Exhibit
10.33


 


BERTUCCI’S
CORPORATION SAVINGS

AND INVESTMENT PLAN


 

















 


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 Job
Classifications, with Related Companies or as a Leased Employee 

2.6 Special Rules Relating to Veterans Reemployment Rights


 

















 


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 AND
DISABILITY 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 Total
Disability


 


ARTICLE SEVEN—MANNER AND TIME OF DISTRIBUTING
BENEFITS


 


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


 

















 


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 TO
A 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


 

















 


ARTICLE THIRTEEN—LOANS AND HARDSHIP
DISTRIBUTIONS


 


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


 

















 


BERTUCCI’S
CORPORATION SAVINGS AND INVESTMENT PLAN


 


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


 


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


 


WHEREAS, the Employer wishes to amend the Plan; and


 


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


 


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


 

















 


ARTICLE ONE—DEFINITIONS


 


For purposes of the Plan, unless the context or an alternative
definition specified within another Article provides otherwise, the following
words and phrases shall have the definitions provided:


 


1.1  “ACCOUNT” shall mean the individual
bookkeeping accounts maintained for a Participant under the Plan which shall
record (a) the Participant’s allocations of Employer contributions, (b) amounts
of Compensation deferred to the Plan pursuant to the Participant’s election,
(c) any amounts transferred to this Plan under Article Four from another
qualified retirement plan, and (d) the allocation of Trust investment
experience.


 


1.2  “ADMINISTRATOR” shall mean the Plan
Administrator appointed from time to time in accordance with the provisions of
Article Eight hereof.


 


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


 


1.4  “BREAK IN SERVICE” is
defined in Article Two.


 


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


 


1.6  “COMPENSATION” shall mean the compensation
paid to a Participant by the Employer for the Plan Year which is reportable on
Form W-2, but exclusive of commissions, compensation paid prior to the
Participant’s entry into the Plan, and exclusive of any program of deferred
compensation or additional benefits payable other than in cash. Compensation
shall include elective contributions that are made by the Employer on behalf of
a 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 after
January 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, and
notwithstanding any other provisions of the Plan to the contrary, the annual
compensation of each Employee taken into account under the Plan shall not
exceed the OBRA ‘93 annual compensation limit. The OBRA ‘93 annual compensation
limit is $150,000, as adjusted by the Commissioner for increases in the
cost-of-living in accordance with Section 401(a)(17)(B) of the Code. The
cost-of-living adjustment in effect for a calendar year applies to any period,
not exceeding 12 months, over which compensation is determined (determination
period) beginning in such calendar year. If a determination period consists of
fewer than 12 months, the OBRA ‘93 annual compensation limit will be multiplied
by a fraction, the numerator of which is the number of months in the
determination period, and the denominator of which is 12.


 

















 


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


 


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


 


1.7  “EFFECTIVE DATE” The Plan’s initial
Effective 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, is
January 1, 2005, except where the provisions of the Plan shall otherwise
specifically provide. The rights of any Participant who separated from the
Employer’s service prior to this date shall be established under the terms of
the Plan and Trust as in effect at the time of the Participant’s separation
from service, unless the Participant subsequently returns to service with the
Employer. Rights of spouses and beneficiaries of such Participants shall also
be 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 an
independent contractor solely on account of his reclassification by the
Internal Revenue Service as an employee.


 


1.9  “EMPLOYER” shall mean
the 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 is
not governed by directors but instead by its stockholders, or if the Employer
is an unincorporated business and is governed by its owners, reference herein
to 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 an
Employee is credited with an Hour of Service, provided that, in the case of a
Break in Service, the Employment Date shall be the first date thereafter as of
which an Employee is credited with an Hour of Service.


 


1.11 “HIGHLY COMPENSATED EMPLOYEE” shall mean:


 


(a)   Any
Employee of the Employer who:


 


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


 


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


 


(b)   A
former Employee shall be treated as a Highly Compensated Employee if: (1) such
Employee was a Highly Compensated Employee when such Employee separated from
service, or (2) such Employee was a Highly Compensated Employee at any time
after attaining age 55.


 


(c)   The
determination of who is a Highly Compensated Employee, including the
determination of the number and identity of the Employees in the top-paid
group, will be made in accordance with


 

















 


Section 4
14(q) of the Code, the regulations thereunder and other applicable guidance.


 


(d)   For
purposes of this Section 1.11, the term “Compensation” means compensation within
the meaning of Section 415(c)(3) of the Code. The determination will be made
without regard to Sections 125, 402(e)(3), 402(h)(1)(B), and, for Plan Years
beginning on or after January 1,2001, 132(f)(4) of the Code, and in the case of
employer contributions made pursuant to a salary reduction agreement, without
regard to Section 403(b) of the Code. For Plan Years beginning after December
31, 1997, for purposes of this Section 1.11, the term “Compensation” means
compensation within the meaning of Section 415(c)(3) of the Code.


 


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


 


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


 


1.12 “HOUR OF SERVICE” shall
mean:


 


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


 


(b) each hour for which an Employee is paid,
or entitled to payment, by the Employer on account of a period of time during
which no duties are performed (irrespective of whether the employment
relationship has terminated) due to vacation, holiday, illness, incapacity
(including disability), layoff, jury duty, military duty, or leave of absence.
No more than 501 Hours of Service shall be credited under this subsection for
any single continuous period during which no duties are performed (whether or
not such period occurs in a single computation period). An hour for which an
Employee is directly or indirectly paid, or entitled to payment, on account of
a period during which no duties are performed shall not be credited to the Employee
if such payment is made or due under a plan maintained solely for the purpose
of complying with applicable worker’s compensation, or unemployment
compensation or disability insurance laws. Hours of Service shall not be
credited for a payment which solely reimburses an Employee for medical or
medically related expenses by the Employee. Hours under this subsection shall
be calculated and credited pursuant to Section 2530.200b-2(b) and (c) of the
Department 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 the
Employer. The same Flours of Service shall not be credited both under
subsection (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 period
or periods to which the award or agreement pertains rather than the computation
period 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 between
the Employer and any other person (“leasing organization”) has performed
services for the Employer (or for the Employer and related persons determined
in accordance with Section 414(n)(6) of the Code) on a substantially full-time
basis for a period of at 


 

















 


least one year, and such services are performed under primary direction
or control by the Employer. A person will not be considered a Leased Employee
if the total number of Leased Employees does not exceed 20% of the Nonhighly
Compensated Employees employed by the Employer, and if any such person is
covered by a money purchase pension plan providing: (a) a nonintegrated
employer contribution rate of at least 10% of compensation, as defined in
Section 415(c)(3) of the Code, but including amounts contributed pursuant to a
salary reduction agreement which are excludable from the employee’s gross
income 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 of
this Section 1.13 are effective for Plan Years beginning after December 31,
1996.


 


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


 


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


 


1.16  “PARTICIPANT” shall mean any Employee who
has satisfied the eligibility requirements of Article Three and who is
participating in the Plan, including any such Employee who elects not to make
elective deferrals under Section 4.1.


 


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


 


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


 


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


 


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


 


1.21  “VALUATION DATE” shall mean each day of the
Plan Year.


 


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


 

















 


ARTICLE TWO—SERVICE DEFINITIONS
AND 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. For
purposes of determining an Employee’s initial or continued eligibility to
participate 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 to
Employer contributions, an Employee shall receive credit for each of the twelve
(12)-month computation periods commencing on his Employment Date (or
reemployment date) and anniversaries of that date and ending on the date a
Break in Service begins.


 


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


 


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


 


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


 


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


 


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


 

















 


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


 


2.5 SERVICE IN EXCLUDED JOB CLASSIFICATIONS, WITH RELATED COMPANIES, OR AS
A LEASED EMPLOYEE.


 


(a) Preamble. An Employee is
not eligible to receive an allocation of Employer contributions or to
participate under the Plan if his job classification is specifically excluded
under Section 3.1. However, Employees in an ineligible job classification are
entitled, together with Leased Employees and Employees of certain related
businesses, to credit for their Service in the event that such Employees become
employed in an eligible job classification.


 


(b) Definitions.


 


(1) Eligible
Classification: An Employee will be considered in an eligible
class of Employees for such period when his Employer has adopted the Plan and
such Employee is not in an ineligible class of Employees.


 


(2) Ineligible
Classification: An Employee will be considered in an ineligible
class of Employees for any period when:


 


(A) the Employee is a Leased Employee;


 


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


 


(C) the Employee is an employee of an
employer who is a member of a controlled group of businesses or an affiliated
service group (as defined in Section 414 of the Code), which employer has not
adopted this Plan.


 


(c) Service
Rules for Ineligible Classifications.  Hours of Service in an
ineligible classification will be credited for purposes of determining Years of
Service for eligibility to participate in the Plan under Section 3.1 and for
purposes of determining the Employee’s vesting percentage in the event the
Employee participates in the Plan.


 


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


 


2.6  SPECIAL RULES RELATING TO
VETERANS’ REEMPLOYMENT RIGHTS. 


 


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


 

















 


ARTICLE THREE—PLAN PARTICIPATION


 


3.1 PARTICIPATION. All Employees participating in this Plan
prior to the Plan’s restatement shall continue to participate, subject to the terms
hereof. Each other Employee shall become a Participant under the Plan effective
as of the first day of the month coincident with or next following the later of
the 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 have
completed one Month of Service on the one-month anniversary of his Employment
Date.


 


In no event, however, shall any Employee participate under the Plan or
be 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 bargaining
agreement between the Employer and the Employee representatives under which
retirement benefits were the subject of good faith bargaining (unless the
collective bargaining agreement requires participation in this Plan); (2) while
he is a nonresident alien employee who receives no earned income (within the
meaning of Code Section 911(d)(2)) from the Employer which constitutes income
from sources within the United States (within the meaning of Code Section
861(a)(3)); (3) while he is a Highly Compensated Employee; or (4) while he is
an hourly paid employee other than a corporate administrative employee.


 


3.2  REEMPLOYMENT OF FORMER PARTICIPANT. A Participant whose
participation ceased because of termination of employment with the Employer
will immediately participate upon his reemployment and shall be eligible to
make elective deferrals upon reemployment.


 


3.3  TERMINATION OF ELIGIBILITY. If a Participant shall become
ineligible to participate in the Plan because the Participant’s job
classification 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 each
Year of Service completed while an ineligible Employee until such time as his
Account is distributed to him pursuant to the terms of the Plan. If a
Participant becomes ineligible during a Plan Year, such Participant shall
receive an allocation of Employer contributions under Section 4.2 based upon
the Participant’s Compensation as determined as of his termination of
eligibility, provided such Participant is eligible to receive an allocation of
Employer contributions under Section 4.2. Any such Participant’s Account shall
continue to share in the allocation of investment experience under Section 5.1.


 


3.4 ELECTION NOT TO PARTICIPATE. An Employee may, subject to the
approval of the Employer, elect voluntarily not to participate in the Plan. The
election not to participate in the Plan is irrevocable and must be communicated
to the Employer, in writing, prior to the Participant’s date of initial
eligibility to participate in the Plan.


 

















 


ARTICLE FOUR—ELECTIVE DEFERRALS,
CONTRIBUTIONS, 

ROLLOVERS AND TRANSFERS FROM OTHER PLANS


 


4.1. ELECTIVE DEFERRALS.


 


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


 


(b) Changes
in Election.  A Participant may prospectively elect to change or
revoke the amount (or percentage) of his elective deferral during the Plan Year
by filing an election with the Employer. The Participant shall be entitled to
change the amount (or percentage) of his elective deferral which change shall
be effective as of January 1, April 1, July 1 or October 1. A Participant’s
revocation of his elective deferrals shall be effective as soon as possible
following his election to cease deferrals. A Participant who has revoked his
elective deferral may reenter the Plan on any January 1, April 1, July 1 or
October 1 following his prior revocation of deferrals.


 


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


 


(d) Administrative
Rules.  All elections made under this Section 4.1, including the
amount and frequency of deferrals, shall be subject to the rules of the
Administrator which shall be consistently applied and which may be changed from
time to time.


 


4.2 EMPLOYER CONTRIBUTIONS.


 


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


 


The Employer, by action of its Board of
Directors, shall determine the amount, if any, of the Employer matching
contribution. 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 Section
12.3 in any Plan Year when the Plan is a Top-Heavy Plan.


 

















 


Forfeitures which arise from Employer
matching contributions shall first be used to pay any administrative expenses
of the Plan. Any remaining forfeitures shall be used to reduce any Employer
contribution.


 


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


 


(c) Discretionary
Employer Contributions.  In addition to any Employer matching
contributions made under Section 4.2(a), Employer contributions may be made at
the 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 the
special allocation in Section 12.3 has been satisfied if the Plan is a
Top-Heavy Plan. Forfeitures which arise from discretionary Employer
contributions shall first be used to pay any administrative expenses of the
Plan. Any remaining forfeitures shall be used to reduce any Employer
contribution.


 


(d) Eligibility
for Discretionary Employer Contributions.  To be eligible for an
allocation of discretionary Employer contributions under Section 4.2(c) for a
Plan Year, an Employee must (1) be qualified as a Participant under Section
3.1, and (2) be employed on the last day of the Plan Year, unless not employed
on account of disability, death, or retirement on or after Normal Retirement
Date during the Plan Year.


 


(e) Allocation
of Discretionary Employer Contributions.  Any contribution made
under Section 4.2(c) shall be allocated among Accounts of eligible Participants
in accordance with the ratio that each such eligible Participant’s Compensation
bears to the total Compensation of all such eligible Participants for the Plan
Year.


 


4.3  ROLLOVERS AND TRANSFERS FROM OTHER PLANS. With the approval
of the Administrator, there may be paid to the Trustee amounts which have been
held under other plans qualified under Section 401 of the Code either (a)
maintained by the Employer which have been discontinued or terminated with
respect to any Employee, or (b) maintained by another employer with respect to
which any Employee has ceased to participate. Any such transfer or rollover may
also be made by means of an Individual Retirement Account qualified under
Section 408 of the Code, where the Individual Retirement Account was used as a
conduit from the former plan. Any amounts so transferred on behalf of any
Employee shall be nonforfeitable and shall be maintained under a separate Plan
account, 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 such
account as adjusted for income, expenses, gains, losses, and withdrawals attributable
thereto.


 


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


 


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


 

















 


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


 


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


 

















 


ARTICLE FIVE—ACCOUNTING RULES


 


5.1 INVESTMENT OF ACCOUNTS AND
ACCOUNTING RULES.


 


(a) Investment
Funds. The investment of Participants’ Accounts
shall be made in a manner consistent with the provisions of the Trust. The
Administrator, in its discretion, may allow the Trust to provide for separate
funds for the directed investment of each Participant’s Account.


 


(b) Participant
Direction of investments.  If the Administrator chooses to
provide more than one investment fund, then each Participant may direct how his
Account is to be invested among available investment funds in the percentage
multiples established by the Administrator. A Participant may change his
investment direction after advance notice to the Administrator, in accordance
with uniform rules established by the Administrator. An investment direction
may apply to the investment of future contributions and/or amounts previously
accumulated in the Account. In the event a Participant makes no investment
election, his Account shall be invested in the investment fund selected by the
Administrator for all such similarly situated Accounts. If the Plan’s record
keeper or investment manager is changed, the Administrator may suspend the
Participant’s investment direction of his Account. If Participant direction of
investments is suspended, the Administrator shall invest the Participants’
Accounts in an interest-bearing account(s) until such change has been
completed.


 


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


 


(c) Safe
Investment Option.  The Administrator may provide that one of the
investment funds offers both a reasonable safety of the principal amount
invested and a reasonable rate of interest return. An investment fund composed
of guaranteed interest contracts through an insurance company, a pooled fund of
short-term bonds and notes, or a money market fund shall be deemed to meet
these standards.


 


(d) Allocation
of Investment Experience.  As of each Valuation Date, the
investment fund(s) of the Trust shall be valued at fair market value, and the
income, loss, appreciation and depreciation (realized and unrealized), and any
paid expenses of the Trust attributable to such fund shall be apportioned among
Participants’ Accounts within the fund based upon the value of each Account
within the fund as of the preceding Valuation Date. Adjustment of Accounts for
investment experience shall be deemed to be made as of the Valuation Date to
which the adjustment relates, even if actually made on a later date.


 


(e) Allocation
of Elective Deferrals and Employer Contributions.  Elective
deferrals and Employer contributions shall be allocated to the Account of each
eligible Participant as of the last day of the period for which the
contributions are made.


 

















 


(f) Manner
and Time of Debiting Distributions.  For any Participant who
receives a distribution from his Account, distribution shall be made in
accordance with the provisions dealing with the timing of commencement of
benefit payments in Section 7.2. The distribution shall be equal to the fair
market value of the Participant’s vested Account as of the Valuation Date
preceding the distribution.


 


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


 

















 


ARTICLE SIX—VESTING, RETIREMENT
AND DISABILITY

BENEFITS


 


6.1  VESTING. A Participant
shall at all times have a nonforfeitable (vested) right to his Account derived
from elective deferrals, Employer “fail-safe” contributions under Section 9.2
and/or 9.3, and rollovers or transfers from other plans, adjusted for
investment experience. Except as otherwise provided with respect to Normal
Retirement, disability, or death, a Participant shall have a nonforfeitable
(vested) right to a percentage of his Account derived from Employer matching
contributions 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 in
the Plan prior to January 1, 2005 shall be 25% vested upon completion of one
Year of Service. Such Participant’s vested percentage after two or more7 Years of
Service shall be determined in accordance with the schedule above.


 


6.2  FORFEITURE OF NON VESTED BALANCE. The
nonvested portion of a Participant’s Account shall be forfeited as of
the earlier of the last day of the Plan Year in which the Participant receives
a complete distribution of his vested Account or the last day of the Plan Year
in which the Participant incurs two (2) consecutive Breaks in Service (subject
to restoration by the Employer if the Participant returns prior to incurring
five (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 employment
of the Employer prior to incurring five (5) consecutive Breaks in Service and
prior to receiving a distribution of his vested Account the nonvested portion
shall be restored. However, if the nonvested portion of the Participant’s
Account was allocated as a forfeiture as the result of the Participant
receiving a distribution of his vested Account balance, the nonvested portion
shall be restored if:


 


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


 


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


 

















 


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


 


A zero percent vested Participant shall be considered to have received
a complete distribution of his vested Account as of the date of his first Break
in Service, and if he returns to the employment of the Employer prior to
incurring five (5) consecutive
Breaks in Service, he shall be considered to have repaid such distribution as
of 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’s
entire vested Account, and if the Employee returns to Service, a separate
record shall be maintained of said Account balance. The Employee’s vested
interest at any time in this separate account shall be an amount equal to the
formula P(AB+D)-D, where P is the vested percentage at the relevant time, AB is
the Account balance at the relevant time, and D is the amount of the distribution
made to the Employee.


 


6.4  NORMAL RETIREMENT. A Participant who is in the employment of
the Employer at his Normal Retirement Date shall have a nonforfeitable interest
in 100% of his Account if not otherwise 100% vested under the appropriate vesting
schedule. A Participant who continues in employment after his Normal Retirement
Date shall continue to participate under the Plan, but may elect in writing to
have his Account payable at the time and in the manner specified in Article
Seven.


 


6.5  PERMANENT AND TOTAL
DISABILITY. If a Participant incurs a permanent and total disability
while in the employ of the Employer, the Participant shall have a
nonforfeitable interest in 100% of his Account, if not otherwise 100% vested
under the appropriate vesting schedule. Payment of his Account balance will be
made at the time and in a manner specified in Article Seven, following receipt
by the Plan Administrator of the Participant’s distribution request. “Permanent
and total disability” shall mean suffering from a physical or mental condition
that, in the opinion of the Administrator and based upon appropriate medical
advice and examination, can be expected to result in death or can be expected
to last for a continuous period of no less than 12 months. The condition must,
in accordance with uniform and consistent rules, be determined by the
Administrator to prevent a Participant from engaging in substantial gainful
activity. Receipt of a Social Security disability award shall be deemed proof
of disability.


 

















 


ARTICLE SEVEN—MANNER AND TIME OF
DISTRIBUTING BENEFITS


 


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


 


Prior to April 1, 2005, except
as provided under Sections 7.5 and 7.9, the Participant’s vested Account shall
be distributed to the Participant (or to the Participant’s Beneficiary in the
event of the Participant’s death) by any of the following methods, as elected
by the Participant or, when applicable, the Participant’s Beneficiary:


 


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


 


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


 


7.2 TIME OF COMMENCEMENT OF
BENEFIT PAYMENTS.


 


(a) Normal
or Late Retirement.  Participants whose employment has terminated
shall have distribution of their Account commence approximately 60 days
following their Normal Retirement Date, unless the Participant elects to defer
receipt of his Account. A Participant who has reached Normal Retirement Date
but has not terminated employment may request distribution of his Account to
commence approximately 60 clays following receipt by the Plan Administrator of
his valid election.


 


(b) Disability
Retirement.  A Participant whose employment has terminated due to
total and permanent disability may request the distribution of his Account to
commence approximately 60 days following receipt by the Plan Administrator of
his valid election.


 


(c) Pre-retirement
Termination of Employment.  If a Participant terminates
employment 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 delivered
to the Administrator.


 


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


 

















 


Section 408(k)) or a Simple IRA plan as defined in Code Section 408(p);
 (2) the disposition by a corporation to
an unrelated corporation of substantially all of the assets (within the meaning
of Section 409(d)(2) of the Code) used in a trade or business of such
corporation if such corporation continues to maintain the Plan after the
disposition, but only with respect to employees who continue employment with
the corporation acquiring such assets; or (3) the disposition by a corporation
to an unrelated entity of such corporation’s interest in a subsidiary (within
the meaning of Section 409(d)(3) of the Code) if such corporation continues to
maintain the Plan, but only with respect to employees who continue employment
with such subsidiary. All distributions that may be made pursuant to one or
more of the foregoing distributable events are subject to the spousal and
participant consent requirements (if applicable) of Sections 40l(a)(11) And 417
of 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 after
the 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 Participant
commenced participation in the Plan; or


 


(3) the Participant terminates Service with the Employer.


 


(d) Latest
Commencement Date.  Effective January 1, 1997 or when first used
by the Employer, if later, a Participant may elect to defer receipt of his
retirement benefits; provided, however, in no event shall the distribution of
benefits commence later than the April 1st of the calendar year following the
later 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-percent
owner (as defined in Section 416 of the Code), in no event shall the
distribution of benefits commence later than the April 1 of the calendar year
following the calendar year in which the Participant attains age 701⁄2.


 


(1) Any Participant (other than a 5-percent owner) attaining age 701⁄2 in
years after 1995 may elect by April 1 of the calendar year following the year
in which the Participant attained age 701⁄2 (or by December 31, 1997 in the case
of a Participant attaining age 701⁄2 in 1996) to defer distributions until the
April 1 of the calendar year following the calendar year in which the
Participant retires. If no such election is made, the Participant will begin
receiving distributions by the April 1 of the calendar year following the
calendar 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 eliminated
with respect to Employees who reach age 701⁄2 in or after a calendar year that
begins after December 31, 1998. The pre-retirement age 701⁄2 distribution option
is an optional form of benefit under which benefits payable in a particular
distribution form (including any modifications that may be elected after
benefit commencement) commence at a time during the period that begins on or
after January 1 of the calendar year in which an Employee attains age 701⁄2 and ends
April 1 of the immediately following calendar year.


 

















 


The provisions of this Section 7.2(d) (relating to required
distributions) are intended to comply with Section 401(a)(9) of the Code, the
regulations thereunder and any other applicable guidance, and shall be so
interpreted.


 


(e) If a distribution is one to which
Sections 401(a)(11) and 417 of the Code do not apply, such distribution may
commence less than 30 days after the notice required under Section 1.41
1(a)-11(c) of the Income Tax Regulations is given, provided that:


 


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


 


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


 


(f) Notwithstanding the foregoing provisions
of this Section 7.2, a distribution may be made to an “alternate payee” pursuant
to, and if required by, a “Qualified Domestic Relations Order” even if the
affected Participant has not separated from service and has not attained the “earliest
retirement age” under the Plan. For purposes of this subsection (f), “Qualified
Domestic 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 benefit
under the Plan, each Participant or Beneficiary may be required to complete
such administrative forms and furnish such proof as is deemed necessary or
appropriate by the Employer, Administrator, and/or Trustee.


 


7.4  MINIMUM DISTRIBUTION
RULES FOR INSTALLMENT PAYMENTS. If a distribution is made in
installments the following rules shall apply:


 


(a) Payments
to Participant and Beneficiary.  Payments shall commence no later
than a date provided for in Section 7.2. The amount to be distributed each year
shall be at least equal to the vested balance in the Participant’s Account as
of the last day of the Plan Year in the prior calendar year multiplied by the
following fraction: the numerator shall be one and the denominator shall be the
life expectancy of the Participant or the joint life expectancy of the
Participant and the Participant’s Beneficiary computed as of the aforementioned
last day of the Plan Year and reduced by one for each succeeding year. Payments
shall be restricted under this option to insure compliance with the minimum
distribution incidental death benefit and other minimum distribution
requirements of Section 401(a)(9) of the Code and the regulations promulgated
thereunder.


 


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


 


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


 


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


 

















 


accordance
with the Regulations under Section 401(a)(9) that were proposed on January 17,
2001, notwithstanding any provision of the Plan to the contrary. This amendment
shall continue in effect until the end of the last calendar year beginning
before the effective date of final Regulations under Section 401(a)(9) or such
other date as may be specified in guidance published by the Internal Revenue
Service.


 


7.5 JOINT AND SURVIVOR ANNUITY. This Section shall apply only
to a Participant whose Account includes funds transferred from a plan subject
to the provisions of Sections 401 (a)( Ii) and 417 of the Code and who does not
die prior to the “annuity starting date.”


 


(a) If distribution of a Participant’s
Account balance commences during his lifetime, his vested Account (subject to
the provisions of this Section 7.5) shall
be applied to the purchase of an annuity for the life of the Participant or, if
the Participant is married as of his benefit commencement date, applied to the
purchase of a “qualified joint and survivor annuity” for the life of the
Participant and his “eligible spouse”. For this purpose, a “qualified joint and
survivor annuity” is an immediate annuity for the life of the Participant with
a survivor annuity for the life of the spouse which is 50% of the amount of the
annuity which is payable during the joint lives of the Participant and his
spouse.


 


(b) The Participant may elect to waive the
life annuity or qualified joint and survivor annuity form of benefit at any
time during the election period. Such an election must be made in writing in a
form acceptable to the Administrator. However, an election to waive a qualified
joint and survivor annuity shall not take effect unless the Participant’s
spouse consents in writing to such election and the spouse’s consent
acknowledges the effect of such election and is witnessed by a Plan representative
or a Notary Public. In the event of such an election, distribution of the
portion of the Participant’s Account otherwise subject to the provisions of
this Section shall be paid to the Participant in the manner selected by the
Participant 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 the
earlier of benefit commencement or the date of the Participant’s death, or (ii)
becomes married within the one-year period prior to benefit commencement and
remains married for at least one year. A divorce occurring after benefit
payments have commenced to the Participant will not cause an “eligible spouse”
to lose such status, unless the spouse agrees to give up rights hereunder
pursuant to the terms of a qualified domestic relations order described in Code
Section 414(p). The divorce or death of an “eligible spouse” shall not entitle
a subsequent spouse to status as an “eligible spouse.”


 


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


 


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


 

















 


The written explanation described in Section 417(a)(3)(A) of the Code
may be provided after the annuity starting date. The 90-day “applicable
election period” to waive the qualified joint and survivor annuity described in
Section 417(a)(6)(A) of the Code shall not end before the 30th day after the
date on which such explanation is provided. The Secretary of the Treasury may,
by regulations, limit the period of time by which the annuity starting date
precedes the provision of the written explanation other than by providing that
the annuity starting date may not be earlier than termination of employment. A
Participant may elect (with any applicable spousal consent) to waive any
requirement that the written explanation be provided at least 30 days before
the annuity starting date (or to waive the 30-day requirement set forth above)
if the distribution commences more than seven (7) days after such explanation
is 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 each
Participant, not more than ninety (90) days prior to the commencement of
benefits, a written explanation of:


 


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


 


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


 


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


 


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


 


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


 


7.6  DEATH BENEFIT.


 


(a) Death
While an Employee. In
the 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% vested
under Section 6.1. The Account shall constitute the Participant’s death benefit
to be distributed under this Article to the Participant’s Beneficiary.


 


(b) Death
After Termination of Employment. In the event of the death of a former Participant after
termination of employment but prior to the complete distribution of his vested
Account balance under


 

















 


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


 


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


 


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


 


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


 


The “required time” for commencement of distribution of any death
benefit hereunder shall be within the period ending on the last day of the
calendar year following the calendar year in which the Participant died, or in
the case of a surviving spouse, within a reasonable time after the Participant’s
death or, if the surviving spouse so elects, no later than the last day of the
calendar year in which the Participant would have attained age 701⁄2. If a
surviving spouse dies before distributions begin, this paragraph shall be
applied 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 natural
persons, the following distribution modes shall be available:


 


(a) a lump sum; or


 


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


 

















 


To the extent payments are not designated to or for the benefit of a
natural person, or if payments commence after the “required time,” the
following 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 and
in such amount as determined by the Beneficiary, provided that all amounts be
paid from the Trust within five (5) years
of the Participant’s death.


 


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


 


7.9  QUALIFIED PRE-RETIREMENT SURVIVOR ANNUITY.


 


The provisions of this Section shall apply only to a Participant whose
Account includes funds transferred from a plan subject to the provisions of
Section 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 distribution
of benefits has commenced and is survived by his “eligible spouse” (as defined
in Section 7.5(c)), one-half of
the entire death benefit payable under the Plan shall be applied to the
purchase of an annuity for the life of the Participant’s surviving spouse.


 


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


 


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


 


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


 


(c) The Administrator shall furnish each
Participant with a written explanation of: (i) the terms and conditions of the
survivor annuity; (ii) the Participant’s right to make, and the effect of, an
election 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 by
withholding the necessary consent. Such explanation shall be provided to the
Participant within the period beginning on the later of the first day of the
Plan Year in which the Participant attains age 32 and ending on the last day of
the Plan Year preceding the Plan Year in which the Participant attains age 35, or
within a reasonable period after the Participant commences participation in the
Plan, or after the Participant separates from Service if the Participant


 

















 


has not
attained age 35 at the time of separation from
Service.


 


7.10  IN-SERVICE WITHDRAWALS. Notwithstanding the foregoing
provisions of this Article Seven, a Participant who is in the employ of the
Employer and has attained age 59Y2 may
withdraw all or a portion of his vested Account by filing a request with the
Administrator at least 30 days before the proposed withdrawal date.


 


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


 


7.11  INVOLUNTARY CASH-OUTS. If a Participant
terminates employment for any reason and his vested Account balance does not
exceed $5,000, the Administrator may distribute such amount in a lump sum
payment to the Participant without the consent of the Participant or his
spouse. 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 with
this provision in operation.


 


7.12  DIRECT ROLLOVER OF ELIGIBLE ROLLOVER DISTRIBUTIONS.


 


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


 


(b) Definitions:



 


(1) Eligible
Rollover Distribution: An eligible rollover distribution is any
distribution of all or any portion of the balance to the credit of the
Distributee, except that an eligible rollover distribution does not include:
any distribution that is one of a series of substantially equal periodic
payments (not less frequently than annually) made for the life (or life
expectancy) of the Distributee or the joint lives (or joint life expectancies)
of the Distributee and the Distributees designated Beneficiary, or for a
specified period often years or more; any distribution to the extent such
distribution is required under Section 401(a)(9) of the Code; any hardship
distribution described in Section 401(k)(2)(B)(i)(IV) of the Code; and the
portion of any distribution that is not includible in gross income (determined
without regard to the exclusion for net unrealized appreciation with respect to
employer securities).


 


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


 


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


 

















 


(4) Direct
Rollover: A direct rollover is a payment by the Plan to the
Eligible Retirement Plan specified by the Distributee.


 

















 


ARTICLE EIGHT—ADMINISTRATION OF
THE PLAN


 


8.1 PLAN ADMINISTRATION. The Employer shall be the Plan
Administrator, hereinbefore and hereinafter called the Administrator, and named
fiduciary of the Plan, unless the Employer, by action of its Board of
Directors, shall designate a person or committee of persons to be the
Administrator and named fiduciary. The administration of the Plan, as provided
herein, including a determination of the payment of benefits to Participants
and their Beneficiaries, shall be the responsibility of the Administrator. The
Administrator shall have the right to construe and interpret the Plan, decide
all questions of eligibility and determine the amount, manner and time of
payment of any distributions under the Plan to the fullest extent provided by
law and in its sole discretion; and interpretations or decisions made by the
Administrator will be conclusive and binding on all persons having an interest
in the Plan. In the event more than one party shall act as Administrator, all
actions shall be made by majority decisions. In the administration of the Plan,
the Administrator may (a) employ agents to carry out nonfiduciary
responsibilities (other than Trustee responsibilities), (b) consult with
counsel, who may be counsel to the Employer, and (c) provide for the allocation
of fiduciary responsibilities (other than Trustee responsibilities) among its
members. Actions dealing with fiduciary responsibilities shall be taken in
writing and the performance of agents, counsel and fiduciaries to whom
fiduciary responsibilities have been delegated shall be reviewed periodically.


 


The expenses of administering the Plan and the compensation of all
employees, agents, or counsel of the Administrator, including the accounting
fees, 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 so
elects. No compensation may be paid by the Plan to full-time Employees of the
Employer.


 


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


 


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


 


8.2  CLAIMS PROCEDURE. Pursuant to procedures established by the
Administrator, adequate notice in writing shall be provided to any Participant
or Beneficiary whose claim for benefits under the Plan has been denied within
90 days of receipt of such claim. Such notice shall set forth the specific
reason for such denial, shall be written in a manner calculated to be
understood by the claimant, and shall advise of the right to administrative
review. If such review is requested by the claimant or his authorized
representative within 90 days after receipt by the claimant of written
notification of denial of his claim, the Administrator shall afford a
reasonable opportunity for a full and fair review by the Administrator of the
decision denying the claim. The review shall focus on the additional facts,
legal interpretations or material, if any, presented by the claimant. A hearing
at its place of business may be scheduled by the Administrator, but a hearing
is not required under the review procedure.


 

















 


8.3 TRUST AGREEMENT AND DESIGNATION OF TRUSTEE. The Employer
has created and entered into a Trust Agreement with the Trustee as designated
therein. The Employer may designate any number of persons, parties, corporate
fiduciaries, or any combination thereof to act as Trustees, as the Employer
deems appropriate. The Employer may appoint an investment manager or managers
to manage (including the power to acquire and dispose of) all or any part of
the Trust assets, as provided more fully in the Trust Agreement.


 

















 


ARTICLE NINE—SPECIAL COMPLIANCE
PROVISIONS


 


9.1 DISTRIBUTION OF EXCESS ELECTIVE DEFERRALS. If, as the result of administrative
error, the amount of any elective deferral made by a Participant exceeds the
dollar limitation of Section 4.1(c), then the excess amount, and any income
allocable thereto, shall be distributed to such Participant by the April 15 following the calendar year in
which the excess elective deferral is made to the Plan. All Employer matching
contributions which relate to distributions of excess elective deferrals shall
be forfeited.


 


9.2  LIMITATIONS ON 401(k) CONTRIBUTIONS.


 


(a) Average
Actual Deferral Percentage Test.  Amounts contributed as elective
deferrals under Section 4. 1(a) and any “fail-safe” contributions made under
this Section are all considered to be amounts deferred pursuant to Section
401(k) of the Code. For purposes of this Article, these amounts are referred to
as the “deferred amounts.”


 


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


 


(1) The average actual deferral percentage
for the Plan Year for the eligible Participants who are Highly Compensated
Employees shall not exceed the average actual deferral percentage for the prior
Plan Year for eligible Participants who were Nonhighly Compensated Employees
multiplied by 1.25; or


 


(2) The average actual deferral percentage
for the Plan Year for eligible Participants who are Highly Compensated
Employees shall not exceed the average actual deferral percentage for the prior
Plan Year for eligible Participants who were Nonhighly Compensated Employees
multiplied by 2, provided that the average actual deferral percentage for the
Plan Year for eligible Participants who are Highly Compensated Employees does
not exceed the average actual deferral percentage for the prior Plan Year for
eligible Participants who were Nonhighly Compensated Employees by more than two
(2) percentage points, or such lesser amount as the Secretary of the Treasury
shall prescribe to prevent the multiple use of this alternative limitation with
respect to any Highly Compensated Employee. If elected by the Employer, the
average actual deferral percentage tests in (1) and (2) above shall be applied
by comparing the current Plan Year’s average actual deferral percentage for
Participants who are Highly Compensated Employees with the current Plan Year’s
average actual deferral percentage for Participants who are Nonhighly
Compensated Employees. Once made, this election can only be undone if the Plan
meets the requirements for changing to prior year testing as set forth in
Internal Revenue Service Notice 98-1 (or superseding guidance).


 


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


 


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


 

















 


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


 


A deferred amount will be taken into account under the actual deferral
percentage test for a Plan Year only if it relates to Compensation that either
would have been received by the Participant in the Plan Year (but for the
deferral election) or is attributable to services performed by the Participant
in the Plan Year and would have been received by the Participant within 2 ‘/2 months after the close of the Plan Year (but for the
deferral election). In addition, a deferred amount will be taken into account
under the actual deferral percentage test for a Plan Year only if it is
allocated to the Participant as of a date within that Plan Year. For this
purpose, a deferred amount is considered allocated as of a date within a Plan
Year if the allocation is not contingent on participation or performance of
services after such date and the deferred amount is actually paid to the Trust
no later than twelve (12) months after the Plan Year to which the deferred
amount relates.


 


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


 


The determination and treatment of elective deferrals and the actual
deferral percentage of any Participant shall be subject to the prescribed
requirements of the Secretary of the Treasury.


 


In the event the rate of deferrals made by eligible Participants who
are Highly Compensated Employees is in excess of the deferral rate allowed
under this Section 9.2(a) or the contribution rate allowed under Section
9.3(a), and the Employer has elected to use the current year testing method
pursuant to this Section 9.2(a), the Employer in its discretion may make a “qualified
nonelective contribution” for Participants who are Nonhighly Compensated
Employees who are eligible to have elective deferrals contributed to their
Accounts and who have been credited with 1,000 Hours of Service in the Plan
Year and who are employed on the last day of the Plan Year, to be allocated
among their Accounts in proportion to their Compensation for the Plan Year, as
a 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 any
other nondiscriminatory manner as determined by the Board of Directors. A “qualified
nonelective contribution” is a contribution (other than a matching contribution
or a qualified matching contribution) made by the Employer and allocated to
Participants’ accounts that the Participants may not elect to receive in cash
until distributed from the Plan; that are nonforfeitable when made; and that
are distributable only in accordance with the distribution provisions that are
applicable to elective deferrals and qualified matching contributions. The
provisions of Regulation Section 1.401(k) - 1(b)(5) are incorporated herein by
reference.


 

















 


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


 


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


 


(b) Distributions
of Excess Contributions.


 


(1) In
General.  If the average actual deferral percentage test of
Section 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 under
Treasury regulations no later than the last day of the Plan Year following the
Plan Year for which the excess contributions were made. However, if such excess
contributions are distributed later than 2  1⁄2 months following the
last 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 excess
contributions. Excess contributions are reduced by excess deferrals previously
distributed pursuant to Section 402(g) of the Code.


 


(2) Excess
Contributions.  For purposes of this Section 9.2(b), “excess
contributions” shall mean, with respect to any Plan Year, the excess of the
aggregate amount of Participant deferred amounts under Section 4.1 actually
taken into account in computing the actual deferral percentage of Highly
Compensated Employees for such Plan Year over the maximum amount of all such
contributions permitted under the test under Section 9.2(a) (determined by
reducing contributions made on behalf of Highly Compensated Employees in order
of the actual deferral percentages, beginning with the highest of such
percentages). Excess contributions are allocated to the Highly Compensated
Employees with the largest amounts of employer contributions taken into account
in calculating the average actual deferral percentage test for the year in
which the excess arose, beginning with the Highly Compensated Employee with the
largest amount of such employer contributions and continuing in descending
order until all the excess contributions have been allocated. For purposes of
the preceding sentence, the “largest amount” is determined after distribution
of any excess contributions. The amount of excess contributions to be
distributed shall be reduced by excess elective deferrals previously
distributed for the taxable year ending in the same Plan Year and excess
elective deferrals to be distributed for a taxable year shall be reduced by
excess contributions previously distributed for the Plan Year beginning in such
taxable year.


 


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


 


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


 


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


 

















 


regulations.


 


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


 


9.3  NONDISCRIMINATION TEST FOR EMPLOYER MATCHING CONTRIBUTIONS.


 


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


 


As of the last day of each Plan Year, the average contribution
percentage for Highly Compensated Employees for the Plan Year shall satisfy
either of the following tests:


 


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


 


(2) The average contribution percentage for
the Plan Year for eligible Participants who are Highly Compensated Employees
shall not exceed the average contribution percentage for the prior Plan Year
for eligible Participants who were Nonhighly Compensated Employees for the
prior Plan Year multiplied by 2, provided that the average contribution
percentage for the Plan Year for eligible Participants who are Highly
Compensated Employees does not exceed the average contribution percentage for
the prior Plan Year for eligible Participants who were Nonhighly Compensated
Employees by more than two (2) percentage points or such lesser amount as the
Secretary of the Treasury shall prescribe to prevent the multiple use of this
alternative 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 contribution
percentages of the “eligible participants” in a group. The “contribution
percentage” shall mean the ratio (expressed as a percentage) that any Employer
matching contributions under the Plan on behalf of the eligible Participant for
the Plan Year bears to the eligible Participant’s Compensation for the Plan
Year. “Eligible Participants” shall mean each Employee who is eligible to
receive an allocation of Employer matching contributions.


 


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


 


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


 

















 


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


 


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


 


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


 


In the event the rate of contributions made by eligible Participants
who are Highly Compensated Employees is in excess of the contribution rate
allowed under this Section 9.3(a) or the deferral rate allowed under Section
9.2(a), and the Employer has elected to use the current year testing method
pursuant to this Section 9.3(a), the Employer in its discretion may make a
special “qualified matching contribution” contribution for Participants who are
Nonhighly Compensated Employees who are eligible to receive Employer matching
contributions and who have been credited with 1,000 Hours of Service in the
Plan Year and who are employed on the last day of the Plan Year, to be
allocated among their Accounts in proportion to their Compensation for the Plan
Year, as a 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 any other nondiscriminatory manner as determined by the Board of Directors.
A “qualified matching contribution” is a matching contribution which is subject
to the distribution and nonforfeitability requirements under Section 401(k) of
the Code when made. The provisions of Regulation Sections 1.401(k)-1(b)(5), 1.401(k)-1(g)(13) and
1.401(m)-1(b)(5) are
incorporated herein by reference.


 


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


 


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


 


(b) Distribution
of Excess Employer Matching Contributions.


 


(1) In
General.  If the nondiscrimination tests of Section 9.3(a) are
not satisfied for a Plan Year, then the “excess contributions” and any income
allocable thereto shall be forfeited, if otherwise forfeitable, no later than
the last day of the Plan Year following the Plan Year for which said
nondiscrimination tests are not satisfied, and shall be used to reduce Employer
contributions under Section 4.2 1(a). To the extent that such “excess
contributions” are nonforfeitable, such excess contributions shall be distributed
to the Participant on whose behalf the excess contributions were made no later
than the last day of the Plan Year following the Plan Year for which such
“excess contributions” are made. However, if such excess contributions are
distributed later than 2V2 months following the last 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 those excess contributions.


 

















 


(2) Excess
contributions.  For purposes of this Section 9.3(b), “excess
contributions” shall mean, with respect to any Plan Year, the excess of the
aggregate amount of Employer matching contributions and, if applicable,
elective deferrals and Employer contributions attributable to elective
deferrals actually made on behalf of Highly Compensated Employees for such Plan
Year over the maximum amount of all such contributions permitted under the
nondiscrimination tests under Section 9.3(a) (determined by reducing
contributions made on behalf of Highly Compensated Employees in order of their
contribution percentages, beginning with the highest of such percentages).
Excess contributions are allocated to the Highly compensated Employees with the
largest amounts of employer


 

















 


contributions
taken into account in calculating the average contribution percentage test for
the year in which the excess arose, beginning with the Highly Compensated
Employee with the largest amount of such employer contributions and continuing
in descending order until all the excess contributions have been allocated. For
purposes of the preceding sentence, the “largest amount” is determined after
distribution of any excess contributions.


 


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


 


(3) Determination
of Income.  The income allocable to excess contributions shall be
determined by multiplying the income allocable to the Employer matching
contributions for the Plan Year by a fraction, the numerator of which is the
excess contributions on behalf of the Participant for the Plan Year, and the
denominator of which is the sum of the Participant’s Account balances
attributable to Employer matching contributions on the last day of the
preceding Plan Year. Income allocable to the period between the last day of the
preceding Plan Year and the date of distribution shall be disregarded in
determining income.


 


9.4 LIMITATION ON THE MULTIPLE
USE ALTERNATIVE. The sum of the average actual deferral percentage
of Highly Compensated Employees under Section 9.2(a) and the average
contribution 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 Compensated
Employees under Section 9.2(a) or the average contribution percentage of the
Nonhighly Compensated Employees under Section 9.3(a), whichever is greater; and


 


(b) two (2) percentage points more than the
average actual deferral percentage of the Nonhighly Compensated Employees under
Section 9.2(a) or the average contribution percentage of the Nonhighly
Compensated Employees under Section 9.3(a), whichever is smaller, and in no
event more than two (2) times such lesser amount.


 


(c) If the limits set forth herein are
exceeded, the average contribution percentage of the Highly Compensated
Employees shall be reduced in accordance with the provisions of Section 9.3(b)
by forfeiting “excess contributions”, if forfeitable, or distributing “excess
contributions”, if nonforfeitable, as set forth in Section 9.3(b). In lieu of
reducing the average contribution percentage, in accordance with Section
9.3(b), the Administrator may reduce the average actual deferral percentage of
the Highly Compensated Employees in accordance with the provisions of Section
9.2(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 to
comply with the restrictions on the multiple use set forth in Code Section 401
(m)(9).


 

















 


ARTICLE TEN—LIMITATIONS ON ANNUAL
ADDITIONS 

TO A PARTICIPANT’S ACCOUNT


 


10.1 RULES AND DEFINITIONS.


 


(a) Rules. The following rules limit additions
to Participants1 Accounts:


 


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


 


(2) Prior to determining the Participant’s
actual Compensation for the limitation year, the Employer may determine the
maximum permissible amount for a Participant on the basis of a reasonable
estimation of the Participant’s Compensation for the limitation year, uniformly
determined for all Participants similarly situated.


 


(3) As soon as is administratively feasible
after the end of the limitation year, the maximum permissible amount for the
limitation year will be determined on the basis of the Participant’s actual
Compensation for the limitation year.


 


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


 


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


 


(B) If an excess amount still exists after
the application of subparagraph (A) and the Participant is covered by the Plan
at the end of the limitation year, the excess amount in the Participant’s
Account will be used to reduce Employer contributions (including any allocation
of forfeitures) for such Participant in the next limitation year, and each succeeding
limitation year if necessary.


 


(C) If an excess amount still exists after
the application of subparagraphs (A) and (B), and the Participant is not
covered by the Plan at the end of the limitation year, the excess amount will
be held unallocated in a suspense account. The suspense account will be applied
to reduce future Employer contributions (including allocation of any
forfeitures) for all remaining Participants in the next limitation year, and
each succeeding limitation year if necessary.


 


(D) If a suspense account is in existence at
any time during the limitation year pursuant to this Section, it will not
participate in the allocation of the Trust’s investment gains and losses. If a
suspense account is in existence at any time during a particular limitation
year, all amounts in the suspense account must be allocated and reallocated to
Participants’ Accounts before any 


 

















 


Employer or
any 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, the
Participant is covered under another defined contribution plan maintained by
the Employer during any limitation year, the annual additions which may be
credited to a Participant’s Account under all Plans for any such limitation
year will not exceed the maximum permissible amount. Benefits will be reduced
under any defined contribution discretionary contribution plan before they are
reduced under any defined contribution pension plan. If both plans are
discretionary contribution plans they shall first be reduced under this Plan.
Any excess amount attributable to this Plan will be disposed of in the manner
described in Section 10.l(a)(4).


 


(F) If the Employer maintains, or at any time
maintained, a qualified defined benefit plan covering any Participant in this
Plan, the sum of the Participant’s defined benefit plan fraction and defined
contribution plan fraction will not exceed 1.0 in any limitation year. The
annual additions which may be credited to the Participant’s Account under this
Plan for any limitation year will be limited so that if the limitations of Code
Section 415(e) become applicable that benefits
under a defined benefit plan shall have first been provided before benefits
under a defined contribution plan are provided. The provisions of this Section
10.l(a)(4)(F) shall not apply to limitation years commencing on or after
January 1, 2000.


 


(G) In any Plan Year in which the Plan
becomes a Super Top-Heavy Plan as defined in Section 12.2, the denominators of
the defined benefit fraction and defined contribution fraction shall be
computed 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 Super
Top-Heavy Plan), the limitations shall be similarly reduced, subject to the
special provisions of Section 12.3, which provide for the use of the 125% limitation subject to the added
minimum allocations.


 


(5) Notwithstanding anything
contained in this Article Ten to the contrary, a Participant’s defined benefit
fraction (including preservation of his accrued benefit) and/or defined
contribution fraction may be adjusted in accordance with transitional rules
contained in Section 235 of the
Tax Equity and Fiscal Responsibility Act of 1982 and Section 1106 of the Tax
Reform Act of 1986.


 


(b) Definitions.


 


(1) Annual additions:  The following
amounts credited to a Participant’s Account for the limitation year are treated
as annual additions to a defined contribution plan.


 


(A) Employer contributions; and


 


(B) Employee contributions; and


 


(C) Forfeitures; and


 


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


 

















 


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


For this purpose, any excess amount applied under Section 10.1(a)(4) in
the limitation year to reduce Employer contributions will be considered annual
additions 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 for
personal services actually rendered in the course of employment with the
Employer maintaining the Plan, including, but not limited to, commissions paid
to salesmen, compensation for services on the basis of a percentage of profits,
commissions on insurance premiums, tips and bonuses, and excluding the
following:


 


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


 


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


 


(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 tax
benefits, or contributions made by the Employer (whether or not under a salary
reduction agreement) toward the purchase of an annuity described in Section
403(b) of the Code (whether or not the amounts are actually excludable from the
gross income of the Employee).


 


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


 


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


 


(3) Defined
benefit fraction.  This shall mean a fraction, the numerator of
which is the sum of the Participant’s projected annual benefits under all the
defined benefit plans maintained or previously maintained by the Employer, and
the denominator of which is the lesser of 125% of the dollar limitation in
effect 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, a
Participant with a benefit accrued under a defined benefit plan previously
maintained by the Employer shall have his years of participation in this Plan aggregated
with years of participation in a defined benefit plan.


 

















 


(4) Defined
contribution fraction:  This shall mean a fraction, the numerator
of which is the sum of the annual additions to the Participant’s Account under
all the defined contribution plans (whether or not terminated) maintained by
the Employer for the current and all prior limitation years (including the
annual additions attributable to the Participant’s nondeductible Employee
contributions to this and all other qualified plans, whether or not terminated,
maintained by the Employer), and the denominator of which is the sum of the
maximum aggregate amounts for the current and all prior limitation years with
the Employer (regardless of whether a defined contribution plan was maintained
by the Employer).


 


The maximum aggregate amount in any limitation year is the lesser of
125% of the dollar limitation then in effect under Section 415(c)(l)(A) of the
Code or 35% of the Participant’s Compensation for such year.


 


(5) Defined
contribution dollar limitation:  Notwithstanding any other
provisions of the Plan, contributions and other additions with respect to a
participant exceed the limitation of Code Section 415(c) if, when expressed as
an Annual Addition (within the meaning of Code Section 415(c)(2)) to the
Participant’s Account, such Annual Addition is greater than the lesser of:


 


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


 


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


 


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


 


(6) Employer:  This term
refers to the Employer that adopts this Plan, and all members of a controlled
group of corporations (as defined in Section 414(b) of the Code, as modified by
Section 415(h)), commonly-controlled
trades or businesses (as defined in Section 4 14(c) as modified by Section
415(h)), or affiliated service groups (as defined in Section 4 14(m)) of which
the adopting employer is a part.


 


(7) Highest average compensation:  This
means the average Compensation for the three consecutive limitation years with
the Employer that produces the highest average.


 


(8) Limitation
year.  The Plan Year shall be the 12-consecutive-month period
used to measure Compensation in this Plan for benefit purposes.


 


(9) Maximum
permissible amount:  This amount is the lesser of the defined
contribution dollar limitation or 25% of
the Participant’s Compensation for the limitation year. If a short limitation
year is created because of an amendment changing the limitation year to a
different 12-consecutive-month period, the maximum permissible amount will not
exceed the defined contribution dollar limitation multiplied by the following
fraction:


 


Number of
months in the short limitation year


12


 

















 


(10) Projected
annual benefit:  This is the annual retirement benefit (adjusted
to an actuarially equivalent straight life annuity if such benefit is expressed
in a form other than a straight life annuity or qualified joint and survivor
annuity) to which the Participant would be entitled under the terms of the
Plan, assuming:


 


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


 


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


 

















 


ARTICLE ELEVEN—AMENDMENT AND
TERMINATION


 


11.1 AMENDMENT. The
Employer 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 become
effective under its terms upon adoption by the Employer. The amendment shall be
adopted by formal action of the Employer’s Board of Directors. However, no amendment
affecting the duties, powers or responsibilities of the Trustee may be made
without the written consent of the Trustee. No amendment shall be made to the
Plan which shall:


 


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


 


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


 


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


 


11.2  TERMINATION OF THE PLAN. The Employer
reserves the right at any time and in its sole discretion to discontinue
payments under the Plan and to terminate the Plan. In the event the Plan is
terminated, or upon complete discontinuance of contributions under the Plan by
the Employer, or in the event of a partial termination of the Plan, the rights
of each Participant to his Account on the date of such termination or discontinuance
of contributions, to the extent of the fair market value under the Trust Fund,
shall become fully vested and nonforfeitable. The Employer shall direct the
Trustee to distribute the Trust Fund in accordance with the Plan’s distribution
provisions to the Participants and their Beneficiaries, each Participant or
Beneficiary receiving a portion of the Trust Fund equal to the value of his
Account as of the date of distribution. These distributions may be implemented
by 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 not
terminated, or by any other appropriate method, including rollover into
Individual Retirement Accounts. Upon distribution of the Trust Fund, the
Trustee shall be discharged from all obligations under the Trust and no
Participant or Beneficiary shall have any further right or claim therein. If a
partial termination of the Plan is deemed to have occurred, this Section shall
apply only to those Participants affected by such partial termination.


 

















 


ARTICLE TWELVE—TOP-HEAVY PROVISIONS


 


12.1  APPLICABILITY. The provisions of this Article shall become
applicable only for any Plan Year in which the Plan is a Top-Heavy Plan. The
determination of whether the Plan is a Top-Heavy Plan shall be made each Plan
Year 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 of
such Employee) who, at any time during the determination period, was (i) an
officer of the Employer earning Compensation greater than 50% of the dollar limitation under
Section 415(b)(1)(A) of the Code, (ii) an owner (or considered an owner under
Section 318 of the Code) of both more than a one-half percent (V2%) interest in the Employer and
one of the ten largest interests in the Employer if such individual’s
Compensation exceeds the dollar limitation under Section 415(c)(1)(A) of the Code, (iii) a 5% owner of the Employer, or (iv) a
1% 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 the
determination date as defined in Section 12.2(c)(4) and the four preceding Plan
Years. 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 the
Code and the regulations thereunder. “Non-Key Employee” shall mean any Employee
or Beneficiary of such Employee or former Employee or Beneficiary of such
former Employee who is not or was not a Key Employee during the Plan Year
ending on the determination date, nor during the four preceding Plan Years.


 


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


 


(c) “Top-Heavy
Plan”  shall mean a plan where any of the following conditions
exist:


 


(1) Top-Heavy
status defined:


 


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


 


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


 


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


 


(2) If the Employer maintains one or more
defined contribution plans (including any simplified employee pension plan
funded with individual retirement accounts or annuities) and the Employer
maintains or has maintained one or more defined benefit plans which have
covered or could cover a Participant in this Plan, the top-heavy ratio is a
fraction, the numerator of which is the sum of account balances under the
defined contribution plans for all Key Employees and the actuarial equivalents
of accrued benefits under the defined benefit plans for all Key Employees, and
the denominator of which is the sum of the account balances under the defined
contribution plans for all Participants and the


 

















 


actuarial
equivalents of accrued benefits under the defined benefit plans for all
Participants. Both the numerator and denominator of the top-heavy ratio shall
include any distribution of an account balance or an accrued benefit made in
the five-year period ending on the determination date and any contribution due
to a defined contribution pension plan but unpaid as of the determination date.
In determining the accrued benefit of a Non-Key Employee who is participating
in a plan that is part of a required aggregation group, the method of
determining such benefit shall be either (a) in accordance with the method, if
any, that uniformly applies for accrual purposes under all plans maintained by
the Employer or any related employer under Code Section 414, or (b) if there is
no such method, as if such benefit accrued not more rapidly than the slowest
accrual rate permitted under the fractional accrual rate of Code Section
411(b)(1)(C).


 


(3) For purposes of (1) and (2) above, the
value of Account balances and the actuarial equivalents of accrued benefits
will be determined as of the most recent Valuation Date that falls within or
ends with the 12-month period ending on the determination date. The Account
balances and accrued benefits of a Participant who is not a Key Employee but
who was a Key Employee in a prior year will be disregarded. The accrued
benefits and Account balances of Participants who have performed no Flours of
Service with any Employer maintaining the Plan for the five-year period ending
on the determination date will be disregarded. The calculations of the
top-heavy ratio, and the extent to which distributions, rollovers, and
transfers are taken into account will be made under Section 416 of the Code and
regulations issued thereunder. Deductible Employee contributions will not be
taken into account for purposes of computing the top-heavy ratio. When
aggregating plans, the value of account balances and accrued benefits will be
calculated with reference to the determination dates that fall within the same
calendar year.


 


(4) Definition of terms for
Top-Heavy status:


 


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


 


(1) If the Employer maintains one or more
defined contribution plans (including any simplified employee pension plan funded
with individual retirement accounts or annuities) and the Employer has never
maintained any defined benefit plans which have covered or could cover a
Participant in this Plan, the top-heavy ratio is a fraction, the numerator of
which is the sum of the Account balances of all Key Employees as of the
determination date (including any part of any Account balance distributed in
the five-year period ending on the determination date), and the denominator of
which is the sum of the Account balances (including any part of any Account
balance distributed in the five-year period ending on the determination date)
of all Participants as of the determination date. Both the numerator and the
denominator shall be increased by any contributions due but unpaid to a defined
contribution pension plan as of the determination date.


 


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


 

















 


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


 


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


 


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


 


(C) “Required
aggregation group” shall mean (1) each qualified plan of the
Employer (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 described
in (1) to meet the requirements of Sections 401(a)(4) or 410 of the Code.


 


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


 


(E) “Valuation
Date” shall mean the last day of the Plan Year.


 


(F) Actuarial equivalence shall be based on
the interest and mortality rates utilized to determine actuarial equivalence
when benefits are paid from any defined benefit plan. If no rates are specified
in said plan, the following shall be utilized: pre- and post-retirement
interest — 5%; post- retirement
mortality based on the Unisex Pension (1984) Table as used by the Pension
Benefit 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, in
any Plan Year when the Plan is a Top-Heavy Plan the Employer contributions
allocated on behalf of any Participant who is a Non-Key Employee shall not be
less than the lesser of 3% of such Participant’s Compensation as defined in
Section 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 his
delegate) of the Key Employee’s Compensation, allocated on behalf of any Key
Employee for that Plan Year. This minimum allocation shall be made even though,
under other Plan provisions, the Participant would not otherwise be entitled to
receive an allocation, or would have received a lesser allocation for the Plan Year
because of insufficient Employer contributions under Section 4.2 or the


 

















 


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


 


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


 


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


 


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


 


(e) There shall be no duplication of the
minimum benefits required under Code Section 416. Benefits shall be provided
under defined benefit plans before under any defined contribution plans. If a
defined benefit plan (active or frozen) is part of the permissive or required
aggregation group of plans of the Employer, the minimum allocation in
subparagraph (a) shall be deemed to be 5% and shall be offset by a
Participant’s accrued benefit under a defined benefit plan according to the following
equivalencies: a 1% “qualifying benefit accrual” under a defined benefit plan
equals a 2.5% allocation under a defined contribution plan. To be a “qualifying
benefit accrual,” the pension under the defined benefit plan must be converted
to a pension payable for life based on the average of the five consecutive
years of the Participant’s highest compensation, payable at that plan’s normal
retirement date. Accordingly, for a Participant whose “qualifying benefit
accrual” equals 2% multiplied by each year of his participation in the Plan
while 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, the
minimum allocation under this Plan shall be provided on a pro rata basis,
adjusted on the basis of the above equivalencies. Except as provided in
subparagraph (f), in no event will additional minimum allocations be provided
for any Participant who has earned a “qualifying benefit accrual” equal to 20%
of his Compensation (as defined in Article Ten) averaged over the five
consecutive years in which such Compensation was the highest.


 


(f) There shall be no duplication of the
minimum benefits required under Code Section 416. Benefits shall be provided
under defined benefit plans before under defined contribution plans. If a
defined benefit plan (active or frozen) is part of the permissive or required
aggregation group of plans, and if any Participant in the Plan would have his
benefits limited due to the application of the special Code limitation rule in
Section 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, except
that “3%” shall be substituted for “2%” and “30%” shall be substituted for
“20%.”


 


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


 

















 


vesting schedule is amended. In addition, if a Plan’s status changes
from 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 his
vested rights determined under the schedule which he selects, in the event the
vesting schedule is subsequently amended.


 


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


 

















 


ARTICLE THIRTEEN—LOANS AND
HARDSHIP DISTRIBUTIONS


 


13.1 LOANS.


 


(a) Permissible
Amount and Procedures. Upon the application of a
Participant, the Administrator may, in accordance with a uniform and
nondiscriminatory policy, direct the Trustee to grant a loan or loans to a
Participant at a reasonable rate of interest. The Participant’s signature shall
be required on a promissory note. In no event shall the amount of a loan or loans
to a Participant exceed the vested value of the Participant’s Account, which
shall be security for such loan. The Administrator shall impose a rate of
interest which provides the Plan with a return commensurate with the interest
rates charged by persons in the business of lending money for loans which would
be made under similar circumstances. The terms of any loan shall be arrived at
by mutual agreement between the Administrator and the Participant, subject to
the approval of the Trustee. Participant loans shall be treated as segregated
investments, and interest repayments will be credited only to the Participant’s
Account. In the event a Participant terminates employment while any loan is
outstanding, the unpaid balance and any interest due thereon shall become due
and payable, within thirty (30) days of such termination of employment. If such
amount is not paid to the Plan, it shall be charged against the amounts that
are otherwise payable to the Participant or the Participant’s Beneficiary under
the provisions of the Plan.


 


(b) Limitation
on Amount of Loans.  A Participant’s loan or loans, when
aggregated with all other outstanding loan balances under this Plan and any
other qualified retirement plan maintained by the Employer, shall not exceed
the lesser of:


 


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


 


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


 


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


 


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


 

















 


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


 


(a) Deemed
Immediate and Heavy Financial Need.  A distribution made on
account of medical expenses (as described in Code Section 213(d)) incurred by
the Participant, his spouse or his dependents (as defined in Code Section 152), or
for purchase of the Participant’s principal residence (excluding mortgage
payments), or for payment of educational expenses for the next twelve months of
post- secondary education for the Participant, his spouse or his children or
dependents, or to prevent the eviction of the Participant from his principal
residence or foreclosure on same shall be deemed to be made on account of an
immediate and heavy financial need.


 


(b) Deemed
Necessity to Satisfy Financial Need.  A distribution shall be
deemed necessary to satisfy a Participant’s immediate and heavy financial need
if the amount of the distribution does not exceed the amount of the financial
need, and the Participant has obtained all currently available distributions
and nontaxable loans under all plans maintained by the Employer, and the
Participant makes a written irrevocable election to suspend his rights to make
elective deferrals and employee contributions under all plans maintained by the
Employer for a 6-month period following receipt of the distribution and such
irrevocable election limits the amount of his elective deferrals in his taxable
year immediately following the taxable year of the hardship distribution equal
to the applicable limit under Code Section 402(g) less the amount of his
deferrals made in the taxable year of the distribution.


 


(c) Application
Procedure.  The Administrator shall require that requests for
hardship distributions be made under procedures which include the Participant’s
statement of the facts causing the hardship, the amount of the financial need
and any other information required to ascertain the facts. No distribution will
be granted unless the amount attributable to Employer contributions has been in
the Trust for a period of two (2) years or, alternatively, the Participant has
been a Participant for five (5) or
more years.


 


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


 

















 


ARTICLE FOURTEEN—MISCELLANEOUS PROVISIONS


 


14.1 PLAN DOES NOT AFFECT EMPLOYMENT. Neither the creation of
this Plan nor any amendment thereto nor the creation of any fund nor the
payment of benefits hereunder shall be construed as giving any legal or
equitable right to any Employee or Participant against the Employer, its
officers or Employees, or against the Trustee, and all liabilities under this
Plan shall be satisfied, if at all, only out of the Trust Fund held by the
Trustee. Participation in the Plan shall not give any Participant any right to
be retained in the employ of the Employer, and the Employer hereby expressly
retains the right to hire and discharge any Employee at any time with or
without cause, as if the Plan had not been adopted, and any such discharged
Participant shall have only such rights or interests in the Trust Fund as may
be specified herein.


 


14.2  SUCCESSOR TO THE
EMPLOYER. In the event of the merger, consolidation, reorganization
or sale of assets of the Employer, under circumstances in which a successor
person, firm, or corporation shall carry on all or a substantial part of the
business of the Employer, and such successor shall employ a substantial number
of Employees of the Employer and shall elect to carry on the provisions of the
Plan, such successor shall be substituted for the Employer under the terms and
provisions of the Plan upon the filing in writing with the Trustee of its
election to do so.


 


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


 


(a) Any monies or other Plan assets
attributable to any contribution made to this Plan by the Employer because of a
mistake of fact may be returned to the Employer within one year after the date
of contribution. Earnings attributable to the excess contribution may not be
returned to the Employer, but losses attributable thereto must reduce the
amount to be so returned. Furthermore, if the withdrawal of the amount
attributable to the excess contribution would cause the balance of the
individual account of any Participant to be reduced to less than the balance
which would have been in the account had the amount not been contributed, then
the amount to be returned to the Employer must be limited so as to avoid such
reduction.


 


(b) Any monies or other Plan assets
attributable to any contribution made to this Plan by the Employer for any
fiscal year for which initial Plan qualification under the Code is denied may
be refunded to the Employer within one year after the date such qualification
of the Plan is denied or within one year of the resolution of any judicial or
administrative process with respect to the disallowance.


 


(c) Any monies or other Plan assets
attributable to any contribution made to this Plan by the Employer may be
refunded to the Employer, to the extent the income tax deduction for such
contribution is disallowed, within one taxable year after the date of such disallowance
or within one year of the resolution of any judicial or administrative process
with respect to the disallowance.


 


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


 

















 


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


 


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


 


14.4  BENEFITS NOT ASSIGNABLE. Except as provided in Section
414(p) of the Code with respect to “qualified domestic relations orders”, the
rights of any Participant or his Beneficiary to any benefit or payment
hereunder shall not be subject to voluntary or involuntary alienation or
assignment. Notwithstanding the prior provisions of this Section 14.4, an
offset to a Participant’s benefit against an amount that the Participant is
ordered or required to pay the Plan with respect to a judgment, order, or
decree issued, or a settlement entered into, on or after August 5, 1997, shall be permitted in accordance
with Sections 401(a)(13)(C) and (D) of the Code.


 


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


 


14.6  INVESTMENT EXPERIENCE NOT A FORFEITURE. The decrease in
value of any Account due to adverse investment experience will not be
considered an impermissible “forfeiture” of any vested balance.


 


14.7  DISTRIBUTION TO LEGALLY INCAPACITATED PERSON. In the event any benefit is payable
to a minor or to a person deemed to be incompetent or to a person otherwise
under legal disability, or who is by sole reason of advanced age, illness, or
other physical or mental incapacity incapable of handling the disposition of
his property, the Administrator, may direct the Trustee to apply all or any
portion 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 part
of such benefit to (a) the spouse of such person, (b) the parent of such
person, (c) the guardian, committee, or other legal representative, wherever
appointed, 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) such
person. The receipt of any such payment or distribution is a complete discharge
of liability for Plan obligations.


 


14.8  CONSTRUCTION. Wherever appropriate, the use of the masculine
gender 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 the
plural shall be restricted to mean the singular.


 


14.9  GOVERNING DOCUMENTS. A Participant’s rights shall be
determined under the terms of the Plan as in effect at the Participant’s date
of separation from eligible Service.


 

















 


14.10 GOVERNING LAW. The
provisions of this Plan shall be construed under the laws of the state of the
situs of the Trust, except to the extent such laws are preempted by Federal
law.


 


14.11  HEADINGS. The Article headings and Section
numbers are included solely for ease of reference. If there is any conflict
between such headings or numbers and the text of the Plan, the text shall
control.


 


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


 


14.13  LOCATION OF PARTICIPANT OR BENEFICIARY UNKNOWN. In the event that all or any
portion of the distribution payable to a Participant or to a Participant’s
Beneficiary hereunder shall, at the expiration of five (5) years after it
shall become payable, remain unpaid solely by reason of the inability of the
Administrator to ascertain the whereabouts of such Participant or Beneficiary,
after sending a registered letter, return receipt requested, to the last known
address, and after further diligent effort, the amount so distributable shall
be reallocated in the same manner as a forfeiture under Section 6.2 pursuant to
this Plan. In the event a Participant or Beneficiary is located subsequent to
the reallocation of his Account balance, such Account balance shall be restored
without interest or adjustment for interim Trust valuation experience, by a
special Employer contribution or from the next succeeding Employer
contribution, as appropriate.


 

















 


ARTICLE FIFTEEN—MULTIPLE EMPLOYER PROVISIONS


 


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


 


15.2  SERVICE. For purposes of vesting, eligibility to participate
in the Plan, and determining eligibility for allocation of Participating
Employer contributions, an Employee shall be credited with all of his Hours of
Service with any Participating Employer which has adopted the Plan after the
effective date of that adoption. Pre-adoption Service will be credited in
accordance with the rules in Article Two for such periods of time when the
Employees were part of a controlled group of corporations, trades or businesses
under common control or affiliated service group. Service during such time when
there was no controlled or affiliated service group will be credited only for
eligibility to participate in the Plan. These rules may be modified by an
instrument of adoption.


 


15.3  PLAN CONTRIBUTIONS. All contributions made by a
Participating Employer, as provided for in this Plan and unless modified by an
instrument of adoption, shall be determined separately by each Participating
Employer, and shall be paid to and held by the Trustee for the exclusive
benefit of the Employees of such Participating Employer and the Beneficiaries
of such Employees, subject to all the terms and conditions of this Plan. Any
forfeiture by an Employee of a Participating Employer subject to allocation
during each Plan Year shall be allocated only for the exclusive benefit of the
Participants of such Participating Employer in accordance with the provisions
of this Plan, unless modified by an instrument of adoption.


 


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


 


15.5  TRANSFERRING EMPLOYEES. The Administrator
shall adopt equitable procedures whereby contributions and forfeitures are
equitably allocated in the case of Employees transferring from the employment
of one Participating Employer to another Participating Employer. Similarly,
rules shall be adopted whereby Account records may be transferred from the
records of one Participating Employer to another Participating Employer.


 


15.6  DELEGATION OF AUTHORITY. Each Participating Employer who has
adopted the Plan may delegate to the Employer the right to name the
Administrator and Trustees of the Plan.


 

















 


15.7 TERMINATION. Any termination of the Plan or discontinuance
of contributions by any one Participating Employer shall operate with regard
only to the Participants employed by that Participating Employer. All Employees
affected thereby shall have a 100% nonforfeitable interest in their Accounts.


 


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


 


IN WITNESS WHEREOF, the Employer, by its duly authorized officer, has
caused this Plan to be executed on the 15th day of
December, 2004.


 


	
   

  	
  BERTUCCI’S CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David G. Lloyd

  	
   

  
	
   

  	
   

  	
  Authorized Officer

  
					



 

















 


SPECIAL
NOTICE TO PARTICIPANTS


 


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

  



 

















 


REQUIRED MINIMUM DISTRIBUTION
AMENDMENT 

BERTUCCI’S CORPORATION SAVINGS AND INVESTMENT PLAN


 


ARTICLE ONE—GENERAL RULES


 


1.1 EFFECTIVE DATE. The provisions of this Amendment will apply
for purposes of determining required minimum distributions for calendar years
beginning with the 2002 calendar year under the Bertucci’s Corporation Savings
and Investment Plan (the “Plan”).


 


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


 


1.3  PRECEDENCE. The requirements of this Amendment will take
precedence over any inconsistent provisions of the Plan.


 


1.4  REQUIREMENTS OF TREASURY
REGULATIONS INCORPORATED.
All distributions required under this Amendment will be determined and made in
accordance with the Treasury regulations under Section 401(a)(9) of the
Internal Revenue Code.


 


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


 


ARTICLE TWO—TIME AND MANNER OF
DISTRIBUTION


 


2.1  REQUIRED BEGINNING DATE. The Participant’s entire interest
will be distributed, or begin to be distributed, to the Participant no later
than the Participant’s required beginning date.


 


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


 


(a) If the Participant’s surviving spouse is
the Participant’s sole designated beneficiary, then, subject to Section 2.2(e)
below, distributions to the surviving spouse will begin by December 31 of the
calendar year immediately following the calendar year in which the Participant
died, or by December 31 of the calendar year in which the Participant would
have attained age 70  1⁄2, if later.


 

















 


(b) If the Participant’s surviving spouse is not
the Participant’s sole designated beneficiary, then, subject to Section 2.2(e)
below, distributions to the designated beneficiary will begin by December 31 of
the calendar year immediately following the calendar year in which the
Participant died.


 


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


 


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


 


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


 


For purposes of this Section 2.2 and Article Four, unless Section
2.2(d) applies, distributions are considered to begin on the Participant’s
required beginning date. If Section 2.2(d) applies, distributions are
considered to begin on the date distributions are required to begin to the
surviving spouse under Section 2.2(a). If distributions under an annuity
purchased from an insurance company irrevocably commence to the Participant
before the Participant’s required beginning date (or to the Participant’s
surviving spouse before the date distributions are required to begin to the
surviving spouse under Section 2.2(a)), the date distributions are considered
to begin is the date distributions actually commence.


 


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


 

















 


ARTICLE
THREE—REQUIRED MINIMUM DISTRIBUTIONS DURING 

PARTICIPANT’S LIFETIME


 


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


 


3.2 LIFETIME REQUIRED MINIMUM
DISTRIBUTIONS CONTINUE THROUGH YEAR OF PARTICIPANT’S DEATH. Required minimum distributions will
be determined under this Article Three beginning with the first distribution
calendar year and up to and including the distribution calendar year that
includes the Participant’s date of death.


 


ARTICLE
FOUR—REQUIRED MINIMUM DISTRIBUTIONS AFTER 

PARTICIPANT’S DEATH


 


4.1 DEATH ON OR AFTER DATE DISTRIBUTIONS BEGIN.


 


(a) Participant
Survived by Designated Beneficiary.  If the Participant dies on or
after the date distributions begin and there is a designated beneficiary, the
minimum amount that will be distributed for each distribution calendar year
after the year of the Participant’s death is the quotient obtained by dividing
the Participant’s account balance by the longer of the remaining life
expectancy of the Participant or the remaining life expectancy of the
Participant’s designated beneficiary, determined as follows: (1) the
Participant’s remaining life expectancy is calculated using the age of the
Participant in the year of death, reduced by one for each subsequent year; (2)
if the Participant’s surviving spouse is the Participant’s sole designated
beneficiary, the remaining life expectancy of the surviving spouse is
calculated for each distribution calendar year after the year of the
Participant’s death using the surviving spouse’s age as of the spouse’s
birthday in that year. For distribution calendar years after the year of the
surviving spouse’s death, the remaining life expectancy of the surviving spouse
is calculated using the age of the surviving spouse as of the spouse’s birthday
in the calendar year of the spouse’s death, reduced by one for each subsequent
calendar year; and (3) if the Participant’s surviving spouse is not the Participant’s
sole designated beneficiary, the designated beneficiary’s remaining life
expectancy is calculated using the age of the beneficiary in the year following
the year of the Participant’s death, reduced by one for each subsequent year.


 


(b) No
Designated Beneficiary.  If the Participant dies on or after the
date distributions begin and there is no designated beneficiary as of September
30 of the year after the year of the Participant’s death, the minimum amount
that will be distributed for each distribution calendar year after the year of
the Participant’s death is the quotient obtained by dividing the Participant’s
account balance by the Participant’s remaining life expectancy calculated using
the age of the Participant in the year of death, reduced by one for each
subsequent year.


 

















 


4.2 DEATH BEFORE DATE DISTRIBUTIONS BEGIN.


 


(a) Participant
Survived by Designated Beneficiary. If the
Participant dies before the date distributions begin and there is a designated
beneficiary, the minimum amount that will be distributed for each distribution
calendar year after the year of the Participant’s death is the quotient
obtained by dividing the Participant’s account balance by the remaining life
expectancy of the Participant’s designated beneficiary, determined as provided
in Section 4.1.


 


(b) No
Designated Beneficiary.  If the Participant dies before the date
distributions begin and there is no designated beneficiary as of September 30
of the year following the year of the Participant’s death, then, subject to the
last paragraph of this Section 4.2, distribution of the Participant’s entire
interest will be completed by December 31 of the calendar year containing the
fifth anniversary of the Participant’s death.


 


(c) Death
of Surviving Spouse Before Distributions to Surviving Spouse Are Required to
Begin.  If the Participant dies before the date distributions
begin, the Participant’s surviving spouse is the Participant’s sole designated
beneficiary, and the surviving spouse dies before distributions are required to
begin to the surviving spouse under Section 2.2(a), this Section 4.2 will apply
as if the surviving spouse were the Participant.


 


Participants or beneficiaries may elect on an individual basis whether
the 5-year rule or the life expectancy rule in this Section 4.2 applies to
distributions after the death of a Participant who has a designated
beneficiary. The election must be made no later than the earlier of September30
of the calendar year in which distribution would be required to be made under
Section 2.2, or by September 30 of the calendar year which contains the fifth
anniversary of the Participant’s (or, if applicable, surviving spouse’s) death.
If neither the Participant nor beneficiary makes an election under this
paragraph, distributions will be made in accordance with this Section 4.2.


 


ARTICLE FIVE—DEFINITIONS


 


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


 


5.2 DISTRIBUTION CALENDAR YEAR. A calendar year for which a
minimum distribution is required. For distributions beginning before the
Participant’s death, the first distribution calendar year is the calendar year
immediately preceding the calendar year which contains the Participant’s
required beginning date. For distributions beginning after the Participant’s
death, the first distribution calendar year is the calendar year in which
distributions are required to begin under Section 2.2. The required minimum
distribution for the Participant’s first distribution calendar year will be
made on or before the Participant’s required beginning date. The required
minimum distribution for other distribution calendar years, including the
required minimum distribution for the distribution calendar year in which the
Participant’s required beginning date occurs, will be made on or before
December 31 of that distribution calendar year.


 

















 


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


 


5.4 PARTICIPANT’S ACCOUNT BALANCE. The account balance as of
the last valuation date in the calendar year immediately preceding the
distribution calendar year (valuation calendar year) increased by the amount of
any contributions made and allocated or forfeitures allocated to the account
balance as of dates in the valuation calendar year after the valuation date and
decreased by distributions made in the valuation calendar year after the
valuation date. The account balance for the valuation calendar year includes
any amounts rolled over or transferred to the plan either in the valuation
calendar year or in the distribution calendar year if distributed or transferred
in the valuation calendar year.


 


5.5  REQUIRED BEGINNING DATE. The date specified in the Plan when
distributions under Section 401(a)(9) of the Internal Revenue Code are required
to begin.


 


IN WITNESS WHEREOF, the Employer, by its duly authorized officer, has
caused this Plan to be executed on the 15th day of
December, 2004.


 


	
   

  	
  BERTUCCI’S CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  David G. Lloyd

  	
   

  
	
   

  	
   

  	
  Authorized Officer

  
					



 

















 


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’s
Corporation Savings and Investment Plan (the “Plan”) is adopted to reflect
certain provisions of the Economic Growth and Tax Relief Reconciliation Act of
2001 (“EGTRRA”). This Amendment is intended as good faith compliance with the
requirements of EGTRRA and is to be construed in accordance with EGTRRA and
guidance issued thereunder. Except as otherwise provided, this Amendment shall
be effective as of the first day of the first Plan Year beginning after
December 31, 2001.


 


1.2  SUPERSESSION OF INCONSISTENT PROVISIONS. This Amendment
shall supersede the provisions of the Plan to the extent those provisions are
inconsistent with the provisions of this Amendment.


 


ARTICLE TWO—INCREASE IN COMPENSATION
LIMIT


 


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


 


ARTICLE THREE—CATCH-UP
CONTRIBUTIONS


 


3.1  CATCH-UP CONTRIBUTIONS. All Employees who are eligible to
make 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-up
contributions in accordance with, and subject to the limitations of, Section 4
14 (v) of the Code. Such catch-up contributions shall not be taken into account
for purposes of the provisions of the Plan implementing the required
limitations of Section 402(g) and 415 of the Code. The Plan shall not be
treated as failing to satisfy the provisions of the Plan implementing the
requirements of Section 401(k)(3), 401(k)(11), 401(k)(12), 410(b), or 416 of
the Code, as applicable, by reason of the making of such catch-up
contributions.


 

















 


ARTICLE FOUR—ELECTIVE DEFERRALS


 


4.1 ELECTIVE DEFERRALS - CONTRIBUTION LIMITATION. No
Participant 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 in
effect for such taxable year, except to the extent permitted under Article
Three of this Amendment and Section 414(v) of the Code, if applicable.


 


ARTICLE FIVE—ROLLOVERS FROM OTHER
PLANS


 


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


 


ARTICLE SIX—INVOLUNTARY CASH-OUTS


 


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


 


6.2 ROLLOVERS NOT DISREGARDED IN DETERMINING VALUE OF ACCOUNT BALANCE FOR
INVOLUNTARY DISTRIBUTIONS. For purposes of the Section of Article
Seven of the Plan that provides for the involuntary distribution of vested
Account balances of $5,000 or less, the value of a Participant’s nonforfeitable
Account balance shall be determined without excluding that portion of the
Account balance that is attributable to rollover contributions (and earnings
allocable 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’s
nonforfeitable Account balance as so determined is $5,000 or less, then the
Plan shall immediately distribute the Participant’s entire nonforfeitable
Account balance.


 

















 


ARTICLE SEVEN—DIRECT ROLLOVERS


 


7.1 EFFECTIVE DATE. This Article Seven shall apply to
distributions made after December 31, 2001.


 


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


 


7.3  MODIFICATION OF DEFINITION OF ELIGIBLE ROLLOVER DISTRIBUTION TO EXCLUDE
HARDSHIP DISTRIBUTIONS. For purposes of the direct rollover
provisions of the Plan, any amount that is distributed on account of hardship shall
not be an eligible rollover distribution and the distributee may not elect to
have any portion of such a distribution paid directly to an eligible retirement
plan.


 


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


 


ARTICLE EIGHT—REPEAL OF MULTIPLE
USE TEST


 


8.1  REPEAL OF MULTIPLE USE TEST. The multiple use test described
in Treasury Regulation Section 1.401(m)-2 and Section 9.4 of the Plan shall not
apply for Plan Years beginning after December 31, 2001.


 

















 


ARTICLE NINE—LIMITATIONS ON
CONTRIBUTIONS 

(CODE SECTION 415 LIMITS)


 


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


 


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


 


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


 


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


 


The compensation limit referred to in this Section 9.2(b) shall not
apply 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) which
is otherwise treated as an annual addition.


 


ARTICLE TEN—MODIFICATION OF
TOP-HEAVY RULES


 


10.1  EFFECTIVE DATE. This
Article Ten shall apply for purposes of determining whether the Plan is a
top-heavy plan under Section 416(g) of the Code for Plan Years beginning after
December 31, 2001, and whether the Plan satisfies the minimum benefits
requirements of Section 416(c) of the Code for such years. This Article Ten
amends the top-heavy provisions of the Plan.


 


10.2  DETERMINATION OF TOP-HEAVY
STATUS.


 


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


 

















 


(b) Determination
of Present Values and Amounts.  This Section 10.2(b) shall apply
for purposes of determining the present values of accrued benefits and the
amounts of Account balances of Employees as of the determination date.


 


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


 


(2) Employees
not Performing Services during Year ending on the Determination Date.
The accrued benefits and Accounts of any individual who has not performed
services for the Employer during the 1-year period ending on the determination
date shall not be taken into account.


 


(c) Minimum
Benefits.


 


(1) Matching
Contributions.  Employer matching contributions shall be taken
into account for purposes of satisfying the minimum contribution requirements
of Section 416(c)(2) of the Code and the Plan. The preceding sentence shall
apply with respect to matching contributions under the Plan or, if the Plan provides
that the minimum contribution requirement shall be met in another plan, such
other plan. Employer matching contributions that are used to satisfy the
minimum contribution requirements shall be treated as matching contributions
for purposes of the actual contribution percentage test and other requirements
of Section 401(m) of the Code.


 


(2) Contributions
under other Plans.  The Employer may provide, in an addendum to
this Amendment, that the minimum benefit requirement shall be met in another
plan (including another plan that consists solely of a cash or deferred
arrangement which meets the requirements of Section 401(k)(12) of the Code and
matching contributions with respect to which the requirements of Section
401(m)(11) of the Code are met). The addendum should include the name of the
other 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 PLAN
PROVISIONS


 


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


 

















 


ARTICLE TWELVE—PLAN LOANS


 


12.1 PLAN LOANS FOR OWNER-EMPLOYEES OR SHAREHOLDER-EMPLOYEES. If the
Plan, pursuant to Article Thirteen of the Plan, permits loans to be made to
Participants, then effective for plan loans made after December 31, 2001, Plan
provisions prohibiting loans to any owner-employee or shareholder-employee
shall 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 upon
satisfaction 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 for
calendar years beginning after 2001.


 


13.2  SUSPENSION PERIOD
FOLLOWING HARDSHIP DISTRIBUTION.
A Participant who receives a distribution of elective deferrals after December
31, 2001, on account of hardship shall be prohibited from making elective
deferrals and employee contributions under this Plan and all other plans of the
Employer for six (6) months after receipt of the distribution. Furthermore, a
Participant who receives a distribution of elective deferrals in calendar year
2001 on account of hardship shall be prohibited from making elective deferrals
and employee contributions under this Plan and all other plans until the later
of January 1, 2002, or six (6) months after receipt of the distribution.


 


ARTICLE FOURTEEN—DISTRIBUTION
UPON SEVERANCE OF EMPLOYMENT


 


14.1  EFFECTIVE DATE. This Article Fourteen shall apply for
distributions and transactions made after December 31, 2001, regardless of when
the severance of employment occurred.


 


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


 


IN WITNESS WHEREOF, the Employer, by its duly authorized officer, has
caused this Plan to be executed on the 15th day of
December, 2004.


 


	
   

  	
  BERTUCCI’S CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  David G. Lloyd

  	
   

  
	
   

  	
   

  	
  Authorized
  Officer