, there shall be excluded the Present Value of Accrued Benefits of
any Non-Key Employee who was a Key Employee for any Plan Year preceding the Plan Year that
contains the Determination Date. For purposes of applying the special rules herein with
respect to a Super Top Heavy Plan, a Top Heavy Aggregation Group will also constitute a
“Super Top Heavy Aggregation Group” if in any Plan Year as of the Determination Date, the
sum of the Present Value of Accrued Benefits for Key Employees under all plans in the
Aggregation Group exceeds ninety
percent (90%) of the sum of the Present Value of Accrued Benefits for all employees
under all plans in the Aggregation Group.




     (i) “Top Heavy Plan” means the Plan in any Plan Year in which the Plan is a
member of a Top Heavy Aggregation Group, including a Top Heavy Aggregation Group consisting
solely of the Plan. For purposes of applying the rules herein with respect to a Super Top
Heavy Plan, a Top Heavy Plan will also constitute a “Super Top Heavy Plan” if the
Plan in any Plan Year is a member of a Super Top Heavy Aggregation Group, including a Super
Top Heavy Aggregation Group consisting solely of the Plan.




     (j) “Unrelated Transfer” means a rollover or a plan-to-plan transfer which is
both initiated by the Employee and (a) made from a plan maintained by a Related Company to a
plan maintained by an employer which is not a Related Company or (b) made to a plan
maintained by a Related Company from a plan maintained by an employer which is not a Related
Company.



     12.03 Special Top Heavy Provisions. For each Plan Year in which the Plan is a Top Heavy
Plan, the following rules shall apply, except that the special provisions of this Section 12.03
shall not apply with respect to any employee included in a unit of employees



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covered by an
agreement which the Secretary of Labor finds to be a collective-bargaining agreement between
employee representatives and one or more Employers if there is evidence that retirement benefits
were the subject of good faith bargaining between such employee representative and the Employer or
Employers:




     (a) Minimum Employer Contributions. In any Plan Year in which the Plan is a
Top Heavy Plan, the Employers shall make additional Employer Contributions to the Plan as
necessary for each Participant who is employed on the last day of the Plan Year and who is a
Non-Key Employee to bring the amount of his or her Aggregate Employer Contributions for the
Plan Year up to at least three percent (3%) of his or her Compensation, or if the Plan is
not required to be included in an Aggregation Group in order to permit a Related Defined
Benefit Plan in the Aggregation Group to satisfy the requirements of Section 401(a)(4) or
Section 410 of the Code, such lesser amount as is equal to the largest percentage of a Key
Employee’s Compensation allocated to the Key Employee as Aggregate Employer Contributions,
unless such Participant is a Participant in a Related Defined Benefit Plan and receives a
minimum benefit thereunder in accordance with Section 416(c) of the Code in which case such
Participant shall not receive a minimum contribution under this Section 11.3(a).




     For purposes of determining whether a Non-Key Employee is a Participant entitled to
have minimum Employer Contributions made on his or her behalf, a Non-Key Employee will be
treated as a Participant even if he is not otherwise a Participant (or accrues no benefit)
under the Plan because:




     (1) he has failed to complete the requisite number of hours of service (if any)
after becoming a Participant in the Plan,




     (2) he is excluded from participation in the Plan (or accrues no benefit)
merely because his or her compensation is less than a stated amount, or




     (3) he is excluded from participation in the Plan (or accrues no benefit)
merely because of a failure to make mandatory employee contributions or, if the Plan
is a 401(k) plan, because of a failure to make elective 401(k) contributions.




     Contributions required by this subsection shall be allocated to the Company
Contribution Account (if the Non-Key Employee is not a Traveler) or the Traveler Benefit
Account (if the Non-Key Employee is a Traveler) of the affected Non-Key Employee.




     (b) Vesting. For each Plan Year in which the Plan is a Top Heavy Plan and any
Plan Year thereafter, the Employer Contribution Account of a Participant who has at least
one Hour of Service after the Plan becomes a Top Heavy Plan and who has completed three (3)
or more years of Vesting Service shall become fully vested and nonforfeitable.




     (c) Limitations. For Plan Years commencing prior to January 1, 2000, in
computing the limitations under Section 5.07 hereof for years in which the Plan is a Top



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Heavy Plan, the special rules of Section 416(h) of the Code shall be applied in accordance
with applicable regulations and rulings so that, in determining the denominator of the
Defined Contribution Plan Fraction and the Defined Benefit Plan Fraction, at each place at
which “1.25” would have been used, “1.00” shall be substituted, and by substituting $41,500
for $51,875 in the numerator of the transition fraction described in Section 415(e)(6)(B) of
the Code, unless the Plan is not a Super Top Heavy Plan and the special requirements of
Section 416(h)(2) of the Code have been satisfied. This Section 12.3(c) shall not apply to
any Plan Year commencing after December 31, 1999.




     (d) Transition Rule for a Top Heavy Plan. Notwithstanding the provisions of
Section 12.03(c), for each Plan Year commencing prior to January 1, 2000 in which the Plan
is a Top Heavy Plan and in which the Plan does not meet the special requirements of Section
416(h)(2) of the Code in order to use 1.25 in the denominator of the Defined Contribution
Plan Fraction and the Defined Benefit Plan Fraction, if an Employee was a participant in one
or more defined benefit plans and in one or more defined contribution plans maintained by
the employer before the plans became Top Heavy Plans and if such Participant’s Combined
Fraction exceeds 1.00 because of accruals and additions that were made before the plans
became Top Heavy Plans, a factor equal to the lesser of 1.25 or such lesser amount (but not
less than 1.00) as shall be needed to make the Employee’s Combined Fraction equal to 1.00
shall be used in the denominator of the Defined Benefit Plan Fraction and the Defined
Contribution Plan Fraction if there are no further accruals or annual additions under any
Top Heavy Plans until the Participant’s Combined Fraction is not greater than 1.00 when a
factor of 1.00 is used in the denominators of the Defined Benefit Plan Fraction and the
Defined Contribution Plan Fraction. Any provisions herein to the contrary notwithstanding,
for Plan Years commencing prior to January 1, 2000, if
the Plan is a Top Heavy Plan and the Plan does not meet the special requirements of
Section 416(h)(2) of the Code in order to use 1.25 in the denominators of the Defined
Benefit Plan Fraction and the Defined Contribution Plan Fraction, there shall be no further
Annual Additions for a Participant whose Combined Fraction is greater than 1.00 when a
factor of 1.00 is used in the denominator of the Defined Benefit Plan Fraction and the
Defined Contribution Plan Fraction, until such time as the Participant’s Combined Fraction
is not greater than 1.00. This Section 12.03(d) shall not apply to any Plan Year commencing
after December 31, 1997.




     (e) Transition Rule for a Super Top Heavy Plan. Notwithstanding the provisions
of Sections 12.03(c) and 12.03(d), for each Plan Year commencing prior to January 1, 2000 in
which the Plan is a Super Top Heavy Plan, (1) if an Employee was a participant in one or
more defined benefit plans and in one or more defined contribution plans maintained by the
employer before the plans became Super Top Heavy Plans, and (2) if such Participant’s
Combined Fraction exceeds 1.00 because of accruals and additions that were made before the
plans became Super Top Heavy Plans and if immediately before the plans became Super Top
Heavy Plans the Combined Fraction as then computed did not exceed 1.00, then a factor equal
to the lesser of 1.25 or such lesser amount (but not less than 1.00) as shall be needed to
make the Employee’s Combined Fraction equal to 1.00 shall be used in the denominator of the
Defined Benefit Plan Fraction and the Defined Contribution Plan Fraction if there are no
further accruals or



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annual additions under any Super Top Heavy Plans until the Participant’s
Combined Fraction is not greater than 1.00 when a factor of 1.00 is used in the denominators
of the Defined Benefit Plan Fraction and the Defined Contribution Plan Fraction. Any
provisions herein to the contrary notwithstanding, for Plan Years commencing prior to
January 1, 2000, if the Plan is a Super Top Heavy Plan, there shall be no further Annual
Additions for a Participant whose Combined Fraction is greater than 1.00 when a factor of
1.00 is used in the denominator of the Defined Benefit Plan Fraction and the Defined
Contribution Plan Fraction until the Participant’s Combined Fraction is not greater than
1.00. This Section 12.03(e) shall not apply to any Plan Year commencing after December 31,
1999.




     (f) Terminated Plan. If the Plan becomes a Top Heavy Plan after it has
formally been terminated, has ceased contributions and has been or is distributing all plan
assets to participants and their beneficiaries as soon as administratively feasible or if a
terminated plan has distributed all benefits of participants and their beneficiaries, the
provisions of Section 12.03 shall not apply to the Plan.




     (g) Frozen Plans. If the Plan becomes a Top Heavy Plan after contributions
have ceased under the Plan but all assets have not been distributed to Participants or their
Beneficiaries, the provisions of Section 12.03 shall apply to the Plan.



ARTICLE XIII




Miscellaneous Provisions




     13.01 Employer Joinder. Any Employer immediately before the Effective Date that continues
to be a Related Company immediately after the Effective Date shall continue as an Employer under
this Plan. Any entity that is a Related Company as of the Effective Date or which is created by a
transfer of assets from a Related Employer after the Effective Date, and that employs Employees
within the United States who would be Eligible Employees if such Related Company were an Employer,
shall be an Employer and shall be deemed to have adopted this Plan and the Trust unless such
Related Company by resolution of its board of directors, or the Company by resolution of the Board
of Directors, affirmatively provides that such Related Company shall not be an Employer. Any other
Related Company shall become an Employer as of the date (if any) as of which such Related Company
adopts the Plan by resolution of its board of directors, or as of which the Company designates such
entity as an Employer under the Plan by resolution of the Board. Each Employer other than the
Company so adopting or deemed to have adopted the Plan thereby irrevocably appoints the Company to
as its agent to do on its behalf all acts and things required of an Employer under this Plan and
authorizes the Plan Administrator to determine the Employer contributions required of such Employer
under this Plan, to the end that Participants, Beneficiaries, the Trustee, the Plan Administrator,
and all other persons may deal with the Company as if it were the only Employer under this Plan.



     13.02 Non-Alienation of Benefits. Except as provided in Section 13.03, no benefit payable
at any time under this Plan shall be subject in any manner to alienation, sale, transfer,
assignment, pledge, attachment, or other legal processes, or encumbrance of any kind, other than
federal tax levies and judgements which are enforceable under federal law. Any attempt to



-64-









 







alienate, sell, transfer, assign, pledge or otherwise encumber any such benefits, whether currently
or thereafter payable, shall be void. No benefit, nor any fund which may be established for the
payment of such benefits, shall, in any manner, be liable for or subject to the debts or
liabilities of any person entitled to such benefits.



     13.03 Qualified Domestic Relations Order. Notwithstanding Section 13.02, the Plan will pay
all or the designated portion of a Participant’s Accounts to an Alternate Payee (as defined below)
pursuant to a Qualified Domestic Relations Order (defined below). Payments to an Alternate Payee
pursuant to a Qualified Domestic Relations Order may not be made before the earlier of (i) the date
on which the Participant corresponding to the Qualified Domestic Relations Order is entitled to a
distribution under the Plan; or (ii) the later of (A) the date on which such Participant attains
age 50 or (B) the earliest date on which such Participant could begin receiving benefits under the
Plan if the Participant had separated from service; provided, however, that clause
(ii)(A) shall not apply (and therefore the Plan will make distributions to an Alternate Payee under
a Qualified Domestic Relations Order regardless of whether the Participant has attained age 50) if
the Order specifies distributions at an earlier date than otherwise permitted by clause (ii)(A) or
permits the Alternate Payee to request or consent to a distribution prior to the date specified by
clause (ii)(A).



     The term “Qualified Domestic Relations Order” means any judgment, decree or order (including
approval of a property settlement agreement) which:




     (a) relates to the provision of child support, alimony payments, or marital property
rights to a spouse, child or other dependent of a Participant,




     (b) is made pursuant to a State domestic relations law (including a community property
law),




     (c) creates or recognizes the existence of an Alternate Payee’s right to, or assigns to
an Alternate Payee the right to, receive all or a portion of the benefits payable with
respect to the Participant,




     (d) clearly specifies the name and last known mailing address, if any, of the
Participant and the name and mailing address of each Alternate Payee covered by the order,
the amount and percentage of the Participant’s benefits to be paid by the Plan to each
Alternate Payee, or the manner in which such amount or percentage is to be determined, the
number of payments or period to which such order applies and each plan to which such order
applies, and




     (e) does not require the Plan to provide (i) any form or type of benefit, or any
option, not otherwise provided under the Plan, (ii) increased benefits (determined on the
basis of actuarial value), (iii) benefits to a beneficiary inconsistent with the form of
distribution available under Article VIII (or, if applicable, Appendix A), (iv) benefits to
an Alternate Payee which are required to be paid to another payee under another order
previously determined by the Plan Administrator to be a Qualified Domestic Relations Order;
or (v) payments or other benefits to a person other than an Alternate Payee.



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The Plan Administrator shall establish reasonable procedures to determine the qualified status of
domestic relations order and to administer distributions under such qualified orders, including the
establishment of segregated accounts for Alternate Payees. All expenses incurred by the Plan
Administrator in determining the qualified status of a domestic relations order shall be paid as an
administrative expense of the Plan as a whole.




     The term “Alternate Payee” means any spouse, former spouse, child or other dependent of a
Participant who is recognized by a Qualified Domestic Relations Order as having a right to receive
all, or a portion of, the benefits payable under the Plan with respect to the Participant. To the
extent provided in any Qualified Domestic Relations Order, the former spouse of a Participant shall
be treated as the surviving spouse of such Participant for purposes of consenting to the naming of
another Beneficiary to the extent provided in Sections 8.05 and Appendix A. An Alternate Payee
shall be considered a Beneficiary under the terms of this Plan until the Alternate payee’s benefits
are distributed.



     In the case of any domestic relations order received by the Plan, the Plan Administrator shall
separately account for the amounts payable under the domestic relations order. If it is determined
that the order is not a Qualified Domestic Relations Order, the amounts separately accounted for
during such determination shall no longer be accounted for separately.



     13.04 Unclaimed Amounts. Unclaimed amounts shall consist of the amounts of the Accounts of a retired, deceased or
terminated Participant which cannot be distributed because of the Plan Administrator’s inability,
after a reasonable search, to locate a Participant or his or her Beneficiary within a period of two
(2) years after the payment of benefits becomes due in accordance with Section 8.03. Unclaimed
amounts for a Plan Year shall become a Forfeiture and shall be applied in accordance with Section
4.10(f) as of the close of the Plan Year in which such two-year period shall end. If an unclaimed
amount is subsequently properly claimed by the Participant or the Participant’s Beneficiary, said
amount shall be paid to such Participant or Beneficiary out of Forfeitures for the Plan Year in
which such benefits are properly claimed and to the extent that Forfeitures for such Plan Year are
not sufficient, such payments shall be charged ratably against income or gain of the Trust Fund
unless paid by an Employer.



     13.05 No Contract of Employment. Nothing contained in this Plan shall be construed as a
contract of employment between any Employer and any Employee or as creating a right of any Employee
to be continued in the employment of any Employer.



     13.06 Recoupment of or Reduction for Overpayment. If the Plan Administrator determines
that any payment previously made to a putative Participant or Beneficiary was not properly payable,
the person to whom such payment was made shall promptly upon notice and demand from the Plan
Administrator repay such amount to the Trust, subject to the right of such payee to request review
of such determination in accordance with Section 10.02. If the person to whom such payment was
made does not, within a reasonable time, make the requested repayment to the Plan, and if such
person is entitled to other benefits from the Plan, the Plan Administrator may in his, her or its
discretion treat the overpayment as an advance payment of benefits, and the Plan Administrator
shall direct the Trustee to reduce all future benefits payable to that person, if any, by the
amount of the overpayment.



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     13.07 Employees’ Trust. The Plan and Trust are created for the exclusive purpose of
providing benefits to the Participants in the Plan and their Beneficiaries and defraying reasonable
expenses of administering the Plan and Trust. The Plan and Trust shall be interpreted in a manner
consistent with their being a Plan described in Section 401(a) of the Code and a Trust exempt under
Section 501(a) of the Code.



     13.08 Source of Benefits. All benefits payable under the Plan shall be paid or provided
solely from the Trust and the Employers assume no liability or responsibility therefore.



     13.09 Interest of Participants. No Participant or Beneficiary shall have any interest in any specific assets of the Trust Fund
(other than notes representing a loan to the Participant pursuant to Section 7.02) but shall have
only an undivided interest in the Trust Funds as a whole.



     13.10 Indemnification. The Company shall indemnify and hold harmless the Plan
Administrator the members of the Investment Committee, and, if the Trustees are one or more
individuals, the Trustees, and each officer and employee of an Employer to whom are delegated
duties, responsibilities, and authority with respect to the Plan, from and against all claims,
liabilities, fines and penalties, and all expenses reasonably incurred by or imposed upon him or
her (including, but not limited to, reasonable attorney fees) which arise as a result of his or her
actions or failure to act in connection with the operation and administration of the Plan to the
extent lawfully allowable and to the extent that such claim, liability, fine, penalty, or expense
is not paid for by liability insurance purchased or paid for by the Company. Notwithstanding the
foregoing, the Company shall not indemnify any person for any such amount incurred through any
settlement or compromise of any action unless the Company consents in writing to such settlement or
compromise.



     13.11 Company Action. Any action this Plan requires or permits the Company to do
(including any action taken by the Company as agent for any other Employer pursuant to Section
13.01) shall be properly done if done by resolution of its Board of Directors, or, unless this Plan
expressly requires action by such Board of Directors, by any officer or employee of the Company
authorized to take actions of such type on behalf of the Company (i) under the by-laws of the
Company, (ii) by resolution of the Board of Directors), or (iii) by delegation from a person
authorized under clause (i) or (ii).



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



     13.13 Multiple Capacity. Any person or group of persons may serve in more than one
capacity (including more than one fiduciary or nonfiduciary capacity or both a fiduciary and
non-fiduciary capacity) with respect to the Plan.



     13.14 Gender and Number. Except when the context indicates to the contrary, when used
herein, masculine terms shall be deemed to include the feminine or neuter, and singular the plural.



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



     13.16 Uniform and Non-Discriminatory Application of Provisions. The provisions of this
Plan shall be interpreted and applied in a uniform and non-discriminatory manner with respect to
all similarly situated Participants, former Participants, and Beneficiaries.



     13.17 Invalidity of Certain Provisions. If any provision of this Plan shall be held
invalid or unenforceable, such invalidity or unenforceability shall not affect any other provisions
hereof and the Plan shall be construed and enforced as if such provisions, to the extent invalid or
unenforceable, had not been included.



     13.18 Application to Merged Plans. The amendments to this Plan responding to statutory
changes enacted by the GUST Amendments (defined below), as reflected in the Applicable Plan
Sections (defined below), shall apply to each of the Howe-Baker Engineers, Inc. Employees’
Profit-Sharing 401(k) Plan, the Matrix Engineering, Inc. Savings Plan, the A&B Builders, Inc.
Savings Plan, and the Callidus Technologies 401(k) Savings Plan (collectively, the “Merged Plans”),
for periods prior to the merger of Merged Plans into this Plan, to the extent necessary to ensure
the continued qualification of the Merged Plans under Section 401(a) of the Code prior to and as of
their merger into this Plan. For this purpose the GUST Amendments are the Uniformed Services
Employment and Reemployment Rights Act of 1994, P.L. 103-353; the Uruguay Round Agreements Act,
P.L. 103-465; the Small Business Job Protection Act of 1996, P.L. 104-188; and the Taxpayer Relief
Act of 1997, P.L. 105-34; and the Applicable Plan Sections are Section 2.13(b) (relating to the
definition of Statutory Compensation); Section 2.19(b) (relating to the definition of leased
employees within the meaning of Section 414(n)(2) of the Code); Section 2.28 (relating to the
definition of Highly Compensated Employee and repeal of family aggregation); Section 2.49 (relating
to the Required Distribution Date); Sections 2.44 and 2.54 (relating to Qualified Military Leave);
Sections 5.02 and 5.03 (relating to the computation and distribution of excess contributions,
excess aggregate contributions and satisfying the multiple use test); Section 5.07(d) (relating to
repeal of the combined limitation on certain benefits); and Sections 8.02, 8.03, 8.04, A-2, and A-3
(relating to the increase from $3,500 to $5,000 in the threshold for certain mandatory
distributions) of this Plan.



     13.19 Law Governing. The Plan shall be construed and enforced according to the laws of
Illinois other than its laws with respect to choice of law, to the extent not preempted by ERISA.



     Executed this       day of                     , 2002.



	 	 	 	 	 	 	 
	 	 	CHICAGO BRIDGE & IRON COMPANY	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 	 	 
	 

	 	 	 	 	 	 





ATTEST:



 






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APPENDIX A




     A-1. Distribution of Restricted Accounts. Notwithstanding any provisions in the Plan
to the contrary, the balance of a Participant’s Restricted Accounts may be distributed, in addition
to the options specified in Section 8.02(a) and (b), by purchase with the vested balance of his or
her Restricted Accounts and distribution to the Participant of a nontransferable annuity contract,
providing for payment in the form of a Qualified Joint and Survivor Annuity (as defined below), and
in any other form of distribution to which the participant would have been entitled under Section
6.02(b) of the Hourly Plan as in effect on December 31, 1996. The Participant shall select the
method by which his or her benefits shall be distributed in accordance with Section 8.03, except as
modified by this Appendix A. If no other election has been made under Section 8.03 and this
Appendix A, the Participant’s benefits attributable to his or her Restricted Accounts will be
distributed in the form of a Qualified Joint and Survivor Annuity.



     For purposes of this Appendix A, a “Qualified Joint and Survivor Annuity”, for a Participant
who is legally married on his or her Annuity Starting Date, is an immediate installment refund
annuity for the life of the Participant with a survivor annuity for the life of such spouse (if
such spouse survives the Participant) that is 50% of the amount of the annuity which is payable
during the joint lives of the Participant and the spouse, and which is the amount of such benefit
that can be purchased with the vested balance of the Participant’s Restricted Accounts. If the
Participant is not married on his or her Annuity Starting Date, a “Qualified Joint and Survivor
Annuity” is an immediate installment refund annuity for the life of such Participant, which is the
amount of such benefit that can be purchased with the vested balance of the Participant’s
Restricted Accounts. The “Annuity Starting Date” is the first day of the first period for which an
amount is paid as an annuity or any other form.



     A-2. Election and Revocation of Joint and Survivor Annuity Form. If a Participant is
married on his or her Annuity Starting Date, his or her Restricted Account balances shall be paid
in the form of a Qualified Joint and Survivor Annuity, subject to the following provisions of this
subsection. Within the 90-day period preceding the Participant’s Annuity Starting Date, the Plan
Administrator will provide, by a means reasonably calculated to reach the Participant and his or
her spouse, election information consisting of:




     (a) a written description of the Qualified Joint and Survivor Annuity and the relative
financial effect of payment of his or her Restricted Account balances in that form; and




     (b) a notification of the right to waive payment in that form, the rights of his or her
spouse with respect to such waiver and the right to revoke such waiver, and the effect of
such revocation.



During an election period commencing on the date the Participant receives such election information
and ending on the later of the 90th day thereafter or the Annuity Starting Date, a Participant may
waive payment in the Qualified Joint and Survivor Annuity form and elect payment in such another
form permitted by Section A-1; provided that, the Participant’s surviving spouse, if any, has
consented in writing to such waiver and the spouse’s consent acknowledges the effect of such
revocation and is witnessed by a notary public. A Participant



-1-









 




may, at any time during his or her election period, revoke any prior waiver of the Qualified Joint
and Survivor Annuity form. However, the consent of his or her spouse once given shall be
irrevocable unless and until the Participant revokes his or her prior waiver of the Joint and
Survivor Annuity form. A Participant may request, by writing filed with the Plan Administrator
during his or her election period, an explanation, written in nontechnical language, of the terms,
conditions and financial effect (in terms of dollars per monthly benefit payment) of payment in the
Qualified Joint and Survivor Annuity form. If not previously provided to the Participant, the Plan
Administrator shall provide him or her with such explanation within 30 days of his or her request
by a method reasonably calculated to reach the Participant and his or her spouse, and the
Participant’s election period will be extended, if necessary, to include the 90th day next
following the date on which he or she receives such explanation. No distribution shall be made
from a Participant’s Restricted Accounts until his or her election period has terminated.
Notwithstanding the foregoing, if the Participant’s total distributable Account balances (not just
Restricted Account balances) are less than $5,000, ($3500 for the Plan Year 1997) as of his or her
date of Termination, the Trustee shall immediately distribute such benefits in a lump sum without
such Participant’s consent pursuant to Section 8.03 of the Plan.




     A-3. Pre-Retirement Survivor Annuity. The term “Pre-Retirement Survivor Annuity”
means an installment refund annuity for the life of the Participant’s surviving spouse, the
payments under which are equal to the amount of benefit which can be purchased with the
Participant’s Restricted Accounts as of the date of his or her death. Payment of such benefits will
commence as soon as practicable after the date of the Participant’s death, unless the surviving
spouse elects a later date. Any election to waive the Pre-Retirement Survivor Annuity must be made
by the Participant in writing during the election period described herein and shall require the
spouse’s consent in the same manner provided for in Section A-2. The election period to waive the
Pre-Retirement Survivor Annuity shall begin on the first day of the Plan Year in which the
Participant attains age 35 and end on the date of the Participant’s death. In the event a
Participant separates from service prior to the beginning of the election period, the election
period shall begin on the data of such separation from service. In connection with the election,
the Plan Administrator shall provide each Participant within the period beginning with the first
day of the Plan Year in which the Participant attains age 32 and ending with the close of the Plan
Year preceding the Plan Year in which the Participant attains age 35, a written explanation of the
Pre-Retirement Survivor Annuity containing comparable information to that required pursuant to the
provisions of subsections A-2(a) and (b). If the Participant enters the Plan after the first day of
the Plan Year in which the Participant attained age 32, the Plan Administrator shall provide notice
no later than the close of the second Plan Year following the entry of the Participant into the
Plan. If the total distributable balance of the Participant’s Accounts (not just Restricted
Accounts) is less than $5,000 ($3,500) for the Plan Year 1997) as of his or her date of
Termination, the Trustees shall provide for the immediate distribution of such Accounts to the
Participant’s spouse. If the value exceeds $3,500, an immediate distribution of the entire amount
may be made to the surviving spouse, provided such surviving spouse consents in writing to such
distribution.



-2-









 





Schedule 1




Chicago Bridge & Iron Company

Employee Savings Plan

Participant Accounts




CB&I PLAN




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	CONTRIBUTION	 	 	 	 	 	 	 	 
	SOURCE NAME	 	EXCHANGES	 	MIX CHANGES	 	WITHDRAWALS	 	VESTING SCHEDULE	 	ANNUITY RESTRICTIONS	 	COMMENTS
	Employee 401K

	 	permitted
	 	permitted
	 	Age 59 1/2

Hardship

Termination

Loans
	 	 	N/A	 	 	N/A
	 	Converted 12/31/96
from Towers Perrin
for 401(K) Plan
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Prior Employee

	 	permitted
	 	N/A
	 	Age 59 1/2

Hardship

Termination

Loans
	 	 	N/A	 	 	Annuity provisions
Spousal consent
	 	Contains pretax
deferred money from
Callidus,
Howe-Baker, A&B,
and Matrix Plans
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Prior Employer

	 	permitted
(exchanges into
stock are not
permitted)
	 	N/A
	 	Age 59 1/2

Hardship

Termination

Loans
	 	3 yr. cliff
	 	Annuity provisions
Spousal consent
	 	Contains match and
stock sources from
Callidus Plan
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Prior Hourly
Employee 401K

	 	permitted
	 	N/A
	 	Age 59 1/2

Hardship

Termination
	 	 	N/A	 	 	Annuity provisions
Spousal consent
	 	Converted 12/31/96
from Principal
Financial for
Hourly Employees
Plan
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Annual Company
Contribution

	 	permitted
	 	permitted
	 	Age 59 1/2

Termination

Loans
	 	5 yr. cliff
	 	N/A	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	MPPP Employee
Contribution

	 	permitted
	 	N/A
	 	Age 59 1/2
Termination

In-service

Loans
	 	 	N/A	 	 	Annuity provisions
Spousal consent
	 	Converted 12/31/96
from Principal
Financial for
Hourly Employees
Plan
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Post 86 After-Tax

	 	permitted
	 	N/A
	 	In-service
Loans
	 	 	100	%	 	N/A
	 	Contains
Howe-Baker, Matrix,
A&B after-tax
sources
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Travelers Benefit

	 	permitted
	 	N/A
	 	Age 59 1/2

Termination
	 	 	100	%	 	N/A	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 





-1-









 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	CONTRIBUTION	 	 	 	 	 	 	 	 
	SOURCE NAME	 	EXCHANGES	 	MIX CHANGES	 	WITHDRAWALS	 	VESTING SCHEDULE	 	ANNUITY RESTRICTIONS	 	COMMENTS
	Prior Plan

	 	permitted
	 	N/A
	 	Age 59 1/2

Termination

In-service

Loans
	 	 	N/A	 	 	Annuity provisions
Spousal consent
	 	Converted 12/31/96 from
Principal Financial for
Hourly Employees Plans 


Contains rollover money
from CB&I, Callidus,
Howe-Baker, A&B, and
Matrix Plans
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	MPPP Company
Contribution

	 	permitted
	 	N/A
	 	Termination
Loans
	 	 	100	%	 	Annuity provisions
Spousal consent
	 	Converted 12/31/96 from
Principal Financial for
Hourly Employees Plans
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Pre-2001 Company
Match

	 	permitted
	 	N/A
	 	Age 59 1/2

Termination
Loans
	 	100% immediate
	 	N/A	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Prior QNEC

	 	permitted
	 	N/A
	 	Termination

Loans
	 	 	100	%	 	Annuity provisions
Spousal consent
	 	Contains Howe-Baker QNEC
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Prior Profit Sharing

	 	none
	 	N/A
	 	Age 59 1/2
Termination
In-service (20%
available after 5
yrs. of service)
Loans
	 	 	100	%	 	Annuity provisions
Spousal consent
	 	Contains Howe-Baker,
Matrix, A&B PS sources
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Company
Contribution CB&I
Stock

	 	no exchange out
	 	no exchange out
	 	Age 59 1/2
Termination
Loans
	 	 	100	%	 	N/A	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Prior Employer Match

	 	permitted
	 	N/A
	 	Age 59 1/2
Termination
Loans
	 	5 yr. graded
	 	Annuity provisions
Spousal consent
	 	Contains match sources
from Howe-Baker,
Matrix, and A&B Plans
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Company Match

	 	permitted
	 	permitted
	 	Age 59 1/2
Termination
Loans
	 	5 yr. cliff
	 	N/A
	 	Will contain new
company match for 2001
and forward
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Prior Plan &
Rollovers

	 	permitted
	 	permitted
	 	Age 59 1/2
Termination
In-service
Loans
	 	 	N/A	 	 	N/A
	 	Converted 12/31/96 from
Towers Perrin for
401(K) Plan







-2-









 





Exhibit 10.16(b)




CHICAGO BRIDGE & IRON COMPANY



WAIVER AND CONSENT IN LIEU OF



A MEETING OF DIRECTORS




     The undersigned, being all of the duly elected and acting directors of Chicago Bridge & Iron
Company, a Delaware corporation (“Company”), hereby unanimously waive all requirements, whether
pursuant to applicable Delaware law or the By-Laws of the Company, of notice of or the holding of a
meeting of the directors of the company, and in lieu thereof, hereby unanimously consent to the
adoption of, and hereby adopt, the following resolutions, pursuant to all applicable provisions of
the Delaware General Corporation Law:



     RESOLVED, that the Chicago Bridge & Iron Savings Plan, as amended and restated effective
January 1, 1997, and previously amended (“Plan”), shall be and it is hereby amended as set forth in
Exhibit A attached and incorporated herein as a part of this resolution, to be effective as
specified therein, which shall constitute the Ninth Amendment of the Plan and which adoption may be
evidenced by the execution of such Ninth Amendment by any of the undersigned directors.



     RESOLVED FURTHER, that the Ninth Amendment be incorporated into the amended and restated Plan
document.



	 	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 

	 	Philip K. Asherman
	 	 






	 	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 

	 	Ronald A. Ballschmiede
	 	 





Dated: December 1, 2006




 









 








Exhibit A




CHICAGO BRIDGE & IRON

SAVINGS PLAN




Ninth Amendment




     Pursuant to resolution of the Board of Directors of Chicago Bridge & Iron Company, a Delaware
corporation (“Company) dated December 1, 2006, the Chicago Bridge & Iron Savings Plan, as amended
and restated effective January 1, 1997, and previously amended (“Plan”), is hereby further amended
in this Ninth Amendment as follows:



     1. Section 6.08(b) of the Plan is amended to read as follows:




     (b) Company Stock. Notwithstanding the foregoing, if the Company
in its sole discretion makes Company Contributions or Matching Contributions in part
or in whole in the form of Company Stock, such Company Stock shall be initially
contributed to the Company Stock Fund. A Participant may, in accordance with such
rules and procedures as the Plan Administrator may establish or adopt, direct the
investment of Elective Deferrals and Rollover Contributions, and Matching
Contributions and Company Contributions made in cash, into the Company Stock Fund.
A Participant may not elect to transfer into the Company Stock Fund any portion of
his or her Accounts that are invested in another investment Fund. However, a
Participant may elect to transfer all or a portion of his or her Accounts that are
invested in the Company Stock Fund into another Investment Fund in accordance with
such rules and procedures as the Plan Administrator may establish or adopt. Cash
dividends and other cash distributions received with respect to the portion of a
Participant’s or Beneficiary’s Accounts invested in the Company Stock Fund shall be
retained in the Company Stock Fund and reinvested in Company Stock.



     9. The amendment made by paragraph 1 shall be effective as of December 1, 2006.



Dated: December 4, 2006.




	 	 	 	 	 
	 	 	 
	 	By:  	Ronald A. Ballschmiede
 	 
	 
	 	 	 	 
	 	 	Director, Chicago Bridge & Iron Company 	 
	 	 	 	 
	 




1









 





Exhibit 10.16(c)




CHICAGO BRIDGE & IRON COMPANY



WAIVER AND CONSENT IN LIEU OF



A MEETING OF DIRECTORS




     The undersigned, being all of the duly elected and acting directors of Chicago Bridge & Iron
Company, a Delaware corporation (“Company”), hereby unanimously waive all requirements, whether
pursuant to applicable Delaware law or the By-Laws of the Company, of notice of or the holding of a
meeting of the directors of the company, and in lieu thereof, hereby unanimously consent to the
adoption of, and hereby adopt, the following resolutions, pursuant to all applicable provisions of
the Delaware General Corporation Law:



     RESOLVED, that the Chicago Bridge & Iron Savings Plan, as amended and restated effective
January 1, 1997, and previously amended (“Plan”), shall be and it is hereby amended as set forth in
Exhibit A attached and incorporated herein as a part of this resolution, to be effective as
specified therein, which shall constitute the Tenth Amendment of the Plan and which adoption may be
evidenced by the execution of such Tenth Amendment by any of the undersigned directors.



     RESOLVED FURTHER, that the Tenth Amendment be incorporated into the amended and restated Plan
document.



	 	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 

	 	Philip K. Asherman
	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 

	 	Ronald A. Ballschmiede	 	 






Dated: December 18, 2006




 









 








Exhibit A




CHICAGO BRIDGE & IRON

SAVINGS PLAN




Tenth Amendment




     Pursuant to resolution of the Board of Directors of Chicago Bridge & Iron Company, a Delaware
corporation (“Company) dated December 18, 2006, the Chicago Bridge & Iron Savings Plan, as amended
and restated effective January 1, 1997, and previously amended (“Plan”), is hereby further amended
in this Tenth Amendment as follows:



     1. Subsection 2.03(c) of the Plan is amended to read as follows:




     (c) “Company Contribution Account” credited with Company
Contributions, if any, made in accordance with Section 4.03. To the extent
necessary to comply with Section 411(c) (relating to vesting), the Plan
Administrator shall maintain separate subaccounts within a Participant’s
Company Contribution Account for (i) Company Contributions for Plan Years
beginning before January 1, 2007 (and earnings thereon); and (2) Company
Contributions for Plan Years beginning after December 31, 2006 (and earnings
thereon).



     2. Section 2.27 of the Plan is amended by redesignating subsection (f) as subsection (g)
and adding a new subsection (f) to read as follows:




     (f) Funeral Expenses. Payments for burial or funeral
expenses for the Participant’s deceased parent, spouse, children or
dependents (as defined in Section 152 of the Code, without regard to
Sections 152(b)(1), (b)(2) and (d)(1)(B) of the Code).



     3. Subsection 4.01(a) of the Plan is amended to read as follows:




     (a) General. Each Active Participant may elect to make
Elective Deferrals from his or her Compensation at least annually during any
Plan Year and at such other times as the Plan Administrator may prescribe by
executing and filing an appropriately completed Salary Reduction Agreement
with the Plan Administrator on such form or forms provided or permitted by
the Plan Administrator and in such manner as the Plan Administrator may
prescribe. The Salary Reduction Agreement shall specify the percentage of
Compensation to be contributed to the Plan as Elective Deferrals. That
percentage shall not be more than the maximum percentage for Elective
Deferrals prescribed by the Plan Administrator from time to time uniformly
applicable to all Participants and effective from and after the date
prescribed. The Employer shall reduce each Participant’s Compensation by,
and contribute to the Trust as Elective Deferrals on behalf of such
Participant, the amount (if any) by which the Compensation available to the
Participant (after applicable deductions) has been reduced under such
Participant’s Salary Reduction Agreement. A Participant’s Salary Reduction
Agreement shall continue in effect, subject to subsection (e) below,
notwithstanding any change in his or her Compensation, until he or she
changes or revokes his or her Salary Reduction Agreement.



1









 





     4. Section 4.01 (f) of the Plan is amended to read as follows:




     (f) Time for Contributing Elective Deferrals. For each
payroll period during a Plan Year, each Employer shall pay the Elective
Deferrals of Participants who are its Employees over to the Trustee as of,
or as soon as reasonably possible after, the date such amount would
otherwise have been paid to the Participant in cash; but not earlier (except
as required by bona fide administrative considerations) than the date that
the Participant performs the services with respect to which the contribution
is made (or the date such amount would otherwise have been paid to the
Participant in cash, if earlier), and not later than the 15th business day
of the month following the month in which such amount would otherwise have
been paid to the Participant in cash.



     5. Subsection (d) of Section 4.06 of the Plan is redesignated as subsection (e) and a new
subsection (d) is added to the Plan to read as follows:




     (d)
Limitation on Allocation of QNECs and QMACs.
Notwithstanding subsection (c) above, QNECs and QMACs shall not be allocated
to the Employee 401(k) Account of any Designated Participant in an amount in
excess of (i) the Participant’s Statutory Compensation, multiplied by (ii)
the greater of (A) 5%, or (B) the Plan’s Representative Contribution Rate.
For this purpose the Plan’s Representative Contribution Rate is the lowest
Applicable Contribution Rate of any eligible Participant who is not a Highly
Compensated Employee (“NHCE”) within a group of NHCEs that that consists of
half of all eligible NHCEs for the Plan Year (or, if greater, the lowest
Applicable Contribution Rate of any eligible employee who is employed on the
last day of the Plan Year. For this purpose the Applicable Contribution
Rate for an eligible NHCE is the sum of the QMACs and QNECs for the eligible
NHCE for the Plan Year, divided by the eligible NHCE’s Statutory
Compensation for the same period. Notwithstanding the foregoing provisions
of this subsection (d), QNECs and QMACs that are made in connection with an
Employer’s obligations under the Davis-Beacon Act, the Public Service
Contract Act of 1965, or similar legislation may be allocated to the
Employee 401(k) Account of a NHCE to the extent that such contributions do
not exceed 10% of such NHCE’s Statutory Compensation.




     The limitations of this subsection (d) shall be applied separately to
QNECs and QMACs; but QNECs taken into account in applying the limitations of
Section 5.03 (including the related determination of the Representative
Contribution Rate) shall not be taken into account in applying the
limitations of Section 5.02 (including the related determination of the
Representative Contribution Rate); and similarly QMACs taken into account in
applying the limitations of Section 5.02 (including the related
determination of the Representative Contribution Rate) shall not be taken in
to account in applying the limitations of Section 5.03 (including the
related determination of the Representative Contribution Rate).



     6. Subsection 411(c) is amended to read as follows:




     (c) Other Termination. Except as provided in subsection
(a):




     (1) The vested and nonforfeitable portion of a Participant’s
Accrued Benefit attributable to the subaccount in his or her Company



2









 






Contribution Account for Company Contributions for Plan Years
beginning before January 1, 2007, shall be the percentage of such
Account determined in accordance with the vesting schedule specified
below:



	 	 	 	 	 
	Years of	 	Vested
	Service	 	Percentage
	Less than five years

	 	 	0	%
	Five years or more

	 	 	100	%







     (2) The vested and nonforfeitable portion of a
Participant’s Accrued Benefit attributable to the subaccount in his
or her Company Contribution Account for Company Contributions for
Plan Years beginning after December 31, 2006 shall be the percentage
of such Account determined in accordance with the vesting schedule
specified below:



	 	 	 	 	 
	Years of	 	Vested
	Service	 	Percentage
	Less than three years

	 	 	0	%
	Three years or more

	 	 	100	%







     (3) The vested and nonforfeitable portion of a
Participant’s Accrued Benefit attributable to his or her Company
Matching Account (excluding his or her Inactive Account for pre-2001
Matching Contributions) shall be the percentage of such Account
determined in accordance with the vesting schedule specified below:



	 	 	 	 	 
	Years of	 	Vested
	Service	 	Percentage
	Less than three years

	 	 	0	%
	Three years or more

	 	 	100	%,






     7. Section 5.02(e) is amended to read as follows:




     (e) Aggregation Rules. The Actual Deferral Percentage for
any Active Participant who is a Highly Compensated Employee for the Plan
Year and who is eligible to have Elective Deferrals allocated under this
Plan and is also eligible to have elective deferrals (within the meaning of
Section 401(m)(4)(B) of the Code), qualified matching contributions (within
the meaning of Treas. Reg. § 1.401(k)-6) or qualified nonelective
contributions (within the meaning of Treas. Reg. § 1.401(k)-6), allocated
pursuant to a cash or deferred arrangement under one or more Related Plans
shall be determined as if such elective deferrals, qualified matching
contributions and qualified nonelective contributions were made under a
single arrangement. If a Highly Compensated Employee participates in two or
more cash or deferred arrangements that have different plan years, all cash
or deferred arrangements ending with or within the same calendar year shall
be treated as a single arrangement.



3









 






     In the event that this Plan satisfies the requirements of Section
401(k), 401(a)(4) or 410(b) of the Code only if aggregated with one or more
Related Plans, or if one or more Related Plans satisfy the requirements of
such sections of the Code only if aggregated with this Plan, then this
Section shall be applied by determining the Actual Contribution Percentages
of Participants as if this Plan and all such Related Plans were a single
plan; provided, however, that the Plan and one or more Related Plans may be
aggregated in order to satisfy the non-discrimination requirements of
Section 401(k) of the Code only if such plans have the same plan year and
employ consistent testing methods.



     8. The last paragraph of Section 5.03(e) is amended to read as follows:




     In the event that this Plan satisfies the requirements of Section
401(m), 401(a)(4) or 410(b) of the Code only if aggregated with one or more
Related Plans, or if one or more Related Plans satisfy the requirements of
such sections of the Code only if aggregated with this Plan, then this
Section shall be applied by determining the Actual Contribution Percentages
of Participants as if this Plan and all such Related Plans were a single
plan; provided, however, that the Plan and one or more Related Plans may be
aggregated in order to satisfy the non-discrimination requirements of
Section 401(m) of the Code only if such plans have the same plan year and
employ consistent testing methods.



     9. Section 5.06 of the Plan is amended to read as follows:




     5.06 Allocation of Income or Loss. Any income or loss
attributable to contributions distributed pursuant to Sections 5.01, 5.02 or 5.03
shall be distributed or forfeited, as applicable. The Plan Administrator shall
determine such distributable income or loss by computing income or loss attributable
to distributed contributions for a completed Plan Year and for the period between
the end of the Plan Year and the date of distribution (the “Gap Period”) using any
reasonable method permitted under Treas Reg §§ 1.401(k)-2(b)(2)(iv),
1.401(m)-2(b)(2)(iv), and 1.402(g)-1(e)(5), as applicable; provided that the method
does not violate Section 401(a)(4) of the Code and is used consistently for all
Participants and for all corrective distributions under the Plan for the Plan Year



     10. Section 7.01(c) of the Plan is amended by deleting subsection (5); renumbering
subsection (4) as new subsection (5) and correcting the title thereof to read “Six Month
Suspension of Elective Deferrals”; and by adding a new subsection (4) to read as follows:




     (4) Certification by Participant. The Plan Administrator
may rely on a certification by the Participant in writing (or in such other
form as may be prescribed by the Commissioner of Internal Revenue) that the
immediate and heavy financial need cannot be relieved from other resources
that are reasonably available to the Participant, including (i) by
reimbursement or compensation by insurance or otherwise, (ii) by liquidation
of the Participant’s assets, (iii) by cessation of elective contributions or
employee contributions under the Plan, (iv) by other currently available
distributions under plans described in clause (3) above, or (v) by borrowing
from commercial sources on reasonable commercial terms in an amount
sufficient to satisfy the need. For purposes of this clause (4) a need
cannot reasonably be relieved by one of the foregoing actions if the effect
would be to increase the amount of the need.



4









 





     11. Section 11.02 of the Plan is amended to read as follows:




     11.02 Plan Merger. The Company may direct the merger or
consolidation of this Plan with, or transfer of assets from this Plan to, another
employee benefit plan qualified under Section 401(a) of the Code (“Other Plan”), or
may direct the Trustee to accept the merger or consolidation of a Transferor Plan
into, or a transfer of assets and liabilities, or portion thereof, from a Transferor
Plan to this Plan, on such terms and conditions as the Company in its sole
discretion deems desirable, in the same manner (and subject to the same conditions)
as an amendment to this Plan under Section 11.01. However, the Plan shall not merge
or consolidate with, or transfer to or receive from any Transferor Plan or Other
Plan any assets or liabilities, (i) unless each Participant would receive a benefit
immediately after the merger, consolidation or transfer (if the Plan were then
terminated) which is equal to or greater than the benefit to which he would have
been entitled immediately before the merger, consolidation, or transfer (if the Plan
were then terminated), and (ii) the merger, consolidation or transfer of assets does
not have an effect prohibited by clause (iii) of the last sentence of Section 11.01
above. The portion of any assets and liabilities received from a Transferor Plan
that was attributable to elective contributions, qualified nonelective contributions
or qualified matching contributions (as defined in Treas. Reg. § 1.401(k)-6 (“401(k)
Assets and Liabilities”) shall remain subject to the distribution limitations of
Treas. Reg. § 1.401(k)-1(d). 401(k) Assets and Liabilities of this Plan shall not
be transferred to an Other Plan unless the Other Plan provides (as determined by the
Plan Administrator) that such 401(k) Assets and Liabilities may not be distributed
before the times specified in Treas. Reg. § 1.401(k)-1(d). The portion of any
assets and liabilities received from a Transferor Plan that was subject to Section
412 of the Code shall not be distributable before the earlier of the Participant’s
Normal Retirement Date or Termination of Employment except as otherwise required by
Section 401(a)(9) of the Code. No merger, consolidation, or transfer of assets
shall impose on the Company or any Related Company any liabilities or obligations of
the sponsor of a Transferor Plan respecting the Transferor Plan or accounts
transferred from the Transferor Plan (including but not limited to the obligation to
make contributions to such accounts) unless the Company or Related Company expressly
assumes such liabilities or obligations.



     12. Section 11.04 is amended to read as follows:




     11.04 Payment Upon Termination. Upon termination of the Plan or
complete discontinuance of Employer contributions, the unvested portion of each
Participant’s Accrued Benefit that has not been forfeited pursuant to Section 4.10
prior to the termination of the Plan or complete discontinuance of Employer
contributions shall become fully vested and nonforfeitable. Upon a partial
termination of the Plan, the Accrued Benefit of each former Active Participant who
lost status as an Active Participant because of such partial termination shall
become fully vested and nonforfeitable. In the event of termination of the Plan and
after payment of all expenses, the Plan Administrator may direct that either (1)
each Participant and each Beneficiary of a deceased Participant receive his or her
entire Accrued Benefit as soon as reasonably possible and permitted by regulations
under Section 401(k) of the Code where the applicable Employer does not continue to
maintain an alternative defined contribution plan, or (2) the Trust be continued and
Participants’ Accrued Benefits be distributed at such times and in such manner as
provided in Article VIII, in which case continued allocations of net income, gains,
losses and expenses of the Trust Fund as provided in Article VI shall be made. Any
distribution upon Plan termination shall be deemed to include a distribution of
Excess Deferrals, Total Excess Contributions, and Total Excess



5









 






Aggregate Contributions, to the extent such distribution is required by Article V of
the Plan.



     13. The amendments made by paragraphs 2 through 5 and 7 through 12 above shall be
effective January 1, 2006. The amendments made by paragraphs 1 and 6 above shall be effective
January 1, 2007.



Dated: December ___, 2006




	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Director, Chicago Bridge & Iron Company 	 
	 	 	 	 
	 




6