exv4w1



 



Exhibit 4.1



CHEMUNG CANAL TRUST COMPANY


PROFIT SHARING, SAVINGS, AND INVESTMENT PLAN


     Chemung Canal Trust Company, a New York corporation (the “Employer”),
hereby continues, amends and restates in its entirety the CHEMUNG CANAL TRUST
COMPANY PROFIT SHARING, SAVINGS, AND INVESTMENT PLAN (the “Plan”) for the
exclusive benefit of the Employees of the Employer and other Participating
Employers who are eligible to become Participants. The principal purposes of
this amendment and restatement are to add an ESOP feature to the Plan and to
update the Plan for recent legislative changes.


     Pursuant to Part II of this document, by agreement with the Trustee,
Chemung Canal Trust Company, the Employer has established a Trust to hold the
assets of the Plan. This Plan is intended to be a qualified profit sharing
plan under section 401(a) of the Internal Revenue Code of 1986, as amended, and
to comply with the provisions of the Employee Retirement Income Security Act of
1974, as amended (“ERISA”). A portion of the Plan is intended to be an
employee stock ownership plan (an “ESOP”) as defined in Code section 4975(e).
The Plan’s ESOP provisions permit, but do not require, the ESOP to borrow money
to purchase ESOP Stock. The ESOP is designed to be invested in “employer
securities” as this term is defined in Code section 409(l).


     The original effective date of the Plan is January 1, 1965. The effective
date of this amended and restated Plan is January 1, 2002, except that any
provision that specifies a separate effective date shall be effective as of the
date specified. No provision of this restatement is intended to reduce the
Plan benefits of any Participant that had accrued as of January 1, 2002.


 






 



TABLE OF CONTENTS



PART I: PLAN PROVISIONS



	 	 	 	 	 	 	 
	 	 	 	 	Page
	ARTICLE I	 	
Definitions
	 	 	1	 
	ARTICLE II	 	
Coverage and Eligibility
	 	 	8	 
	ARTICLE III	 	
Contributions
	 	 	10	 
	ARTICLE IV	 	
Allocations to Participants’ Accounts
	 	 	13	 
	ARTICLE V	 	
Benefits
	 	 	17	 
	ARTICLE VI	 	
ESOP Provisions
	 	 	24	 
	ARTICLE VII	 	
Plan Committee and Other Fiduciaries
	 	 	31	 
	ARTICLE VIII	 	
Amendments
	 	 	34	 
	ARTICLE IX	 	
Successor Participating Employer and Merger or Consolidation of Plans
	 	 	35	 
	ARTICLE X	 	
Plan Termination
	 	 	36	 
	ARTICLE XI	 	
Top-Heavy Provisions
	 	 	37	 
	ARTICLE XII	 	
Miscellaneous
	 	 	40	 
	 
	
PART II: TRUST AGREEMENT
	 
	 	 	 	 	 	Page	 
	ARTICLE I	 	
General Duties of the Parties
	 	 	41	 
	ARTICLE II	 	
Investment, Administration and Disbursement of Trust Fund
	 	 	42	 
	ARTICLE III	 	
For Protection of Trustee
	 	 	47	 
	ARTICLE IV	 	
Taxes, Expenses and Compensation of Trustee
	 	 	49	 
	ARTICLE V	 	
Settlement of Accounts/Enforcement of Trust/Legal Proceedings
	 	 	50	 
	ARTICLE VI	 	
Resignation and Removal of Trustee
	 	 	52	 
	ARTICLE VII	 	
Duration and Termination of Trust – Amendment
	 	 	53	 
	ARTICLE VIII	 	
Miscellaneous
	 	 	54	 
	 
	Appendix A	 	
Investment Funds	 	 	 	 



 






 




PART I: PLAN DOCUMENT




ARTICLE I

Definitions



     SECTION 1.1 “Affiliated Company” means (1) a member of an
affiliated service group within the meaning of Code section 414(m) of which the
Employer is a member; (2) a member of a controlled group of corporations of
which the Employer is a member within the meaning of Code section 414(b); (3)
an unincorporated business which is part of a group of trades or businesses
(whether or not incorporated) under common control with the Employer as
determined pursuant to Code section 414(c); or (4) any other entity required to
be aggregated with the Employer under Code section 414. For purposes of this
Section, a controlled group of corporations means a group defined under Code
section 1563(a) determined without regard to Code sections 1563(a)(4) and
1563(e)(3)(C).


     SECTION 1.2 “Beneficiary” means the Participant’s surviving spouse
or, in the event there is no surviving spouse or the surviving spouse elects in
writing not to receive any death benefits under the Plan, the person or persons
(including a trust) determined in accordance with the provisions of Section
5.7.


     SECTION 1.3 “Board” means the Board of Directors of Chemung Canal
Trust Company or any entity, committee or individual to whom the Board has
delegated its authority.


     SECTION 1.4 “Break in Service” means an Employee’s failure to
complete 501 or more Hours of Service during either an Eligibility Computation
Period or a Plan Year, whichever is applicable.


     SECTION 1.5  “Code” means the Internal Revenue Code of l986, as
amended from time to time.


     SECTION 1.6 “Committee” means the Chemung Canal Trust Company
Pension and Profit Sharing Plan Committee appointed by the Board pursuant to
Article VII to administer the Plan.


     SECTION 1.7 “Compensation” means the total remuneration reportable
on Form W-2 (but before salary reduction, if any, under this Plan or any other
Code section 125, 132(f) or 401(k) employee benefit plan) that is paid to a
Participant by a Participating Employer for personal services actually
rendered, but excluding any Participating Employer contributions paid under
this Plan or any other employee benefit or deferred compensation plan, overtime
pay, bonuses, commissions, severance pay and other unusual payments determined
by the Committee in a non-discriminatory manner and all annual remuneration in
excess of $200,000 (or such other dollar amount as may be in effect under Code
section 401(a)(17) for Plan Years after 2002, including any cost-of-living
adjustments).


     SECTION 1.8 “Disability” means an illness or injury certified by a
physician selected by or satisfactory to the Employer that is of a potentially
permanent nature expected to last for a continuous period of not less than
twelve (12) months which prevents a Participant from engaging in any occupation
for wage or profit for which the Participant is reasonably fitted by training,
education, or experience.


 






 



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     SECTION 1.9 “Early Retirement Age” means the date a Participant
attains age 55.


     SECTION 1.10 “Effective Date” means January 1, 1965. The
effective date of this restatement is January 1, 2002, except that the ESOP
provisions are effective as soon as administratively practicable after the
Board has approved the Plan’s conversion to an ESOP and any other provision
having a separately-stated effective date shall be effective on the date
specified.


     SECTION 1.11  “Eligibility Computation Period” means the
twelve-consecutive-month period beginning with an Employee’s Employment Date
and thereafter the twelve-consecutive-month period the first day of the Plan
Year that commences prior to the first anniversary of an Employee’s Employment
Date and every subsequent twelve-consecutive-month period thereafter.


     SECTION 1.12 “Employee” means any employee of a Participating
Employer except any of the following persons: persons who are treated by a
Participating Employer as being independent contractors (regardless of their
actual status), Leased Employees, seasonal employees, and persons who are
classified by a Participating Employer as not being employees for purposes of
the Plan (regardless of their actual status).


     SECTION 1.13 “Employee Tax-Deferred Contribution Account” means
the account maintained for a Participant to record his own tax-deferred
contributions, if any, under Sections 3.1 and 3.2 and adjustments related
thereto.


     SECTION 1.14 “Employer” means Chemung Canal Trust Company, its
predecessor or its successor.


     SECTION 1.15 “Employer Matching Contribution Account” means the
account maintained for a Participant to record his share of a Participating
Employer’s matching contributions, if any, under Section 3.3 and adjustments
relating thereto.


     SECTION 1.16 “Employer Profit Sharing Contribution Account” means
the account maintained for a Participant to record his share of a Participating
Employer’s profit sharing contributions, if any, under Section 3.4 and
adjustments relating thereto.


     SECTION 1.17 “Employment Date” means the date on which an Employee
first performs an Hour of Service for a Participating Employer.


     SECTION 1.18 “Entry Date” means, with respect to an Employee’s
eligibility to elect to make elective deferrals under Sections 3.1 and 3.2, the
next following January 1, April 1, July 1, or October 1 after the Employee
satisfies the eligibility requirements of Section 2.2. For all other Plan
contributions, “Entry Date” means the next following January 1 or July 1 after
an Employee satisfies the eligibility requirements of Section 2.2.


     SECTION 1.19 “ERISA” means the Employee Retirement Income Security
Act of 1974, as amended, and the regulations thereunder.


 






 



-3-


     SECTION 1.20 “ESOP Account” means that portion of a Participant’s
interest in the Plan that is invested in ESOP Stock or in temporary short-term,
fixed-income securities pending investment in ESOP Stock.


     SECTION 1.21 “ESOP Stock” means any class of common stock or
preferred stock convertible into common stock of the Employer or an Affiliated
Company that is held in the Chemung Canal Trust Company stock fund. If any
employer securities are acquired with the proceeds of an Exempt Loan,
unallocated ESOP Stock shall remain in a suspense account described in Section
6.6 until allocated to Participants’ ESOP Accounts pursuant to that Section.


     SECTION 1.22 “Exempt Loan” means any loan to the Plan or Trust not
prohibited by section 4975(c) of the Code, including a loan which meets the
requirements set forth in section 4975(d)(3) of the Code and the regulations
promulgated thereunder, the proceeds of which are used to finance the
acquisition of ESOP Stock or to refinance such a loan. An Exempt Loan shall be
for a specific term, shall bear a reasonable rate of interest and shall not be
payable on demand except in the event of default. An Exempt Loan may be
secured by a pledge of the financed shares so acquired (or acquired with the
proceeds of a prior Exempt Loan which is being refinanced). No other Trust
Fund assets may be pledged as collateral for an Exempt Loan, and no lender
shall have recourse against Trust Fund assets other than any financed shares
remaining subject to pledge. If the lender is a party in interest (as defined
under ERISA), the Exempt Loan must provide for a transfer of Trust Fund assets
on default only upon and to the extent of the failure of the Trust to meet the
payment schedule of the Exempt Loan. Any pledge of financed shares must
provide for the release of the shares so pledged as payments on the Exempt Loan
are made by the Trustee and such financed shares are allocated to Participants’
ESOP Accounts. Payments of principal on any Exempt Loan shall be made by the
Trustee (as directed by the Committee) only from Participating Employer
contributions paid in cash under the ESOP to enable the Trust to repay such
Exempt Loan, from earnings attributable to such Participating Employer
contributions and from any cash dividends received by the Trust on such
financed shares or dividends on such other shares of ESOP Stock as is permitted
under Code section 404(k).


     SECTION 1.23 “Former Participant” means a Participant on whose
behalf no current contributions are being made due to termination of employment
but who has a vested account balance under the Plan which has not been paid in
full.


     SECTION 1.24 “Highly Compensated Employee” means an employee who
is highly compensated as defined in Code section 414(q). As of the effective
date of this restatement, a Highly Compensated Employee in a year is any
Employee (1) who received compensation from a Participating Employer in excess
of $85,000 in the preceding year (this dollar figure is adjusted automatically
for inflation; in 2003, an employee will be a Highly Compensated Employee if
his 2002 compensation is $90,000) or (2) who is a five-percent owner of a
Participating Employer at any time during the year or the preceding year. A
five-percent owner of a Participating Employer is any person who owns (or is
considered as owning within the meaning of Code section 318) more than five
percent of the outstanding stock of a Participating Employer or stock
possessing more than five percent of the total combined voting power of all
stock of a Participating Employer.


 






 


-4-


     SECTION 1.25 “Hour of Service” means each hour for which an
Employee is paid, or entitled to payment, during an applicable computation
period in accordance with the following:



		
	 	     (a)   Performance of Services. An Hour of Service shall be
credited for each hour that the Employee is paid or entitled to
payment for the performance of services for a Participating Employer.
	 
	 	     (b)   Leaves of Absence, etc. An Hour of Service shall be
credited for each hour during which no duties are performed but for
which an Employee is paid or entitled to payment by a Participating
Employer (whether or not the employment relationship has terminated)
for any other purpose, such as, but without limitation, payment due to
vacation, holiday, illness, disability, layoff, jury duty or Leave of
Absence. Credit shall also be given for any maternity or paternity
leave (i.e., pregnancy of the Employee, birth or adoption of
the Employee’s child, caring for the Employee’s child immediately
following birth or adoption) taken by an Employee. Except where a
Participating Employer’s disability leave policy provides for the
crediting of all hours during disability leave, no more than 501 Hours
of Service shall be credited under this provision, however, to an
Employee on account of any single continuous period during which no
services are performed for a Participating Employer. In addition, no
Hours of Service shall be credited with respect to payments made under
a plan maintained by a Participating Employer solely for complying
with applicable workers’ compensation, or disability insurance laws or
to payments which reimburse an Employee for medical or
medically-related expenses.
	 
	 	     (c)   Back pay. To the extent not credited for either of
the preceding purposes, an Employee shall be credited with an Hour of
Service for each hour for which back pay, irrespective of mitigation
of damages, is either awarded or agreed to by a Participating
Employer. If back pay is made with respect to one of the purposes set
forth in provision (b) above, the number of creditable Hours of
Service shall be subject to the limitations set forth in that
provision.
	 
	 	     (d)   Military Service. An Hour of Service shall be
credited for each hour of the normally scheduled work hours for each
day during any period the Employee is on leave of absence from a
Participating Employer or any Affiliated Company for military service
with the Armed Forces of the United States, but not to exceed the
period required under the law pertaining to veterans’ reemployment
rights; provided that if he fails to report for work at the end of
such leave during which he has employment rights, he shall not receive
credit for hours on such leave. In addition to the foregoing, and
notwithstanding any provision of this Plan to the contrary, effective
December 12, 1994, contributions, benefits and service credit with
respect to qualified military service will be provided in accordance
with section 414(u) of the Code.
	 
	 	     (e)   Computation and Crediting of Hours. The Committee
shall determine the number of creditable Hours of Service in any
computation period on the basis of any records kept by a Participating
Employer that accurately reflect Hours of Service. If any payments
(including back pay awards) relate to any period for which no duties
are performed, the number of creditable Hours of Service shall equal
the number of regularly scheduled working hours upon which the payment
is based. If the payment is not calculated on the basis of units of
time for which the hours may be determined, the number of creditable
Hours of Service shall be equal to the amount of the payment



 






 


-5-



		
	 	divided by the Employee’s most recent hourly rate of compensation before the
period during which no duties are performed. In no event, however,
shall an Employee be credited with a greater number of Hours of
Service than the number of regularly scheduled hours for the
performance of services during the applicable period. In the event
there are inadequate records to determine an Employee’s actual Hours
of Service during any computation period, or the Committee elects to
use for all Employees on a nondiscriminatory basis, an alternative
method of counting Hours of Service, the Employee shall be credited
with ten (10) Hours of Service for each day in which he has earned at
least one Hour of Service.



     Hours of Service shall be credited to the computation period in which the
services were performed, the period for which payments are made when no
services are performed, or the period to which back pay awards relate,
whichever is applicable. Hours of Service pursuant to maternity/paternity
leave shall be credited to the Employee in the computation period in which the
absence from work begins only if the additional hours afforded would prevent
the Participant from incurring a one year Break in Service; otherwise these
hours shall be credited to the Participant in the computation period
immediately following the date the Participant begins his absence from work.
The crediting of Hours of Service for reasons other than the performance of
services and the crediting of Hours of Service to computation periods shall be
made in accordance with 29 C.F.R. sections 2530.200b-2(b) and (c) which are
hereby incorporated by this reference.


     SECTION 1.26  “Income” means the net gain or loss of the Trust Fund
from investments, as reflected by interest payments, dividends, realized and
unrealized gains and losses on securities, other investment transactions and
expenses paid from the Trust Fund.


     SECTION 1.27 “Investment Manager” means any individual or
corporation who may be appointed by the Board to manage all or a portion of the
Plan’s assets and who (i) is registered as an investment adviser under the
Investment Adviser’s Act of l940; or (ii) is a bank as defined in that Act; or
(iii) is an insurance company qualified to manage, acquire or dispose of plan
assets under the laws of more than one state and such individual or corporation
acknowledges in writing that he or the corporation, as the case may be, is a
fiduciary with respect to the Plan.


     SECTION 1.28 “Leased Employee” means any person (other than an
employee of a Participating Employer) who pursuant to an agreement between a
Participating Employer and any other person (the “leasing organization”) has
performed services for a Participating Employer (or for a Participating
Employer and related persons determined in accordance with section 414(n)(6) of
the Code) on a substantially full time basis for a period of at least one year,
and such services are performed under the primary direction or control of a
Participating Employer. Contributions or benefits provided to a Leased
Employee by the leasing organization which are attributable to services
performed for a Participating Employer shall be treated as provided by a
Participating Employer. A Leased Employee shall not be considered an employee
of a Participating Employer if: (i) such employee is covered by a money
purchase pension plan providing: (1) a nonintegrated employer contribution
rate of at least 10 percent of compensation, as defined in section 415(c)(3) of
the Code, but including amounts contributed by a Participating Employer
pursuant to a salary reduction agreement which are excludable from the
employee’s gross income under section 125, section 402(a)(8), section 402(g) or
section 403(b) of the Code, (2) immediate participation, and (3) full and
immediate vesting; and (ii) Leased Employees do


 






 



-6-


not constitute more than 20
percent of a Participating Employer’s Non-Highly Compensated Employee
workforce. Once a person is classified as a Leased Employee, such person shall
remain a Leased Employee for every Plan Year for which the person completes at
least 1000 Hours of Service, except that, assuming the person were an Employee,
a Break in Service will result in a Participating Employer treating the person
hired after a Break in Service as though the person were hired for the first
time.


     SECTION 1.29 “Leave of Absence” means any absence authorized by a
Participating Employer provided that all persons under similar circumstances
must be treated alike in the granting of such Leaves and provided further that
the Participant returns within the period of authorized absence. An absence
due to service in the Armed Forces of the United States shall be considered a
Leave of Absence if the absence is caused by war or if the Employee is required
to serve under the laws of conscription, provided the Employee returns to
employment with a Participating Employer within the period provided by law.


     SECTION 1.30 “Normal Retirement Age” means a Participant’s 65th
birthday.


     SECTION 1.31 “Non-Highly Compensated Employee” means an employee
who is not a Highly Compensated Employee.


     SECTION 1.32 “Old Profit Sharing Account” means the account
established to record a Participant’s interest in the Plan attributable to
contributions made prior to January 1, 1984, as adjusted for all earnings and
losses thereon.


     SECTION l.33 “Participant” means an Employee participating in the
Plan in accordance with the provisions of Section 2.2.


     SECTION 1.34  “Participating Employer” means the Employer and any
Affiliated Company that may adopt this Plan in accordance with the terms of
Section 2.1.


     SECTION 1.35 “Plan” means this Chemung Canal Trust Company Profit
Sharing, Savings, and Investment Plan as set forth herein, as amended from time
to time.


     SECTION 1.36 “Plan Year” or “Year” means the calendar year. The
Plan Year shall be the vesting computation period and the limitation year as
these terms are used in ERISA regulations.


     SECTION 1.37  “Rollover Account” means the account maintained in
accordance with Section 3.5 to hold the assets of any retirement plan which are
rolled to or transferred to this Plan.


     SECTION 1.38  “Trust” or “Trust Fund” means the trust maintained in
accordance with the terms of the trust agreement between the Employer and the
Trustee, as amended from time to time, which constitutes a part of this Plan.


     SECTION 1.39 “Trustee” means Chemung Canal Trust Company or any
other trustee appointed by the Board to administer the Trust.


 






 



-7-


     SECTION 1.40  “Valuation Date” means the date designated by the
Committee provided that the Trust shall be valued at least once each Plan Year.
In valuing a Participant’s account, the term Valuation Date means the last day
as of which each of his investment funds have been valued.


     SECTION 1.41  “Year of Eligibility Service” means any Eligibility
Computation Period during which an Employee completes at least 1000 Hours of
Service with a Participating Employer or with an Affiliated Company.


     SECTION 1.42  The masculine gender whenever used shall include the
feminine and the singular shall include the plural, unless the context clearly
indicates the contrary.


 






 



-8-



ARTICLE II

Coverage and Eligibility




	 	 	 
	Adoption of Plan by Affiliated
Company	 	
     SECTION 2.1 Any corporation at
least 80 percent (80%) of whose
capital stock is owned by the
Employer’s parent, Chemung Financial
Corporation, may, subject to the
approval of the Committee, adopt
this Plan for the benefit of its
Employees. Such a Participating
Employer shall, when adopting this
Plan, specify the effective date of
its adoption of the Plan, the class
or classes of eligible Employees and
any other terms, subject to
Committee approval, that affect its
adoption of this Plan. A
Participating Employer shall be
responsible for (1) making
contributions to the Plan with
respect only to its own Employees;
(2) paying the ratable expenses of
establishing and maintaining this
Plan with respect to its own
Employees; and (3) cooperating with
the Committee in such ways as the
Committee may request for the
purposes of administering the Plan.
The Employer’s Board of Directors
shall be solely responsible for
amending or terminating the Plan and
for appointing, supervising and
removing the Trustee, the members of
the Committee and other persons
involved in maintaining,
administering or performing
professional services to the Plan or
Trust.
	 
	 	 	
     Any Affiliated Company joining the
Plan which is not 100 percent owned
by the Employer must expressly
provide in said joinder agreement
whether the leveraging provisions of
the ESOP are being adopted by such
Participating Employer. If the
leveraged ESOP is not so adopted,
said Participating Employer shall
participate in the ESOP provisions
of this Plan as may be modified in
said joinder agreement, but all
specific provisions applicable to
Exempt Loans and the suspense
account established pursuant to
Section 6.6 shall not apply. If the
ESOP provisions of the Plan are
adopted by such a non-100 percent
owned Participating Employer, any
Exempt Loan applicable to said
Participating Employer and its
Participants shall be solely the
obligation of said Participating
Employer, and not the Employer or
any other Participating Employer
under the Plan, and separate
accounting shall be maintained under
Section 6.6 on behalf of said
Participating Employer and its
Participants with only Participants
employed by said Participating
Employer entitled to allocations
from the fund maintained for said
Participating Employer’s Exempt
Loan. The foregoing provisions
governing separate Exempt Loans and
separate groups of Employees of
non-100 percent owned Participating
Employers shall similarly apply to
an Exempt Loan of the Employer and
its 100 percent owned Participating
Employers which join the Plan, and
their respective Participants, but
for this purpose a 100 percent owned
Participating Employer may, if so
provided in its joinder agreement,
join in the



 






 



-9-



	 	 	 
	 	 	
Employer’s Exempt Loan
and in such case all Participating
Employer contributions by the
Employer and said Participating
Employers and all accounting for
shares released from the suspense
account shall be combined under
Section 6.6 for Participants
employed by the Employer and each
such Participating Employer.
	 
	Eligibility and
Participation	 	
     SECTION 2.2 For purposes of making
elective deferrals, an Employee
shall be eligible to become a
Participant after he attains age 21
and reaches the three months’
anniversary of his Employment Date.
An Employee is eligible for
Participating Employer matching and
profit sharing contributions after
he attains age 21 and completes one
Year of Eligibility Service.
	 
	 	 	
     Participation with respect to each
type of contribution shall commence
as of the next Entry Date after an
Employee has (1) met the
requirements set forth above and (2)
completed any applicable elections
and satisfied other form
requirements established by the
Committee.
	 
	Participation and Service upon

Re-employment	 	
     SECTION 2.3 If a Participant
terminates employment and is
subsequently reemployed by a
Participating Employer he will be
eligible to resume participation in
this Plan upon his return to
employment in accordance with
Section 2.2. If an Employee who is
not a Participant terminates
employment and is subsequently
rehired, he shall be eligible for
participation upon satisfying the
eligibility requirements of Section
2.2, provided that for this purpose
all Years of Eligibility Service,
including pre-termination Years of
Eligibility Service, shall be
credited to the Employee.



 






 



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ARTICLE III

Contributions





	 	 	 
	Employee Tax-Deferred Contributions	 	
     SECTION 3.1 A Participant may
contribute any whole percentage of
his Compensation for a payroll
period up to a maximum of the
lesser of (1) 70 percent of his
payroll period Compensation or (2)
the amount permitted within the
contribution limitations set forth
in Article IV.
	 
	 	 	
     Employee contributions under this
Section shall be made solely
pursuant to a salary reduction
agreement between an individual
Participant and his Participating
Employer. The agreement shall be
in such form and subject to such
rules as the Committee may
prescribe. Under the agreement,
the Participant agrees to reduce
his Compensation by a specified
amount and the Participating
Employer agrees to contribute this
salary-reduced amount to the Plan
on behalf of the Participant. An
initial salary reduction agreement
may be entered effective as of any
Entry Date following an Employee’s
satisfaction of the eligibility
requirements of Section 2.2.
Thereafter, a salary reduction
agreement may be amended at such
times and pursuant to such terms
and conditions as the Committee may
prescribe in its sole discretion.
	 
	 	 	
     A Participant may suspend an
agreement at any time during the
Plan Year. An agreement will not
be considered suspended solely
because the Participant fails to
receive any Compensation during a
payroll period. A Participant who
has suspended his contributions may
elect to recommence making
contributions at such times and
pursuant to such terms and
conditions as the Committee may
prescribe in its sole discretion.
	 
	 	 	
     A Participating Employer will remit
Employee contributions to the
Trustee as soon as administratively
practicable following each payroll
period in which the contributions
are taken. Employee contributions
under this Section shall be
allocated to a Participant’s
Employee Tax-Deferred Contribution
Account.
	 
	Employee Catch-Up Contributions	 	
     SECTION 3.2 All Participants who
are eligible to make elective
deferrals under Section 3.1 and who
have attained age 50, or by the end
of the calendar year will have
attained age 50, are eligible to
make catch-up contributions in
accordance with and subject to the
limitations of section 414(v) of
the Code and Section 4.3(d) of the
Plan. Such catch-up contributions
shall not be taken into account for
purposes of the Plan’s percentage
of compensation limit set forth in
Section 3.1 or for purposes of the
statutory limitations of sections
402(g) and 415 of the Code. In
addition, the Plan shall not be
treated as failing to satisfy the
provision of Code



 






 



-11-




	 	 	 
	 	 	
sections 401(k)(3), 401(k)(11),
401(k)(12), 410(b) or 416, as
applicable, by reason of the making
of such catch-up contributions.
	 
	Employer Matching Contributions	 	
     SECTION 3.3 Effective as of the
first Entry Date after a
Participant satisfies the
eligibility requirements of Section
2.2, the Participant’s
Participating Employer shall
contribute for each payroll period
an amount equal to 50 percent of
the Participant’s contributions
under Section 3.1 that do not
exceed 6 percent of the
Participant’s Compensation. No
matching contributions will be made
with respect to a Participant’s
catch-up contributions under
Section 3.2. Amounts contributed
under this Section 3.3 shall be
allocated to a Participant’s
Employer Matching Contribution
Account.
	 
	Employer Profit Sharing Contributions	 	
     SECTION 3.4 Each Plan Year a
Participating Employer shall, in
its sole discretion, make a
contribution based on its current
or accumulated profits or on such
other factors without regard to
profits as it shall determine in
its sole discretion. The
contribution, if any, shall be
subject to the relevant
contribution and deduction limits
of the Code. The level of
contributions and the factors
taken into consideration to
determine such level may vary among
Participating Employers. Amounts
contributed under this Section 3.4
shall be allocated to a
Participant’s Employer Profit
Sharing Contribution Account in
accordance with the allocation
rules of Section 4.2(b).
	 
	Rollover Contributions	 	
     SECTION 3.5 Notwithstanding the
limitations on Participant
contributions under Sections 3.1
and 3.2, a Participant may make
rollover contributions in
accordance with the Code and such
rules as the Committee in its
discretion shall prescribe.
Rollovers shall be permitted from
any plan satisfying the
qualification requirements of Code
sections 401(a) or 403(b). No
rollover contribution shall be
permitted (1) if it could adversely
affect the tax qualification of
this Plan; (2) if it consists of
any amounts that have previously
been taxed (i.e., after-tax
contributions or other amounts
having a basis for tax purposes);
(3) if it comes from an IRA; or (4)
if the amounts rolled over will
remain subject to the Code’s joint
and survivor annuity rules or other
“protected benefit” rules if such
protected benefits differ from the
benefits otherwise provided by this
Plan.
	 
	 	 	
     Rollovers meeting the above
requirements shall be permitted
with respect to any Employee who is
otherwise eligible to participate
in this Plan except that he has not
yet satisfied the age and service
requirements of Section 2.2.



 






 


-12-



	 	 	 
	Form and Timing
of Employer Contributions	 	
     SECTION 3.6 A Participating
Employer’s contributions may be
made in cash or ESOP Stock. A
Participating Employer’s
contributions shall be paid to the
Trustee at such time as the
Committee in its discretion may
determine, provided that all
contributions for a Plan Year must
be made no later than the date the
Participating Employer is required
to file its tax returns for the
Year, including extensions. A
Participating Employer may
contribute profit sharing
contributions quarterly or at other
intervals during the Plan Year to
which they relate. In the event of
any such advance funding, such
contributions and earnings on them
shall be held in a suspense account
until allocated with any additional
contributions in accordance with
Section 4.2(b).



 






 



-13-



ARTICLE IV

Allocations to Participants’ Accounts




	 	 	 
	Individual Accounts	 	
     SECTION 4.1 The Committee shall
create and maintain such individual
accounts as may be appropriate for
recording and disclosing the various
interests in the Trust of each
Participant, Former Participant and
Beneficiary. Where appropriate, a
Participant shall have the following
accounts: (1) an Employee
Tax-Deferred Contribution Account to
record his own contributions and the
earnings thereon; (2) an Employer
Profit Sharing Contribution Account
to record his Participating
Employer’s profit sharing
contributions and earnings thereon;
(3) an Employer Matching
Contribution Account to record his
Participating Employer’s matching
contributions and earnings thereon;
(4) an Old Profit Sharing Account to
record contributions prior to 1984
and earnings thereon; and (5) a
Rollover Account to record rollovers
and transfers to this Plan from
another employer’s plan. In
addition, the Committee shall
establish such ESOP Accounts as may
be appropriate to administer the
ESOP provisions of the Plan. Such
accounts shall record credits and
charges in the manner herein
described. The maintenance of
individual accounts is only for
accounting purposes, and a
segregation of the assets of the
Trust Fund with respect to each
account shall not be required.
	 
	Account Adjustments	 	
     SECTION 4.2 The accounts of
Participants, Former Participants
and Beneficiaries shall be adjusted
in accordance with the following:
	 
	 	 	
     (a)   Income: The Income of the Trust
Fund shall be allocated to the
accounts of Participants, Former
Participants and Beneficiaries who
had balances in their accounts on
each Valuation Date. This
allocation shall be made in the
ratio that the value of each
Participant’s account bears to the
total value of all Participant
accounts similarly invested. Each
valuation shall be based on the fair
market value, net of expenses, of
the assets in the Trust Fund on the
Valuation Date.
	 
	 	 	
     (b)   Employer Contributions: As of
the funding date, a Participating
Employer’s matching contributions
under Section 3.3 for that pay
period on behalf of a Participant
shall be allocated to that
Participant’s Employer Matching
Contribution Account. As of the end
of a Plan Year, a Participating
Employer’s profit sharing
contributions under Section 3.4
shall be allocated among its
Participants who either (1) have
completed 1,000 Hours of Service in
the Plan Year and are in the employ
of a Participating Employer on the
last day of the Plan Year or (2)
have terminated employment during
the Year on account of death,
disability, retirement on or after
Early Retirement Age or transfer to
an Affiliated Company.



 






 


-14-



	 	 	 
	 	 	
Such allocation shall be made in the
ratio that each such Participant’s
compensation bears to the total
compensation of all Participants
entitled to an allocation. For the
purpose of this allocation, the term
“compensation” means Compensation
(as defined in Section 1.7) paid
during the period the Participant is
participating in the Plan as an
Employee but excludes amounts earned
in excess of 50 percent of the
defined benefit plan dollar limit of
Code section 415(b)(1)(A). The
amount so allocated to a Participant
shall be credited to that
Participant’s Employer Profit
Sharing Contribution Account.
	 
	 	 	
     (c)   Employee Contributions: A
Participant’s contributions during a
pay period shall be allocated, as of
the funding date, to his Employee
Tax-Deferred Contribution Account.
A Participant’s rollover
contributions or the amounts
transferred to this Plan on his
behalf from another plan, if any,
shall be allocated to his Rollover
Account as soon as administratively
practicable.
	 
	Limitations on

Contributions	 	
     SECTION 4.3 Notwithstanding the
contribution levels specified in
Article III, no contributions will
be permitted in excess of the limits
set forth below:
	 
	
Code Section 402(g) Limits
	 	
     (a)   Limits on Employee Tax-Deferred
Contributions. For any calendar
year, a Participant’s tax-deferred
contributions to this Plan and any
other plan in which he may
participate shall not exceed the
dollar limit of Code section 402(g)
($11,000 for 2002; $12,000 for 2003;
$13,000 for 2004; $14,000 for 2005;
$15,000 for 2006; and thereafter
adjusted for cost of living
increases as provided under the
Code). To meet this limit, no
tax-deferred contribution to this
Plan in excess of the dollar limit
of Code section 402(g) shall be
accepted on behalf of any
Participant during a calendar year.
If a Participant participates in
more than one plan, he shall notify
the Committee of any excess
contribution in a calendar year by
March 1 of the following year. Any
amount that exceeds the section
402(g) limit for the Year shall,
together with the earnings
attributable thereto, be returned to
the Participant by April 15
following the calendar year to which
the excess contribution relates.
	 
	
Code Section 401(k) and (m)
Limits
	 	
     (b)   ADP/ACP Testing. A
Participant’s tax-deferred
contributions under Section 3.1 and
a Participating Employer’s matching
contributions under Section 3.3 in a
Plan Year shall comply,
respectively, with the
antidiscrimination requirements of
Code sections 401(k)(3) and 401(m),
which are hereby incorporated by
this reference. Such testing shall
use the “current year” method for
determining contribution
percentages. If necessary, the
Committee shall take any steps it
deems appropriate to satisfy these
tests, including limiting the amount
of contributions Highly Compensated
Employees may make, returning excess



 






 


-15-


	 	 	 
	 	 	
contributions to Highly Compensated
Employees or allocating to some or
all Non-Highly Compensated Employees
any qualified non-elective
contributions made by Participating
Employers.
	 
	
Code Section 415 Limits
	 	
     (c)   Code Section 4l5 Limits.
Pursuant to Code section 415, the
total of Participant and
Participating Employer contributions
on behalf of a Participant for each
Plan Year (his “annual additions”)
shall not exceed the lesser of
$40,000 (or such larger amounts as
reflect cost of living increases
pursuant to section 415 of the Code)
or 100 percent of the Participant’s
total compensation for such Plan
Year. For purposes of this Section,
the term “annual additions” means
the total each Plan Year of all
contributions, other than rollover
contributions, to a Participant’s
accounts. The term “compensation”
means a Participant’s W-2
compensation from the Participating
Employer, plus amounts contributed
by salary deferral to this Plan and
to any plan described in Code
sections 125, 132(f) or 401(k) but
excluding income derived from the
exercise of stock options, from the
disqualification of an incentive
stock option, from restricted stock
or from income imputed from the
payment of life insurance premiums.
If no more than one-third of
tax-deductible Participating
Employer ESOP contributions for a
Plan Year are allocated to the ESOP
Accounts of Highly Compensated
Employees for the Plan Year, annual
additions shall not include
forfeitures of ESOP Stock or
Participating Employer contributions
applied to the repayment of interest
on an Exempt Loan as described in
Code section 415(c)(6).
	 
	 	 	
     In addition to the amounts
calculated under this Plan, annual
additions shall include such
amounts, similarly calculated, that
are contributed with respect to the
Participant to any other
tax-qualified plan maintained by any
Participating Employer or by any
Affiliated Company and Participating
Employer contributions to an
individual medical account as
described in Code sections 415(1)
and 419A(d)(2). In determining
whether a corporation is an
Affiliated Company for this purpose
only, the percentage control test
set forth in section l563(a) of the
Code shall be a 50 percent test in
place of the 80 percent test each
place the 80 percent test appears in
said Code section.
	 
	 	 	
     If the annual additions computed
solely with respect to this Plan
exceed the limitations of this
Section, the elective deferrals, if
any, made by the Participant for the
Plan Year, which cause the excess,
shall be returned to the
Participant. If, after returning
such contributions to the
Participant, an excess still exists,
it shall first be reallocated to the
remaining Participants whose annual
additions are not in excess of the
limitations of this Section. Such
reallocations shall be made
according to the ratio that the
Participating Employer’s
contribution on behalf of a
Participant for



 






 


-16-



	 	 	 
	 	 	
the Plan Year bears
to the total Participating Employer
contributions on behalf of all
Participants for the Plan Year. If
an excess continues to exist after
such reallocation, such excess shall
then be used to reduce the
Participating Employer’s
contribution for the Year or its
next succeeding contribution to the
Plan.
	 
	 	 	
     If the annual additions exceed the
limitations of this Section as a
result of aggregating the additions
to this Plan and other defined
contribution plans of the
Participating Employers and any
Affiliated Company, the Committee in
its discretion shall determine the
manner of reducing contributions to
comply with the limitations of this
Section.
	 
	
Code Section 414(v) Limits
	 	
     (d)   Section 414(v) Catch-Up Limits.
Pursuant to Code section 414(v), the
annual limits on catch-up
contributions for persons age 50 and
over are $1,000 in 2002; $2,000 in
2003; $3,000 in 2004; $4,000 in
2005; $5,000 in 2006; and thereafter
such amount as adjusted by the IRS
to reflect increases in the cost of
living.
	 
	Notification to Participants of
Benefits and Limitations	 	
     SECTION 4.4 At least once each Plan
Year the Committee shall provide a
statement notifying each Participant
of the amount standing to his credit
in his accounts. The Committee
shall advise affected Participants
of any reductions in contributions
or benefits arising out of the
limitations of Section 4.3.



 






 



-17-



ARTICLE V

Benefits




	 	 	 
	Retirement or Disability	 	
     SECTION 5.1 If a Participant’s employment with a
Participating Employer is terminated (i) at or after
his Normal Retirement Age, (ii) at or after his Early
Retirement Age, or (iii) at an earlier age because
the Participant suffers a Disability, he shall be
entitled to receive the entire balance of such
accounts in accordance with the provisions of Section
5.5.
	 
	Death	 	
     SECTION 5.2 In the event that the termination of a
Participant’s employment is caused by his death, the
entire amount then in each of his accounts shall be
paid to his Beneficiary in accordance with Section
5.5 after receipt by the Committee of acceptable
proof of death.
	 
	Termination Benefits	 	
     SECTION 5.3 Under this Plan, all contributions are
100 percent vested at all times. Accordingly, if a
Participant terminates employment with a
Participating Employer before he is entitled to
receive a distribution under Section 5.1, he shall be
entitled to receive the entire amounts credited to
all of his accounts under the Plan.
	 
	 	 	
     If any future Plan amendment changes the Plan’s
vesting schedule, each Participant having three or
more years of service in the Plan as of the date the
new schedule is adopted shall have his vested
percentage determined under the vesting schedule
which provides him with the greatest vested benefit
at any particular point in time.
	 
	 	 	
     For purposes of entitlement to benefits under this
Section, any sale of assets or of stock of a
Participating Employer which results in a Participant
ceasing to be employed by a Participating Employer or
any Affiliated Company after the transaction shall
constitute a termination of employment under this
Plan and a “severance from employment” as this term
is defined in the Code.
	 
	Hardship and Non-Hardship Withdrawals
During Employment	 	
     SECTION 5.4 Withdrawals from a Participant’s
accounts prior to his termination of employment from
all Participating Employers may be made only in
accordance with this Section.
	 
	 	 	
     (a)   Hardship Withdrawals.
	 
	 	 	
             (1)   A Participant who has an immediate and heavy
financial need that cannot be satisfied from other
resources available to the Participant may withdraw
funds from his accounts in accordance with the terms
and conditions described below, and such other rules
established by the Committee to carry out these terms
and conditions.



 






 


-18-



	 	 	 
	 	 	
             (2)   An immediate and heavy financial need is any safe
harbor need authorized by Treas. Reg. §
1.401(k)-1(d)(2)(iv)(A) which on the effective date
of this restated Plan document is limited to the
following reasons:
	 
	 	 	
     (i)  To pay for the Participant’s or his dependents’
medical expenses that are not reimbursed by
insurance;

	 
	 	 	
     (ii)   To purchase the Participant’s principal
residence;

	 
	 	 	
     (iii)  To pay tuition due within the next 12 months
for the Participant’s or his dependents’
post-secondary education; or

	 
	 	 	
     (iv)  To prevent eviction from, or mortgage
foreclosure on, the Participant’s principal
residence.

	 
	 	 	
             (3)   A hardship withdrawal may not exceed the amount
necessary to cover the financial need, plus the
amount necessary to cover taxes and penalties due on
the withdrawal.
	 
	 	 	
             (4)   A Participant will be deemed to lack other
resources if he has (i) obtained all distributions
(except hardship) and all nontaxable loans available
from all plans of any Participating Employer (unless
the obligation to repay a loan would itself create a
financial hardship), and (ii) represented to the
Committee or its designee that he cannot satisfy his
hardship from other resources available to him.
Alternatively, the Committee may reasonably rely on
statements and representations made by the
Participant with respect to his lack of other
financial resources.
	 
	 	 	
             (5)   A Participant who takes a hardship withdrawal is
prohibited from making any contributions under
Sections 3.1 and 3.2 of this Plan for a period of six
months from the date of the hardship withdrawal.
	 
	 	 	
             (6)   Hardship withdrawals are permitted only from the
following accounts: the portion of his Employee
Tax-Deferred Contribution Account consisting of the
Participant’s tax-deferred contributions under
Section 3.1 plus earnings credited to such
contributions prior to 1989; contributions and
earnings in his Rollover Account; or the
contributions and earnings in his Old Profit Sharing
Account.
	 
	 	 	
     (b)   Old Profit Sharing Account Withdrawals. A
Participant who has an Old Profit Sharing Account
balance may elect, upon such notice as the Committee
may require, to



 






 


-19-




	 	 	 
	 	 	
withdraw in a single lump sum cash
payment any amount between 15 percent and 50 percent
of the account balance as of the latest Valuation
Date. Such withdrawal may be for any reason.
However, no withdrawal shall be permitted if the
Participant has made another withdrawal under this
provision, or a predecessor, within the five years
preceding the request. The foregoing limitation
shall not prevent a Participant from taking a
hardship withdrawal under subsection (a) without
regard to the limitations of this subsection (b).
	 
	 	 	
     (c)   ESOP Dividends. Dividends on ESOP Stock may be
received currently at a Participant’s election as
provided in Section 6.7.
	 
	Payment of Benefits	 	
     SECTION 5.5 In the event benefits become payable to
a Participant or, in the event of his death, become
payable to his Beneficiary, the Committee shall pay
the benefits in such manner and at such time as the
Participant or Beneficiary directs in accordance with
the terms of this Section and the rules and
procedures adopted from time to time by the Committee
to implement the terms of this Section. The
Committee’s rules and procedures shall comport with
the following terms and conditions:
	 
	 	 	
     (a)   Plan Requirements for Distributions. The amount
which a Participant, Former Participant or
Beneficiary is entitled to receive at any time and
from time to time shall be paid by the Trustee at the
direction of the Committee. The value of the benefit
payment shall be determined as of the distribution
processing date fixed by the Committee following the
event that triggers entitlement to benefits
(termination of employment, etc.). The Committee
shall direct the Trustee to make actual distribution
as soon as administratively practicable following the
distribution processing date.
	 
	 	 	
     Payments from investment accounts held in ESOP Stock
may be distributed in cash or in stock, in the
discretion of the recipient. Payments from other
investment accounts shall be made only in cash.
	 
	 	 	
     Payments due under Sections 5.1, 5.2, or 5.3 shall be
distributed pursuant to any one of the following
methods of payment:
	 
	 	 	
             (1)   Lump Sum Payment. Under this option the entire
balance in the Participant’s accounts shall be paid
in a single sum.
	 
	 	 	
             (2)   Periodic Payments. Under this option, a
recipient may elect periodic payments of
substantially equal annual, semi-annual, quarterly or
monthly installments, provided that each installment
must be at least $50. Payments may be



 






 


-20-




	 	 	 
	 	 	
made over any
period of time not to exceed the life expectancy of
the Participant or the joint life expectancies of the
Participant and any designated individual
Beneficiary. Periodic payments shall normally
commence within one year (but not earlier than 30
days following the Participant’s last day of
employment) following termination of employment or
death, as the case may be, except that commencement
of benefits to a Participant following termination of
employment may be deferred until a date not later
than age 65. A Participant or spouse who is
receiving benefits in the form of periodic payments
may elect (but no more than once annually) (i) to
change the frequency of payments so long as the
payment period requirements described above are
satisfied or (ii) to discontinue such payments and
receive instead a lump sum payment of his total
remaining interest in the Plan.
	 
	 	 	
             (3)   Rehire Limitation on Payments. A person who
becomes entitled to receive benefits but is rehired
before some or all of his benefits have been paid
shall have the portion not yet paid deferred until
his subsequent termination of employment.
	 
	 	 	
     (b)   Regulatory Restrictions on Distributions. If a
total account balance exceeds $5,000, payment can be
made prior to age 65 only with the consent of the
Participant or, in the event of his death, his
Beneficiary. If a total account balance is $5,000 or
less, payment will automatically be made in a lump
sum amount within one year following termination or
death. For purposes of applying the cash out rules,
no amounts credited to a Participant’s Rollover
Account shall be considered a part of the
Participant’s total account balance.
	 
	 	 	
     Notwithstanding the foregoing, the benefits of any
Employee who is a 5 percent owner of a Participating
Employer shall commence no later than the April 1 of
the year following the year he reaches age 701⁄2
even if he continues in the employ of a Participating
Employer. In no event shall benefits begin later
than sixty days after the close of the Plan Year in
which the latest of the following occurs: (1) the
Participant’s attainment of age 65; (2) the
termination of the Participant’s service with a
Participating Employer; or (3) the date specified to
the Committee by the Participant (but not later than
the April 1 following the year in which he attains
age 701⁄2).
	 
	 	 	
     Notwithstanding any direction by the Participant to
the contrary, all payments must be payable pursuant
to a schedule whereby the entire amount in the
Participant’s accounts is paid over a period that
does not extend beyond the life of the Participant or
over the lives of the Participant and any individual
he has designated as his Beneficiary (or over the
life expectancies of the Participant and his
designated individual Beneficiary). In



 






 


-21-



	 	 	 
	 	 	
addition, the
payment method selected must provide that more than
50 percent of the present value of the payments
projected to be paid to the Participant and his
Beneficiary will be paid to the Participant during
his life expectancy.

 

     In the event of the death of a Participant, Former
Participant or Beneficiary while benefits are being
paid under a schedule which meets the requirements of
the preceding paragraph, payments shall continue
pursuant to a schedule which is at least as rapid as
the period selected.

 

     In the event of the death of a Participant or Former
Participant before benefit payments have commenced,
any death benefit shall be distributed within five
years of death unless the following conditions are
met:
	 
	 	 	
     (i)   payments are made to an individual Beneficiary
designated by the Participant;

	 
	 	 	
     (ii)   payments are made for the life of such
individual Beneficiary or over a period not extending
beyond his life expectancy; and

	 
	 	 	
     (iii)  payments commence within one year of death.

	 
	 	 	
     If the designated Beneficiary is the Participant’s
spouse, payments shall commence within a reasonable
period after the death of the Participant. If the
spouse dies before payments begin, the rules of this
paragraph shall be applied as if the spouse were the
Participant.
	 
	 	 	
     Notwithstanding this Section or any other provision
of the Plan to the contrary, effective for Plan Years
commencing after December 31, 1984, all distributions
shall be made in accordance with regulations under
Code section 401(a)(9), including Treasury Regulation
§ 1.401(a)(9)-2 and the provisions reflecting section
401(a)(9) shall override any distribution options in
the Plan that may be inconsistent with section
401(a)(9).
	 
	Loans to Participants	 	
     SECTION 5.6 Participant loans are not permitted
under this Plan.
	 
	Designation of
Beneficiary	 	
     SECTION 5.7 If a Participant is married, his
Beneficiary shall be his spouse who shall be entitled
to his remaining account balance upon the
Participant’s death. Upon the written election of
the Participant, with his spouse’s written, notarized
consent, a Participant may designate another
Beneficiary. This election and consent must be
notarized and returned to the Committee. If such
election has been made or if the Participant is not
married, the Participant may from time to time
designate any person or persons



 






 


-22-



	 	 	 
	 	 	
(who may be designated contingently or successively and who may
be an entity other than a natural person) as his
Beneficiary to whom his Plan benefits shall be paid
if he dies before receipt of all such benefits. Each
Beneficiary designation shall be on a form prescribed
by the Committee and will be effective only when
filed with the Committee during the Participant’s
lifetime. Each Beneficiary designation filed with
the Committee will cancel all Beneficiary
designations previously filed with the Committee.
The revocation of a Beneficiary designation other
than the spouse, no matter how effected, shall not
require the consent of any designated Beneficiary.
	 
	 	 	
     If any unmarried Participant fails to designate a
Beneficiary in the manner provided above, or if the
Beneficiary predeceases the Participant or dies
before complete distribution of the Participant’s
benefits, (a) if payment has not commenced to the
Participant or has commenced and was being made to
the Participant immediately prior to his death, such
amount shall be paid to the personal representative
of the Participant, or (b) if payment has commenced
to a Beneficiary other than the Participant, the
remaining interest shall be paid to the issue of the
Beneficiary last receiving benefits per stirpes, or,
if none, to the personal representative of the
Beneficiary last receiving benefits.
	 
	 	 	
     The Committee may require such proof of death and
such evidence of the right of any person to receive
all or part of the death benefit of a deceased
Participant as the Committee may deem desirable. The
Committee may require and rely upon such proof of
death and such evidence of the right of any person to
receive the account balance of a deceased Participant
as the Committee may deem proper, and its
determination of death and of the right of any person
to receive payment shall be conclusive.
	 
	QDROs	 	
     SECTION 5.8 Benefits shall be payable under this
Plan to an alternate payee pursuant to the terms of
any qualified domestic relations order. The
Committee has the responsibility for determining if a
domestic relations order is qualified and whether its
payment terms are consistent with the terms of the
Plan. For this purpose, the Plan considers as
payable immediately any benefit that is payable to an
alternate payee pursuant to a QDRO even if the
Participant is not entitled to an immediate payment.
If the value of an alternate payee’s benefit is
$5,000 or less at the time a domestic relations order
is determined to be qualified, it will automatically
be distributed immediately to the alternate payee in
a lump sum payment. If payment will not be made
immediately, the amounts subject to a QDRO may be
segregated



 






 


-23-



	 	 	 
	 	 	
from the Participant’s accounts and placed in a
separate account for the benefit of the alternate
payee who shall thereupon be treated for Plan
purposes as a Participant.
	 
	Rollovers from Plan	 	
     SECTION 5.9 Notwithstanding any provision of the
Plan to the contrary that would otherwise limit a
Participant’s election under this Section, a
Participant may elect, at the time and in the manner
prescribed by the Committee, to have any portion of
an eligible rollover distribution paid directly to an
eligible retirement plan specified by the Participant
in a direct rollover.
	 
	 	 	
     An eligible rollover distribution is any distribution
of all or any portion of the balance to the credit of
the Participant except that an eligible rollover
distribution does not include 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 Participant or
the joint lives (or joint life expectancies) of the
Participant and the Participant’s designated
Beneficiary, or for a specified period of ten years
or more, any distribution to the extent such
distribution is required under section 401(a)(9) of
the Code, or any hardship distribution described in
Code section 401(k)(2)(B)(i)(IV).
	 
	 	 	
     A portion of a distribution shall not fail to be an
eligible rollover distribution merely because the
portion consists of after-tax Employee contributions
which are not includible in gross income. However,
such portion may be transferred only to an individual
retirement account or annuity described in 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 of
which is includible in gross income and the portion
of such distribution which is not so includible.
	 
	 	 	
     An eligible retirement plan is an individual
retirement account described in section 408(a) of the
Code, an individual retirement annuity described in
section 408(b) of the Code, an annuity plan described
in section 403(a) of the Code, an annuity contract
described in section 403(b) of the Code, a qualified
trust described in section 401(a) of the Code, or a
deferred compensation plan described in section
457(b) of the Code that accepts the Participant’s
eligible rollover distribution.
	 
	 	 	
     For purposes of this Section 5.9 only, a Participant
includes an Employee or former Employee. In
addition, the Employee’s or former Employee’s
surviving spouse and the Employee’s or former
Employee’s spouse or former spouse who is the
alternate payee under a qualified domestic relations
order, as defined in section 414(p) of the Code, are
Participants with regard to the interest of the
spouse or former spouse. A direct rollover is a
payment by the Plan to the eligible retirement plan
specified by the Participant.



 






 



-24-



ARTICLE VI

ESOP Provisions




	 	 	 
	Exclusive Benefit
of Participants	 	
     SECTION 6.1 All contributions under
this Plan shall be paid to the
Trustee and deposited in the Trust
Fund established under Part II of
this document. All assets of the
Trust Fund, including investment
income, shall be retained for the
exclusive benefit of Participants,
Former Participants and
Beneficiaries and shall be used to
pay benefits to such persons or to
pay administrative expenses of the
Plan and Trust Fund to the extent
not paid by a Participating Employer
and shall not revert to or inure to
the benefit of a Participating
Employer.
	 
	Return of Erroneous Contributions	 	
     SECTION 6.2 Notwithstanding Section
6.1, upon the Committee’s request in
the case of any contribution which
was made by a mistake of fact or
which is disallowed as a deduction
under the Code, or which is made
conditional on the qualification of
the Plan under the Code, shall be
returned to a Participating Employer
within one year after the payment of
the contribution, the denial of the
qualification or the disallowance of
the deduction (to the extent
disallowed), whichever is
applicable. All Participating
Employer contributions to this Plan
are made contingent upon their
deductibility under the Code.
	 
	ESOP Loans	 	
     SECTION 6.3 The Committee may
direct the Trustee to enter into one
or more Exempt Loans to finance the
acquisition of ESOP Stock. Proceeds
from an Exempt Loan may be used to
acquire ESOP Stock from the
Employer’s shareholders or directly
from the Employer. If such shares
are purchased from the Employer, no
commission may be charged with
respect thereto and the sale price
shall not be more than the fair
market value thereof. There shall
be no limit on the amount of stock
of the Employer which may be held at
any one time by the Trustee in the
Trust Fund regardless of the
percentage which such stock so held
bears to the assets of the Trust
Fund or to the outstanding shares of
stock of the Employer or for any
other reason. No ESOP Stock
acquired by an Exempt Loan may be
subject to a put, call, or other
option, or buy-sell or similar
arrangement while held by and when
distributed from the Plan.
	 
	 	 	
     Notwithstanding any other provision
of the Plan, all proceeds of an
Exempt Loan shall be used, within a
reasonable time after receipt by the
Trust Fund, to acquire ESOP Stock;
to repay the same Exempt Loan; or to
repay any previous Exempt Loan. An
Exempt Loan shall be repaid only
from amounts loaned to the Trust and
the proceeds of such loans, from
Participating Employer contributions
in cash and earnings attributable
thereto, from any collateral given
for the loan, and from dividends
paid on



 






 


-25-



	 	 	 
	 	 	
ESOP Stock either acquired
with proceeds of an Exempt Loan or
in accordance with the provisions of
Code section 404(k).
	 
	ESOP Stock Investments	 	
     SECTION 6.4. A Participating
Employer’s matching contributions
under Section 3.3 and profit sharing
contributions under Section 3.4 may
initially be made either in cash or
in ESOP Stock. However, there is no
requirement that ESOP Stock
contributions of a Participating
Employer remain invested in ESOP
Stock. A Participant shall at all
times have the discretion to invest
his entire interest in the Plan,
whether derived from his or her own
contributions and rollovers or
derived from Participating Employer
contributions, in any of the
investment options (including ESOP
Stock) available from time to time
without limitation except for
reasonable administrative limits and
for restrictions that may be
necessary to comply with securities
laws.
	 
	Investment of
Participant Accounts	 	
     SECTION 6.5 All amounts credited to
a Participant’s accounts shall be
subject to the investment direction
of the Participant as provided in
this Section. For this purpose, the
Trustee shall establish an ESOP
Stock fund to be invested primarily
in stock of the Employer or an
Affiliated Company and such other
equity, fixed income or other
investment funds designated from
time to time by the Committee, as
set forth in Appendix A.
	 
	 	 	
     Each Participant has the right to
elect how his contributions are to
be invested among the available
investment choices. Once made, a
Participant’s elections shall remain
in effect until a new election is
made. A Participant may change his
investment elections as to current
and future contributions as of any
dates that may be specified by the
Committee. If for any reason a
Participant fails to make an
investment election, the
contributions made by the
Participant, and the contributions
made by a Participating Employer on
behalf of the Participant shall be
invested in the money market fund
and the ESOP Stock fund,
respectively. In addition, a
Participant may, by making an
election with the Committee, change
the investment of all or a portion
of the accumulated amounts then in
his accounts. Such a change may be
made only as of any dates that may
be specified by the Committee.
Initial allocations among investment
options and subsequent changes in
the investment of accumulated
amounts in a Participant’s accounts
shall be made in minimum multiples
the Committee may establish in its
discretion.



 






 


-26-



	 	 	 
	 	 	
     All Participant investment
directions shall be made to the
Committee at such time and under
such terms and conditions as the
Committee, after consultation with
the Trustee, may prescribe, provided
that all such rules shall be
uniformly applicable to all
Participants.
	 
	Release of ESOP
Stock From Suspense	 	
     SECTION 6.6 ESOP Stock acquired by
the Trust Fund through an Exempt
Loan shall be initially maintained
in a suspense account and shall
thereafter be released from suspense
and allocated to Participants’ ESOP
Accounts as hereinafter provided.
Participating Employer contributions
under Sections 3.3 (matching) and
3.4 (profit sharing) shall be
applied against payments on any
Exempt Loan to the extent the
Committee in its sole discretion
shall determine and ESOP Stock shall
then be released to the
Participants’ ESOP Accounts. A
Participating Employer’s obligations
to contribute under Sections 3.3 and
3.4 shall be reduced for each
contribution period by the fair
market value as of the date of
release of the ESOP Stock so
released or otherwise allocated as
below provided. To the extent said
fair market value is less than said
Participating Employer’s obligations
under Sections 3.3 and 3.4 for any
such contribution period, the
Participating Employer shall make
further contributions to the Trust
Fund to fully meet said obligations.
For each Plan Year, if for a
contribution period the fair market
value as of the date of release of
the shares so released is in excess
of the Participating Employer’s
obligations to contribute under
Sections 3.3 and 3.4 for such
contribution period, the shares
released for said contribution
period representing the excess
(“excess shares”) shall continue to
be held by the Trustee and shall
thereafter be allocated to the
Participants’ ESOP Accounts in the
following manner: first, if in a
succeeding contribution period
within said Plan Year, the fair
market value of the shares so
released for said contribution
period are less than the
Participating Employer’s obligations
to contribute under Sections 3.3 and
3.4 for said month, then “excess
shares” remaining unallocated for
any prior contribution period in
said Plan Year shall be allocated to
the Participants’ ESOP Accounts to
the extent that said Participating
Employer obligations exceed the
value of the released shares, and
for this purpose said “excess
shares” to be so allocated shall be
valued at the same value as the
value of the shares released for
said contribution period; and
second, if as of the last day of the
Plan Year there remain “excess
shares” which have not been
allocated to Participants’ ESOP
Accounts as aforesaid, said “excess
shares” shall be allocated as of the
last day of the Plan Year to the
Participants’ ESOP Accounts, as the
Committee may determine in its sole
discretion on a year-to-year basis,
in direct proportion to the value
(determined as



 






 


-27-



	 	 	 
	 	 	
of the date allocated
to the Participants’ ESOP Accounts)
of those shares released and
allocated to the Fund so determined
by the Committee, together with all
other Participating Employer
contributions to Participants’ ESOP
Accounts for said Plan Year.
	 
	 	 	
     ESOP Stock acquired for the Trust
Fund with the proceeds of an Exempt
Loan shall be released from the
suspense account as the Exempt Loan
is repaid in accordance with the
following:
	 
	 	 	
     (a)   For each week until the Exempt
Loan is fully repaid, the number of
shares of ESOP Stock released from
the suspense account shall equal the
number of unreleased shares of ESOP
Stock immediately before such
release for such week multiplied by
the “Release Fraction.” As used
herein, the term “Release Fraction”
shall mean a fraction, the numerator
of which is the amount of principal
and interest paid on the Exempt Loan
for such week and the denominator of
which is the sum of the numerator
plus the principal and interest to
be paid on such Exempt Loan for all
future weeks during the term of such
Exempt Loan (determined without
reference to any possible extensions
or renewals thereof). For purposes
of computing the denominator of the
Release Fraction, if the interest
rate on an Exempt Loan is variable,
the interest to be paid in
subsequent weeks shall be calculated
by assuming that the interest rate
in effect as of the end of the
applicable week will be the interest
rate in effect for the remainder of
the term of the Exempt Loan.
Notwithstanding the foregoing, in
the event such Exempt Loan shall be
repaid with the proceeds of a
subsequent Exempt Loan (the
“Substitute Loan”), such repayment
shall not operate to release all
such ESOP Stock in the suspense
account, but, rather, such release
shall be effected pursuant to the
foregoing provisions of this Section
on the basis of payments of
principal and interest on such
Substitute Loan.
	 
	 	 	
     (b)   The Committee may elect to, or
shall, if required by any pledge or
similar agreement, in lieu of
applying the provisions of
subsection (a) above with respect to
an Exempt Loan, release ESOP Stock
from the suspense account as the
principal amount of such Exempt Loan
is repaid (without regard to
interest payments), provided the
following three conditions are
satisfied:
	 
	 	 	
       (1)   The Exempt Loan shall provide
for annual payments of principal and
interest at a cumulative rate that
is not less rapid at any time than
level annual payments of such
amounts for ten years;

	 
	 	 	
       (2)   The interest portion of any
payment shall be disregarded only to
the extent it would be treated as
interest under standard loan
amortization tables; and




 






 


-28-



	 	 	 
	 	 	
        (3)   If the Exempt Loan is renewed,
extended or refinanced, the sum of
the expired duration of the Exempt
Loan and the renewal, extension or
new Exempt Loan period shall not
exceed seven years.

	 
	 	 	
     (c)   If at any time more than one
Exempt Loan is outstanding, then
separate suspense accounts may be
established for each such Loan.
Each Exempt Loan for which a
separate suspense account is
maintained may be treated separately
for purposes of the provisions
governing the release of ESOP Stock
from suspense under this Section and
for purposes of the provisions
governing the application of
Participating Employer contributions
to repay an Exempt Loan.
	 
	 	 	
     (d)   It is intended that the
provisions of this Section 6.6 shall
be applied and construed in a manner
consistent with the requirements and
provisions of Treasury Regulation §
54.4975-7(b)(8), and any successor
regulation thereto. The number of
shares allocable to a Participant’s
ESOP Account shall be the number of
shares which bears the same ratio to
the total shares released for such
month and allocable to the
contribution made by or on behalf of
such Participant by his
Participating Employer under
Sections 3.3 and 3.4 for such month
bears to the total Participating
Employer contributions under
Sections 3.3 and 3.4 made on behalf
of all such Participants for such
month, provided, however, that the
fair market value of the shares so
allocated as of the date of such
allocation shall not exceed the
Participating Employer’s obligation
to contribute under such Sections on
behalf of such Participant for such
month, any shares in excess of said
Participating Employer obligations
(“excess shares”) for all
Participants to be then allocated as
described above in this Section 6.6.
The total shares allocable to the
contribution of such Participant’s
Participating Employer shall be the
number of shares which bears the
same ratio to the total shares
released from suspense for the month
as the contribution made by or on
behalf of such Participant’s
Participating Employer for the month
bears to the total contributions for
the month made by or on behalf of
all Participating Employers.
	 
	 	 	
     Notwithstanding the foregoing
provisions of this Section 6.6, if
more than one-third of the total
allocations to Participants’
accounts with respect to a Plan Year
would be allocated in the aggregate
to the accounts of Highly
Compensated Employees, then the
allocations to the accounts of
Highly Compensated Employees shall
be reduced, pro rata, in an amount
sufficient to reduce the amounts
allocated to the accounts of such
Participants to an amount not in
excess of one-third of the total
allocations to Participants’
accounts with respect to such Plan
Year and any



 






 


-29-



	 	 	 
	 	 	
shares of ESOP Stock
which are prevented from being
allocated due to said restriction
shall be allocated as though Highly
Compensated Employees did not
participate in the Plan.
	 
	 	 	
     Any stock received by the Trustee as
a result of a stock split, dividend,
conversion, or as a result of a
reorganization or other
recapitalization of the Employer
shall be allocated as of the day on
which the stock is received by the
Trustee in the same manner as the
ESOP Stock to which it is
attributable is then allocated.
	 
	Dividends on ESOP Stock	 	
     SECTION 6.7 Dividends payable with
respect to shares of ESOP Stock may,
if payable in cash, be (i) paid
currently to the Participant; (ii)
paid currently to the Plan and
distributed by the Plan to the
Participant within 90 days following
the end of the Plan Year; (iii) used
for the purpose of repaying one or
more Exempt Loans if such use of
said dividends so applied meets the
requirements of Code section 404(k);
or (iv) paid to the Plan and
reinvested in ESOP Stock.
	 
	 	 	
     Each Participant shall have the
election (1) to receive dividends on
ESOP Stock in cash or (2) have them
paid to the Plan, credited to his or
her ESOP Account and reinvested in
ESOP Stock. Unless a Participant
makes a timely, affirmative election
to receive a dividend currently in
cash, such dividend shall be
reinvested in ESOP Stock. A failure
to make an affirmative election to
receive a current distribution shall
be deemed to be an affirmative
election to reinvest the dividends
in ESOP Stock. An election under
this Section shall be irrevocable as
of any deadline established pursuant
to Committee direction and shall
remain in effect until changed with
respect to future dividend payments.
Participants shall have the right
to change their dividend elections
quarterly in accordance with such
rules and regulations as the
Committee may prescribe.
	 
	Voting and Tender
Offer Rights on
ESOP Stock	 	
     SECTION 6.8 Each Participant shall
have the right to vote all shares of
ESOP Stock held in the Participant’s
ESOP Account. Each Participant
shall also have the right to direct
the Trustee whether to tender such
shares of ESOP Stock in the event an
offer is made by any person other
than the Employer to purchase such
shares. The Committee shall make
any such arrangements with the
Trustee as may be appropriate to
pass such voting or tender offer
rights through to a Participant. In
the event a Participant fails to
vote his shares or fails to indicate
his preference with respect to a
tender offer, the Trustee shall vote
the Participant’s shares or tender
his shares in the same proportions
as those Plan Participants who did
respond cast their votes or tendered
their shares. The Trustee shall
also vote and exercise any tender
offer rights with



 






 


-30-



	 	 	 
	 	 	
respect to unallocated ESOP Stock held in a
suspense account in the same
proportions as those Plan
Participants who responded cast
their votes or tendered their
shares.
	 
	Put Option	 	
     SECTION 6.9 If ESOP Stock should
not be readily tradable on an
established market at the time of
distribution of an ESOP Account, the
Employer shall issue a put option to
each Participant or Beneficiary
receiving a distribution of ESOP
Stock from the Plan. The put option
shall permit the Participant or
Beneficiary to sell such ESOP Stock
under a fair valuation formula
during the sixty (60) consecutive
day period following the date the
ESOP Stock was distributed to the
recipient, at which time the put
option will temporarily lapse. Upon
the close of the Plan Year in which
such temporary lapse occurs, an
independent appraiser (meeting
requirements similar to the
requirements of the Treasury
regulations prescribed under section
170(a)(1) of the Code) shall
determine the value of the ESOP
Stock, and the Trustee shall notify
each distributee who did not
exercise the initial put option
prior to its temporary lapse in the
preceding Plan Year of the revised
value of the ESOP Stock. The time
during which the put option may be
exercised shall recommence on the
date such notice of revaluation is
given and shall permanently
terminate sixty (60) days
thereafter.
	 
	 	 	
     The Trustee may, in its discretion
and with the consent of the
Employer, cause the Trust to assume
the rights and obligations of the
Employer at the time the put option
is exercised, insofar as the
repurchase of ESOP Stock is
concerned. The period during which
the put option is exercisable shall
not include any period during which
the holder is unable to exercise
such put option because the Employer
is prohibited from honoring it by
federal or state law. The Employer
or Trustee, as the case may be, must
pay for ESOP Stock sold pursuant to
a put option no less rapidly than
under one of the following two
methods, as applicable:
	 
	 	 	
     (1)   If a put option is exercised
with respect to ESOP Stock
distributed as part of a total
distribution (that is, a
distribution within one taxable year
to the recipient of the balance to
the credit of the recipient’s
account), then payment shall be made
in substantially equal periodic
payments (not less frequently than
annually) commencing within thirty
(30) days for the date of the
exercise of the put option and over
a period not exceeding five years,
with interest payable at a
reasonable rate (as determined by
the Employer) on any unpaid
installment balance, with adequate
security provided, and without
penalty for any prepayment of such
installments.
	 
	 	 	
     (2)   If a put option is exercised
with respect to ESOP Stock
distributed as part of an
installment distribution, then the
payment for such ESOP Stock shall be
made in a lump sum no later than
thirty (30) days after such
Participant or Beneficiary exercises
the put option.



 






 



-31-



ARTICLE VII

Plan Committee and Other Fiduciaries





	 	 	 
	Appointment
of Committee	 	
     SECTION 7.1 The Board shall appoint
a Pension and Profit Sharing Plan
Committee to administer the Plan.
The Committee shall consist of such
number of members as the Board shall
determine from time to time. Any
person, including an employee of a
Participating Employer, is eligible
for appointment as a member of the
Committee. Such members shall serve
at the pleasure of the Board. Any
member may resign by delivering his
written resignation to the Board.
Vacancies in the Committee arising
by resignation, death, removal or
otherwise, shall be filled by the
Board. The Committee shall appoint
one of its members as Secretary.
	 
	Named Fiduciary
and Plan Administrator	 	
     SECTION 7.2 The Committee shall be
the named fiduciary and plan
administrator as these terms are
used in ERISA.
	 
	Powers and Duties
of Committee	 	
     SECTION 7.3 The Committee shall
administer the Plan in accordance
with its terms and shall have all
powers necessary to carry out the
provisions of the Plan, except such
powers as are specifically reserved
to the Board or some other person.
The Committee’s powers include the
power to make and publish such rules
and regulations as it may deem
necessary to carry out the
provisions of the Plan. The
Committee shall, in its sole
discretion, interpret the Plan and
shall determine all questions
arising in the administration,
interpretation, and application of
the Plan, including the
determination of all benefits
payable under the Plan. Any such
determination by the Committee shall
be conclusive and binding on all
persons.
	 
	 	 	
     The Committee shall notify the
Trustee of the liquidity and other
requirements of the Plan from time
to time.
	 
	Power to Appoint Advisors	 	
     SECTION 7.4 The Committee shall act
by a majority of its members at the
time in office, and such action may
be taken either by a vote at a
meeting or without a meeting. If
previous written instructions are
given by a majority of the
Committee, action may be taken with
the signature of one member of the
Committee. Any action taken without
a meeting shall be reflected in a
written instrument signed by a
majority of the members of the
Committee. A member of the
Committee who is also a Participant
shall not vote on any question
relating specifically to himself.
Any such question shall be decided
by the majority of the remaining
members of the Committee. The
Committee may authorize any one or
more of its members to execute any
document or documents on behalf of
the Committee, in which event the
Committee shall notify the Trustee
in writing of such action and the
name or names



 






 


-32-



	 	 	 
	 	 	
of its member or
members so designated. The Trustee
thereafter shall accept and rely
upon any document executed by such
member or members as representing
action by the Committee until the
Committee shall file with the
Trustee a written revocation of such
designation. The Committee may
adopt such by-laws or regulations as
it deems desirable for the conduct
of its affairs.
	 
	 	 	
     The Committee shall keep a record of
all its proceedings and acts and
shall keep all such books of
account, records, and other data as
may be necessary for the proper
administration of the Plan.
	 
	Power to
Appoint Advisors	 	
     SECTION 7.5 The Committee may
appoint such actuaries, accountants,
attorneys, other specialists and
such other persons as it deems
necessary or desirable in connection
with the administration of this
Plan. Such persons may, but need
not, be performing services for a
Participating Employer. The
Committee shall be entitled to rely
upon any opinions or reports which
shall be furnished to it by any such
actuary, accountant, attorney or
other specialist.
	 
	Expenses of
Committee	 	
     SECTION 7.6 The members of the
Committee shall serve without
compensation for services as such,
but their reasonable expenses shall
be paid by the Participating
Employers. The Committee’s
expenses, together with all other
reasonable expenses of administering
the Plan and Trust, shall be paid by
the Participating Employers, to the
extent not paid from the Trust Fund,
including, but not limited to, fees
of actuaries, accountants,
attorneys, and other specialists.
	 
	Duties of Fiduciaries	 	
     SECTION 7.7 All fiduciaries under
the Plan and Trust shall act solely
in the interests of the Participants
and their Beneficiaries and in
accordance with the terms and
provisions of the Plan and Trust
insofar as such documents are
consistent with ERISA, and with the
care, skill, prudence, and diligence
under the circumstances then
prevailing that a prudent person
acting in a like capacity and
familiar with such matters would use
in the conduct of an enterprise of
like character and with like aims.
Any person may serve in more than
one fiduciary capacity with respect
to the Plan and Trust.
	 
	Liability of Members	 	
     SECTION 7.8 No member of the
Committee shall incur any liability
for any action or failure to act,
excepting only liability for his own
breach of fiduciary duty. To the
extent not covered by insurance, the
Participating Employers shall
indemnify each member of the
Committee and any employee acting on
its behalf against any and all
claims, loss, damages, expense, and
liability arising from any action or
failure to act.



 






 


-33-



	 	 	 
	Allocation of Responsibility	 	
     SECTION 7.9 The Board, Committee,
Investment Manager and Trustee
possess certain specified powers,
duties, responsibilities and
obligations under the Plan and
Trust. It is intended under this
Plan and Trust that each will be
responsible solely for the proper
exercise of its own functions and
that each shall not be responsible
for any act or failure to act of
another, unless otherwise
responsible for a breach of its own
fiduciary duty. Generally, the
Board shall be responsible for
appointing the Committee, the
Investment Manager and the Trustee
and for their removal, and for
amending and terminating the Plan
and Trust. The Committee is
responsible for administering the
Plan as described herein. The
Trustee or the Investment Manager,
as the case may be, is responsible
for the management and control of
the Trust Fund assets which may be
under its control as specifically
provided in the trust agreement or
investment manager agreement. The
Board and Committee may designate
persons, including committees, other
than named fiduciaries to carry out
fiduciary responsibilities (other
than trustee responsibilities as
defined in section 405(c)(3) of
ERISA under the Plan.
	 
	Claims Review Procedure	 	
     SECTION 7.10 The Committee shall
maintain a procedure under which any
Participant or Beneficiary may
assert a claim for benefits under
the Plan. Any such claim shall be
submitted in writing to the
Committee within such reasonable
period as the rules of the Committee
may provide. The Committee shall
take action on the claim within 60
days following its receipt and if it
is denied shall at such time give
the claimant written notice which
clearly sets forth the specific
reason or reasons for such denial,
the specific Plan provision or
provisions on which the denial is
based, any additional information
necessary for the claimant to
perfect the claim, if possible, an
explanation of why such additional
information is needed, and an
explanation of the Plan’s claims
review procedure. The review
procedure shall allow a claimant at
least 60 days after receipt of the
written notice of denial to request
a review of such denied claim, and
the Committee shall make its
decision based on such review within
60 days (120 days if special
circumstances require more time) of
its receipt of the request for
review. The decision on review
shall be in writing and shall
clearly describe the reasons for the
Committee’s decision.



 






 


-34-



ARTICLE VIII

Amendments



     The Board reserves the right to make from time to time any amendment to
this Plan which does not cause any part of the Trust Fund to be used for, or
diverted to, any purpose other than the exclusive benefit of Participants,
Former Participants or their Beneficiaries, provided however, that the Board
may make any amendment it determines necessary or desirable, with or without
retroactive effect, to comply with applicable laws.


 






 


-35-



ARTICLE IX

Successor Participating Employer and Merger

or Consolidation of Plans




	 	 	 
	Successor Participating Employer	 	
     SECTION 9.1 In the event of the dissolution, merger,
consolidation or reorganization of a Participating Employer,
provision may be made by which the Plan and Trust will be
continued by the successor, and, in that event, such
successor shall be substituted for the Participating Employer
under the Plan. The substitution of the successor shall
constitute an assumption of Plan liabilities by the successor
and the successor shall have all of the powers, duties and
responsibilities of the Participating Employer under the
Plan.
	 
	Plan Assets	 	
     SECTION 9.2 In the event of any merger or consolidation of
the Plan with, or transfer in whole or in part of the assets
or liabilities of the Trust Fund to, another trust fund held
under any other plan of deferred compensation maintained or
to be established for the benefit of all or some of the
Participants of this Plan, the assets of the Trust Fund
applicable to such Participants shall be transferred to the
other trust fund only if:
	 
	 	 	
          (a)   each Participant would (if either this Plan or the other
plan then terminated) receive a benefit immediately after the
merger, consolidation or transfer which is equal to or
greater than the benefit he would have been entitled to
receive immediately before the merger, consolidation or
transfer (if this Plan had then terminated);
	 
	 	 	
          (b)   resolutions of the Board of Directors of the Employer
under this Plan, or of any new or successor employer of the
affected Participants, shall authorize such transfer of
assets; and, in the case of the new or successor employer of
the affected Participants, its resolutions shall include an
assumption of liabilities with respect to such Participants’
inclusion in the new employer’s plan; and
	 
	 	 	
          (c)   such other plan and trust are qualified under sections
401(a) and 501(a) of the Code.



 






 



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ARTICLE X

Plan Termination




	 	 	 
	Right to
Terminate	 	
     SECTION 10.1 In accordance with the procedures set forth
in this Article, and consistent with applicable law, the
Board may terminate the Plan at any time. In the event of
the dissolution, merger, consolidation or reorganization
of the Employer, the Plan shall terminate and the Trust
Fund shall be liquidated unless the Plan is continued by a
successor to the Employer in accordance with Section 9.1.
	 
	Partial Termination	 	
     SECTION 10.2 Upon termination of the Plan with respect to
a group of Participants which constitutes a partial
termination of the Plan, the accounts of all affected
Participants shall become fully vested. The Trustee
shall, in accordance with the directions of the Committee,
allocate and segregate for the benefit of the Participants
or Former Participants with respect to which the Plan is
being terminated the proportionate interest of such
persons in the Trust Fund. The funds so allocated and
segregated shall be used by the Trustee to pay benefits in
accordance with Section 10.3.
	 
	Liquidation of
the Trust Fund	 	
     SECTION 10.3 Upon termination of the Plan, by written
notice or in actual operation, the accounts of all
Participants affected thereby shall become fully vested,
and the Committee shall direct the Trustee to distribute
the assets remaining in the Trust Fund, after payment of
any expenses properly chargeable thereto, to Participants
and Beneficiaries in proportion to their respective
account balances in accordance with the modes of
distribution provided in Article V.
	 
	 	 	
     To the extent that no discrimination in value results, any
distribution after termination of the Plan may be made, in
whole or in part, in cash, in securities, or other assets
in kind, as the Committee pursuant to the provisions of
Section 5.5 may determine. All non-cash distributions
shall be valued at fair market value.



 






 



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ARTICLE XI

Top-Heavy Provisions




	 	 	 
	Rules to Apply
if Plan Top-Heavy	 	
     SECTION 11.1 This Article XI does not apply to any
Plan Year in which the Plan consists solely of a cash
or deferred arrangement which meets the safe harbor
requirements of Code section 401(k)(12) and the
matching contribution requirements of Code section
401(m)(11) are satisfied. In all other cases and
notwithstanding any other relevant provision of this
Plan to the contrary, the following rules will apply
for any Plan Year that the Plan becomes “top-heavy”
(as defined in Section 11.2):
	 
	 	 	
     (a)   Vesting. Vesting will remain at 100 percent at
all times.
	 
	 	 	
     (b)   Minimum Contributions. For each top-heavy Plan
Year the minimum contribution allocated in the
aggregate to the Employee and Employer Contribution
Accounts of each non-key employee (as defined in Code
section 416(i)(2)) shall be equal to or greater than
the lesser of the following amounts:
	 
	 	 	
     (i)   3 percent of such non-key employee’s compensation;
or

	 
	 	 	
     (ii)  the highest percentage-of- compensation
allocation made by or on behalf of any key employee
(as defined in Code section 416(i)(1)). Such
allocation shall be made without regard to the number
of Hours of Service or the compensation level of the
non-key employee for the top-heavy Plan Year.

	 
	Top Heavy Definition	 	
     SECTION 11.2 For purposes of this Section, the Plan
will be considered “top-heavy” if on any given
determination date (the last day of the preceding Plan
Year or, in the case of the Plan’s first year, the
last day of such Year) the sum of the account balances
(including Employer Contribution Accounts, Employee
Contribution Accounts and Rollover Accounts from
related plans) for key employees is more than 60
percent of the sum of the account balances of all
employees, excluding former key employees. The present
values of accrued benefits and the amounts of account
balances of an Employee as of the determination date
shall be increased by the distributions made with
respect to the employee under the Plan and any Plan
aggregated with the Plan under section 416 (g)(2) of
the Code during the 1-year period ending on the
determination date. The preceding sentence shall also
apply to distributions under a terminated Plan which,
had it not been terminated, would have been aggregated
with the Plan under section 416 (g)(2)(A)(i) of the
Code. In the case of a distribution made for a reason
other than a separation form service,



 






 


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death, or disability, this provision shall be applied by
substituting a “5-year period” for “1-year period.”
The accrued benefits and account of any individual who
has not performed services for the Employer during the
1-year period ending on the determination date shall
not be taken into account.
	 
	 	 	
     Employer matching contributions shall be taken into
account for purposes of satisfying the minimum
contribution requirements of section 416 (c)(2) of the
Code and the Plan. The preceding sentence shall apply
with respect to matching contributions under the Plan
or, if the Plan provides that the minimum contribution
requirement shall be met in another plan, such other
plan. Employer matching contributions that are used
to satisfy the minimum contribution requirements shall
be treated as matching contributions for purposes of
the actual contribution percentage test and other
requirements of section 401(m) of the Code.
	 
	 	 	
     In making the top-heavy calculation, (a) all the
Participating Employers’ plans in which a key employee
participates shall be aggregated with all other
Participating Employer plans which enable a plan in
which a key employee participates to satisfy the
Code’s non-discrimination requirements; and (b) all
Participating Employer plans not included in
subparagraph (a), above, may be aggregated with the
Participating Employers’ plans included in
subparagraph (a), above, if all of the aggregated
plans would be comparable and satisfy the Code’s
non-discrimination requirements.
	 
	Key Employee Definition	 	
     SECTION 11.3 Key Employee means any Employee
(including any deceased Employee) who at any time
during the Plan Year that includes the determination
date was an officer of the Employer having Annual
Compensation greater than $130,000 (as adjusted under
section 416 (i)(1) of the Code for Plan Years
beginning after December 31, 2002), a five-percent
(5%) Owner of the Employer, or a one-percent (1%)
Owner of the Employer having annual Compensation of
more than $150,000. For this purposes, Annual
Compensation means compensation within the meaning of
section 415 (c)(3) of the Code. The determination of
who is a Key Employee will be made in accordance with
section 416 (i)(1) of the Code and the applicable
regulations and other guidance of general
applicability issued thereunder.



 






 


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	Relationship of the
Normal and the
Top-Heavy
Vesting Schedules	 	
     SECTION 11.4 If the Plan’s top-heavy status changes
and this change alters the Plan’s normal vesting
schedule, no Participant’s vested accrued benefit
immediately prior to such change in status shall be
diminished on account of the change in the vesting
schedule. In addition, the vesting for each
Participant in the Plan at the time of the change in
status shall be determined under whichever schedule
provides the greatest vested benefit at any particular
point in time.
	 
	Participation in Other Plans	 	
     SECTION 11.5 A non-key employee who participates in
both this Plan and another top-heavy plan maintained
by the Employer shall not be entitled to receive
minimum benefits and/or minimum contributions under
all such plans. If the other plan is a defined
contribution plan, the minimum contribution required
shall be satisfied if the total contributions to both
plans satisfy the minimum contribution requirement.
If the other plan is a defined benefit plan, the
minimum shall be satisfied in the defined benefit plan
by accruing a minimum benefit of 2 percent of
compensation for each Year of Eligibility Service up
to a maximum of ten Years of Eligibility Service.



 






 



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ARTICLE XII

Miscellaneous




	 	 	 
	Nonguarantee
of Employment	 	
     SECTION 12.1 Nothing contained in this Plan shall be
construed as a contract of employment between a
Participating Employer and any Employee, or as a right
of any Employee to be continued in the employment of a
Participating Employer, or as a limitation on the right
of a Participating Employer to discharge any of its
Employees, with or without cause.
	 
	Right to Trust
Assets	 	
     SECTION 12.2 No Participant, Former Participant or
Beneficiary shall have any right to, or interest in, any
assets of the Trust Fund upon termination of employment
or otherwise, except as provided from time to time under
this Plan, and then only to the extent of the benefits
payable under the Plan to such Participant, Former
Participant or Beneficiary out of the assets of the
Trust Fund. All payments of benefits provided for in
this Plan shall be made solely out of the assets of the
Trust Fund.
	 
	Nonalienation
of Benefits	 	
     SECTION 12.3 Benefits payable under this Plan shall not
be subject in any manner to anticipation, alienation,
sale, transfer, assignment, pledge, encumbrance, charge,
garnishment, execution, or levy of any kind, either
voluntary or involuntary, including any such liability
which arises from the Participant’s bankruptcy, prior to
actually being received by the person entitled to the
benefit under the terms of the Plan; and any attempt to
anticipate, alienate, sell, transfer, assign, pledge,
encumber, charge or otherwise dispose of any right to
benefits payable hereunder, shall be void. The Trust
Fund shall not in any manner be liable for, or subject
to, the debts, contracts, liabilities, engagements or
torts of any person entitled to benefits hereunder.
Nothing in this Section shall preclude payment of Plan
benefits pursuant to a qualified domestic relations
order as defined in Code section 414(p).
	 
	Discontinuance
of Employer
Contributions	 	
     SECTION 12.4 In the event of the permanent
discontinuance of contributions to the Plan by the
Participating Employers, the accounts of all
Participants shall, as of the date of such
discontinuance, become fully vested and nonforfeitable.
	 
	Governing Law	 	
     SECTION 12.5 To the extent not preempted by federal
law, this Plan shall be interpreted and enforced in
accordance with the laws of the State of New York.



 






 



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PART II: TRUST AGREEMENT




ARTICLE I

General Duties Of The Parties




	 	 	 
	General Duties Of Employer	 	
     SECTION l.l The Employer shall provide the
Trustee with certified copies of all Plan amendments promptly upon their
adoption and shall certify to the Trustee the names and
specimen signatures of the members of the Pension and Profit
Sharing Plan Committee (the “Committee”) then acting who
have authority to control and manage the operation and
administration of the Plan. The Employer shall make its
contributions as the same may be appropriated by due
corporate action, which contributions may be in cash,
Participating Employer stock or in other property acceptable
to the Trustee. The Employer shall keep accurate books and
records with respect to its employees and their
compensation.
	 
	Funding Policy	 	
     SECTION l.2 From time to time the Committee
shall communicate in writing to the Trustee and to any
Investment Manager who may be acting pursuant to Section 2.2
the current funding policy and method that have been
established to carry out the objectives of the Plan.
	 
	General Duties
Of
Trustee	 	
     SECTION l.3 The Trustee shall hold all of Trustee property
received by of Trustee it hereunder, which, together with the income
and gains therefrom and additions thereto, shall constitute
the Trust Fund. Except as otherwise hereinafter provided,
the Trustee shall manage, invest and reinvest the Trust
Fund, collect the income thereof, and make payments
therefrom, all as hereinafter provided. The Trustee shall
be responsible only for the property actually received by it
hereunder. It shall have no duty or authority to compute
any amount to be paid to it by the Employer or to bring any
action or proceeding to enforce the collection from the
Employer of any contribution to the Trust Fund.



 






 



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ARTICLE II



Investment, Administration And

Disbursement Of Trust Fund




	 	 	 
	Investment of Trust Fund	 	
     SECTION 2.l The Trust Fund may be invested,
in accordance with the procedures prescribed by
Section 2.2, in any property, real, personal or
mixed, wherever situated, and whether or not
productive of income or consisting of wasting
assets, including, without limitation, common and
preferred stocks, bonds, notes, debentures and
financial futures and options (including
convertible stocks and securities and stock or
securities of the Employer or an Affiliated
Company), leaseholds, mortgages (including,
without limitation, any collective or part
interest in any bond and mortgage or note and
mortgage), certificates of deposit, demand or time
deposits (including any such deposit with any bank
serving as trustee hereunder), shares of
investment companies and mutual funds, interests
in partnerships and trusts, insurance policies and
contracts, and oil, mineral or gas properties,
royalties, interests or rights (including
equipment pertaining thereto), without being
limited to the classes of property in which
trustees are authorized to invest trust funds by
any law, or any rule of court, or of any state and
without regard to the proportion any such property
may bear to the entire amount of the Trust Fund,
provided, however, that investments shall be so
diversified as to minimize the risk of large
losses unless under the circumstances it is
clearly prudent not to do so, in the sole judgment
of the person who is directing the investment of
the Trust under the provisions of Section 2.2, or
in the sole judgment of the Trustee if it is
managing the Trust Fund under such provisions. Any
property at any time received by the Trustee may
be retained in the Trust Fund. To the extent the
Trustee is managing the Trust Fund under such
provisions, the Trustee may invest and reinvest
all or any portion of the Trust Fund collectively
with funds of other pension and profit-sharing
trusts exempt from tax under Section 501(a) of the
Internal Revenue Code of 1986 by reason of
qualifying under Section 401(a) of said Code (as
such Sections may be renumbered, amended or
reenacted) either in short term obligations
selected by the Trustee or by investment
collectively with such other funds through the
medium of one or more of any other common,
collective or commingled trust fund which has been
or may hereafter be established and maintained by
it. To the extent of investment in such a pooled
fund or group trust, the terms of the instrument
or instruments establishing such trust fund or
funds, as amended from time to time, are made part
of this Agreement so long as any portion of the
Trust Fund shall be invested through the medium



 






 


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thereof. With respect to any portion of the Trust
Fund which is under the management of an
Investment Manager as provided in Section 2.2,
such Investment Manager may by written
authorization delegate to the Trustee authority to
invest any specified portion thereof, in the
Trustee’s sole discretion, in short term
obligations, either separately or by investment
collectively with such other funds, including
without limitation collective investment in short
term obligations through the medium of one or more
such common, collective or commingled trust funds.
Any such collective investment shall be managed by
the Trustee in its sole discretion.
	 
	 	 	
     When so directed in accordance with the provisions
of Section 2.2, or in the discretion of the
Trustee if it is managing the Trust Fund under
such provisions, the Trustee shall have power —
	 
	 	 	
          (a)   To sell or exchange any property at public or
private sale for cash or on credit and to grant
options for the purchase or exchange thereof;
	 
	 	 	
          (b)   To participate in any plan of reorganization,
consolidation, merger, combination, liquidation or
other similar plan relating to any property held
in the Trust Fund, and to consent to or oppose any
such plan or any action thereunder, or any
contract, lease, mortgage, purchase, sale or other
action by any person or corporation;
	 
	 	 	
          (c)   To exercise conversion and subscription rights
pertaining to any property held in the Trust Fund;
	 
	 	 	
          (d)   To extend the time of payment of any
obligation held in the Trust Fund;
	 
	 	 	
          (e)   To enter into stand-by agreements for future
investment, either with or without a stand-by fee;
	 
	 	 	
          (f)   To hold uninvested, without liability for
interest thereon, any moneys received by the
Trustee until the same shall be reinvested or
disbursed; and
	 
	 	 	
          (g)   For the purpose of the Trust, to borrow money
from others, to issue its promissory note or notes
therefor, and to secure the repayment thereof by
pledging any property in its possession;
provided, however, that no such loan or
advance shall be made by the Trustee hereunder
other than temporary advances to the Trust Fund,
on a cash or overdraft basis, on which no interest
is payable.
	 
	Direction of Investment	 	
     SECTION 2.2 The Committee shall from time to
time specify by written notice to the Trustee
whether the investment of the Trust Fund, in the
manner provided in Section 2.l, shall be managed
by the Trustee, the Plan participants or shall be
directed



 






 


-44-



	 	 	 
	 	 	
by one or more investment managers (“Investment
Managers”) appointed by the Board, or whether the
Trustee, the participants and one or more
Investment Managers are to participate in
investment management and if so, how the
investment responsibility is to be divided with
respect to assets, classes of assets or separate
investment funds specified and defined in such
notice. Any such Investment Manager shall either
(i) be registered as an investment adviser under
the Investment Advisers Act of 1940, (ii) be a
bank, as defined in that Act or (iii) be an
insurance company qualified to perform investment
management services under the laws of more than
one state. If investment of the Trust Fund is to
be directed in whole or in part by an Investment
Manager, the Trustee shall be given copies of the
instruments appointing the Investment Manager and
evidencing his acceptance of such appointment and
acknowledgement that he is a fiduciary of the
Plan, and a certificate evidencing the Investment
Manager’s registration under said Act. The Trustee
may continue to rely upon such instruments and
certificate until otherwise notified in writing by
the Committee.
	 
	 	 	
     The Trustee shall follow the directions of the
Investment Manager or the participants, as the
case may be, regarding the investment and
reinvestment of the Trust Fund, or such portion
thereof as shall be under management by the
Investment Manager or the participants, and shall
be under no duty or obligation to review any
investment to be acquired, held or disposed of
pursuant to such directions nor to make any
recommendations with respect to the disposition or
continued retention of any such investment. The
Trustee shall have no liability or responsibility
for acting without question on the direction of,
or failing to act in the absence of any direction
from, the Investment Manager or the participants,
unless the Trustee knows that by such action or
failure to act it will be participating in a
breach of fiduciary duty by the Investment
Manager.
	 
	 	 	
     The Investment Manager at any time and from time
to time may issue orders for the purchase or sale
of securities directly to a broker, and in order
to facilitate such transaction the Trustee upon
request shall execute and deliver appropriate
trading authorizations. Written notification of
the issuance of each such order shall be given
promptly to the Trustee by the Investment Manager,
and the execution of each such order shall be
confirmed to the Trustee by the broker. Such
notification shall be authority for the Trustee to
pay for securities purchased against receipt
thereof and to deliver securities sold against
payment therefor, as the case may be.



 






 


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     In the event that an Investment Manager should
resign or be removed by the Employer, the Trustee
shall manage the investment of the Trust Fund
pursuant to Section 2.l unless and until it shall
be notified of the appointment of another
Investment Manager as provided in Section 2.2.
	 
	Voting of Securities	 	
     SECTION 2.3 The Trustee shall have power in its
discretion to exercise all voting rights with
respect to any investment held in the Trust Fund
and to grant proxies, discretionary or otherwise,
with respect thereto, except that, at any time
when an Investment Manager shall be acting as
provided in Section 2.2, the Trustee shall not
exercise its discretion with respect to voting any
securities under management of such Investment
Manager but shall send such Investment Manager all
proxies and proxy materials relating to such
securities, signed by the Trustee without
indication of voting preference, and the
Investment Manager shall exercise all voting
rights with respect thereto. In addition, the
Trustee shall vote ESOP Stock only in accordance
with the directions of participants as provided in
Section 6.8 of the Plan.
	 
	Administrative Powers of Trustee	 	
     SECTION 2.4 The Trustee shall have power in its discretion —
	 
	 	 	
     (a)   To cause any investment to be registered
and held in the name of one or more of its
nominees, or one or more nominees of any system
for the central handling of securities, without
increase or decrease of liability;
	 
	 	 	
     (b)   To collect and receive any and all money
and other property due to the Trust Fund and to
give full discharge therefor;
	 
	 	 	
     (c)   To settle, compromise or submit to
arbitration any claims, debts or damages due or
owing to or from the Trust; to commence or defend
suits or legal proceedings to protect any interest
of the Trust; and to represent the Trust in all
suits or legal proceedings in any court or before
any other body or tribunal;
	 
	 	 	
     (d)   To organize under the laws of any state a
corporation for the purpose of acquiring and
holding title to any property which it is
authorized to acquire under this Agreement and to
exercise with respect thereto any or all of the
powers set forth in this Agreement;
	 
	 	 	
     (e)   To manage, operate, repair, improve,
develop, preserve, mortgage or lease for any
period any real property or any oil, mineral or
gas properties, royalties, interests or rights
held by it directly or through any corporation,
either alone or by joining with others, using
other Trust assets for any of such



 






 


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purposes; to modify, extend, renew, waive or
otherwise adjust any or all of the provisions of
any such mortgage or lease; and to make provision
for amortization of the investment in or
depreciation of the value of such property; and
	 
	 	 	
     (f)   Generally to do all acts, whether or not
expressly authorized, which the Trustee may deem
necessary or desirable for the protection of the
Trust Fund.
	 
	Trustee’s Authority	 	
     SECTION 2.5 Persons dealing with the Trustee shall
be under no obligation to see to the proper
application of any money paid or property
delivered to the Trustee or to inquire into the
Trustee’s authority as to any transaction.
	 
	Payments and
Distributions from
to Trust Fund	 	
     SECTION 2.6 The Trustee shall make such payments
and distributions from the Trust Fund at such time or times and
such person or persons, including a paying agent or agents
designated by the Committee or the Committee as
paying agent, as the Committee shall direct in
writing. Any cash or property so paid or delivered
to any paying agent shall be held in trust by such
payee until disbursed in accordance with the Plan.
Upon written direction by the Committee, the
Trustee shall transfer and deliver such part of
the Trust Fund as may be specified in such
direction to any other trust established for the
purpose of funding benefits under the Plan or
under any other plan, qualifying under Section 401
of the Internal Revenue Code of 1986, established
for the benefit of participants in the Plan or
their beneficiaries by the Employer or any
successor or transferee thereof; provided such
transfer shall be in conformity with the
requirements of Federal law. Neither during the
existence nor upon the discontinuance of the Plan
shall any part of the Trust Fund be used for or
diverted to purposes other than for the exclusive
benefit of the employees of the Employer or their
beneficiaries, except as provided in Section 7.2.
Any written direction of the Committee shall
constitute a certification that the distribution
or payment so directed is one which the Committee
is authorized to direct.
	 
	 	 	
     The Trustee may make any distribution or
payment required to be made by it hereunder by
mailing its check for the specified amount, or
delivering the specified property, to the person
to whom such distribution or payment is to be
made, at such address as may have been last
furnished to the Trustee, or if no such address
shall have been so furnished, to such person in
care of the Employer or the Committee, or (if so
directed by the Committee) by crediting the
account of such person or by transferring funds to
such person’s account by bank wire or transfer.



 






 



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ARTICLE III

For Protection Of Trustee




	 	 	 
	Composition Of Committee	 	
     SECTION 3.l Until notified pursuant to Section l.l hereof
that any Committee member has ceased to act, the Trustee may
continue to rely on the authority of such member.
If at any time the full number of Committee
members provided for in the Plan has not been
designated by the Employer, the member or members
acting at such time shall be deemed to be the
Committee, or if at any time there is no member of
the Committee, the Board of Directors of the
Employer shall be deemed to be the Committee.
	 
	Evidence of Action
Trustee by Employer or
Committee	 	
     SECTION 3.2 The Committee shall certify to the
the name or names of any person or persons authorized to act for
the Committee. Until the Committee notifies the Trustee that any
such person is no longer authorized to act for the
Committee, the Trustee may continue to rely on the
authority of such person.
	 
	 	 	
     The Trustee may rely upon any certificate,
notice or direction purporting to have been signed
on behalf of the Committee which the Trustee
believes to have been signed by the Committee or
the person or persons authorized to act for the
Committee. The Trustee may rely upon any
certificate, notice or direction of the Employer
which the Trustee believes to have been signed by
a duly authorized officer or agent of the
Employer.
	 
	 	 	
     Communications to the Trustee shall be sent
to the Trustee’s office or to such other address
as the Trustee may specify. No communication shall
be binding upon the Trust Fund or the Trustee
until it is received by the Trustee.
	 
	 	 	
     Communications to the Committee or to the
Employer shall be sent to the Employer’s principal
office or to such other address as the Employer
may specify.
	 
	Advice of Counsel
or Committee	 	
     SECTION 3.3 The Trustee may consult with any legal
counsel, including counsel to the Employer or the Committee,
with respect to the construction of this
Agreement, its duties hereunder, or any act which
it proposes to take or omit.
	 
	Miscellaneous	 	
     SECTION 3.4 The Trustee shall discharge its duties
hereunder with the care, skill, prudence and
diligence under the circumstances then prevailing
that a prudent man acting in a like capacity and
familiar with such matters would use in the
conduct of an enterprise of a like character and
with like aims. The Trustee shall not be liable
for any loss sustained by the Trust Fund by reason
of the purchase, retention, sale or exchange of



 






 


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any investment in good faith and in accordance
with the provisions of this Agreement and of any
applicable Federal law.
	 
	 	 	
     The Trustee’s duties and obligations shall be
limited to those expressly imposed upon it by this
Agreement, notwithstanding any reference to the
Plan.
	 
	 	 	
     The Employer, the Committee or both at any
time may employ as agent (to perform any act, keep
any records or accounts, or make any computations
required of the Employer or the Committee by this
Agreement or the Plan) the corporation serving as
Trustee hereunder. Nothing done by said
corporation as such agent shall affect its
responsibility or liability as Trustee hereunder.



 






 



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ARTICLE IV

Taxes, Expenses And Compensation Of Trustee




	 	 	 
	Taxes	 	
     SECTION 4.l The Trustee shall deduct from and charge against the
Trust Fund any taxes on the Trust Fund or the income thereof or which the
Trustee is required to pay with respect to the interest of any person therein.
	 
	Expenses and
Compensation	 	
     SECTION 4.2 The Trustee shall provide its services
without compensation for its services as Trustee provided that its
reasonable expenses may be paid from the Trust Fund to the extent not paid
by the Employer.



 






 



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ARTICLE V

Settlement Of Accounts/Enforcement Of Trust/

Legal Proceedings




	 	 	 
	Settlement of Accounts
of Trustee and Committee	 	
     SECTION 5.l The Trustee shall keep full accounts of all
of its receipts and disbursements. Its financial
statements, books and records with respect to the Trust Fund shall be open
to inspection by the Employer or the Committee or their representatives at
all reasonable times during business hours of the Trustee and may be
audited not more frequently than once in each fiscal year by an
independent certified public accountant engaged by the Committee.
	 
	 	 	
     Within 90 days after the close of each year,
or any termination of the duties of the Trustee,
the Trustee shall prepare, sign and mail to the
Employer an account of its acts and transactions
as Trustee hereunder. If the Employer finds the
account to be correct, the Employer shall so
inform the Trustee in writing, whereupon the
account shall become an account stated as between
the Trustee and the Employer. If within 90 days
after receipt of the account or any amended
account the Employer has not indicated its
acceptance in writing to the Trustee, nor filed
with the Trustee notice of any objection to any
act or transaction of the Trustee, the account or
amended account shall become an account stated as
between the Trustee and the Employer. If any
objection has been filed, and if the Employer is
satisfied that it should be withdrawn or if the
account is adjusted to its satisfaction, the
Employer shall in writing filed with the Trustee
signify its approval of the account and it shall
become an account stated as between the Trustee
and the Employer.
	 
	 	 	
     When an account becomes an account stated,
such account shall be finally settled, and the
Trustee shall be completely discharged and
released, as if such account had been settled and
allowed by a judgment or decree of a court of
competent jurisdiction in an action or proceeding
in which the Trustee and the Employer were
parties.
	 
	 	 	
     The Trustee, the Committee or the Employer
shall have the right to apply at any time to a
court of competent jurisdiction for judicial
settlement of any account of the Trustee not
previously settled as hereinabove provided. In any
such action or proceeding it shall be necessary to
join as parties only the Trustee, the Committee
and the Employer (although the Trustee may also
join such other parties as it may deem
appropriate), and any judgment or decree entered
therein shall be conclusive.



 






 


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     Insofar as any account reflects anything done
or omitted by the Committee, such account may be
adopted by the Committee by being signed by two of
its members. The Committee may also render
supplementary or separate accounts of its
proceedings to the Employer. All provisions of
this Section respecting settlement of the accounts
of the Trustee shall prevail with respect to
accounts of the Committee with the same force and
effect as if the Committee were named wherever the
Trustee is named in this Section.
	 
	Determination of
Interests under Plan
or in Trust Fund/Enforcement
of Trust/Legal
Proceedings	 	
     SECTION 5.2 The Committee shall have authority to
determine the interests of all persons in the Trust Fund or under
the Plan, and the Trustee shall have no duty to question any
direction given by the Committee to the Trustee. The Employer
and the Committee shall have authority, either jointly or
severally, to enforce this Agreement on behalf of
all persons claiming any interest in the Trust
Fund or under the Plan.



 






 



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ARTICLE VI

Resignation And Removal Of Trustee




	 	 	 
	Resignation of Trustee	 	
     SECTION 6.l The Trustee may resign at any time
by filing with the Employer its written
resignation. Such resignation shall take effect 60
days from the date of such filing or upon
appointment of a successor pursuant to Section
6.3, whichever shall first occur.
	 
	Removal of Trustee	 	
     SECTION 6.2 The board of directors of the Employer
may remove the Trustee at any time by delivering
to the Trustee a written notice of its removal and
an appointment of a successor pursuant to Section
6.3. Such removal shall not take effect prior to
60 days from such delivery unless the Trustee
agrees to an earlier effective date.
	 
	Appointment of
Successor Trustee	 	
     SECTION 6.3 The appointment of a successor to the
Trustee shall take effect upon delivery to the Trustee of (a)
an instrument in writing appointing such
successor, executed by the Employer, and (b) an
acceptance in writing, executed by such successor,
both acknowledged in the same form as this
Agreement. The Employer shall send notice of such
appointment to each member of the Committee.
	 
	 	 	
     All of the provisions set forth herein with
respect to the Trustee shall relate to each
successor with the same force and effect as if
such successor had been originally named as
Trustee hereunder.
	 
	 	 	
     If a successor is not appointed within 60
days after the Trustee gives notice of its
resignation pursuant to Section 6.l, the Trustee
or the Committee may apply to any court of
competent jurisdiction for appointment of a
successor.
	 
	Transfer of Fund
to Successor	 	
     SECTION 6.4 Upon the resignation or removal of the
Trustee and appointment of a successor, and after the final
account of the Trustee has been settled as
provided in Article V, the Trustee shall transfer
and deliver the Trust Fund to such successor.



 






 



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ARTICLE VII

Duration And Termination Of Trust—Amendment




	 	 	 
	Duration and
Termination	 	
     SECTION 7.l This Trust shall continue for such time as
may be necessary to accomplish the purpose for which it was created
but may be terminated at any time by the Employer
by action of its board of directors. Notice of
such termination shall be given to the Trustee by
an instrument in writing executed by the Employer
and acknowledged in the same form as this
Agreement, together with a certified copy of the
resolution of the board of directors of the
Employer authorizing such termination. The
Employer shall send a copy of such notice to each
member of the Committee.
	 
	Distribution upon Termination	 	
     SECTION 7.2 If this Trust is terminated, the Trustee
upon the written direction of the Committee shall liquidate the
Trust Fund to the extent required for distribution
and, after its final account has been settled as
provided in Article V, shall distribute the net
balance thereof to such person or persons, at such
time or times and in such proportions and manner
as may be directed by the Committee, or in the
absence of such direction, as may be directed by a
judgment or decree of a court of competent
jurisdiction. Upon making such distributions, the
Trustee shall be relieved from all further
liability. The powers of the Trustee hereunder
shall continue so long as any assets of the Trust
Fund remain in its hands.
	 
	Amendment	 	
     SECTION 7.3 By an instrument in writing delivered to the
Trustee executed pursuant to the order of the
Employer’s board of directors and acknowledged in
the same form as this Agreement, the Employer
shall have the right at any time and from time to
time to amend this Agreement in whole or in part
except that the duties and responsibilities of the
Trustee shall not be increased without the
Trustee’s written consent; provided,
however, that no such amendment shall
divert any part of the Trust Fund to purposes
other than the exclusive benefit of the employees
of the Employer or their beneficiaries. The
Employer shall send a copy of any such amendment
to each member of the Committee. Any such
amendment shall become effective upon (a) delivery
to the Trustee of the written instrument of
amendment, together with a certified copy of the
resolution of the board of directors authorizing
such amendment, and (b) endorsement by the Trustee
on such instrument of its receipt thereof,
together with its consent thereto, if such consent
is required.



 






 



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ARTICLE VIII

Miscellaneous




	 	 	 
	Governing Law	 	
     SECTION 8.l This Agreement and the Trust hereby created
shall be construed and regulated by the laws of the State of New York,
except as such laws are superseded by the Employee Retirement Income
Security Act of 1974.
	 
	Reorganization
of Trustee	 	
     SECTION 8.2 Any corporation into which the Trustee
may be merged or with which it may be consolidated, or any
corporation resulting from any merger, reorganization or consolidation to
which the Trustee may be a party, or any corporation to which all or
substantially all the pension trust business of the Trustee may be
transferred, shall be the successor of the Trustee hereunder, without the
execution of any instrument or the performance of any further act.




     IN WITNESS WHEREOF, the Employer has adopted the Plan and Trust and has
caused its duly authorized officer to execute this Plan document and Trust
Agreement on its behalf this 10th day of May, 2002.



	 	CHEMUNG CANAL TRUST COMPANY




	 	By:   Jan P. Updegraff






	 	Title:   President
and Chief Executive Officer





     The Trustee agrees to serve as Trustee in accordance with the provisions
of Part II of this document and has caused its duly authorized officer to
execute this document on its behalf this 10th day of May, 2002.



	 	CHEMUNG CANAL TRUST COMPANY




	 	By:   Jerome F.
Denton






	 	Title:   Executive
Vice President - Trustee





 






 



Appendix A



INVESTMENT FUNDS



ü Chemung Canal Trust Company (“CCTC”) Short-Term Bond Fund


ü CCTC Core Bond Fund


ü CCTC Growth & Income Fund


ü CCTC Core Growth Fund


ü CCTC Common Stock Fund