**Exhibit10.33**

 

**BERTUCCI’SCORPORATION SAVINGSAND INVESTMENT PLAN**

 

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Table of Contents 

 

**ARTICLE ONE—DEFINITIONS**

 

1.1 Account 1.2 Administrator 1.3 Beneficiary 1.4 Break in Service 1.5**Code 1.6 Compensation 1.7 Effective Date 1.8 Employee 1.9 Employer 1.10 Employment Date 1.11 Highly Compensated Employee 1.12 Hour of Service 1.13 Leased Employee 1.14 Non-highly Compensated Employee 1.15**Normal Retirement Date 1.16 Participant 1.17 Plan 1.18 Plan Year 1.19 Trust 1.20 Trustee 1.21 Valuation Date 1.22 Year of Service

 

**ARTICLE TWO—SERVICE DEFINITIONS AND RULES**

 

2.1 Year of Service 2.2 Break in Service 2.3 Leave of Absence 2.4 Rule of Parity on Return to Employment *2.5*Service in Excluded JobClassifications, with Related Companies or as a Leased Employee 2.6 Special Rules Relating to Veterans Reemployment Rights

 

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**ARTICLE THREE—PLAN PARTICIPATION**

 

3.1 Participation 3.2 Reemployment of Former Participant 3.3 Termination of Eligibility 3.4 Election Not to Participate

 

**ARTICLE FOUR—ELECTIVE DEFERRALS,CONTRIBUTIONS, ROLLOVERS AND TRANSFERS FROM OTHER PLANS**

 

4. 1 Elective Deferrals 4.2 Employer Contributions 4.3 Rollovers and Transfers from Other Plans 4.4 Employer Contributions Are Discretionary 4.5 Timing of Contributions

 

**ARTICLE FIVE—ACCOUNTING RULES**

 

5.1 Investment of Accounts and Accounting Rules *5.2*Participants Omitted in Error

 

**ARTICLE SIX—VESTING, RETIREMENT ANDDISABILITY BENEFITS**

 

6.1 Vesting 6.2 Forfeiture of Nonvested Balance 6.3 Return to Employment Before Distribution of Vested Account Balance 6.4 Normal Retirement *6.5*Permanent and TotalDisability

 

**ARTICLE SEVEN—MANNER AND TIME OF DISTRIBUTINGBENEFITS**

 

7.1 Manner of Payment 7.2 Time of Commencement of Benefit Payments 7.3 Furnishing Information 7.4 Minimum Distribution Rules for Installment Payments 7.5 Joint and Survivor Annuity 7.6 Death Benefit

 

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7.7 Designation of Beneficiary 7.8 Time and Mode of Distributing Death Benefits 7.9 Qualified Pre-Retirement Survivor Annuity 7.10 In-Service Withdrawals 7.11 Involuntary Cash-Outs 7.12 Direct Rollover of Eligible Rollover Distributions

 

**ARTICLE EIGHT—ADMINISTRATION OF THE PLAN**

 

8.1 Plan Administration 8.2 Claims Procedure 8.3 Trust Agreement and Designation of Trustee

 

**ARTICLE NINE—SPECIAL COMPLIANCE PROVISIONS**

 

9.1 Distribution of Excess Elective Deferrals 9.2 Limitations on 40 1(k) Contributions 9.3 Nondiscrimination Test for Employer Matching Contributions 9.4 Limitation on the Multiple Use Alternative

 

**ARTICLE TEN—LIMITATIONS ON ANNUAL ADDITIONS TOA PARTICIPANT’S ACCOUNT**

 

10.1 Rules and Definitions

 

**ARTICLE ELEVEN—AMENDMENT AND TERMINATION**

 

11.1 Amendment 11.2 Termination of the Plan

 

**ARTICLE TWELVE—TOP-HEAVY PROVISIONS**

 

12.1 Applicability 12.2 Definitions 12.3 Allocation of Employer Contributions for a Top-Heavy Plan Year 12.4 Vesting

 

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**ARTICLE THIRTEEN—LOANS AND HARDSHIPDISTRIBUTIONS**

 

13.1 Loans 13.2 Hardship Distributions

 

**ARTICLE FOURTEEN—MISCELLANEOUS PROVISIONS**

 

14.1 Plan Does Not Affect Employment 14.2 Successor to the Employer 14.3 Repayments to the Employer 14.4 Benefits not Assignable 14.5 Merger of Plans 14.6 Investment Experience not a Forfeiture 14.7 Distribution to Legally Incapacitated Person 14.8 Construction 14.9 Governing Documents 14.10 Governing Law 14.11 Headings 14.12 Counterparts 14.13 Location of Participant or Beneficiary Unknown

 

**ARTICLE FIFTEEN—MULTIPLE EMPLOYER PROVISIONS**

 

15.1 Adoption of the Plan 15.2 Service 15.3 Plan Contributions 15.4 Determining Compensation 15.5 Transferring Employees 15.6 Delegation of Authority 15.7 Termination

 

**SIGNATURE PAGE**

 

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**BERTUCCI’SCORPORATION SAVINGS AND INVESTMENT PLAN**

 

WHEREAS, Bertucci’s Corporation (hereinafter referred to as the “Emp1oyer)adopted the Bertucci’s Corporation Savings and Investment Plan (hereinafterreferred to as the ‘Plan”) for the benefit of its Employees, effective as ofSeptember 1, 1992; and

 

WHEREAS, Article XVI of said Plan provides that the Employer may amendthe Plan; and

 

WHEREAS, the Employer wishes to amend the Plan; and

 

WHEREAS, it is intended that the Plan is to be a qualified plan underSection 40 1(a) of the Internal Revenue Code and is to be for the exclusivebenefit of the Participants and their Beneficiaries;

 

NOW, THEREFORE, the Plan is hereby amended by restating the Plan in itsentirety as follows:

 

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**ARTICLE ONE—DEFINITIONS**

 

For purposes of the Plan, unless the context or an alternativedefinition specified within another Article provides otherwise, the followingwords and phrases shall have the definitions provided:

 

1.1**“ACCOUNT”** shall mean the individualbookkeeping accounts maintained for a Participant under the Plan which shallrecord (a) the Participant’s allocations of Employer contributions, (b) amountsof Compensation deferred to the Plan pursuant to the Participant’s election,(c) any amounts transferred to this Plan under Article Four from anotherqualified retirement plan, and (d) the allocation of Trust investmentexperience.

 

1.2**“ADMINISTRATOR”** shall mean the PlanAdministrator appointed from time to time in accordance with the provisions ofArticle Eight hereof.

 

1.3**“BENEFICIARY”** shall mean any person,trust, organization, or estate entitled to receive payment under the terms ofthe Plan upon the death of a Participant.

 

1.4**“BREAK IN****SERVICE”**isdefined in Article Two.

 

1.5**“CODE”** shall mean the Internal Revenue Codeof 1986, as amended from time to time.

 

1.6**“COMPENSATION”**shall mean the compensationpaid to a Participant by the Employer for the Plan Year which is reportable onForm W-2, but exclusive of commissions, compensation paid prior to theParticipant’s entry into the Plan, and exclusive of any program of deferredcompensation or additional benefits payable other than in cash. Compensationshall include elective contributions that are made by the Employer on behalf ofa Participant that are not includible in gross income under Code Sections 125,402(e)(3), 402(h)(1)(B), 403(b), and, for Plan Years beginning on or afterJanuary 1, 2001, 132(f)(4).

 

For purposes of determining who is a Highly Compensated Employee,Compensation shall mean compensation as defined in Code Section 414(q) (4).

 

In addition to other applicable limitations set forth in the Plan, andnotwithstanding any other provisions of the Plan to the contrary, the annualcompensation of each Employee taken into account under the Plan shall notexceed the OBRA ‘93 annual compensation limit. The OBRA ‘93 annual compensationlimit is $150,000, as adjusted by the Commissioner for increases in thecost-of-living in accordance with Section 401(a)(17)(B) of the Code. Thecost-of-living adjustment in effect for a calendar year applies to any period,not exceeding 12 months, over which compensation is determined (determinationperiod) beginning in such calendar year. If a determination period consists offewer than 12 months, the OBRA ‘93 annual compensation limit will be multipliedby a fraction, the numerator of which is the number of months in thedetermination period, and the denominator of which is 12.

 

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Any reference in this Plan to the limitation under Section 401(a)(17)of the Code shall mean the OBRA ‘93 annualcompensation limit set forth in this provision.

 

If compensation for any prior determination period is taken intoaccount in determining an Employee’s benefits accruing in the current PlanYear, the compensation for that prior determination period is subject to theOBRA ‘93 annual compensation limit in effect for that prior determinationperiod. For this purpose, the OBRA ‘93 annual compensation limit is $150,000,as adjusted by the Commissioner for increases in the cost-of-living inaccordance with Section 401(a)(17)(B) of the Code.

 

1.7**“EFFECTIVE DATE”** The Plan’s initialEffective Date was September 1, 1992. The Effective Date of this restated Plan,on and after which it supersedes the terms of the existing Plan document, isJanuary 1, 2005, except where the provisions of the Plan shall otherwisespecifically provide. The rights of any Participant who separated from theEmployer’s service prior to this date shall be established under the terms ofthe Plan and Trust as in effect at the time of the Participant’s separationfrom service, unless the Participant subsequently returns to service with theEmployer. Rights of spouses and beneficiaries of such Participants shall alsobe governed by those documents.

 

1.8**“EMPLOYEE”**shall mean a common law employee of the Employer.Employee shall not include any individual who the Employer has classified as anindependent contractor solely on account of his reclassification by theInternal Revenue Service as an employee.

 

1.9**“EMPLOYER”** shall meanthe Employer named as party to the Plan, and shall include any successor(s)thereto which adopt this Plan. If, under state law, the Employer at any time isnot governed by directors but instead by its stockholders, or if the Employeris an unincorporated business and is governed by its owners, reference hereinto the Board of Directors shall be deemed to refer to the individual(s)empowered to vote on the Employer’s affairs.

 

1.10**“EMPLOYMENT DATE”**shall mean the first date as of which anEmployee is credited with an Hour of Service, provided that, in the case of aBreak in Service, the Employment Date shall be the first date thereafter as ofwhich an Employee is credited with an Hour of Service.

 

1.11**“HIGHLY COMPENSATED EMPLOYEE”**shall mean:

 

(a)   AnyEmployee of the Employer who:

 

(1)           was a five percent(5%) owner of the Employer (as defined in Section 416(i)(1) of the Code) duringthe current or the preceding year; or

 

(2)           for the precedingyear had Compensation from the Employer in excess of $80,000 (as adjusted bythe Secretary of the Treasury pursuant to Section 41 5(d) of the Code).

 

(b)   Aformer Employee shall be treated as a Highly Compensated Employee if: (1) suchEmployee was a Highly Compensated Employee when such Employee separated fromservice, or (2) such Employee was a Highly Compensated Employee at any timeafter attaining age 55.

 

(c)   Thedetermination of who is a Highly Compensated Employee, including thedetermination of the number and identity of the Employees in the top-paidgroup, will be made in accordance with

 

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Section 414(q) of the Code, the regulations thereunder and other applicable guidance.

 

(d)   Forpurposes of this Section 1.11, the term “Compensation” means compensation withinthe meaning of Section 415(c)(3) of the Code. The determination will be madewithout regard to Sections 125, 402(e)(3), 402(h)(1)(B), and, for Plan Yearsbeginning on or after January 1,2001, 132(f)(4) of the Code, and in the case ofemployer contributions made pursuant to a salary reduction agreement, withoutregard to Section 403(b) of the Code. For Plan Years beginning after December31, 1997, for purposes of this Section 1.11, the term “Compensation” meanscompensation within the meaning of Section 415(c)(3) of the Code.

 

(e)   Forpurposes of this Section 1.11, an Employee is in the top-paid group ofEmployees for any year if such Employee is in the group consisting of the toptwenty percent (20%) of the Employees when ranked on the basis of Compensationpaid during such year.

 

The provisions of this Section 1.11 are effective for Plan Yearsbeginning after December 3 1, 1996, except that, in determining whether anEmployee is a Highly Compensated Employee in 1997, this provision is treated ashaving been in effect in 1996.

 

1.12**“HOUR OF SERVICE”**shallmean:

 

(a) each hour for which an Employee is paidor entitled to payment for the performance of duties for the Employer. Thesehours shall be credited to the Employee for the computation period in which theduties are performed; and

 

(b) each hour for which an Employee is paid,or entitled to payment, by the Employer on account of a period of time duringwhich no duties are performed (irrespective of whether the employmentrelationship has terminated) due to vacation, holiday, illness, incapacity(including disability), layoff, jury duty, military duty, or leave of absence.No more than 501 Hours of Service shall be credited under this subsection forany single continuous period during which no duties are performed (whether ornot such period occurs in a single computation period). An hour for which anEmployee is directly or indirectly paid, or entitled to payment, on account ofa period during which no duties are performed shall not be credited to the Employeeif such payment is made or due under a plan maintained solely for the purposeof complying with applicable worker’s compensation, or unemploymentcompensation or disability insurance laws. Hours of Service shall not becredited for a payment which solely reimburses an Employee for medical ormedically related expenses by the Employee. Hours under this subsection shallbe calculated and credited pursuant to Section 2530.200b-2(b) and (c) of theDepartment of Labor regulations which is incorporated herein by this reference;and

 

(c) each hour for which back pay,irrespective of mitigation of damages, is either awarded or agreed to by theEmployer. The same Flours of Service shall not be credited both undersubsection (a) or subsection (b), as the case may be, and under this subsection(c). These hours shall be credited to the Employee for the computation periodor periods to which the award or agreement pertains rather than the computationperiod in which the award, agreement, or payment is made.

 

1.13**“LEASED EMPLOYEE”** shall mean any person(other than an Employee of the Employer) who pursuant to an agreement betweenthe Employer and any other person (“leasing organization”) has performedservices for the Employer (or for the Employer and related persons determinedin accordance with Section 414(n)(6) of the Code) on a substantially full-timebasis for a period of at 

 

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least one year, and such services are performed under primary directionor control by the Employer. A person will not be considered a Leased Employeeif the total number of Leased Employees does not exceed 20% of the NonhighlyCompensated Employees employed by the Employer, and if any such person iscovered by a money purchase pension plan providing: (a) a nonintegratedemployer contribution rate of at least 10% of compensation, as defined inSection 415(c)(3) of the Code, but including amounts contributed pursuant to asalary reduction agreement which are excludable from the employee’s grossincome under Section 125, 402(e)(3), 402(h)(1)(B), or 403(b) of the Code; (b)immediate participation; and (c) full and immediate vesting. The provisions ofthis Section 1.13 are effective for Plan Years beginning after December 31,1996.

 

1.14**“NONIIIGHLY COMPENSATED EMPLOYEE”** shallmean an Employee of the Employer who is not a Highly Compensated Employee.

 

1.15**“NORMAL RETIREMENT DATE”** shall mean thedate a Participant reaches age 59’/2.

 

1.16**“PARTICIPANT”** shall mean any Employee whohas satisfied the eligibility requirements of Article Three and who isparticipating in the Plan, including any such Employee who elects not to makeelective deferrals under Section 4.1.

 

1.17**“PLAN”**shall mean this Plan as set forthherein and as it may be amended from time to time.

 

1.18**“PLAN YEAR”** shall mean the 12-consecutive-monthperiod beginning January 1 and ending December 31.

 

1.19**“TRUST”**shall mean the Trust Agreemententered into between the Employer and the Trustee forming part of this Plan,together with any amendments thereto. “Trust Fund” shall mean any and allproperty held by the Trustee pursuant to the Trust Agreement, together withincome therefrom.

 

1.20**“TRUSTEE”** shall mean the Trustee orTrustees appointed by the Employer, and any successors thereto.

 

1.21**“VALUATION DATE”**shall mean each day of thePlan Year.

 

1.22**“YEAR****OF****SERVICE”** or **“SERVICE”** and the special rules with respect to creditingService are in Article Two of the Plan.

 

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**ARTICLE TWO—SERVICE DEFINITIONSAND RULES**

 

Service is the period of employment credited under the Plan.Definitions and special rules related to Service are as follows:

 

2.1**YEAR OF SERVICE.**Forpurposes of determining an Employee’s initial or continued eligibility toparticipate in the Plan (if a Year of Service is ever required for eligibility)and/or his nonforfeitable right to that portion of his Account attributable toEmployer contributions, an Employee shall receive credit for each of the twelve(12)-month computation periods commencing on his Employment Date (orreemployment date) and anniversaries of that date and ending on the date aBreak in Service begins.

 

2.2**BREAK IN SERVICE.**A Break in Service or period of severanceshall be a continuous period (as used for measuring Years of Service forvesting) in which an Employee is not employed by the Employer. Such periodshall begin on the date the Employee retires, quits, or is discharged or diesor, if earlier, the (12)-month anniversary of the date on which the Employeeotherwise ceased employment with the Employer.

 

2.3**LEAVE****OF****ABSENCE**. A Participant on an unpaid leaveof absence pursuant to the Employer’s normal personnel policies shall becredited with an Hour of Service for each twelve (12)-consecutive- month periodwhile on such leave, provided the Employer acknowledges in writing that theleave is with its approval. These hours will be credited only for purposes ofdetermining if a Break in Service has occurred and, unless specified otherwiseby the Employer in writing, shall not be credited for eligibility toparticipate in the Plan, vesting, or qualification to receive an allocation ofEmployer contributions. However, if the Participant fails to return to Serviceprior to the expiration of such authorized leave, a Break in Service will bedeemed to have commenced on the date such authorized leave commenced.

 

For any individual who is absent from work for any period by reason ofthe individual’s pregnancy, birth of the individual’s child, placement of achild with the individual in connection with the individual’s adoption of thechild, or by reason of the individual’s caring for the child for a periodbeginning immediately following such birth or placement, the twelve(12)-consecutive month period beginning on the first anniversary of the firstdate of such absence shall not constitute a Break in Service.

 

2.4**RULE OF PARITY ON RETURN TO EMPLOYMENT.**An Employee whoreturns to employment after a Break in Service shall retain credit for hispre-Break Years of Service, subject to the following rules:

 

(a) If a Participant incurs five (5)**ormore consecutive Breaks in Service, any Years of Service performed thereaftershall not be used to increase the vesting in his Account accrued prior to suchfive (5) or more consecutive Breaks in Service. Separate accounting shall bemaintained thereafter with respect to that portion of such Participant’sAccount accrued before and after such Breaks in Service occurred.

 

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(b) If when a Participant incurred a Break inService, he had not completed sufficient Years of Service to be vested in hisAccount, his pre-Break Years of Service shall be disregarded for vestingpurposes if his consecutive Breaks in Service equal or exceed the greater offive (5)**or the aggregate number of pre-Break Years ofService.

 

2.5**SERVICE IN EXCLUDED JOB CLASSIFICATIONS, WITH RELATED COMPANIES, OR ASA LEASED EMPLOYEE.**

 

*(a) Preamble. *An Employee isnot eligible to receive an allocation of Employer contributions or toparticipate under the Plan if his job classification is specifically excludedunder Section 3.1. However, Employees in an ineligible job classification areentitled, together with Leased Employees and Employees of certain relatedbusinesses, to credit for their Service in the event that such Employees becomeemployed in an eligible job classification.

 

(b) *Definitions.*

 

(1) *EligibleClassification:*An Employee will be considered in an eligibleclass of Employees for such period when his Employer has adopted the Plan andsuch Employee is not in an ineligible class of Employees.

 

(2) *IneligibleClassification:*An Employee will be considered in an ineligibleclass of Employees for any period when:

 

(A) the Employee is a Leased Employee;

 

(B) the Employee is employed in a jobclassification which is excluded under Section 3.1; or

 

(C) the Employee is an employee of anemployer who is a member of a controlled group of businesses or an affiliatedservice group (as defined in Section 414 of the Code), which employer has notadopted this Plan.

 

(c) *ServiceRules for Ineligible Classifications.*Hours of Service in anineligible classification will be credited for purposes of determining Years ofService for eligibility to participate in the Plan under Section 3.1 and forpurposes of determining the Employee’s vesting percentage in the event theEmployee participates in the Plan.

 

(d) *Construction.*This Section is included in the Plan to comply with the Code provisionsregarding the crediting of Service, and not to extend any additional rights toEmployees in ineligible classifications other than as required by the Code andregulations thereunder.

 

2.6**SPECIAL RULES****RELATING TOVETERANS’ REEMPLOYMENT RIGHTS.**

 

Notwithstanding any provision of this Plan to the contrary,contributions, benefits and service credit with respect to qualified militaryservice will be provided in accordance with Section 414(u) of the Code. Theprovisions of this Section 2.6 are effective December 12, 1994.

 

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**ARTICLE THREE—PLAN PARTICIPATION**

 

3.1**PARTICIPATION.**All Employees participating in this Planprior to the Plan’s restatement shall continue to participate, subject to the termshereof. Each other Employee shall become a Participant under the Plan effectiveas of the first day of the month coincident with or next following the later ofthe Employee’s completion of one Month of Service or attainment of age 21.

 

For purposes of this Section 3.1, an Employee shall be deemed to havecompleted one Month of Service on the one-month anniversary of his EmploymentDate.

 

In no event, however, shall any Employee participate under the Plan orbe credited for Service under its terms (except as provided in Section 2.5): (1)while he is included in a unit of Employees covered by a collective bargainingagreement between the Employer and the Employee representatives under whichretirement benefits were the subject of good faith bargaining (unless thecollective bargaining agreement requires participation in this Plan); (2) whilehe is a nonresident alien employee who receives no earned income (within themeaning of Code Section 911(d)(2)) from the Employer which constitutes incomefrom sources within the United States (within the meaning of Code Section861(a)(3)); (3) while he is a Highly Compensated Employee; or (4) while he isan hourly paid employee other than a corporate administrative employee.

 

3.2**REEMPLOYMENT OF FORMER PARTICIPANT.**A Participant whoseparticipation ceased because of termination of employment with the Employerwill immediately participate upon his reemployment and shall be eligible tomake elective deferrals upon reemployment.

 

3.3**TERMINATION OF ELIGIBILITY.**If a Participant shall becomeineligible to participate in the Plan because the Participant’s jobclassification is specifically excluded under Section 3.1 or Section 2.5(b)(2),such Participant shall continue to vest in his Account under the Plan for eachYear of Service completed while an ineligible Employee until such time as hisAccount is distributed to him pursuant to the terms of the Plan. If aParticipant becomes ineligible during a Plan Year, such Participant shallreceive an allocation of Employer contributions under Section 4.2 based uponthe Participant’s Compensation as determined as of his termination ofeligibility, provided such Participant is eligible to receive an allocation ofEmployer contributions under Section 4.2. Any such Participant’s Account shallcontinue to share in the allocation of investment experience under Section 5.1.

 

3.4****ELECTION NOT TO PARTICIPATE.**An Employee may, subject to theapproval of the Employer, elect voluntarily not to participate in the Plan. Theelection not to participate in the Plan is irrevocable and must be communicatedto the Employer, in writing, prior to the Participant’s date of initialeligibility to participate in the Plan.

 

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**ARTICLE FOUR—ELECTIVE DEFERRALS,CONTRIBUTIONS, ROLLOVERS AND TRANSFERS FROM OTHER PLANS**

 

4.1. **ELECTIVE DEFERRALS.**

 

*(a) Elections. *A Participantmay elect in writing to defer a portion of his Compensation up to the maximumamount which will not cause the Plan to violate the provisions of Sections 9.2and 10.1, or cause the Plan to exceed the maximum amount allowable as adeduction to the Employer under Code Section 404. A Participant may elect inwriting to defer all or a portion of any cash bonus received during the PlanYear on a single sum basis; provided, however, that the limitation in thepreceding sentence with respect to Compensation for the entire Plan Year is notexceeded. The amount of a Participant’s Compensation that is deferred inaccordance with the Participant’s election shall be withheld by the Employerfrom the Participant’s Compensation on a ratable basis throughout the Plan Yearand/or on a nonratable, single-sum basis. The amount deferred on behalf of eachParticipant shall be contributed by the Employer to the Plan and allocated tothe Participant’s Account.

 

(b) *Changesin Election.*A Participant may prospectively elect to change orrevoke the amount (or percentage) of his elective deferral during the Plan Yearby filing an election with the Employer. The Participant shall be entitled tochange the amount (or percentage) of his elective deferral which change shallbe effective as of January 1, April 1, July 1 or October 1. A Participant’srevocation of his elective deferrals shall be effective as soon as possiblefollowing his election to cease deferrals. A Participant who has revoked hiselective deferral may reenter the Plan on any January 1, April 1, July 1 orOctober 1 following his prior revocation of deferrals.

 

(c) *Limitationson Deferrals.*No Participant shall defer an amount which exceeds$9,500, or such amount in effect at the beginning of the calendar year asadjusted for cost-of-living increases under Section 402(g)(5) of the Code. All other plans, contracts, orarrangements of the Employer which permit elective deferrals (as defined inCode Section 402(g)(3)) shall be aggregated with this Plan in the calculationof the aforementioned limitation.

 

(d) *AdministrativeRules.*All elections made under this Section 4.1, including theamount and frequency of deferrals, shall be subject to the rules of theAdministrator which shall be consistently applied and which may be changed fromtime to time.

 

4.2**EMPLOYER CONTRIBUTIONS.**

 

(a) *Allocation**of Employer Matching Contributions.*For eachPlan Year, the Employer may contribute to the Plan, on behalf of eachParticipant eligible under Section 4.2(b) a discretionary matching contributionequal to a percentage of the eligible Participant’s elective deferrals thateach such Participant is making under Section 4.1.

 

The Employer, by action of its Board ofDirectors, shall determine the amount, if any, of the Employer matchingcontribution. The Employers Board of Directors may also determine to raise,suspend or reduce its contributions under this Section for any Plan Year.Allocations under this Section shall be subject to the special rules of Section12.3 in any Plan Year when the Plan is a Top-Heavy Plan.

 

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Forfeitures which arise from Employermatching contributions shall first be used to pay any administrative expensesof the Plan. Any remaining forfeitures shall be used to reduce any Employercontribution.

 

(b) *Eligibilityfor Employer Matching Contributions.*To be eligible for a shareof Employer matching contributions under Section 4.2(a), an Employee must (1)be qualified as a Participant under Section 3.1, (2) have made electivedeferrals under Section 4.1, and (3) be employed on the last day of the PlanYear, unless not employed on account of disability, death, or retirement on orafter Normal Retirement Date during the Plan Year.

 

(c) *DiscretionaryEmployer Contributions.*In addition to any Employer matchingcontributions made under Section 4.2(a), Employer contributions may be made atthe discretion of the Board of Directors of the Employer for any Plan Year,subject to limits for tax deductions under the Code and provided that thespecial allocation in Section 12.3 has been satisfied if the Plan is aTop-Heavy Plan. Forfeitures which arise from discretionary Employercontributions shall first be used to pay any administrative expenses of thePlan. Any remaining forfeitures shall be used to reduce any Employercontribution.

 

(d) *Eligibilityfor Discretionary Employer Contributions.*To be eligible for anallocation of discretionary Employer contributions under Section 4.2(c) for aPlan Year, an Employee must (1) be qualified as a Participant under Section3.1, and (2) be employed on the last day of the Plan Year, unless not employedon account of disability, death, or retirement on or after Normal RetirementDate during the Plan Year.

 

(e) *Allocationof Discretionary Employer Contributions.*Any contribution madeunder Section 4.2(c) shall be allocated among Accounts of eligible Participantsin accordance with the ratio that each such eligible Participant’s Compensationbears to the total Compensation of all such eligible Participants for the PlanYear.

 

4.3**ROLLOVERS AND TRANSFERS FROM OTHER PLANS.**With the approvalof the Administrator, there may be paid to the Trustee amounts which have beenheld under other plans qualified under Section 401 of the Code either (a)maintained by the Employer which have been discontinued or terminated withrespect to any Employee, or (b) maintained by another employer with respect towhich any Employee has ceased to participate. Any such transfer or rollover mayalso be made by means of an Individual Retirement Account qualified underSection 408 of the Code, where the Individual Retirement Account was used as aconduit from the former plan. Any amounts so transferred on behalf of anyEmployee shall be nonforfeitable and shall be maintained under a separate Planaccount, to be paid in addition to amounts otherwise payable under this Plan.The amount of any such account shall be equal to the fair market value of suchaccount as adjusted for income, expenses, gains, losses, and withdrawals attributablethereto.

 

If an Employee has not satisfied theeligibility requirements of Section 3.1 but has either transferred or rolledover an amount from another qualified retirement plan, the Employee shall beconsidered a Participant under the Plan but only to the extent of the amounttransferred or rolled over to the Plan.

 

4.4**EMPLOYER CONTRIBUTIONS ARE DISCRETIONARY.**This Plan isintended to be a discretionary profit sharing plan within the provisions ofSection 401(a)(27) of the Code. Employer

 

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contributions shall be made without regard to current or accumulatedprofits and may be modified or suspended by the Employer’s Board of Directorsfor any Plan Year.

 

4.5**TIMING OF CONTRIBUTIONS.**Employer contributions shall bemade to the Plan no later than the time prescribed by law for filing theEmployer’s Federal income tax return (including extensions) for its taxableyear ending with or within the Plan Year. Elective deferrals under Section 4.1shall be paid to the Plan as soon as administratively possible but no laterthan the fifteenth business day of the calendar month following the calendarmonth to which such elective deferrals are applicable.

 

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**ARTICLE FIVE—ACCOUNTING RULES**

 

5.1****INVESTMENT OF ACCOUNTS ANDACCOUNTING RULES.**

 

*(a) InvestmentFunds.*The investment of Participants’ Accountsshall be made in a manner consistent with the provisions of the Trust. TheAdministrator, in its discretion, may allow the Trust to provide for separatefunds for the directed investment of each Participant’s Account.

 

(b)*****ParticipantDirection of investments.*If the Administrator chooses toprovide more than one investment fund, then each Participant may direct how hisAccount is to be invested among available investment funds in the percentagemultiples established by the Administrator. A Participant may change hisinvestment direction after advance notice to the Administrator, in accordancewith uniform rules established by the Administrator. An investment directionmay apply to the investment of future contributions and/or amounts previouslyaccumulated in the Account. In the event a Participant makes no investmentelection, his Account shall be invested in the investment fund selected by theAdministrator for all such similarly situated Accounts. If the Plan’s recordkeeper or investment manager is changed, the Administrator may suspend theParticipant’s investment direction of his Account. If Participant direction ofinvestments is suspended, the Administrator shall invest the Participants’Accounts in an interest-bearing account(s) until such change has beencompleted.

 

The Plan is intended to constitute aqualified retirement plan described in Section 404(c) of the EmployeeRetirement Income Security Act of 1974, as amended, and regulations thereunder.As a result, the fiduciaries of the Plan may be relieved of liability for anylosses which are the direct and necessary result of investment instructionsgiven by a Participant.

 

(c) *SafeInvestment Option.*The Administrator may provide that one of theinvestment funds offers both a reasonable safety of the principal amountinvested and a reasonable rate of interest return. An investment fund composedof guaranteed interest contracts through an insurance company, a pooled fund ofshort-term bonds and notes, or a money market fund shall be deemed to meetthese standards.

 

(d) *Allocationof Investment Experience.*As of each Valuation Date, theinvestment fund(s) of the Trust shall be valued at fair market value, and theincome, loss, appreciation and depreciation (realized and unrealized), and anypaid expenses of the Trust attributable to such fund shall be apportioned amongParticipants’ Accounts within the fund based upon the value of each Accountwithin the fund as of the preceding Valuation Date. Adjustment of Accounts forinvestment experience shall be deemed to be made as of the Valuation Date towhich the adjustment relates, even if actually made on a later date.

 

(e) *Allocationof Elective Deferrals and Employer Contributions.*Electivedeferrals and Employer contributions shall be allocated to the Account of eacheligible Participant as of the last day of the period for which thecontributions are made.

 

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(f)*****Mannerand Time of Debiting Distributions.*For any Participant whoreceives a distribution from his Account, distribution shall be made inaccordance with the provisions dealing with the timing of commencement ofbenefit payments in Section 7.2. The distribution shall be equal to the fairmarket value of the Participant’s vested Account as of the Valuation Datepreceding the distribution.

 

5.2**PARTICIPANTS OMITTED IN ERROR.**In the event a Participantis not allocated a share of the Employer contribution as a result of anadministrative error in any Plan Year, the Employer may elect to either (a)make an additional contribution on behalf of such omitted Participant in anappropriate amount, or (b) deduct the appropriate amount from the nextsucceeding Employer contribution and allocate such amount to the Participant’sAccount prior to making the allocations set forth under Section 5.1(e).

 

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**ARTICLE SIX—VESTING, RETIREMENTAND DISABILITYBENEFITS**

 

6.1**VESTING.**A Participantshall at all times have a nonforfeitable (vested) right to his Account derivedfrom elective deferrals, Employer “fail-safe” contributions under Section 9.2and/or 9.3, and rollovers or transfers from other plans, adjusted forinvestment experience. Except as otherwise provided with respect to NormalRetirement, disability, or death, a Participant shall have a nonforfeitable(vested) right to a percentage of his Account derived from Employer matchingcontributions and discretionary Employer contributions as follows: 

| **Years of Service** | ** ** | **Vested Percentage** | ** ** |
|--------------------------------|------------|----------------------------|------------|
| Less than 2 years              |       | 0                          | %          |
| 2 years but less than 3        |       | 50                         | %          |
| 3 years but less than 4        |       | 75                         | %          |
| 4 years and thereafter         |       | 100                        | %          |

 

Notwithstanding the foregoing, any Participant who was a Participant inthe Plan prior to January 1, 2005 shall be 25% vested upon completion of oneYear of Service. Such Participant’s vested percentage after two or more7 Years ofService shall be determined in accordance with the schedule above.

 

6.2**FORFEITURE OF****NON****VESTED BALANCE.**Thenonvested portion of a Participant’s Account shall be forfeited as ofthe earlier of the last day of the Plan Year in which the Participant receivesa complete distribution of his vested Account or the last day of the Plan Yearin which the Participant incurs two (2) consecutive Breaks in Service (subjectto restoration by the Employer if the Participant returns prior to incurringfive (5) consecutive Breaks in Service). The amount forfeited shall be: (1)used to pay administrative expenses; (2) used to reduce Employer contributions;and/or (3) allocated as an Employer contribution, as set forth in Section 4.2.

 

If the Participant returns to the employmentof the Employer prior to incurring five (5) consecutive Breaks in Service andprior to receiving a distribution of his vested Account the nonvested portionshall be restored. However, if the nonvested portion of the Participant’sAccount was allocated as a forfeiture as the result of the Participantreceiving a distribution of his vested Account balance, the nonvested portionshall be restored if:

 

(a) the Participant resumes employment priorto incurring five (5) consecutive Breaks in Service; and

 

(b) the Participant repays to the Plan, as ofthe earlier of (i) the date which is five (5) years after his reemployment dateor (ii) the date which is the last day of the period in which the Participantincurs five (5) consecutive Breaks in Service following the date ofdistribution, an amount equal to the total distribution derived from Employercontributions under Sections 4.2 and 12.3.

 

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The nonvested amount shall be restored to the Participant’s Account,without interest or adjustment for interim Trust valuation experience, by aspecial Employer contribution or from the next succeeding Employer contributionand forfeitures, as appropriate. Notwithstanding the foregoing, if theParticipant’s nonvested amount was forfeited prior to the earlier of five (5) consecutive Breaks in Service andprior to distribution of the Participant’s vested Account, the nonvested amountshall be restored to the Participant’s Account, with interest or adjustment forinterim Trust valuation experience, by a special Employer contribution or fromthe next succeeding Employer contribution and forfeitures, as appropriate.

 

A zero percent vested Participant shall be considered to have receiveda complete distribution of his vested Account as of the date of his first Breakin Service, and if he returns to the employment of the Employer prior toincurring five (5) consecutiveBreaks in Service, he shall be considered to have repaid such distribution asof his completion of one Year of Service after his resumption of employment.

 

6.3**RETURN TO EMPLOYMENT BEFORE DISTRIBUTION OF VESTED ACCOUNT BALANCE. If**distribution is made to an Employee of less than the Employee’sentire vested Account, and if the Employee returns to Service, a separaterecord shall be maintained of said Account balance. The Employee’s vestedinterest at any time in this separate account shall be an amount equal to theformula P(AB+D)-D, where P is the vested percentage at the relevant time, AB isthe Account balance at the relevant time, and D is the amount of the distributionmade to the Employee.

 

6.4**NORMAL RETIREMENT.**A Participant who is in the employment ofthe Employer at his Normal Retirement Date shall have a nonforfeitable interestin 100% of his Account if not otherwise 100% vested under the appropriate vestingschedule. A Participant who continues in employment after his Normal RetirementDate shall continue to participate under the Plan, but may elect in writing tohave his Account payable at the time and in the manner specified in ArticleSeven.

 

6.5**PERMANENT AND****TOTALDISABILITY.**If a Participant incurs a permanent and total disabilitywhile in the employ of the Employer, the Participant shall have anonforfeitable interest in 100% of his Account, if not otherwise 100% vestedunder the appropriate vesting schedule. Payment of his Account balance will bemade at the time and in a manner specified in Article Seven, following receiptby the Plan Administrator of the Participant’s distribution request. “Permanentand total disability” shall mean suffering from a physical or mental conditionthat, in the opinion of the Administrator and based upon appropriate medicaladvice and examination, can be expected to result in death or can be expectedto last for a continuous period of no less than 12 months. The condition must,in accordance with uniform and consistent rules, be determined by theAdministrator to prevent a Participant from engaging in substantial gainfulactivity. Receipt of a Social Security disability award shall be deemed proofof disability.

 

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**ARTICLE SEVEN—MANNER AND TIME OFDISTRIBUTING BENEFITS**

 

7.1**MANNER OF PAYMENT.**Effective January 1, 2005, with respectto distributions commencing on and after April 1, *2005,*except as provided under Sections 7.5 and 7.9, theParticipant’s vested Account shall be distributed to the Participant (or to theParticipant’s Beneficiary in the event of the Participant’s death) in a singlelump-sum payment.

 

Prior to April 1, 2005, exceptas provided under Sections 7.5 and 7.9, the Participant’s vested Account shallbe distributed to the Participant (or to the Participant’s Beneficiary in theevent of the Participant’s death) by any of the following methods, as electedby the Participant or, when applicable, the Participant’s Beneficiary:

 

(a) in a single lump-sum payment; or

 

(b) in periodic installments (at leastannually), subject to the minimum distribution rules of Section 7.4.

 

7.2****TIME OF COMMENCEMENT OFBENEFIT PAYMENTS.**

 

(a) *Normalor Late Retirement.*Participants whose employment has terminatedshall have distribution of their Account commence approximately 60 daysfollowing their Normal Retirement Date, unless the Participant elects to deferreceipt of his Account. A Participant who has reached Normal Retirement Datebut has not terminated employment may request distribution of his Account tocommence approximately 60 clays following receipt by the Plan Administrator ofhis valid election.

 

(b) *DisabilityRetirement.*A Participant whose employment has terminated due tototal and permanent disability may request the distribution of his Account tocommence approximately 60 days following receipt by the Plan Administrator ofhis valid election.

 

(c) *Pre-retirementTermination of Employment.*If a Participant terminatesemployment for any reason other than Normal Retirement, disability or death,distribution of his vested Account balance shall commence upon the later of:

 

(1) The 60th day following the day on which he terminated employment;or

 

(2) The 60th day after a Participant’s election to commence payment is deliveredto the Administrator.

 

Payment of benefits attributable to elective deferrals made pursuant toSection 4.1 may begin (notwithstanding this Section 7.2) prior to a Participant’stermination of employment and within a reasonable time after the occurrence ofany of the following events: (l)termination of the Plan without theestablishment of another defined contribution plan, other than an employeestock ownership plan (as defined in Section 4975(e)(7) of the Code), asimplified employee pension plan (as defined in Code

 

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Section 408(k)) or a Simple IRA plan as defined in Code Section 408(p); (2) the disposition by a corporation toan unrelated corporation of substantially all of the assets (within the meaningof Section 409(d)(2) of the Code) used in a trade or business of suchcorporation if such corporation continues to maintain the Plan after thedisposition, but only with respect to employees who continue employment withthe corporation acquiring such assets; or (3) the disposition by a corporationto an unrelated entity of such corporation’s interest in a subsidiary (withinthe meaning of Section 409(d)(3) of the Code) if such corporation continues tomaintain the Plan, but only with respect to employees who continue employmentwith such subsidiary. All distributions that may be made pursuant to one ormore of the foregoing distributable events are subject to the spousal andparticipant consent requirements (if applicable) of Sections 40l(a)(11) And 417of the Code. In addition, such distributions must be made in a lump sum.

 

Unless the Participant elects otherwise,distribution of his vested Account shall begin no later than the 60th day afterthe latest of the close of the Plan Year in which:

 

(1) the Participant attains age sixty-five *(65);*

 

(2) occurs the tenth anniversary of the year in which the Participantcommenced participation in the Plan; or

 

(3) the Participant terminates Service with the Employer.

 

(d) *LatestCommencement Date.*Effective January 1, 1997 or when first usedby the Employer, if later, a Participant may elect to defer receipt of hisretirement benefits; provided, however, in no event shall the distribution ofbenefits commence later than the April 1st of the calendar year following thelater of: (I) the calendar year in which the Participant attains age 701⁄2 or (2)the calendar year in which the Participant retires. In the case of a 5-percentowner (as defined in Section 416 of the Code), in no event shall thedistribution of benefits commence later than the April 1 of the calendar yearfollowing the calendar year in which the Participant attains age 701⁄2.

 

(1) Any Participant (other than a 5-percent owner) attaining age 701⁄2 inyears after 1995 may elect by April 1 of the calendar year following the yearin which the Participant attained age 701⁄2 (or by December 31, 1997 in the caseof a Participant attaining age 701⁄2 in 1996) to defer distributions until theApril 1 of the calendar year following the calendar year in which theParticipant retires. If no such election is made, the Participant will beginreceiving distributions by the April 1 of the calendar year following thecalendar year in which the Participant attained age 701⁄2 (or by December 31,1997 in the case of a Participant attaining age 701⁄2 in 1996).

 

(2) The pre-retirement age 701⁄2 distribution option is only eliminatedwith respect to Employees who reach age 701⁄2 in or after a calendar year thatbegins after December 31, 1998. The pre-retirement age 701⁄2 distribution optionis an optional form of benefit under which benefits payable in a particulardistribution form (including any modifications that may be elected afterbenefit commencement) commence at a time during the period that begins on orafter January 1 of the calendar year in which an Employee attains age 701⁄2 and endsApril 1 of the immediately following calendar year.

 

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The provisions of this Section 7.2(d) (relating to requireddistributions) are intended to comply with Section 401(a)(9) of the Code, theregulations thereunder and any other applicable guidance, and shall be sointerpreted.

 

(e) If a distribution is one to whichSections 401(a)(11) and 417 of the Code do not apply, such distribution maycommence less than 30 days after the notice required under Section 1.411(a)-11(c) of the Income Tax Regulations is given, provided that:

 

(1) the Administrator clearly informs the Participant that theParticipant has a right to a period of at least 30 days after receiving thenotice to consider the decision of whether or not to elect a distribution (and,if applicable, a particular distribution option), and

 

(2) the Participant, after receiving the notice, affirmatively elects adistribution.

 

(f) Notwithstanding the foregoing provisionsof this Section 7.2, a distribution may be made to an “alternate payee” pursuantto, and if required by, a “Qualified Domestic Relations Order” even if theaffected Participant has not separated from service and has not attained the “earliestretirement age” under the Plan. For purposes of this subsection (f), “QualifiedDomestic Relations Order”, “alternate payee” and “earliest retirement age”shall have the meanings set forth in Section 414(p) of the Code.

 

7.3**FURNISHING INFORMATION.**Prior to the payment of any benefitunder the Plan, each Participant or Beneficiary may be required to completesuch administrative forms and furnish such proof as is deemed necessary orappropriate by the Employer, Administrator, and/or Trustee.

 

7.4**MINIMUM****DISTRIBUTIONRULES FOR INSTALLMENT PAYMENTS.**If a distribution is made ininstallments the following rules shall apply:

 

(a) *Paymentsto Participant and Beneficiary.*Payments shall commence no laterthan a date provided for in Section 7.2. The amount to be distributed each yearshall be at least equal to the vested balance in the Participant’s Account asof the last day of the Plan Year in the prior calendar year multiplied by thefollowing fraction: the numerator shall be one and the denominator shall be thelife expectancy of the Participant or the joint life expectancy of theParticipant and the Participant’s Beneficiary computed as of the aforementionedlast day of the Plan Year and reduced by one for each succeeding year. Paymentsshall be restricted under this option to insure compliance with the minimumdistribution incidental death benefit and other minimum distributionrequirements of Section 401(a)(9) of the Code and the regulations promulgatedthereunder.

 

Accordingly, in the case of a non-spouse Beneficiary, the lesser of the“applicable divisor” from the appropriate Table appearing in ProposedRegulation 1.401 (a)(9) - 2 Q. & A. 4 as modified by supersedingregulation, and the joint life expectancy of the Participant and hisBeneficiary shall be used in the denominator. All life expectancies will bedetermined by use of the expected return multiples in Tables V and VI ofSection 1.72-9 of Income Tax Regulations.

 

(b) Beneficiaries for purposes of thisSection shall be determined in accordance with regulations issued pursuant toCode Section 401(a)(9).

 

With respect to distributions under the Planmade for calendar years beginning on or after January 1, 2001, the Plan willapply the minimum distribution requirements of Section 401(a)(9) of the Code in

 

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accordancewith the Regulations under Section 401(a)(9) that were proposed on January 17,2001, notwithstanding any provision of the Plan to the contrary. This amendmentshall continue in effect until the end of the last calendar year beginningbefore the effective date of final Regulations under Section 401(a)(9) or suchother date as may be specified in guidance published by the Internal RevenueService.

 

7.5**JOINT AND SURVIVOR ANNUITY.**This Section shall apply onlyto a Participant whose Account includes funds transferred from a plan subjectto the provisions of Sections 401 (a)( Ii) and 417 of the Code and who does notdie prior to the “annuity starting date.”

 

(a) If distribution of a Participant’sAccount balance commences during his lifetime, his vested Account (subject tothe provisions of this Section 7.5) shallbe applied to the purchase of an annuity for the life of the Participant or, ifthe Participant is married as of his benefit commencement date, applied to thepurchase of a “qualified joint and survivor annuity” for the life of theParticipant and his “eligible spouse”. For this purpose, a “qualified joint andsurvivor annuity” is an immediate annuity for the life of the Participant witha survivor annuity for the life of the spouse which is 50% of the amount of theannuity which is payable during the joint lives of the Participant and hisspouse.

 

(b) The Participant may elect to waive thelife annuity or qualified joint and survivor annuity form of benefit at anytime during the election period. Such an election must be made in writing in aform acceptable to the Administrator. However, an election to waive a qualifiedjoint and survivor annuity shall not take effect unless the Participant’sspouse consents in writing to such election and the spouse’s consentacknowledges the effect of such election and is witnessed by a Plan representativeor a Notary Public. In the event of such an election, distribution of theportion of the Participant’s Account otherwise subject to the provisions ofthis Section shall be paid to the Participant in the manner selected by theParticipant under Section 7.1 above.

 

(c) “Eligible Spouse” is the spouse who (i)is married to the Participant for the one-year period ending prior to theearlier of benefit commencement or the date of the Participant’s death, or (ii)becomes married within the one-year period prior to benefit commencement andremains married for at least one year. A divorce occurring after benefitpayments have commenced to the Participant will not cause an “eligible spouse”to lose such status, unless the spouse agrees to give up rights hereunderpursuant to the terms of a qualified domestic relations order described in CodeSection 414(p). The divorce or death of an “eligible spouse” shall not entitlea subsequent spouse to status as an “eligible spouse.”

 

(d) The spousal waiver made in accordancewith this Section must specify the non-spouse beneficiary, if any, and thealternative form of distribution neither of which may be changed unless a newspousal consent is obtained pursuant to Section *7.5(b).*In addition, any waiver made in accordance with thisSection may be revoked at any time prior to the commencement of benefits underthe Plan. A Participant is not limited to the number of revocations orelections that may be made hereunder.

 

(e) The “election period” under this Sectionshall be the 90-day period prior to the “annuity starting date”, which dateshall be the first day of the first period in which an amount is payable as anannuity or, if such benefit is not payable as an annuity, the first day onwhich the Participant may begin to receive a distribution from the Plan.

 

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The written explanation described in Section 417(a)(3)(A) of the Codemay be provided after the annuity starting date. The 90-day “applicableelection period” to waive the qualified joint and survivor annuity described inSection 417(a)(6)(A) of the Code shall not end before the 30th day after thedate on which such explanation is provided. The Secretary of the Treasury may,by regulations, limit the period of time by which the annuity starting dateprecedes the provision of the written explanation other than by providing thatthe annuity starting date may not be earlier than termination of employment. AParticipant may elect (with any applicable spousal consent) to waive anyrequirement that the written explanation be provided at least 30 days beforethe annuity starting date (or to waive the 30-day requirement set forth above)if the distribution commences more than seven (7) days after such explanationis provided. The provisions of this Section 7.5(e) are effective for Plan Years beginning after December 31,1996.

 

(f) The Administrator shall provide to eachParticipant, not more than ninety (90) days prior to the commencement ofbenefits, a written explanation of:

 

(1) the terms and conditions of the qualifiedjoint and survivor annuity or life annuity;

 

(2) the Participant’s right to make, and theeffect of an election to waive, such applicable annuity;

 

(3) the rights of the Participant’s spouseregarding the required consent to an election to waive the qualified joint andsurvivor annuity; and

 

(4) the right to make, and the effect of, arevocation of an election to waive the applicable annuity.

 

(g) Notwithstanding anything contained hereinto the contrary, if the vested balance of the Participant’s Account is lessthan $5,000 ($3,500 prior toAugust 6, 1997 or when $5,000 first used by the Employer, if later than August6, 1997), distribution of the Participant’s Account shall be made in the formof a lump sum payment. However, no distribution shall be made pursuant to thissubsection after the first day of the first period for which an amount isreceived as an annuity unless the Participant and the Participant’s spouse, ifapplicable, consent in writing to such distribution. Notwithstanding theforegoing provisions of this Section 7.5(g), the first sentence of this Section7.5(g) shall not apply with respect to: (1) distributions that are not subjectto the qualified joint and survivor annuity requirements of this Section 7.5and are made prior to March 22, 1999; and (2) distributions that are subject tothe qualified joint and survivor annuity requirements of this Section 7.5 andare made prior to October 17, 2000, unless the vested balance of theParticipant’s Account is less than $5,000 (or $3,500, as applicable) at thetime of the distribution and at any time prior to the distribution.

 

7.6**DEATH BENEFIT.**

 

(a) DeathWhile an Employee. Inthe event of the death of a Participant while in the employ of the Employer,vesting in the Participant’s Account shall be 100% if not otherwise 100% vestedunder Section 6.1. The Account shall constitute the Participant’s death benefitto be distributed under this Article to the Participant’s Beneficiary.

 

(b) DeathAfter Termination of Employment. In the event of the death of a former Participant aftertermination of employment but prior to the complete distribution of his vestedAccount balance under

 

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the Trust, theundistributed vested balance of the Participant’s Account shall be paid to theParticipant’s Beneficiary.

 

7.7**DESIGNATION OF BENEFICIARY.**Each Participant shall filewith the Administrator a designation of Beneficiary to receive payment of deathbenefits payable hereunder if such Beneficiary should survive the Participant.However, no married Participant’s designation of a Beneficiary other than his “eligiblespouse” (as defined in Section 7.5(c)) shall be effective unless theParticipant’s eligible spouse has signed a written consent witnessed by a Planrepresentative or a Notary Public, which consent provides for a designation ofan alternative Beneficiary and the alternate form of distribution. Suchdesignation of an alternative Beneficiary or alternative form may not bechanged unless a new consent is signed by the eligible spouse.

 

Subject to the above, Beneficiary designations may include primary andcontingent Beneficiaries, and may be revoked or amended at any time in similarmanner or form, and the most recent designation shall govern. In the absence ofan effective designation of Beneficiary, or if the Beneficiary dies beforecomplete distribution of the Participant’s benefits, all amounts shall be paidto the surviving spouse of the Participant, if living, or otherwise equally tothe Participant’s then-surviving children, whether by marriage or adopted, andthe surviving issue of any deceased children, per stirpes, or, if none, to theParticipant’s estate. Notification to Participants of the death benefits underthe Plan and the method of designating a Beneficiary shall be given at the timeand in the manner provided by regulations and rulings under the Code.

 

7.8**TIME AND MODE OF DISTRIBUTING DEATH BENEFITS.**TheBeneficiary shall be allowed to designate both the time and the mode ofreceiving benefits in accordance with Section 7.1 unless the Participant haddesignated a method or time in writing and indicated that either was not to berevocable by the Beneficiary. The Beneficiary’s election shall be delivered tothe Administrator no later than the last day of the calendar year following thecalendar year in which the Participant died. If such election is not made,payments shall commence at the “required time” specified in the next paragraphand shall be paid in a lump sum, subject to the special rules for survivingspouses.

 

The “required time” for commencement of distribution of any deathbenefit hereunder shall be within the period ending on the last day of thecalendar year following the calendar year in which the Participant died, or inthe case of a surviving spouse, within a reasonable time after the Participant’sdeath or, if the surviving spouse so elects, no later than the last day of thecalendar year in which the Participant would have attained age 701⁄2. If asurviving spouse dies before distributions begin, this paragraph shall beapplied as if the surviving spouse were the Participant.

 

If payment commences at the “required time”and if all payments are designated to or for the benefit of one or more naturalpersons, the following distribution modes shall be available:

 

(a) a lump sum; or

 

(b) payments of installments (in a likemanner to that in Section 7.4) over a period not to exceed the life expectancyof the Beneficiary calculated as of the “required time” in accordance withTable V of Section 1.72-9 of Income Tax Regulations.

 

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To the extent payments are not designated to or for the benefit of anatural person, or if payments commence after the “required time,” thefollowing distribution modes shall be available:

 

(1) a lump sum payable at any time within five *(5)*years of the Participant’s death; or

 

(2) payments of installments at such time andin such amount as determined by the Beneficiary, provided that all amounts bepaid from the Trust within five *(5)*yearsof the Participant’s death.

 

If a Participant dies after payments have commenced, any survivor’sbenefit must be paid no less rapidly than the method of payment in effect atthe time of the Participant’s death.

 

7.9**QUALIFIED PRE-RETIREMENT SURVIVOR ANNUITY.**

 

The provisions of this Section shall apply only to a Participant whoseAccount includes funds transferred from a plan subject to the provisions ofSection 401(a)(11) and 417 of the Code and on whose behalf death benefits(including voluntary contributions) would amount to at least $5,000.

 

(a) If a Participant dies before distributionof benefits has commenced and is survived by his “eligible spouse” (as definedin Section 7.5(c)), one-half ofthe entire death benefit payable under the Plan shall be applied to thepurchase of an annuity for the life of the Participant’s surviving spouse.

 

(b) The Participant may elect to waive suchsurvivor annuity death benefit during the period commencing on the first day ofthe Plan Year in which the Participant attains age 35 (or the date he terminates employment, if earlier) and endingon the date of his death. Such an election must be made in writing and mustinclude the Participant’s designation of a Beneficiary which designation maynot be changed unless a new consent is signed by the “eligible spouse”. Spousalconsent, hereunder, shall not take effect unless the Participant’s eligiblespouse consents in writing to such election which consent acknowledges theeffect of such election and is witnessed by a Plan representative or a NotaryPublic.

 

Any waiver made in accordance with this Section 7.9(b) may be revokedat any time prior to the commencement of benefits under the Plan. A Participantis not limited to the number of revocations or elections that may be made underthis Section 7.9.

 

In the event of such an election, any death benefit otherwise subjectto the provisions of this Section 7.9, shall be paid to the Participant’sBeneficiary in a manner selected by the Beneficiary or Participant, subject tothe provisions of Section 7.8.

 

(c) The Administrator shall furnish eachParticipant with a written explanation of: (i) the terms and conditions of thesurvivor annuity; (ii) the Participant’s right to make, and the effect of, anelection to waive the survivor annuity, and to revoke its election; and (iii)the right of the Participant’s eligible spouse to prevent such an election bywithholding the necessary consent. Such explanation shall be provided to theParticipant within the period beginning on the later of the first day of thePlan Year in which the Participant attains age 32 and ending on the last day ofthe Plan Year preceding the Plan Year in which the Participant attains age 35*,*orwithin a reasonable period after the Participant commences participation in thePlan, or after the Participant separates from Service if the Participant

 

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has notattained age 35**at the time of separation fromService.

 

7.10**IN-SERVICE WITHDRAWALS.**Notwithstanding the foregoingprovisions of this Article Seven, a Participant who is in the employ of theEmployer and has attained age *59Y2*maywithdraw all or a portion of his vested Account by filing a request with theAdministrator at least 30 days before the proposed withdrawal date.

 

A Participant may withdraw the portion of his Account derived fromrollover contributions at any time by filing a request with the Administratorat least 30 days before the proposed withdrawal date.

 

7.11**INVOLUNTARY CASH-OUTS.** If a Participantterminates employment for any reason and his vested Account balance does notexceed $5,000, the Administrator may distribute such amount in a lump sumpayment to the Participant without the consent of the Participant or hisspouse. This Section is applicable only to Plan Years beginning after August 5,1997 and subject to the date that the Plan first complied or will comply withthis provision in operation.

 

7.12**DIRECT ROLLOVER OF ELIGIBLE ROLLOVER DISTRIBUTIONS.**

 

(a) Notwithstanding any provision of the Planto the contrary that would otherwise limit a Distributee’s election, aDistributee may elect, at the time and in the manner prescribed by theAdministrator, to have any portion of an Eligible Rollover Distribution paiddirectly to an Eligible Retirement Plan specified by the Distributee in aDirect Rollover.

 

(b) *Definitions:*

 

(1) *EligibleRollover Distribution:*An eligible rollover distribution is anydistribution of all or any portion of the balance to the credit of theDistributee, except that an eligible rollover distribution does not include:any distribution that is one of a series of substantially equal periodicpayments (not less frequently than annually) made for the life (or lifeexpectancy) of the Distributee or the joint lives (or joint life expectancies)of the Distributee and the Distributees designated Beneficiary, or for aspecified period often years or more; any distribution to the extent suchdistribution is required under Section 401(a)(9) of the Code; any hardshipdistribution described in Section 401(k)(2)(B)(i)(IV) of the Code; and theportion of any distribution that is not includible in gross income (determinedwithout regard to the exclusion for net unrealized appreciation with respect toemployer securities).

 

(2) *EligibleRetirement Plan:*An eligible retirement plan is an IndividualRetirement Account described in Section 408(a) of the Code, an Individual RetirementAnnuity described in Section 408(b) of the Code, an Annuity Plan described inSection 403(a) of the Code, or a qualified trust described in Section 401(a) ofthe Code, that accepts the Distributee’s Eligible Rollover Distribution.However, in the case of an Eligible Rollover Distribution to the survivingspouse, an eligible retirement plan is an Individual Retirement Account orIndividual Retirement Annuity.

 

(3) *Distributee:*A distributee includes an Employee or former Employee. Inaddition, the Employee’s or former Employee’s surviving spouse and the Employee’sor former Employee’s spouse or former spouse who is the alternate payee under aqualified domestic relations order, as defined in Section 4.14(p) of the Code,are distributees with regard to the interest of the spouse or former spouse.

 

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(4) *DirectRollover:*A direct rollover is a payment by the Plan to theEligible Retirement Plan specified by the Distributee.

 

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**ARTICLE EIGHT—ADMINISTRATION OFTHE PLAN**

 

8.1**PLAN ADMINISTRATION.**The Employer shall be the PlanAdministrator, hereinbefore and hereinafter called the Administrator, and namedfiduciary of the Plan, unless the Employer, by action of its Board ofDirectors, shall designate a person or committee of persons to be theAdministrator and named fiduciary. The administration of the Plan, as providedherein, including a determination of the payment of benefits to Participantsand their Beneficiaries, shall be the responsibility of the Administrator. TheAdministrator shall have the right to construe and interpret the Plan, decideall questions of eligibility and determine the amount, manner and time ofpayment of any distributions under the Plan to the fullest extent provided bylaw and in its sole discretion; and interpretations or decisions made by theAdministrator will be conclusive and binding on all persons having an interestin the Plan. In the event more than one party shall act as Administrator, allactions shall be made by majority decisions. In the administration of the Plan,the Administrator may (a) employ agents to carry out nonfiduciaryresponsibilities (other than Trustee responsibilities), (b) consult withcounsel, who may be counsel to the Employer, and (c) provide for the allocationof fiduciary responsibilities (other than Trustee responsibilities) among itsmembers. Actions dealing with fiduciary responsibilities shall be taken inwriting and the performance of agents, counsel and fiduciaries to whomfiduciary responsibilities have been delegated shall be reviewed periodically.

 

The expenses of administering the Plan and the compensation of allemployees, agents, or counsel of the Administrator, including the accountingfees, the record keeper’s fees, and the fees of any benefit consulting firm,shall be paid by the Plan, or shall be paid by the Employer if the Employer soelects. No compensation may be paid by the Plan to full-time Employees of theEmployer.

 

The Administrator shall obtain from the Trustee, not less often thanannually, a report with respect to the value of the assets held in the TrustFund, in such form as is required by the Administrator.

 

The Administrator shall administer the Plan and adopt such rules andregulations as, in the opinion of the Administrator, are necessary or advisableto implement and administer the Plan and to transact its business.

 

8.2**CLAIMS PROCEDURE.**Pursuant to procedures established by theAdministrator, adequate notice in writing shall be provided to any Participantor Beneficiary whose claim for benefits under the Plan has been denied within90 days of receipt of such claim. Such notice shall set forth the specificreason for such denial, shall be written in a manner calculated to beunderstood by the claimant, and shall advise of the right to administrativereview. If such review is requested by the claimant or his authorizedrepresentative within 90 days after receipt by the claimant of writtennotification of denial of his claim, the Administrator shall afford areasonable opportunity for a full and fair review by the Administrator of thedecision denying the claim. The review shall focus on the additional facts,legal interpretations or material, if any, presented by the claimant. A hearingat its place of business may be scheduled by the Administrator, but a hearingis not required under the review procedure.

 

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8.3**TRUST AGREEMENT AND DESIGNATION OF TRUSTEE.**The Employerhas created and entered into a Trust Agreement with the Trustee as designatedtherein. The Employer may designate any number of persons, parties, corporatefiduciaries, or any combination thereof to act as Trustees, as the Employerdeems appropriate. The Employer may appoint an investment manager or managersto manage (including the power to acquire and dispose of) all or any part ofthe Trust assets, as provided more fully in the Trust Agreement.

 

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**ARTICLE NINE—SPECIAL COMPLIANCEPROVISIONS**

 

9.1**DISTRIBUTION OF EXCESS ELECTIVE DEFERRALS.**If, as the result of administrativeerror, the amount of any elective deferral made by a Participant exceeds thedollar limitation of Section 4.1(c), then the excess amount, and any incomeallocable thereto, shall be distributed to such Participant by the April 15 following the calendar year inwhich the excess elective deferral is made to the Plan. All Employer matchingcontributions which relate to distributions of excess elective deferrals shallbe forfeited.

 

9.2**LIMITATIONS**ON **401(k) CONTRIBUTIONS.**

 

(a) *AverageActual Deferral Percentage Test.*Amounts contributed as electivedeferrals under Section 4. 1(a) and any “fail-safe” contributions made underthis Section are all considered to be amounts deferred pursuant to Section401(k) of the Code. For purposes of this Article, these amounts are referred toas the “deferred amounts.”

 

As of the last day of each Plan Year, the deferred amounts for the PlanYear for the Participants who are Highly Compensated Employees shall satisfyeither of the following tests:

 

(1) The average actual deferral percentagefor the Plan Year for the eligible Participants who are Highly CompensatedEmployees shall not exceed the average actual deferral percentage for the priorPlan Year for eligible Participants who were Nonhighly Compensated Employeesmultiplied by 1.25; or

 

(2) The average actual deferral percentagefor the Plan Year for eligible Participants who are Highly CompensatedEmployees shall not exceed the average actual deferral percentage for the priorPlan Year for eligible Participants who were Nonhighly Compensated Employeesmultiplied by 2, provided that the average actual deferral percentage for thePlan Year for eligible Participants who are Highly Compensated Employees doesnot exceed the average actual deferral percentage for the prior Plan Year foreligible Participants who were Nonhighly Compensated Employees by more than two(2) percentage points, or such lesser amount as the Secretary of the Treasuryshall prescribe to prevent the multiple use of this alternative limitation withrespect to any Highly Compensated Employee. If elected by the Employer, theaverage actual deferral percentage tests in (1) and (2) above shall be appliedby comparing the current Plan Year’s average actual deferral percentage forParticipants who are Highly Compensated Employees with the current Plan Year’saverage actual deferral percentage for Participants who are NonhighlyCompensated Employees. Once made, this election can only be undone if the Planmeets the requirements for changing to prior year testing as set forth inInternal Revenue Service Notice 98-1 (or superseding guidance).

 

A Participant is a Highly Compensated Employee for a particular PlanYear if he meets the definition of Highly Compensated Employee in effect forthat Plan Year. Similarly, a Participant is a Nonhighly Compensated Employeefor a particular Plan Year if he does not meet the definition of a HighlyCompensated Employee in effect for that Plan Year.

 

For purposes of the above tests, the “actual deferral percentage” shallmean the ratio (expressed as a percentage) of the deferred amounts on behalf ofthe “eligible Participants” for the Plan Year bears to

 

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the eligible Participants’ Compensation. The “average actual deferralpercentage” shall mean the average (expressed as a percentage) of the actualdeferral percentages of the eligible Participants in each group. “EligibleParticipants” shall mean each Employee who is eligible to have electivedeferrals contributed to his Account.

 

A deferred amount will be taken into account under the actual deferralpercentage test for a Plan Year only if it relates to Compensation that eitherwould have been received by the Participant in the Plan Year (but for thedeferral election) or is attributable to services performed by the Participantin the Plan Year and would have been received by the Participant within 2 **‘/2**months after the close of the Plan Year (but for thedeferral election). In addition, a deferred amount will be taken into accountunder the actual deferral percentage test for a Plan Year only if it isallocated to the Participant as of a date within that Plan Year. For thispurpose, a deferred amount is considered allocated as of a date within a PlanYear if the allocation is not contingent on participation or performance ofservices after such date and the deferred amount is actually paid to the Trustno later than twelve (12) months after the Plan Year to which the deferredamount relates.

 

For purposes of this Section 9.2, the actual deferral percentage forany eligible Participant who is a Highly Compensated Employee for the Plan Yearand who is eligible to have elective deferrals allocated to his account undertwo or more plans or arrangements described in Section 401(k) of the Code thatare maintained by the Employer or an affiliated employer shall be determined asif all such deferrals were made under a single arrangement. In the event thatthis Plan satisfies the requirements of Section 410(b) or Section 401(a)(4) ofthe Code only if aggregated with one or more other plans, or if one or moreother plans satisfy the requirements of Section 410(b) or Section 401 (a)(4)ofthe Code only if aggregated with this Plan, then the provisions of this Section9.2 shall be applied by determining the actual deferral percentage of eligibleParticipants as if all such plans were a single plan.

 

The determination and treatment of elective deferrals and the actualdeferral percentage of any Participant shall be subject to the prescribedrequirements of the Secretary of the Treasury.

 

In the event the rate of deferrals made by eligible Participants whoare Highly Compensated Employees is in excess of the deferral rate allowedunder this Section 9.2(a) or the contribution rate allowed under Section9.3(a), and the Employer has elected to use the current year testing methodpursuant to this Section 9.2(a), the Employer in its discretion may make a “qualifiednonelective contribution” for Participants who are Nonhighly CompensatedEmployees who are eligible to have elective deferrals contributed to theirAccounts and who have been credited with 1,000 Hours of Service in the PlanYear and who are employed on the last day of the Plan Year, to be allocatedamong their Accounts in proportion to their Compensation for the Plan Year, asa uniform percentage of Compensation as determined by the Board of Directors,as a fixed dollar amount as determined by the Board of Directors, or in anyother nondiscriminatory manner as determined by the Board of Directors. A “qualifiednonelective contribution” is a contribution (other than a matching contributionor a qualified matching contribution) made by the Employer and allocated toParticipants’ accounts that the Participants may not elect to receive in cashuntil distributed from the Plan; that are nonforfeitable when made; and thatare distributable only in accordance with the distribution provisions that areapplicable to elective deferrals and qualified matching contributions. Theprovisions of Regulation Section 1.401(k) - 1(b)(5) are incorporated herein byreference.

 

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The provisions of Section 401(k)(3)(A) of the Code, as amended by theSmall Business Job Protection Act of 1996, are incorporated herein byreference.

 

The provisions of Section 9.2(a) are effective for Plan Years beginningafter December 31, 1996.

 

(b) *Distributionsof Excess Contributions.*

 

(1) *InGeneral.*If the average actual deferral percentage test ofSection 9.2(a) is not satisfied for a Plan Year, then the “excess contributions”and income allocable thereto shall be distributed to the extent allowable underTreasury regulations no later than the last day of the Plan Year following thePlan Year for which the excess contributions were made. However, if such excesscontributions are distributed later than 21⁄2 months following thelast day of the Plan Year in which such excess contributions were made, a 10%excise tax will be imposed upon the Employer with respect to these excesscontributions. Excess contributions are reduced by excess deferrals previouslydistributed pursuant to Section 402(g) of the Code.

 

(2) *ExcessContributions.*For purposes of this Section 9.2(b), “excesscontributions” shall mean, with respect to any Plan Year, the excess of theaggregate amount of Participant deferred amounts under Section 4.1 actuallytaken into account in computing the actual deferral percentage of HighlyCompensated Employees for such Plan Year over the maximum amount of all suchcontributions permitted under the test under Section 9.2(a) (determined byreducing contributions made on behalf of Highly Compensated Employees in orderof the actual deferral percentages, beginning with the highest of suchpercentages). Excess contributions are allocated to the Highly CompensatedEmployees with the largest amounts of employer contributions taken into accountin calculating the average actual deferral percentage test for the year inwhich the excess arose, beginning with the Highly Compensated Employee with thelargest amount of such employer contributions and continuing in descendingorder until all the excess contributions have been allocated. For purposes ofthe preceding sentence, the “largest amount” is determined after distributionof any excess contributions. The amount of excess contributions to bedistributed shall be reduced by excess elective deferrals previouslydistributed for the taxable year ending in the same Plan Year and excesselective deferrals to be distributed for a taxable year shall be reduced byexcess contributions previously distributed for the Plan Year beginning in suchtaxable year.

 

The provisions of Section 9.2(b)(2) are effective for Plan Yearsbeginning after December 31, 1996.

 

(3) *Determinationof Income.*The income allocable to excess contributions shall bedetermined by multiplying the income allocable to the Participant’s “deferred”amounts for the Plan Year by a fraction, the numerator of which is the excesscontributions made on behalf of the Participant for the preceding Plan Year,and the denominator of which is the sum of the Participant’s Account balancesattributable to Participant’s deferred amounts on the last day of the precedingPlan Year. Income allocable to the period between the last day of the precedingPlan Year and the date of distribution shall be disregarded in determiningincome.

 

(4) *MaximumDistributable Amount.*The excess contributions to be distributedto a Participant shall be adjusted for income and, if there is a loss allocableto the excess contribution, shall in no event be less than the lesser of theParticipant’s Account under the Plan or the Participant’s elective deferralsfor the Plan Year. Excess contributions shall be distributed from that portionof the Participant’s Account attributable to Participant elective deferrals tothe extent allowable under Treasury

 

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regulations.

 

(5)*Distribution of Employer Matching Contributions.*All Employer matching contributions which relate todistributions of excess contributions shall be forfeited.

 

9.3**NONDISCRIMINATION TEST FOR EMPLOYER MATCHING CONTRIBUTIONS.**

 

(a) *AverageContribution Percentage Test.*The provisions of this Section 9.3shall apply if Employer matching contributions are made in any Plan Year underSection 4.2(b) and such matching contributions are not used to satisfy theaverage actual deferral percentage test of Section 9.2.

 

As of the last day of each Plan Year, the average contributionpercentage for Highly Compensated Employees for the Plan Year shall satisfyeither of the following tests:

 

(1) The average contribution percentage forthe Plan Year for eligible Participants who are Highly Compensated Employeesshall not exceed the average contribution percentage for the prior Plan Yearfor eligible Participants who were Nonhighly Compensated Employees for theprior Plan Year multiplied by 1.25; or

 

(2) The average contribution percentage forthe Plan Year for eligible Participants who are Highly Compensated Employeesshall not exceed the average contribution percentage for the prior Plan Yearfor eligible Participants who were Nonhighly Compensated Employees for theprior Plan Year multiplied by 2, provided that the average contributionpercentage for the Plan Year for eligible Participants who are HighlyCompensated Employees does not exceed the average contribution percentage forthe prior Plan Year for eligible Participants who were Nonhighly CompensatedEmployees by more than two (2) percentage points or such lesser amount as theSecretary of the Treasury shall prescribe to prevent the multiple use of thisalternative limitation with respect to any Highly Compensated Employee.

 

For purposes of the above tests, the “average contribution percentage”shall mean the average (expressed as a percentage) of the contributionpercentages of the “eligible participants” in a group. The “contributionpercentage” shall mean the ratio (expressed as a percentage) that any Employermatching contributions under the Plan on behalf of the eligible Participant forthe Plan Year bears to the eligible Participant’s Compensation for the PlanYear. “Eligible Participants” shall mean each Employee who is eligible toreceive an allocation of Employer matching contributions.

 

If elected by the Employer, the average contribution percentage testsin (1) and (2) above shall be applied by comparing the current Plan Year’saverage contribution percentage for Participants who are Highly CompensatedEmployees with the current Plan Year’s average contribution percentage forParticipants who are Nonhighly Compensated Employees. Once made, this electioncan only be undone if the Plan meets the requirements for changing to prioryear testing as set forth in Internal Revenue Service Notice 98-1 (orsuperseding guidance).

 

A Participant is a Highly Compensated Employee for a particular PlanYear if he meets the definition of Highly Compensated Employee in effect forthat Plan Year. Similarly, a Participant is a Nonhighly Compensated Employeefor a particular Plan Year if he does not meet the definition of a HighlyCompensated Employee in effect for that Plan Year.

 

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For purposes of this Section 9.3, the contribution percentage for anyeligible Participant who is a Highly Compensated Employee for the Plan Year andwho is eligible to receive Employer matching contributions, or electivedeferrals allocated to his account under two or more plans described in Section401(a) of the Code or under arrangements described in Section 401(k) of theCode that are maintained by the Employer or an affiliated employer, shall bedetermined as if all such contributions and elective deferrals were made undera single plan.

 

In the event that this Plan satisfies the requirements of Section410(b) or Section 401(a)(4) of the Code only if aggregated with one or moreother plans, or if one or more other plans satisfy the requirements of Section410(b) or Section 401(a)(4) of the Code only if aggregated with this Plan, thenthe provisions of this Section 9.3 shall be applied by determining thecontribution percentages of eligible Participants as if all such plans were asingle plan.

 

The determination and treatment of the contribution percentage of anyParticipant shall satisfy such other requirements as may be prescribed by theSecretary of the Treasury.

 

In the event the rate of contributions made by eligible Participantswho are Highly Compensated Employees is in excess of the contribution rateallowed under this Section 9.3(a) or the deferral rate allowed under Section9.2(a), and the Employer has elected to use the current year testing methodpursuant to this Section 9.3(a), the Employer in its discretion may make aspecial “qualified matching contribution” contribution for Participants who areNonhighly Compensated Employees who are eligible to receive Employer matchingcontributions and who have been credited with 1,000 Hours of Service in thePlan Year and who are employed on the last day of the Plan Year, to beallocated among their Accounts in proportion to their Compensation for the PlanYear, as a uniform percentage of Compensation as determined by the Board ofDirectors, as a fixed dollar amount as determined by the Board of Directors, orin any other nondiscriminatory manner as determined by the Board of Directors.A “qualified matching contribution” is a matching contribution which is subjectto the distribution and nonforfeitability requirements under Section 401(k) ofthe Code when made. The provisions of Regulation Sections 1.401(k)-1(b)(5), 1.401(k)-1(g)(13) and1.401(m)-1(b)(5) areincorporated herein by reference.

 

The provisions of Section 401(m)(2)(A) of the Code, as amended by theSmall Business Job Protection Act of 1996, are incorporated herein byreference.

 

The provisions of Section 9.3(a) are effective for Plan Years beginningafter December 31, 1996.

 

(b) *Distributionof Excess Employer Matching Contributions.*

 

(1) *InGeneral.*If the nondiscrimination tests of Section 9.3(a) arenot satisfied for a Plan Year, then the “excess contributions” and any incomeallocable thereto shall be forfeited, if otherwise forfeitable, no later thanthe last day of the Plan Year following the Plan Year for which saidnondiscrimination tests are not satisfied, and shall be used to reduce Employercontributions under Section 4.2 1(a). To the extent that such “excesscontributions” are nonforfeitable, such excess contributions shall be distributedto the Participant on whose behalf the excess contributions were made no laterthan the last day of the Plan Year following the Plan Year for which such“excess contributions” are made. However, if such excess contributions aredistributed later than 2V2 months following the last day of the Plan Year inwhich such excess contributions were made, a 10% excise tax will be imposedupon the Employer with respect to those excess contributions.

 

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(2) *Excesscontributions.*For purposes of this Section 9.3(b), “excesscontributions” shall mean, with respect to any Plan Year, the excess of theaggregate amount of Employer matching contributions and, if applicable,elective deferrals and Employer contributions attributable to electivedeferrals actually made on behalf of Highly Compensated Employees for such PlanYear over the maximum amount of all such contributions permitted under thenondiscrimination tests under Section 9.3(a) (determined by reducingcontributions made on behalf of Highly Compensated Employees in order of theircontribution percentages, beginning with the highest of such percentages).Excess contributions are allocated to the Highly compensated Employees with thelargest amounts of employer

 

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contributionstaken into account in calculating the average contribution percentage test forthe year in which the excess arose, beginning with the Highly CompensatedEmployee with the largest amount of such employer contributions and continuingin descending order until all the excess contributions have been allocated. Forpurposes of the preceding sentence, the “largest amount” is determined afterdistribution of any excess contributions.

 

The provisions of Section 9.3(b)(2) areeffective for Plan Years beginning after December 31, 1996.

 

(3) *Determinationof Income.*The income allocable to excess contributions shall bedetermined by multiplying the income allocable to the Employer matchingcontributions for the Plan Year by a fraction, the numerator of which is theexcess contributions on behalf of the Participant for the Plan Year, and thedenominator of which is the sum of the Participant’s Account balancesattributable to Employer matching contributions on the last day of thepreceding Plan Year. Income allocable to the period between the last day of thepreceding Plan Year and the date of distribution shall be disregarded indetermining income.

 

9.4****LIMITATION ON THE MULTIPLEUSE ALTERNATIVE.**The sum of the average actual deferral percentageof Highly Compensated Employees under Section 9.2(a) and the averagecontribution percentage of Highly Compensated Employees under Section 9.3(a)shall not exceed the following:

 

(a) 125%of the average actual deferral percentage of the Nonhighly CompensatedEmployees under Section 9.2(a) or the average contribution percentage of theNonhighly Compensated Employees under Section 9.3(a), whichever is greater; and

 

(b) two (2) percentage points more than theaverage actual deferral percentage of the Nonhighly Compensated Employees underSection 9.2(a) or the average contribution percentage of the NonhighlyCompensated Employees under Section 9.3(a), whichever is smaller, and in noevent more than two (2) times such lesser amount.

 

(c) If the limits set forth herein areexceeded, the average contribution percentage of the Highly CompensatedEmployees shall be reduced in accordance with the provisions of Section 9.3(b)by forfeiting “excess contributions”, if forfeitable, or distributing “excesscontributions”, if nonforfeitable, as set forth in Section 9.3(b). In lieu ofreducing the average contribution percentage, in accordance with Section9.3(b), the Administrator may reduce the average actual deferral percentage ofthe Highly Compensated Employees in accordance with the provisions of Section9.2(b) by distributing “excess contributions” as set forth in Section 9.2(b).The reductions under this Section shall be made only to the extent necessary tocomply with the restrictions on the multiple use set forth in Code Section 401(m)(9).

 

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**ARTICLE TEN—LIMITATIONS ON ANNUALADDITIONS TO A PARTICIPANT’S ACCOUNT**

 

10.1**RULES AND DEFINITIONS.**

 

*(a) Rules.* The following rules limit additionsto Participants1 Accounts:

 

(1) If the Participant does not participate,and has never participated, in another qualified plan maintained by theEmployer, the amount of annual additions which may be credited to theParticipant’s Account for any limitation year will not exceed the lesser of themaximum permissible amount or any other limitation contained in this Plan. Ifthe Employer contribution that would otherwise be allocated to theParticipant’s Account would cause the annual additions for the limitation yearto exceed the maximum permissible amount, the amount allocated will be reducedso that the annual additions for the limitation year will equal the maximumpermissible amount.

 

(2) Prior to determining the Participant’sactual Compensation for the limitation year, the Employer may determine themaximum permissible amount for a Participant on the basis of a reasonableestimation of the Participant’s Compensation for the limitation year, uniformlydetermined for all Participants similarly situated.

 

(3) As soon as is administratively feasibleafter the end of the limitation year, the maximum permissible amount for thelimitation year will be determined on the basis of the Participant’s actualCompensation for the limitation year.

 

(4) If,as a result of the allocation of forfeitures, a reasonable error in estimatinga Participant’s Compensation, a reasonable error in determining the amount ofelective deferrals (within the meaning of Code Section 402(g)(3)) that may bemade with respect to any Participant, or other facts and circumstances to whichRegulation Section 1.415-6(b)(6) shallbe applicable, there is an excess amount, the excess will be disposed of asfollows:

 

(A) Any elective deferral contributions, tothe extent they would reduce the excess amount, will be returned to theParticipant.

 

(B) If an excess amount still exists afterthe application of subparagraph (A) and the Participant is covered by the Planat the end of the limitation year, the excess amount in the Participant’sAccount will be used to reduce Employer contributions (including any allocationof forfeitures) for such Participant in the next limitation year, and each succeedinglimitation year if necessary.

 

(C) If an excess amount still exists afterthe application of subparagraphs (A) and (B), and the Participant is notcovered by the Plan at the end of the limitation year, the excess amount willbe held unallocated in a suspense account. The suspense account will be appliedto reduce future Employer contributions (including allocation of anyforfeitures) for all remaining Participants in the next limitation year, andeach succeeding limitation year if necessary.

 

(D) If a suspense account is in existence atany time during the limitation year pursuant to this Section, it will notparticipate in the allocation of the Trust’s investment gains and losses. If asuspense account is in existence at any time during a particular limitationyear, all amounts in the suspense account must be allocated and reallocated toParticipants’ Accounts before any 

 

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Employer orany Employee contributions may be made to the Plan for that limitation year.Excess amounts may not be distributed to Participants or former Participants.

 

(E) If, in addition to this Plan, theParticipant is covered under another defined contribution plan maintained bythe Employer during any limitation year, the annual additions which may becredited to a Participant’s Account under all Plans for any such limitationyear will not exceed the maximum permissible amount. Benefits will be reducedunder any defined contribution discretionary contribution plan before they arereduced under any defined contribution pension plan. If both plans arediscretionary contribution plans they shall first be reduced under this Plan.Any excess amount attributable to this Plan will be disposed of in the mannerdescribed in Section 10.l(a)(4).

 

(F) If the Employer maintains, or at any timemaintained, a qualified defined benefit plan covering any Participant in thisPlan, the sum of the Participant’s defined benefit plan fraction and definedcontribution plan fraction will not exceed 1.0 in any limitation year. Theannual additions which may be credited to the Participant’s Account under thisPlan for any limitation year will be limited so that if the limitations of CodeSection 415(e)**become applicable that benefitsunder a defined benefit plan shall have first been provided before benefitsunder a defined contribution plan are provided. The provisions of this Section10.l(a)(4)(F) shall not apply to limitation years commencing on or afterJanuary 1, 2000.

 

(G) In any Plan Year in which the Planbecomes a Super Top-Heavy Plan as defined in Section 12.2, the denominators ofthe defined benefit fraction and defined contribution fraction shall becomputed using 100% of the maximum dollar limitation instead of 125%.

 

In any year in which the Plan is a Top-Heavy Plan (but not a SuperTop-Heavy Plan), the limitations shall be similarly reduced, subject to thespecial provisions of Section 12.3, which provide for the use of the 125% limitation subject to the addedminimum allocations.

 

(5)**Notwithstanding anythingcontained in this Article Ten to the contrary, a Participant’s defined benefitfraction (including preservation of his accrued benefit) and/or definedcontribution fraction may be adjusted in accordance with transitional rulescontained in Section 235 of theTax Equity and Fiscal Responsibility Act of 1982 and Section 1106 of the TaxReform Act of 1986.

 

(b) *Definitions.*

 

(1) *Annual additions:*The followingamounts credited to a Participant’s Account for the limitation year are treatedas annual additions to a defined contribution plan.

 

(A) Employer contributions; and

 

(B) Employee contributions; and

 

(C) Forfeitures; and

 

(D) Amounts allocated to an individualmedical account, as defined in Section 415(l)(2) of the Code, which is part ofa pension or annuity plan maintained by the Employer. Also, amounts derivedfrom contributions paid or accrued in taxable years ending after such datewhich are attributable to post-retirement medical benefits allocated to theseparate account of a Key Employee, as

 

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defined inSection 419A(d)(3), and amounts under a welfare benefit fund, as defined inSection 419(e), maintained by the Employer, are treated as annual additions toa defined contribution plan.

For this purpose, any excess amount applied under Section 10.1(a)(4) inthe limitation year to reduce Employer contributions will be considered annualadditions for such limitation year.

 

(2) *Compensation:*For purposes of determining maximum permitted benefits under this Section,Compensation shall include all of a Participant’s earned income, wages,salaries, and fees for professional services, and other amounts received forpersonal services actually rendered in the course of employment with theEmployer maintaining the Plan, including, but not limited to, commissions paidto salesmen, compensation for services on the basis of a percentage of profits,commissions on insurance premiums, tips and bonuses, and excluding thefollowing:

 

(A) Employer contributions to a plan ofdeferred compensation which are not included in the Employee’s gross income forthe taxable year in which contributed, or Employer contributions under asimplified employee pension plan (funded with individual retirement accounts orannuities) to the extent such contributions are deductible by the Employee, orany distributions from a plan of deferred compensation;

 

(B) Amounts realized from the exercise of anonqualified stock option, or when restricted stock (or property) held by theEmployee either becomes freely transferable or is no longer subject to asubstantial risk of forfeiture;

 

(C) Amounts realized from the sale, exchange,or other disposition of stock acquired under a qualified stock option; and

 

(D) Other amounts which received special taxbenefits, or contributions made by the Employer (whether or not under a salaryreduction agreement) toward the purchase of an annuity described in Section403(b) of the Code (whether or not the amounts are actually excludable from thegross income of the Employee).

 

Compensation shall be measured on the basis of compensation paid in thelimitation year.

 

For purposes of applying the limitations of this Article Ten,compensation paid or made available during such limitation year shall includeany elective deferral (as defined in Code Section 402(g)(3)), and any amountwhich is contributed or deferred by the Employer at the election of theEmployee and which is not includible in the gross income of the Employee byreason of Code Section 125,457,and, for Limitation Years beginning on or after January 1, 2001, 132(f)(4). Theprovisions of this paragraph are effective for Plan Years beginning afterDecember 31, 1997.

 

(3) *Definedbenefit fraction.*This shall mean a fraction, the numerator ofwhich is the sum of the Participant’s projected annual benefits under all thedefined benefit plans maintained or previously maintained by the Employer, andthe denominator of which is the lesser of 125% of the dollar limitation ineffect for the limitation year under Section 415(b)(1)(A) of the Code or 140%of the amount which may be taken into account under Code Section 415(b)(1)(B).In determining the Participant’s defined benefit fraction hereunder, aParticipant with a benefit accrued under a defined benefit plan previouslymaintained by the Employer shall have his years of participation in this Plan aggregatedwith years of participation in a defined benefit plan.

 

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(4) *Definedcontribution fraction:*This shall mean a fraction, the numeratorof which is the sum of the annual additions to the Participant’s Account underall the defined contribution plans (whether or not terminated) maintained bythe Employer for the current and all prior limitation years (including theannual additions attributable to the Participant’s nondeductible Employeecontributions to this and all other qualified plans, whether or not terminated,maintained by the Employer), and the denominator of which is the sum of themaximum aggregate amounts for the current and all prior limitation years withthe Employer (regardless of whether a defined contribution plan was maintainedby the Employer).

 

The maximum aggregate amount in any limitation year is the lesser of125% of the dollar limitation then in effect under Section 415(c)(l)(A) of theCode or 35% of the Participant’s Compensation for such year.

 

(5) *Definedcontribution dollar limitation:*Notwithstanding any otherprovisions of the Plan, contributions and other additions with respect to aparticipant exceed the limitation of Code Section 415(c) if, when expressed asan Annual Addition (within the meaning of Code Section 415(c)(2)) to theParticipant’s Account, such Annual Addition is greater than the lesser of:

 

(A) $30,000, as adjusted under Code Section415(d); or

 

(B) 25 percent of the Participant’scompensation (as defined in Code Section 41 5(c)(3)).

 

The provisions of this Section 10.1(b)(5) are effective for Plan Yearsbeginning after December 31, 1994.

 

(6)*Employer:*This termrefers to the Employer that adopts this Plan, and all members of a controlledgroup of corporations (as defined in Section 414(b) of the Code, as modified bySection 415(h)), commonly-controlledtrades or businesses (as defined in Section 4 14(c) as modified by Section415(h)), or affiliated service groups (as defined in Section 4 14(m)) of whichthe adopting employer is a part.

 

(7)*Highest average compensation:*Thismeans the average Compensation for the three consecutive limitation years withthe Employer that produces the highest average.

 

(8) *Limitationyear.*The Plan Year shall be the 12-consecutive-month periodused to measure Compensation in this Plan for benefit purposes.

 

(9) *Maximumpermissible amount:*This amount is the lesser of the definedcontribution dollar limitation or 25% ofthe Participant’s Compensation for the limitation year. If a short limitationyear is created because of an amendment changing the limitation year to adifferent 12-consecutive-month period, the maximum permissible amount will notexceed the defined contribution dollar limitation multiplied by the followingfraction:

 

Number ofmonths in the short limitation year

12

 

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(10) *Projectedannual benefit:*This is the annual retirement benefit (adjustedto an actuarially equivalent straight life annuity if such benefit is expressedin a form other than a straight life annuity or qualified joint and survivorannuity) to which the Participant would be entitled under the terms of thePlan, assuming:

 

(A) the Participant will continue employmentuntil normal retirement age under the Plan (or current age, if later), and

 

(B) the Participant’s Compensation for thecurrent limitation year and all other relevant factors used to determinebenefits under the Plan will remain constant for all future limitation years.

 

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**ARTICLE ELEVEN—AMENDMENT ANDTERMINATION**

 

11.1 AMENDMENT. TheEmployer shall have the right to amend, alter, or modify the Plan at any time,or from time to time, in whole or in part. Any such amendment shall becomeeffective under its terms upon adoption by the Employer. The amendment shall beadopted by formal action of the Employer’s Board of Directors. However, no amendmentaffecting the duties, powers or responsibilities of the Trustee may be madewithout the written consent of the Trustee. No amendment shall be made to thePlan which shall:

 

(a) make it possible (other than as providedin Section 14.3) for any part of the corpus or income of the Trust Fund (otherthan such part as may be required to pay taxes and administrative expenses) tobe used for or diverted to purposes other than the exclusive benefit of theParticipants or their beneficiaries; or

 

(b) alter the schedule for vesting in aParticipant’s Account with respect to any Participant with three (3) or moreYears of Service without his consent or deprive any Participant of anynonforfeitable portion of his Account.

 

Notwithstanding the other provisions of this Section or any otherprovisions of the Plan, any amendment or modification of the Plan may be maderetroactively if necessary or appropriate to conform to or to satisfy theconditions of any law, governmental regulation, or ruling, and to meet the requirementsof the Employee Retirement Income Security Act of 1974, as it may be amended.

 

11.2**TERMINATION OF THE PLAN.** The Employerreserves the right at any time and in its sole discretion to discontinuepayments under the Plan and to terminate the Plan. In the event the Plan isterminated, or upon complete discontinuance of contributions under the Plan bythe Employer, or in the event of a partial termination of the Plan, the rightsof each Participant to his Account on the date of such termination or discontinuanceof contributions, to the extent of the fair market value under the Trust Fund,shall become fully vested and nonforfeitable. The Employer shall direct theTrustee to distribute the Trust Fund in accordance with the Plan’s distributionprovisions to the Participants and their Beneficiaries, each Participant orBeneficiary receiving a portion of the Trust Fund equal to the value of hisAccount as of the date of distribution. These distributions may be implementedby the continuance of the Trust and the distribution of the Participants’Account shall be made in such time and such manner as though the Plan had notterminated, or by any other appropriate method, including rollover intoIndividual Retirement Accounts. Upon distribution of the Trust Fund, theTrustee shall be discharged from all obligations under the Trust and noParticipant or Beneficiary shall have any further right or claim therein. If apartial termination of the Plan is deemed to have occurred, this Section shallapply only to those Participants affected by such partial termination.

 

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**ARTICLE TWELVE—TOP-HEAVY PROVISIONS**

 

12.1**APPLICABILITY.**The provisions of this Article shall becomeapplicable only for any Plan Year in which the Plan is a Top-Heavy Plan. Thedetermination of whether the Plan is a Top-Heavy Plan shall be made each PlanYear by the Administrator.

 

12.2**DEFINITIONS.** For purposes of this Article,the following definitions shall apply:

 

(a) *“Key Employee”*shall mean any Employee or former Employee (and the Beneficiaries ofsuch Employee) who, at any time during the determination period, was (i) anofficer of the Employer earning Compensation greater than 50% of the dollar limitation underSection 415(b)(1)(A) of the Code, (ii) an owner (or considered an owner underSection 318 of the Code) of both more than a one-half percent (V2%) interest in the Employer andone of the ten largest interests in the Employer if such individual’sCompensation exceeds the dollar limitation under Section 415(c)(1)(A) of the Code, (iii) a 5% owner of the Employer, or (iv) a1% owner of the Employer who has an annual Compensation of more than $150,000.The determination period of the Plan is the Plan Year containing thedetermination date as defined in Section 12.2(c)(4) and the four preceding PlanYears. The determination of who is a Key Employee (including the terms “5%owner” and “1% owner”) will be made in accordance with Section 416(i)(1) of theCode and the regulations thereunder. “Non-Key Employee” shall mean any Employeeor Beneficiary of such Employee or former Employee or Beneficiary of suchformer Employee who is not or was not a Key Employee during the Plan Yearending on the determination date, nor during the four preceding Plan Years.

 

(b) *“SuperTop-Heavy Plan”*shall mean a plan which meets the test forstatus as a Top-Heavy Plan, where “90%” is substituted for “60%” at each placein Section 12.2(c).

 

(c) *“Top-HeavyPlan”*shall mean a plan where any of the following conditionsexist:

 

(1) *Top-Heavystatus defined:*

 

(A) The Plan is a Top-Heavy Plan if thetop-heavy ratio for the Plan exceeds 60% and the Plan is not part of anyrequired aggregation group or permissive aggregation group of plans; or

 

(B) The Plan is a Top-Heavy Plan if the Planis a part of a required aggregation group of plans (but is not part of apermissive aggregation group) and the top-heavy ratio for the group of plansexceeds 60%; or

 

(C) ThePlan is a Top-Heavy Plan if the Plan is a part of a required aggregation groupof plans and part of a permissive aggregation group and the top-heavy ratio forthe permissive aggregation group exceeds 60%.

 

(2) If the Employer maintains one or moredefined contribution plans (including any simplified employee pension planfunded with individual retirement accounts or annuities) and the Employermaintains or has maintained one or more defined benefit plans which havecovered or could cover a Participant in this Plan, the top-heavy ratio is afraction, the numerator of which is the sum of account balances under thedefined contribution plans for all Key Employees and the actuarial equivalentsof accrued benefits under the defined benefit plans for all Key Employees, andthe denominator of which is the sum of the account balances under the definedcontribution plans for all Participants and the

 

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actuarialequivalents of accrued benefits under the defined benefit plans for allParticipants. Both the numerator and denominator of the top-heavy ratio shallinclude any distribution of an account balance or an accrued benefit made inthe five-year period ending on the determination date and any contribution dueto a defined contribution pension plan but unpaid as of the determination date.In determining the accrued benefit of a Non-Key Employee who is participatingin a plan that is part of a required aggregation group, the method ofdetermining such benefit shall be either (a) in accordance with the method, ifany, that uniformly applies for accrual purposes under all plans maintained bythe Employer or any related employer under Code Section 414, or (b) if there isno such method, as if such benefit accrued not more rapidly than the slowestaccrual rate permitted under the fractional accrual rate of Code Section411(b)(1)(C).

 

(3) For purposes of (1) and (2) above, thevalue of Account balances and the actuarial equivalents of accrued benefitswill be determined as of the most recent Valuation Date that falls within orends with the 12-month period ending on the determination date. The Accountbalances and accrued benefits of a Participant who is not a Key Employee butwho was a Key Employee in a prior year will be disregarded. The accruedbenefits and Account balances of Participants who have performed no Flours ofService with any Employer maintaining the Plan for the five-year period endingon the determination date will be disregarded. The calculations of thetop-heavy ratio, and the extent to which distributions, rollovers, andtransfers are taken into account will be made under Section 416 of the Code andregulations issued thereunder. Deductible Employee contributions will not betaken into account for purposes of computing the top-heavy ratio. Whenaggregating plans, the value of account balances and accrued benefits will becalculated with reference to the determination dates that fall within the samecalendar year.

 

(4) *Definition of terms forTop-Heavy status:*

 

(A) “Top-heavy ratio” shall mean thefollowing:

 

(1) If the Employer maintains one or moredefined contribution plans (including any simplified employee pension plan fundedwith individual retirement accounts or annuities) and the Employer has nevermaintained any defined benefit plans which have covered or could cover aParticipant in this Plan, the top-heavy ratio is a fraction, the numerator ofwhich is the sum of the Account balances of all Key Employees as of thedetermination date (including any part of any Account balance distributed inthe five-year period ending on the determination date), and the denominator ofwhich is the sum of the Account balances (including any part of any Accountbalance distributed in the five-year period ending on the determination date)of all Participants as of the determination date. Both the numerator and thedenominator shall be increased by any contributions due but unpaid to a definedcontribution pension plan as of the determination date.

 

(2) If the Employer maintains one or moredefined contribution plans (including any simplified employee pension planfunded with individual retirement accounts or annuities) and the Employer maintainsor has maintained one or more defined benefit plans which have covered or couldcover a Participant in this Plan, the top-heavy ratio is a fraction, thenumerator of which is the sum of account balances under the definedcontribution plans for all Key Employees and the actuarial equivalent ofaccrued benefits under the defined benefit plans for all Key Employees, and thedenominator of which is the sum of the account balances under the definedcontribution plans for all Participants and the actuarial equivalent of accruedbenefits under the defined benefit plans for all Participants. Both thenumerator and denominator of the top-heavy ratio shall include any distribution

 

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of an accountbalance or an accrued benefit made in the five-year period ending on thedetermination date and any contribution due but unpaid to a definedcontribution pension plan as of the determination date.

 

(3) For purposes of(l) and (2) above, thevalue of Account balances and the actuarial equivalent of accrued benefits willbe determined as of the most recent valuation date that falls within or endswith the 12-month period ending on the determination date. The accrued benefitsand Account balances of participants who have performed no services for anyemployer maintaining the Plan for the five-year period ending on thedetermination date will be disregarded. The calculations of the top- heavyratio, and the extent to which distributions, rollovers, and transfers aretaken into account will be made under Section 416 of the Code and regulationsissued thereunder. Deductible employee contributions will not be taken intoaccount for purposes of computing the top-heavy ratio. When aggregating plans,the value of account balances and accrued benefits will be calculated withreference to the determination dates that fall within the same calendar year.

 

(B) *“Permissiveaggregation group”*shall mean the required aggregation group ofplans plus any other plan or plans of the Employer which, when considered as agroup with the required aggregation group, would continue to satisfy therequirements of Sections 401(a)(4) and 410 of the Code.

 

(C) *“Requiredaggregation group”*shall mean (1) each qualified plan of theEmployer (including any terminated plan) in which at least one Key Employee participates,and (2) any other qualified plan of the Employer which enables a plan describedin (1) to meet the requirements of Sections 401(a)(4) or 410 of the Code.

 

(D) *“Determinationdate”*shall mean, for any Plan Year subsequent to the first PlanYear, the last day of the preceding Plan Year. For the first Plan Year of thePlan, “determination date” shall mean the last day of that Plan Year.

 

(E) *“ValuationDate”*shall mean the last day of the Plan Year.

 

(F) Actuarial equivalence shall be based onthe interest and mortality rates utilized to determine actuarial equivalencewhen benefits are paid from any defined benefit plan. If no rates are specifiedin said plan, the following shall be utilized: pre- and post-retirementinterest — *5%;*post- retirementmortality based on the Unisex Pension (1984) Table as used by the PensionBenefit Guaranty Corporation on the date of execution hereof.

 

12.3**ALLOCATION OF EMPLOYER CONTRIBUTIONS FOR A TOP-HEAVY PLAN YEAR.**

 

(a) Except as otherwise provided below, inany Plan Year when the Plan is a Top-Heavy Plan the Employer contributionsallocated on behalf of any Participant who is a Non-Key Employee shall not beless than the lesser of 3% of such Participant’s Compensation as defined inSection 10.1(b)(2) or the largest percentage of Employer contributions(including elective deferrals under Section 4.1) as a percentage of the first$150,000 (or such amount as prescribed by the Secretary of the Treasury or hisdelegate) of the Key Employee’s Compensation, allocated on behalf of any KeyEmployee for that Plan Year. This minimum allocation shall be made even though,under other Plan provisions, the Participant would not otherwise be entitled toreceive an allocation, or would have received a lesser allocation for the Plan Yearbecause of insufficient Employer contributions under Section 4.2 or the

 

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Participant’sfailure to complete 1,000 Hours of Service or the Participant’s failure to makeelective deferrals under Section 4.1.

 

(b) The minimum allocation under this Sectionshall not apply to any Participant who was not employed by the Employer on thelast day of the Plan Year.

 

(c) The minimum allocation under this Sectionshall be reduced by any allocation of Employer contributions under Section 4.2and will be used as an offset against any such required allocation under anyother defined contribution plan of the Employer with a Plan Year ending in thesame calendar year as the Valuation Date.

 

(d) Neither elective deferrals nor matchingcontributions (as defined in Code Sections 402(g)(3) and 401 (m)(4)(A),respectively) shall be taken into account for the purpose of satisfying theminimum allocation requirements of this Section, but are included for purposesof determining the percentage of Employer contributions allocated to KeyEmployees.

 

(e) There shall be no duplication of theminimum benefits required under Code Section 416. Benefits shall be providedunder defined benefit plans before under any defined contribution plans. If adefined benefit plan (active or frozen) is part of the permissive or requiredaggregation group of plans of the Employer, the minimum allocation insubparagraph (a) shall be deemed to be 5% and shall be offset by aParticipant’s accrued benefit under a defined benefit plan according to the followingequivalencies: a 1% “qualifying benefit accrual” under a defined benefit planequals a 2.5% allocation under a defined contribution plan. To be a “qualifyingbenefit accrual,” the pension under the defined benefit plan must be convertedto a pension payable for life based on the average of the five consecutiveyears of the Participant’s highest compensation, payable at that plan’s normalretirement date. Accordingly, for a Participant whose “qualifying benefitaccrual” equals 2% multiplied by each year of his participation in the Planwhile a Top-Heavy Plan, there shall be no minimum allocation hereunder. If the“qualifying benefit accrual” is a lesser amount than 2% for each such year, theminimum allocation under this Plan shall be provided on a pro rata basis,adjusted on the basis of the above equivalencies. Except as provided insubparagraph (f), in no event will additional minimum allocations be providedfor any Participant who has earned a “qualifying benefit accrual” equal to 20%of his Compensation (as defined in Article Ten) averaged over the fiveconsecutive years in which such Compensation was the highest.

 

(f) There shall be no duplication of theminimum benefits required under Code Section 416. Benefits shall be providedunder defined benefit plans before under defined contribution plans. If adefined benefit plan (active or frozen) is part of the permissive or requiredaggregation group of plans, and if any Participant in the Plan would have hisbenefits limited due to the application of the special Code limitation rule inSection 10.1 in a year when the Plan is a Top-Heavy Plan but not a Super Top-Heavy Plan, the allocation method of subparagraph (e) above shall apply, exceptthat “3%” shall be substituted for “2%” and “30%” shall be substituted for“20%.”

 

12.4**VESTING.**The provisions contained in Section 6.1 relating tovesting shall continue to apply in any Plan Year in which the Plan is aTop-Heavy Plan, and apply to all benefits within the meaning of Section411(a)(7) of the Code except those attributable to Employee contributions andelective deferrals under Section 4.1, including benefits accrued before theeffective date of Section 416 and benefits accrued before the Plan became aTop-Heavy Plan. Further, no reduction in vested benefits may occur in the eventthe Plan’s status as a Top-Heavy Plan changes for any Plan Year and the

 

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vesting schedule is amended. In addition, if a Plan’s status changesfrom a Top-Heavy Plan to that of a non-Top-Heavy Plan, a Participant with three(3) or more Years of Service for vesting purposes shall continue to have hisvested rights determined under the schedule which he selects, in the event thevesting schedule is subsequently amended.

 

Payment of a Participant’s vested Account balance under this Sectionshall be made in accordance with the provisions of Article Seven.

 

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**ARTICLE THIRTEEN—LOANS ANDHARDSHIP DISTRIBUTIONS**

 

13.1 **LOANS.**

 

*(a) PermissibleAmount and Procedures.*Upon the application of aParticipant, the Administrator may, in accordance with a uniform andnondiscriminatory policy, direct the Trustee to grant a loan or loans to aParticipant at a reasonable rate of interest. The Participant’s signature shallbe required on a promissory note. In no event shall the amount of a loan or loansto a Participant exceed the vested value of the Participant’s Account, whichshall be security for such loan. The Administrator shall impose a rate ofinterest which provides the Plan with a return commensurate with the interestrates charged by persons in the business of lending money for loans which wouldbe made under similar circumstances. The terms of any loan shall be arrived atby mutual agreement between the Administrator and the Participant, subject tothe approval of the Trustee. Participant loans shall be treated as segregatedinvestments, and interest repayments will be credited only to the Participant’sAccount. In the event a Participant terminates employment while any loan isoutstanding, the unpaid balance and any interest due thereon shall become dueand payable, within thirty (30) days of such termination of employment. If suchamount is not paid to the Plan, it shall be charged against the amounts thatare otherwise payable to the Participant or the Participant’s Beneficiary underthe provisions of the Plan.

 

(b) *Limitationon Amount of Loans.*A Participant’s loan or loans, whenaggregated with all other outstanding loan balances under this Plan and anyother qualified retirement plan maintained by the Employer, shall not exceedthe lesser of:

 

(1) $50,000. which amount shall be reduced bythe highest outstanding balance of loans, if any, during the preceding 12-monthperiod over the current outstanding balance of loans; or

 

(2) one-half (1⁄2)****of thevested value of the Participant’s Account.

 

Any loan must be repaid within five (5) years. If the loan was made forthe purpose of acquiring the primary residence of the Participant, then suchloan must be repaid within fifteen (15) years. The repayment of any loan mustbe made in at least quarterly installments of principal and interest with levelperiodic payments.

 

In the case of a Participant who has loans outstanding from this Planor other plans of the Employer (or a member of any affiliated service group orcontrolled group of businesses), the Administrator shall be responsible forreporting to the Trustee the existence of said loans in order to aggregate allsuch loans within the above limits as required by the Code.

 

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13.2**HARDSHIP DISTRIBUTIONS.**The Administrator may direct theTrustee to distribute to any Participant or his Beneficiary in any one PlanYear all or a portion of the Participant’s nonforfeitable interest in hisAccount exclusive of amounts attributable to earnings on elective deferralcontribution amounts, valued as of the preceding Valuation Date, on account ofan immediate and heavy financial need provided that the distribution isnecessary to satisfy such financial need. The portions of the Participant’sAccount attributable to and qualified nonelective contributions (as defined inSection 9.2(a)) and matching contributions which are used to satisfy theaverage actual deferral percentage test of Section 9.2 may not be distributedto him under the terms of this Section. Distributions paid pursuant to thisSection shall be deemed to be made as of the first day of the Plan Year and theParticipant’s Account shall be reduced accordingly.

 

(a) *DeemedImmediate and Heavy Financial Need.*A distribution made onaccount of medical expenses (as described in Code Section 213(d)) incurred bythe Participant, his spouse or his dependents (as defined in Code Section 152*),*orfor purchase of the Participant’s principal residence (excluding mortgagepayments), or for payment of educational expenses for the next twelve months ofpost- secondary education for the Participant, his spouse or his children ordependents, or to prevent the eviction of the Participant from his principalresidence or foreclosure on same shall be deemed to be made on account of animmediate and heavy financial need.

 

(b) *DeemedNecessity to Satisfy Financial Need.*A distribution shall bedeemed necessary to satisfy a Participant’s immediate and heavy financial needif the amount of the distribution does not exceed the amount of the financialneed, and the Participant has obtained all currently available distributionsand nontaxable loans under all plans maintained by the Employer, and theParticipant makes a written irrevocable election to suspend his rights to makeelective deferrals and employee contributions under all plans maintained by theEmployer for a 6-month period following receipt of the distribution and suchirrevocable election limits the amount of his elective deferrals in his taxableyear immediately following the taxable year of the hardship distribution equalto the applicable limit under Code Section 402(g) less the amount of hisdeferrals made in the taxable year of the distribution.

 

(c) *ApplicationProcedure.*The Administrator shall require that requests forhardship distributions be made under procedures which include the Participant’sstatement of the facts causing the hardship, the amount of the financial needand any other information required to ascertain the facts. No distribution willbe granted unless the amount attributable to Employer contributions has been inthe Trust for a period of two (2) years or, alternatively, the Participant hasbeen a Participant for five (5) ormore years.

 

The provisions of this Section (relating to hardship distributions) areintended to comply with Treasury regulations issued under Section 401(k) of theCode, and shall be so interpreted.

 

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**ARTICLE FOURTEEN—MISCELLANEOUS PROVISIONS**

 

14.1**PLAN DOES NOT AFFECT EMPLOYMENT.**Neither the creation ofthis Plan nor any amendment thereto nor the creation of any fund nor thepayment of benefits hereunder shall be construed as giving any legal orequitable right to any Employee or Participant against the Employer, itsofficers or Employees, or against the Trustee, and all liabilities under thisPlan shall be satisfied, if at all, only out of the Trust Fund held by theTrustee. Participation in the Plan shall not give any Participant any right tobe retained in the employ of the Employer, and the Employer hereby expresslyretains the right to hire and discharge any Employee at any time with orwithout cause, as if the Plan had not been adopted, and any such dischargedParticipant shall have only such rights or interests in the Trust Fund as maybe specified herein.

 

14.2**SUCCESSOR****TO THEEMPLOYER.**In the event of the merger, consolidation, reorganizationor sale of assets of the Employer, under circumstances in which a successorperson, firm, or corporation shall carry on all or a substantial part of thebusiness of the Employer, and such successor shall employ a substantial numberof Employees of the Employer and shall elect to carry on the provisions of thePlan, such successor shall be substituted for the Employer under the terms andprovisions of the Plan upon the filing in writing with the Trustee of itselection to do so.

 

14.3**REPAYMENTS TO THE EMPLOYER.**Notwithstanding any provisionsof this Plan to the contrary, and in the sole discretion of the Employer:

 

(a) Any monies or other Plan assetsattributable to any contribution made to this Plan by the Employer because of amistake of fact may be returned to the Employer within one year after the dateof contribution. Earnings attributable to the excess contribution may not bereturned to the Employer, but losses attributable thereto must reduce theamount to be so returned. Furthermore, if the withdrawal of the amountattributable to the excess contribution would cause the balance of theindividual account of any Participant to be reduced to less than the balancewhich would have been in the account had the amount not been contributed, thenthe amount to be returned to the Employer must be limited so as to avoid suchreduction.

 

(b) Any monies or other Plan assetsattributable to any contribution made to this Plan by the Employer for anyfiscal year for which initial Plan qualification under the Code is denied maybe refunded to the Employer within one year after the date such qualificationof the Plan is denied or within one year of the resolution of any judicial oradministrative process with respect to the disallowance.

 

(c) Any monies or other Plan assetsattributable to any contribution made to this Plan by the Employer may berefunded to the Employer, to the extent the income tax deduction for suchcontribution is disallowed, within one taxable year after the date of such disallowanceor within one year of the resolution of any judicial or administrative processwith respect to the disallowance.

 

Earnings attributable to the excess contribution may not be returned tothe Employer, but losses attributable thereto must reduce the amount to be soreturned. Furthermore, if the withdrawal of the amount attributable to theexcess contribution would cause the balance of the individual account of any

 

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Participant to be reduced to less than the balance which would havebeen in the account had the amount not been contributed, then the amount to bereturned to the Employer must be limited so as to avoid such reduction.

 

Provided, however, the provisions of this Section shall not apply toelective deferrals made by a Participant under Section 4.1.

 

14.4**BENEFITS NOT ASSIGNABLE.**Except as provided in Section414(p) of the Code with respect to “qualified domestic relations orders”, therights of any Participant or his Beneficiary to any benefit or paymenthereunder shall not be subject to voluntary or involuntary alienation orassignment. Notwithstanding the prior provisions of this Section 14.4, anoffset to a Participant’s benefit against an amount that the Participant isordered or required to pay the Plan with respect to a judgment, order, ordecree issued, or a settlement entered into, on or after August *5,*1997, shall be permitted in accordancewith Sections 401(a)(13)(C) and (D) of the Code.

 

14.5**MERGER****OF****PLANS.** In the case of any merger orconsolidation of this Plan with, or transfer of the assets or liabilities ofthe Plan to, any other plan, the terms of such merger, consolidation ortransfer shall be such that each Participant would receive (in the event oftermination of this Plan or its successor immediately thereafter) a benefitwhich is no less than what the Participant would have received in the event oftermination of this Plan immediately before such merger, consolidation ortransfer.

 

14.6**INVESTMENT EXPERIENCE NOT A FORFEITURE.**The decrease invalue of any Account due to adverse investment experience will not beconsidered an impermissible “forfeiture” of any vested balance.

 

14.7**DISTRIBUTION TO LEGALLY INCAPACITATED****PERSON.** In the event any benefit is payableto a minor or to a person deemed to be incompetent or to a person otherwiseunder legal disability, or who is by sole reason of advanced age, illness, orother physical or mental incapacity incapable of handling the disposition ofhis property, the Administrator, may direct the Trustee to apply all or anyportion of such benefit directly to the care, comfort, maintenance, support,education or use of such person or to pay or distribute the whole or any partof such benefit to (a) the spouse of such person, (b) the parent of suchperson, (c) the guardian, committee, or other legal representative, whereverappointed, of such person, (d) the person with whom such person shall reside,(e) any other person having the care and control of such person, or (f) suchperson. The receipt of any such payment or distribution is a complete dischargeof liability for Plan obligations.

 

14.8**CONSTRUCTION.**Wherever appropriate, the use of the masculinegender shall be extended to include the feminine and/or neuter or vice versa;and the singular form of words shall be extended to include the plural; and theplural shall be restricted to mean the singular.

 

14.9**GOVERNING DOCUMENTS. A**Participant’s rights shall bedetermined under the terms of the Plan as in effect at the Participant’s dateof separation from eligible Service.

 

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14.10 **GOVERNING****LAW.**Theprovisions of this Plan shall be construed under the laws of the state of thesitus of the Trust, except to the extent such laws are preempted by Federallaw.

 

14.11**HEADINGS.** The Article headings and Sectionnumbers are included solely for ease of reference. If there is any conflictbetween such headings or numbers and the text of the Plan, the text shallcontrol.

 

14.12 **COUNTERPARTS.** This Plan may be executed inany number of counterparts, each of which shall be deemed an original; saidcounterparts shall constitute but one and the same instrument, which may besufficiently evidenced by any one counterpart.

 

14.13**LOCATION OF PARTICIPANT OR BENEFICIARY****UNKNOWN.** In the event that all or anyportion of the distribution payable to a Participant or to a Participant’sBeneficiary hereunder shall, at the expiration of five (5)**years after itshall become payable, remain unpaid solely by reason of the inability of theAdministrator to ascertain the whereabouts of such Participant or Beneficiary,after sending a registered letter, return receipt requested, to the last knownaddress, and after further diligent effort, the amount so distributable shallbe reallocated in the same manner as a forfeiture under Section 6.2 pursuant tothis Plan. In the event a Participant or Beneficiary is located subsequent tothe reallocation of his Account balance, such Account balance shall be restoredwithout interest or adjustment for interim Trust valuation experience, by aspecial Employer contribution or from the next succeeding Employercontribution, as appropriate.

 

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**ARTICLE FIFTEEN—MULTIPLE EMPLOYER PROVISIONS**

 

15.1**ADOPTION OF THE PLAN.**With the Employer’s consent, this Planmay be adopted by any other corporation or entity for its employees, whichadopting Employer shall be known as a “Participating Employer.” All assets mayeither be held within one Trust Fund, or each Participating Employer maymaintain a separate trust fund attributable to its portion of Plan assets.Separate accounting shall be maintained for the Accounts of employees of eachadopting Participating Employer.

 

15.2**SERVICE.**For purposes of vesting, eligibility to participatein the Plan, and determining eligibility for allocation of ParticipatingEmployer contributions, an Employee shall be credited with all of his Hours ofService with any Participating Employer which has adopted the Plan after theeffective date of that adoption. Pre-adoption Service will be credited inaccordance with the rules in Article Two for such periods of time when theEmployees were part of a controlled group of corporations, trades or businessesunder common control or affiliated service group. Service during such time whenthere was no controlled or affiliated service group will be credited only foreligibility to participate in the Plan. These rules may be modified by aninstrument of adoption.

 

15.3**PLAN CONTRIBUTIONS.**All contributions made by aParticipating Employer, as provided for in this Plan and unless modified by aninstrument of adoption, shall be determined separately by each ParticipatingEmployer, and shall be paid to and held by the Trustee for the exclusivebenefit of the Employees of such Participating Employer and the Beneficiariesof such Employees, subject to all the terms and conditions of this Plan. Anyforfeiture by an Employee of a Participating Employer subject to allocationduring each Plan Year shall be allocated only for the exclusive benefit of theParticipants of such Participating Employer in accordance with the provisionsof this Plan, unless modified by an instrument of adoption.

 

15.4**DETERMINING COMPENSATION.** In the case ofany Employee who is paid by more than one Participating Employer, all of hisCompensation from the Participating Employers shall be aggregated for purposesof determining benefits if the Plan is integrated with Social Security.

 

15.5**TRANSFERRING EMPLOYEES.** The Administratorshall adopt equitable procedures whereby contributions and forfeitures areequitably allocated in the case of Employees transferring from the employmentof one Participating Employer to another Participating Employer. Similarly,rules shall be adopted whereby Account records may be transferred from therecords of one Participating Employer to another Participating Employer.

 

15.6**DELEGATION OF AUTHORITY.**Each Participating Employer who hasadopted the Plan may delegate to the Employer the right to name theAdministrator and Trustees of the Plan.

 

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15.7**TERMINATION.**Any termination of the Plan or discontinuanceof contributions by any one Participating Employer shall operate with regardonly to the Participants employed by that Participating Employer. All Employeesaffected thereby shall have a 100% nonforfeitable interest in their Accounts.

 

In the event any Participating Employer terminates its participation inthis Plan, or in the event that any such Participating Employer shall cease toexist through sale, reorganization or bankruptcy, the Trust Fund shall beallocated by the Trustee, in accordance with the direction of theAdministrator, into separate trust funds. The amount to be allocated to theTrust of the terminating Participating Employer shall be equal to the value ofAccount balances of its Participants as of the most recent date as of whichPlan assets were valued under Article Five, unless a special valuation isagreed to by the Administrator and the terminating Participating Employer.

 

IN WITNESS WHEREOF, the Employer, by its duly authorized officer, hascaused this Plan to be executed on the 15th day ofDecember, 2004.

 
|   | **BERTUCCI’S CORPORATION** |
|--------|---------------------------------|
|   |                            |
|   | By:                             | /s/ David G. Lloyd |   |
|   |                            | Authorized Officer |
|        |                                 |  |  |  |

 

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**SPECIALNOTICE TO PARTICIPANTS**

 

Effective January 1, 2005, and with respect to distributions made on orafter April 1, 2005, the Bertucci’sCorporation Savings and Investment Plan (referred to as the “Plan”) providesthat distributions of your vested account balance from the Plan will be made toyou in a lump sum payment. All other forms of payment previously offered orrequired under the Plan will no longer be available ninety (90) days after thedate you are furnished a copy of this Notice. In other words, a lump sumpayment is the only form of payment for distributions to be made from the Planon or after April 1, 2005.

 

You should keep this notice with your copy of the Summary Plan Description.
|                |     |                                                       |   |   |
|---------------------|----------|------------------------------------------------------------|--------|--------|
| Date                |     | Plan Administrator                                         |
|                |     |                                                       |
| Plan Name:          | * * | *Bertucci’s Corporation Savings and  Investment Plan* |
|                |     |                                                       |
| Plan Number:        | * * | *001*                                                      |
|                |     |                                                       |
| Plan Sponsor:       | * * | *Bertucci’s Corporation*                              |
| * *            | * * | *155 Otis Street*                                          |
| * *            | * * | *Northborough, MA 01532*                                   |
| * *            | * * | *Telephone: (508) 351-2578*                                |
|                |     | *EIN: 06-1311266*                                          |
|                |     |                                                       |
| Trustee:            | * * | *MFS Heritage Trust Company*                               |
|                |     |                                                       |
| Plan Administrator: | * * | *Plan Sponsor*                                             |

 

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**REQUIRED MINIMUM DISTRIBUTIONAMENDMENT BERTUCCI’S CORPORATION SAVINGS AND INVESTMENT PLAN**

 

**ARTICLE ONE—GENERAL RULES**

 

1.1**EFFECTIVE DATE.**The provisions of this Amendment will applyfor purposes of determining required minimum distributions for calendar yearsbeginning with the 2002 calendar year under the Bertucci’s Corporation Savingsand Investment Plan (the “Plan”).

 

1.2**COORDINATION****WITH MINIMUMDISTRIBUTION****REQUIREMENTS****PREVIOUSLY IN EFFECT.**Required minimum distributions for2002 will be determined as follows. If the total amount of 2002 requiredminimum distributions under the Plan made to the distributee for calendar 2002(a) equals or exceeds the required minimum distributions determined under thisAmendment, then no additional distributions will be required to be made for2002 on or after such date to the distributee; or (b) is less than the amountdetermined under this Amendment, then required minimum distributions for 2002on and after such date will be determined so that the total amount of requiredminimum distributions for 2002 made to the distributee will be the amountdetermined under this Amendment.

 

1.3**PRECEDENCE.**The requirements of this Amendment will takeprecedence over any inconsistent provisions of the Plan.

 

1.4**REQUIREMENTS****OF TREASURYREGULATIONS****INCORPORATED.**All distributions required under this Amendment will be determined and made inaccordance with the Treasury regulations under Section 401(a)(9) of theInternal Revenue Code.

 

1.5**TEFRA SECTION 242(b)(2)****ELECTIONS.**Notwithstanding the other provisions of thisAmendment, distributions may be made under a designation made before January 1,1984, in accordance with Section 242(b)(2) of the Tax Equity and FiscalResponsibility Act (TEFRA) and the provisions of the Plan that relate toSection 242(b)(2) of TEFRA.

 

**ARTICLE TWO—TIME AND MANNER OFDISTRIBUTION**

 

2.1**REQUIRED BEGINNING DATE. The**Participant’s entire interestwill be distributed, or begin to be distributed, to the Participant no laterthan the Participant’s required beginning date.

 

2.2**DEATH OF PARTICIPANT BEFORE DISTRIBUTIONS BEGIN.**If theParticipant dies before distributions begin, the Participant’s entire interestwill be distributed, or begin to be distributed, no later than as follows:

 

(a) If the Participant’s surviving spouse isthe Participant’s sole designated beneficiary, then, subject to Section 2.2(e)below, distributions to the surviving spouse will begin by December 31 of thecalendar year immediately following the calendar year in which the Participantdied, or by December 31 of the calendar year in which the Participant wouldhave attained age 701⁄2, if later.

 

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(b) If the Participant’s surviving spouse is notthe Participant’s sole designated beneficiary, then, subject to Section 2.2(e)below, distributions to the designated beneficiary will begin by December 31 ofthe calendar year immediately following the calendar year in which theParticipant died.

 

(c) If there is no designated beneficiary asof September30 of the year following the year of the Participant’s death, theParticipant’s entire interest will be distributed by December31 of the calendaryear containing the fifth anniversary of the Participant’s death.

 

(d) If the Participant’s surviving spouse isthe Participant’s sole designated beneficiary and the surviving spouse diesafter the Participant but before distributions to the surviving spouse begin,this Section 2.2, other than Section 2.2(a), will apply as if the survivingspouse were the Participant.

 

(e) Participants or beneficiaries may electon an individual basis whether the 5-year rule or the life expectancy rule inthis Section 2.2 applies to distributions after the death of a Participant whohas a designated beneficiary. The election must be made no later than theearlier of September 30 of the calendar year in which distribution would berequired to be made under this Section 2.2, or by September 30 of the calendaryear which contains the fifth anniversary of the Participant’s (or, ifapplicable, surviving spouse’s) death. If neither the Participant norbeneficiary makes an election under this paragraph, distributions will be madein accordance with this Section 2.2.

 

For purposes of this Section 2.2 and Article Four, unless Section2.2(d) applies, distributions are considered to begin on the Participant’srequired beginning date. If Section 2.2(d) applies, distributions areconsidered to begin on the date distributions are required to begin to thesurviving spouse under Section 2.2(a). If distributions under an annuitypurchased from an insurance company irrevocably commence to the Participantbefore the Participant’s required beginning date (or to the Participant’ssurviving spouse before the date distributions are required to begin to thesurviving spouse under Section 2.2(a)), the date distributions are consideredto begin is the date distributions actually commence.

 

2.3**FORMS OF DISTRIBUTION.**Unless the Participant’s interest isdistributed in the form of an annuity purchased from an insurance company or ina single sum on or before the required beginning date, as of the firstdistribution calendar year distributions will be made in accordance withArticles Three or Four of this Amendment. If the Participant’s interest isdistributed in the form of an annuity purchased from an insurance company,distributions thereunder will be made in accordance with the requirements ofSection 401 (a)(9) of the Code and the Treasury regulations.

 

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**ARTICLETHREE—REQUIRED MINIMUM DISTRIBUTIONS DURING PARTICIPANT’S LIFETIME**

 

3.1**AMOUNT OF REQUIRED MINIMUM DISTRIBUTION FOR EACH DISTRIBUTION CALENDARYEAR.**During the Participant’s lifetime, the minimum amount thatwill be distributed for each distribution calendar year is the lesser of: (1)the quotient obtained by dividing the Participant’s account balance by thedistribution period in the Uniform Lifetime Table set forth in Section 1.401(a)(9)-9of the Treasury regulations, using the Participant’s age as of theParticipant’s birthday in the distribution calendar year; or (2) if theParticipant’s sole designated beneficiary for the distribution calendar year isthe Participant’s spouse, the quotient obtained by dividing the Participant’saccount balance by the number in the Joint and Last Survivor Table set forth inSection 1.401 (a)(9)-9 of the Treasury regulations, using theParticipant’s and spouse’s attained ages as of the Participant’s and spouse’sbirthdays in the distribution calendar year.

 

3.2****LIFETIME REQUIRED MINIMUMDISTRIBUTIONS CONTINUE THROUGH YEAR OF PARTICIPANT’S DEATH.**Required minimum distributions willbe determined under this Article Three beginning with the first distributioncalendar year and up to and including the distribution calendar year thatincludes the Participant’s date of death.

 

**ARTICLEFOUR—REQUIRED MINIMUM DISTRIBUTIONS AFTER PARTICIPANT’S DEATH**

 

4.1**DEATH ON OR AFTER DATE DISTRIBUTIONS BEGIN.**

 

(a) *ParticipantSurvived by Designated Beneficiary.*If the Participant dies on orafter the date distributions begin and there is a designated beneficiary, theminimum amount that will be distributed for each distribution calendar yearafter the year of the Participant’s death is the quotient obtained by dividingthe Participant’s account balance by the longer of the remaining lifeexpectancy of the Participant or the remaining life expectancy of theParticipant’s designated beneficiary, determined as follows: (1) theParticipant’s remaining life expectancy is calculated using the age of theParticipant in the year of death, reduced by one for each subsequent year; (2)if the Participant’s surviving spouse is the Participant’s sole designatedbeneficiary, the remaining life expectancy of the surviving spouse iscalculated for each distribution calendar year after the year of theParticipant’s death using the surviving spouse’s age as of the spouse’sbirthday in that year. For distribution calendar years after the year of thesurviving spouse’s death, the remaining life expectancy of the surviving spouseis calculated using the age of the surviving spouse as of the spouse’s birthdayin the calendar year of the spouse’s death, reduced by one for each subsequentcalendar year; and (3) if the Participant’s surviving spouse is not the Participant’ssole designated beneficiary, the designated beneficiary’s remaining lifeexpectancy is calculated using the age of the beneficiary in the year followingthe year of the Participant’s death, reduced by one for each subsequent year.

 

(b) *NoDesignated Beneficiary.*If the Participant dies on or after thedate distributions begin and there is no designated beneficiary as of September30 of the year after the year of the Participant’s death, the minimum amountthat will be distributed for each distribution calendar year after the year ofthe Participant’s death is the quotient obtained by dividing the Participant’saccount balance by the Participant’s remaining life expectancy calculated usingthe age of the Participant in the year of death, reduced by one for eachsubsequent year.

 

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4.2**DEATH BEFORE DATE DISTRIBUTIONS BEGIN.**

 

*(a) ParticipantSurvived by Designated Beneficiary.*If theParticipant dies before the date distributions begin and there is a designatedbeneficiary, the minimum amount that will be distributed for each distributioncalendar year after the year of the Participant’s death is the quotientobtained by dividing the Participant’s account balance by the remaining lifeexpectancy of the Participant’s designated beneficiary, determined as providedin Section 4.1.

 

(b) *NoDesignated Beneficiary.*If the Participant dies before the datedistributions begin and there is no designated beneficiary as of September 30of the year following the year of the Participant’s death, then, subject to thelast paragraph of this Section 4.2, distribution of the Participant’s entireinterest will be completed by December 31 of the calendar year containing thefifth anniversary of the Participant’s death.

 

(c) *Deathof Surviving Spouse Before Distributions to Surviving Spouse Are Required toBegin.*If the Participant dies before the date distributionsbegin, the Participant’s surviving spouse is the Participant’s sole designatedbeneficiary, and the surviving spouse dies before distributions are required tobegin to the surviving spouse under Section 2.2(a), this Section 4.2 will applyas if the surviving spouse were the Participant.

 

Participants or beneficiaries may elect on an individual basis whetherthe 5-year rule or the life expectancy rule in this Section 4.2 applies todistributions after the death of a Participant who has a designatedbeneficiary. The election must be made no later than the earlier of September30of the calendar year in which distribution would be required to be made underSection 2.2, or by September 30 of the calendar year which contains the fifthanniversary of the Participant’s (or, if applicable, surviving spouse’s) death.If neither the Participant nor beneficiary makes an election under thisparagraph, distributions will be made in accordance with this Section 4.2.

 

**ARTICLE FIVE—DEFINITIONS**

 

5.1**DESIGNATED BENEFICIARY.**The individual who is designated as the beneficiary under thePlan and is the designated beneficiary under Section 401(a)(9) of the InternalRevenue Code and Section 1.401(a)(9)-1, Q&A-4, of the Treasury regulations.

 

5.2**DISTRIBUTION CALENDAR YEAR. A**calendar year for which aminimum distribution is required. For distributions beginning before theParticipant’s death, the first distribution calendar year is the calendar yearimmediately preceding the calendar year which contains the Participant’srequired beginning date. For distributions beginning after the Participant’sdeath, the first distribution calendar year is the calendar year in whichdistributions are required to begin under Section 2.2. The required minimumdistribution for the Participant’s first distribution calendar year will bemade on or before the Participant’s required beginning date. The requiredminimum distribution for other distribution calendar years, including therequired minimum distribution for the distribution calendar year in which theParticipant’s required beginning date occurs, will be made on or beforeDecember 31 of that distribution calendar year.

 

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5.3**LIFE EXPECTANCY.**Life expectancy as computed by use of theSingle Life Table in Section 1.401(a)(9)-9 of the Treasury regulations.

 

5.4**PARTICIPANT’S ACCOUNT BALANCE.**The account balance as ofthe last valuation date in the calendar year immediately preceding thedistribution calendar year (valuation calendar year) increased by the amount ofany contributions made and allocated or forfeitures allocated to the accountbalance as of dates in the valuation calendar year after the valuation date anddecreased by distributions made in the valuation calendar year after thevaluation date. The account balance for the valuation calendar year includesany amounts rolled over or transferred to the plan either in the valuationcalendar year or in the distribution calendar year if distributed or transferredin the valuation calendar year.

 

5.5**REQUIRED BEGINNING DATE.**The date specified in the Plan whendistributions under Section 401(a)(9) of the Internal Revenue Code are requiredto begin.

 

IN WITNESS WHEREOF, the Employer, by its duly authorized officer, hascaused this Plan to be executed on the 15th day ofDecember, 2004.

 
|   | **BERTUCCI’S CORPORATION** |
|--------|---------------------------------|
|   |                            |
|   | By:                             | /s/  David G. Lloyd |   |
|   |                            | Authorized Officer |
|        |                                 |  |  |  |

 

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**EGTRRA AMENDMENT BERTUCCI’S CORPORATION SAVINGS AND INVESTMENT PLAN**

 

**ARTICLE ONE—PREAMBLE**

 

1.1**ADOPTION AND EFFECTIVE DATE OF AMENDMENT.**This Amendment of the Bertucci’sCorporation Savings and Investment Plan (the “Plan”) is adopted to reflectcertain provisions of the Economic Growth and Tax Relief Reconciliation Act of2001 (“EGTRRA”). This Amendment is intended as good faith compliance with therequirements of EGTRRA and is to be construed in accordance with EGTRRA andguidance issued thereunder. Except as otherwise provided, this Amendment shallbe effective as of the first day of the first Plan Year beginning afterDecember 31, 2001.

 

1.2**SUPERSESSION****OF****INCONSISTENT PROVISIONS.** This Amendmentshall supersede the provisions of the Plan to the extent those provisions areinconsistent with the provisions of this Amendment.

 

**ARTICLE TWO—INCREASE IN COMPENSATIONLIMIT**

 

2.1**INCREASE IN COMPENSATION LIMIT.**The annual compensation ofeach Participant taken into account in determining allocations for any PlanYear beginning after December31, 2001, shall not exceed $200,000, as adjustedfor cost-of-living increases in accordance with Section 401(a)(17)(B) of theCode. Annual compensation means compensation during the Plan Year or such otherconsecutive I 2-month period over which compensation is otherwise determinedunder the Plan (the determination period). The cost-of-living adjustment ineffect for a calendar year applies to annual compensation for the determinationperiod that begins with or within such calendar year.

 

**ARTICLE THREE—CATCH-UPCONTRIBUTIONS**

 

3.1**CATCH-UP CONTRIBUTIONS.**All Employees who are eligible tomake elective deferrals under this Plan and who have attained age fifty (50)before the close of the Plan Year shall be eligible to make catch-upcontributions in accordance with, and subject to the limitations of, Section 414 (v) of the Code. Such catch-up contributions shall not be taken into accountfor purposes of the provisions of the Plan implementing the requiredlimitations of Section 402(g) and 415 of the Code. The Plan shall not betreated as failing to satisfy the provisions of the Plan implementing therequirements of Section 401(k)(3), 401(k)(11), 401(k)(12), 410(b), or 416 ofthe Code, as applicable, by reason of the making of such catch-upcontributions.

 

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**ARTICLE FOUR—ELECTIVE DEFERRALS**

 

**4.1 ELECTIVE DEFERRALS**- **CONTRIBUTION LIMITATION.**NoParticipant shall be permitted to have elective deferrals made under this Plan,or any other qualified plan maintained by the Employer during any taxable year,in excess of the dollar limitation contained in Section 402(g) of the Code ineffect for such taxable year, except to the extent permitted under ArticleThree of this Amendment and Section 414(v) of the Code, if applicable.

 

**ARTICLE FIVE—ROLLOVERS FROM OTHERPLANS**

 

5.1**ROLLOVERS FROM OTHER PLANS.**The Employer, operationally andon a nondiscriminatory basis, may limit the source of rollover contributionsthat may be accepted by this Plan. The Employer will not accept the rollover ofafter-tax employee contributions from another plan.

 

**ARTICLE SIX—INVOLUNTARY CASH-OUTS**

 

6.1**APPLICABILITY AND EFFECTIVE DATE.**If the Plan provides forinvoluntary cash-outs of amounts less than $5,000,**thisArticle Six shall apply for distributions made after December 31, 2001, andshall apply to all Participants. However, regardless of the preceding, this ArticleSix shall not apply if the Plan is subject to the qualified joint and survivorannuity requirements of Section 401(a)(11) and 417 of the Code.

 

6.2**ROLLOVERS NOT DISREGARDED IN DETERMINING VALUE OF ACCOUNT BALANCE FORINVOLUNTARY DISTRIBUTIONS.**For purposes of the Section of ArticleSeven of the Plan that provides for the involuntary distribution of vestedAccount balances of $5,000 or less, the value of a Participant’s nonforfeitableAccount balance shall be determined without excluding that portion of theAccount balance that is attributable to rollover contributions (and earningsallocable thereto) within the meaning of Sections 402(c), 403(a)(4), 403(b)(8),408(d)(3)(A)(ii), and 457(e)(16) of the Code. If the value of the Participant’snonforfeitable Account balance as so determined is $5,000 or less, then thePlan shall immediately distribute the Participant’s entire nonforfeitableAccount balance.

 

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**ARTICLE SEVEN—DIRECT ROLLOVERS**

 

7.1**EFFECTIVE DATE.**This Article Seven shall apply todistributions made after December 31, 2001.

 

7.2**MODIFICATION OF DEFINITION OF ELIGIBLE RETIREMENT PLAN. For**purposesof the direct rollover provisions of the Plan, an eligible retirement planshall also mean an annuity contract described in Section 403(b) of the Code andan eligible plan under Section *457(b)***of**the Code which is maintained by a state, politicalsubdivision of a state, or any agency or instrumentality of a state orpolitical subdivision of a state and which agrees to separately account foramounts transferred into such plan from this Plan. The definition of eligibleretirement plan shall also apply in the case of a distribution to a survivingspouse, or to a spouse or former spouse who is the alternate payee under aqualified domestic relation order, as defined in Section 414(p) of the Code.

 

7.3**MODIFICATION OF DEFINITION OF ELIGIBLE ROLLOVER DISTRIBUTION TO EXCLUDEHARDSHIP DISTRIBUTIONS. For**purposes of the direct rolloverprovisions of the Plan, any amount that is distributed on account of hardship shallnot be an eligible rollover distribution and the distributee may not elect tohave any portion of such a distribution paid directly to an eligible retirementplan.

 

7.4**MODIFICATION OF DEFINITION OF ELIGIBLE ROLLOVER DISTRIBUTION TO INCLUDEAFTER-TAX EMPLOYEE CONTRIBUTIONS.**For purposes of the directrollover provisions of the Plan, a portion of a distribution shall not fail tobe an eligible rollover distribution merely because the portion consists ofafter-tax employee contributions which are not includible in a gross income.However, such portion may be transferred only to an individual retirementaccount or annuity described in Section 408(a) or (b) of the Code, or to aqualified defined contribution plan described in Section 401(a) or 403(a) of theCode that agrees to separately account for amounts so transferred, includingseparately accounting for the portion of such distribution which is includiblein gross income and the portion of such distribution which is not soincludible.

 

**ARTICLE EIGHT—REPEAL OF MULTIPLEUSE TEST**

 

8.1**REPEAL OF MULTIPLE USE TEST. The**multiple use test describedin Treasury Regulation Section 1.401(m)-2 and Section 9.4 of the Plan shall notapply for Plan Years beginning after December 31, 2001.

 

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**ARTICLE NINE—LIMITATIONS ONCONTRIBUTIONS (CODE SECTION 415 LIMITS)**

 

9.1**EFFECTIVE DATE.**This Article Nine shall be effective forlimitation years beginning after December 31, 2001.

 

9.2**MAXIMUM ANNUAL ADDITION.**Except to the extent permittedunder Article Four of this Amendment and Section 4 14(v) of the Code, ifapplicable, the annual addition that may be contributed or allocated to aParticipant’s Account under the Plan for any limitation year shall not exceedthe lesser of:

 

(a) $40,000, as adjusted for increases in thecost-of-living under Section 415(d) ofthe Code; or

 

(b) 100 percent of the Participant’scompensation, within the meaning of Section 415(c)(3) of the Code, for thelimitation year.

 

The compensation limit referred to in this Section 9.2(b) shall notapply to any contribution for medical benefits after separation from service(within the meaning of Section 401(h) or Section 419A(f)(2) of the Code) whichis otherwise treated as an annual addition.

 

**ARTICLE TEN—MODIFICATION OFTOP-HEAVY RULES**

 

10.1**EFFECTIVE****DATE.**ThisArticle Ten shall apply for purposes of determining whether the Plan is atop-heavy plan under Section 416(g) of the Code for Plan Years beginning afterDecember 31, 2001, and whether the Plan satisfies the minimum benefitsrequirements of Section 416(c) of the Code for such years. This Article Tenamends the top-heavy provisions of the Plan.

 

10.2**DETERMINATION****OF TOP-HEAVYSTATUS.**

 

(a) *KeyEmployee.*Key employee means any Employee or former Employee(including any deceased Employee) who at any time during the Plan Year thatincludes the determination date was an officer of the Employer having annualcompensation greater than $130,000 (as adjusted under Section 416(i)(1) of theCode for Plan Years beginning after December 31, 2002), a 5-percent owner ofthe Employer, or a 1-percent owner of the Employer having annual compensationof more than $150,000. For this purpose, annual compensation means compensationwithin the meaning of Section 415(c)(3) of the Code. The determination of whois a key employee will be made in accordance with Section 416(i)(1) of the Codeand the applicable regulations and other guidance of general applicabilityissued thereunder.

 

----

 

(b) *Determinationof Present Values and Amounts.*This Section 10.2(b) shall applyfor purposes of determining the present values of accrued benefits and theamounts of Account balances of Employees as of the determination date.

 

(1) *Distributionsduring Year ending on the Determination Date.*The present valuesof accrued benefits and the amounts of Account balances of an Employee as ofthe determination date shall be increased by the distributions made withrespect to the Employee under the Plan and any plan aggregated with the Planunder Section 416(g)(2) of the Code during the 1-year period ending on thedetermination date. The preceding sentence shall also apply to distributionsunder a terminated plan which, had it not been terminated, would have beenaggregated with the Plan under Section 416(g)(2)(A)(i) of the Code. In the caseof a distribution made for a reason other than separation from service, death,or disability, this provision shall be applied by substituting “5-year period”for “1-year period.”

 

(2) *Employeesnot Performing Services during Year ending on the Determination Date.*The accrued benefits and Accounts of any individual who has not performedservices for the Employer during the 1-year period ending on the determinationdate shall not be taken into account.

 

(c) *MinimumBenefits.*

 

(1) *MatchingContributions.*Employer matching contributions shall be takeninto account for purposes of satisfying the minimum contribution requirementsof Section 416(c)(2) of the Code and the Plan. The preceding sentence shallapply with respect to matching contributions under the Plan or, if the Plan providesthat the minimum contribution requirement shall be met in another plan, suchother plan. Employer matching contributions that are used to satisfy theminimum contribution requirements shall be treated as matching contributionsfor purposes of the actual contribution percentage test and other requirementsof Section 401(m) of the Code.

 

(2) *Contributionsunder other Plans.*The Employer may provide, in an addendum tothis Amendment, that the minimum benefit requirement shall be met in anotherplan (including another plan that consists solely of a cash or deferredarrangement which meets the requirements of Section 401(k)(12) of the Code andmatching contributions with respect to which the requirements of Section401(m)(11) of the Code are met). The addendum should include the name of theother plan, the minimum benefit that will be provided under such other plan,and the Employees who will receive the minimum benefit under such other plan.

 

**ARTICLE ELEVEN—SAFE HARBOR PLANPROVISIONS**

 

11.1**MODIFICATION OF TOP-HEAVY RULES.**The top-heavy requirementof Section 416 of the Code and the Plan shall not apply in any year beginningafter December 31, 2001, in which the Plan consists solely of a cash ordeferred arrangement which meets the requirements of Section 401 (k)(12) of theCode and matching contributions with respect to which the requirements ofSection 401(m)(11) of the Code are met.

 

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**ARTICLE TWELVE—PLAN LOANS**

 

12.1**PLAN LOANS FOR OWNER-EMPLOYEES OR SHAREHOLDER-EMPLOYEES. If**thePlan, pursuant to Article Thirteen of the Plan, permits loans to be made toParticipants, then effective for plan loans made after December 31, 2001, Planprovisions prohibiting loans to any owner-employee or shareholder-employeeshall cease to apply.

 

**ARTICLE THIRTEEN—HARDSHIP DISTRIBUTIONS**

 

13.1**APPLICABILITY AND EFFECTIVE DATE.**If the Plan provides,pursuant to Article Thirteen of the Plan, for hardship distributions uponsatisfaction of the safe harbor (deemed) standards as set forth in Treas. Reg.Section l.401(k)-1(d)(2)(iv), then this Article Thirteen shall apply forcalendar years beginning after 2001.

 

13.2**SUSPENSION****PERIODFOLLOWING HARDSHIP****DISTRIBUTION.**A Participant who receives a distribution of elective deferrals after December31, 2001, on account of hardship shall be prohibited from making electivedeferrals and employee contributions under this Plan and all other plans of theEmployer for six (6) months after receipt of the distribution. Furthermore, aParticipant who receives a distribution of elective deferrals in calendar year2001 on account of hardship shall be prohibited from making elective deferralsand employee contributions under this Plan and all other plans until the laterof January 1, 2002, or six (6) months after receipt of the distribution.

 

**ARTICLE FOURTEEN—DISTRIBUTIONUPON SEVERANCE OF EMPLOYMENT**

 

14.1**EFFECTIVE DATE.**This Article Fourteen shall apply fordistributions and transactions made after December 31, 2001, regardless of whenthe severance of employment occurred.

 

14.2**NEW DISTRIBUTABLE EVENT**. A Participant’selective deferrals, qualified nonelective contributions, qualified matchingcontributions, and earnings attributable to these contributions shall bedistributed on account of the Participant’s severance from employment. However,such a distribution shall be subject to the other provisions of the Planregarding distributions, other than provisions that require a separation fromservice before such amounts may be distributed.

 

IN WITNESS WHEREOF, the Employer, by its duly authorized officer, hascaused this Plan to be executed on the 15th day ofDecember, 2004.

 
|   | **BERTUCCI’S CORPORATION** |
|--------|---------------------------------|
|   |                            |
|   | By:                             | /s/  David G. Lloyd |   |
|   |                            | Authorized  Officer |
|        |                                 |  |  |  |

 

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