Exhibit
10.17


 


ADOPTION AGREEMENT
FOR


 


BLUE RIDGE PAPER
PRODUCTS INC.


 


401(k) PLAN


 


This agreement, executed
on
the                        day
of              ,
2001      , by Blue Ridge Paper Products Inc.
(hereinafter referred to as the “Employer”), a Delaware Corporation, for the
Blue Ridge Paper Products Inc. 401(k) Plan (hereinafter referred to as the
“Plan”).


 


W
I  T  N  E  S  S  E  T  H


 


WHEREAS, effective
December 1, 1999, the Employer established for the exclusive benefit of
its eligible employees and their beneficiaries, a defined contribution plan and
trust intended to qualify under Sections 401(a) and 501(a) of the Internal
Revenue Code of 1986, as amended (hereinafter referred to as the “Code”) to
recognize the efforts made to its successful operation by its employees and to
reward such contribution; and


 


WHEREAS, the Employer has
maintained the Plan, in a manner intended to ensure that the Plan continues to
qualify under Sections 401(a) and 501(a) of the Code, as amended; and


 


WHEREAS, pursuant to the
provisions of Article XIII of the Plan prior to this amendment and
restatement the Employer reserved the right to amend the Plan at any time and
from time to time; and


 


WHEREAS, the Employer
intends to provide that the Plan complies with the Uniformed Services
Employment and Reemployment Rights Act of 1994 (“USERRA”), the Uruguay Round
Agreements Act (“GATT”), the Small Business Job Protection Act of 1996
(“SBJPA”), the Taxpayer Relief Act of 1997 (“TRA ‘97”), the Internal Revenue
Service Restructuring and Reform Act of 1998 (“RRA 98”), the Community Renewal
Tax Relief Act of 2000 (“CRA 2000”), the Employee Retirement Income Security
Act of 1974, as amended (ERISA), and the Code, and the regulations promulgated
thereunder; and


 


WHEREAS, the Plan
provisions as required by USERRA, GATT, SBJPA, TRA ‘97, RRA 98 and CRA 2000
have been in operational compliance as of the effective date of each individual
act; and


 


WHEREAS, the Employer
desires to amend and restate the Plan effective, January 1, 2001, or the
applicable date of the law changes or as otherwise indicated herein;


 


NOW, THEREFORE, in
consideration of the premises and mutual covenants contained herein, the
Employer hereby amends, and restates the Plan in its entirety, effective
January 1, 2001, or the applicable date of the law changes or as otherwise
indicated herein, notwithstanding any other provisions of the Plan to the
contrary as follows:


 

















 


I.                                         The Employer
and Plan Sponsor: Blue Ridge Paper Products Inc.


 


A.                                  The
Employer and Plan Sponsor’s address and telephone number are:


 


Blue Ridge Paper Products
Inc.


1 West Pack
Square, Suite 1100


Asheville, North Carolina
28801-3425


(828) 254-3220


 


B.                                    The
Employer and Plan Sponsor’s taxpayer identification number:


 


56-2136509


 


C.                                    The
Employer’s fiscal year is:


 


January 1 —
December 31


 


D.                                   The
Plan Year is the following twelve (12) consecutive-month period:


 


January 1 —
December 31


 


E.                                     The
Plan Anniversary Date is:


 


December 31


 


F.                                     The
Plan Administrator is:


 


Blue Ridge Paper Products
Inc.


1 West Pack Square, Suite
1100


Asheville, North Carolina
28801-3425


(828) 254-3220


 


G.                                    The
original Effective Date of the Plan is:


 


December 1, 1999


 


H.                                   The
Effective Date of this Amendment and Restatement is:


 


January 1, 2001 or
the effective date of the applicable law change or the effective date indicated
herein.


 


I.                                        The
Plan is:


 


Blue Ridge Paper Products
Inc. 401(k) Plan


 


J.                                       The
Plan Number is:


 


001


 

















 


II.                                     Eligibility
and Service:


 


A.                                   A
Salaried
Employee shall be eligible to participate in the Plan on the Entry Date coincident
with or next following their date of hire.


 


B.                                     An
Hourly Employee shall be eligible to participate in the Plan on the Entry Date
coincident with or next following 60 days after their date of hire.


 


C.                                     Participants
who were employees of Champion International Corporation on May 14, 1999, shall
be credited under this Plan for Years of Service with Champion International
Corporation for the purpose of Eligibility.


 


D.                                    Entry
dates:


 


1.                                       Shall
occur on an Employee’s date of hire for salaried Employees.


 


2.                                       Shall
occur 60 days following an Employee’s date of hire for hourly Employees.


 


E.                                      Years
of Service shall be determined under the 1,000 Hour of Service Method, pursuant
to Plan Section 1.74(a).


 


Hours of Service
shall be determined based on actual hours worked, pursuant to Plan
Section 1.33(a) - (f).


 


F.                                      Pursuant
to Section 2.06 of the Plan document, Employees covered by a collective
bargaining agreement who shall be eligible to participate in the Plan are
specified in Appendix A.


 


G.                                     Participants who were employees of Westvaco
Corporation on April 11, 2000, shall be credited under this Plan for Years
of Service with Westvaco Corporation for purposes of eligibility, and such
Service shall be credited as of the date an Employee was first credited with one
(1) Hour of Service with Westvaco Corporation.


 


III.                                 Contributions:


 


A.                                   Salary
Deferral Contributions:


 


1.                                       For
any Plan Year, the amount specified in a Salary Deferral Agreement by a
Participant shall be between 0% and 16% of Participant’s Plan Year Compensation.


 


2.                                       Salary
Deferral Agreements may be changed pursuant to any nondiscriminatory policies
and procedures adopted by the Plan Administrator, that allow for changes at a
minimum of at least annually.


 


B.                                     Nondeductible
Employee Contributions shall not be allowed.


 


C.                                     Related
and Unrelated Rollover Contributions to the Plan (as described in Plan
Section 1.59) shall be allowed, from all Employees without regard to
whether an Employee has met the eligibility requirements to otherwise
participate in the Plan.


 

















 


D.                                    Transfers
directly from other plans to this Plan (as described in Plan
Section 3.12(b)) shall not be allowed, with the exception of the balances
of Participants who were employed with Champion International Corporation on
May 14, 1999, whose balances will be transferred into the Plan on
December 1, 1999.


 


IV.                                Definitions
of Compensation:


 


A.                                   Code Section 415(c) Compensation shall
be defined for Hourly Employees as the amount paid to a Participant equal to
the total of base pay, overtime, shift differential, and amounts deferred
pursuant to Section III and/or a plan subject to section 125 of the
Code.


 


B.                                     Code Section 415(c) Compensation shall
be defined for Salaried Employees as the amount paid to a Participant equal to
the total of base pay, overtime, commissions, shift differential, and amounts
deferred pursuant to Section III and/or a plan subject to section 125
of the Code.  Compensation shall not
include unused or accrued vacation pay, cash bonus, retention/sign-on/relocation
bonus, Special Performance Awards, profit sharing, tuition, lump sum salary
adjustment, disability, severance, and other amounts as may be determined by
the Employer on a nondiscrimatory basis. 
Compensation shall not include payments under any Performance Incentive
Programs maintained by the Employer.


 


C.                                     Code
Section 414(s) Compensation shall be defined as set forth in Plan
Section 1.11(d).


 


D.                                    For
all definitions of Compensation, Compensation shall be limited to the period
for which an Employee is a Participant in the Plan.


 


V.                                    Nondiscrimination
Testing:


 


A.                                   For
the Plan Year ending December 31, 1999, no testing was required because no
Salary Deferral Contributions, no Matching contributions or Nondeductible
Employee Contributions were made.


 


B.                                     For
the Plan Year ending December 31, 2000, the Employer will not make a
top-paid group election for purposes of identifying Highly Compensated
Employees under Section 1.30 of the Plan.


 


C.                                     For
the Plan Year ending December 31, 2000, the Employer will calculate the
Actual Deferral Percentage (“ADP”) Test pursuant to Plan Section 3.05 and
the Actual Contribution Percentage (“ACP”) Test pursuant to Plan
Section 3.09 by using the prior year testing method.


 


D.                                    For
Plan Years after December 31, 2000, the Employer will calculate the ADP
Test pursuant to Plan Section 3.05 and the ACP Test pursuant to Plan
Section 3.09 by using the prior year testing method.


 


VI.                                Vesting:


 


A.                                   Participants
who were employed with Champion International Corporation on May 14, 1999, are
100% vested in their account balance under the Champion Plans.


 

















 


B.                                     Participants
who were employees of Champion International Corporation on May 14, 1999, shall
be credited, under this Plan, for Years of Service with Champion International
Corporation for the purpose of Vesting.


 


C.                                     Participants who were employees of Westvaco
Corporation on April 11, 2000, shall be credited under this Plan for Years
of Service with Westvaco Corporation for purposes of vesting, and such Service
shall be credited as of the date an Employee was first credited with one (1)
Hour of Service with Westvaco Corporation.


 


VII.                            Distributions
and Withdrawals:


 


A.                                   Upon
Separation from Service, attainment of Normal Retirement Age, death, or
Disability the permissible forms of distribution under the Plan are as follows:


 


1.                                       lump
sum pursuant to Plan Section 7.08(a)(1);


 


2.                                       Partial
payment;


 


3.                                       Qualified
Joint and Survivor Annuity as described in Article VIII of the Plan; or


 


4.                                       Monthly,
Quarterly, Annual, or Semi-Annual Installment Payments.


 


5.                                       Champion
International Corporation stock is distributable in cash or in kind, at the
election of Participant.  If Participant
fails to make an election, stock will be distributed in cash.


 


B.                                     Financial
Hardship Withdrawal of Salary Deferral Account:


 


1.                                       Financial
Hardship Withdrawals shall be allowed.


 


2.                                       The
permissible reasons for obtaining a Financial Hardship Withdrawal shall be
those permitted under Plan Section 7.11(b).


 


3.                                       The
resources readily available shall be determined based on the facts and
circumstances as described in Section 7.11(d) of the plan. The appropriate
documentation from a third party regarding the types and amounts of the
expenses relating to the Financial Hardship Withdrawal, must be provided by
Participants, as described in Section 7.11(b) of the Plan.


 


C.                                     In-Service
Withdrawals:


 


1.                                       Upon
attainment of age 591⁄2, a Participant may withdraw all or a portion of their
Vested Account Balance, at any time.


 


2.                                       An
active Participant may withdraw all or a portion of his After-Tax Account,
including after-tax ESOP contributions that were merged into the Champion Plans
for any reason, at any time.


 

















 


3.                                       An active Participant may withdraw all or a portion of his Vested Company
Matching Account if such Participant has 5 or more years of participation in
the Champion Plans, the Plan, or both Plans combined, provided he also
withdraws 100% of his After-Tax Account.


 


4.                                       An
active Participant may make a withdrawal of all or a portion of their
Individual Retirement Account.


 


5.                                       An
active Participant may withdraw all or a portion of their Rollover Account for
any reason from time to time.


 


D.                                    Disability:


 


A Participant will be
considered disabled if, because of injury or sickness, he is unable to perform
all the substantial and material duties of his regular occupation.  The Participant may be requested to perform a
job other than his regular position, as long as it is within the limitations
outlined by the attending physician.


 


E.                                      Spousal
consent is required for all Distributions and withdrawals.


 


VIII.                        Joint and
Survivor Annuity Requirements:


 


Article VIII of the
basic Plan document, the Joint and Survivor Annuity provisions, shall
apply.


 


IX.                                Other Plans
of the Employer:


 


A.                                   The
Employer maintains the:


 


1.                                       Blue
Ridge Paper Products Inc. Employee Stock Ownership Plan, a qualified defined
contribution plan; and


 


2.                                       Blue
Ridge Paper Products Inc. Salaried Retirement Plan, a qualified defined benefit
plan.


 


B.                                     For any top-heavy Plan Year, the required
top-heavy minimum contribution will be made under the Blue Ridge Paper Products
Inc. Employee Stock Ownership Plan.


 


X.                                    Affiliated
Employers:


 


The Employer has no
Affiliates (as defined in Section 1.03 of the Plan).


 


XI.                                Investments:


 


A.                                   The
Plan Administrator shall designate the Investment Options available under the
Plan.


 


B.                                     The
Plan is intended to be an ERISA Section 404(c) plan. Participants may
elect or designate their Investment Options from among the Investment
Alternatives selected by the Plan Administrator to be available under the Plan.
A Participant may direct the investment of all amounts in their accounts.


 

















 


C.                                     The
Employee Stock Ownership Plan source that is transferred from the Champion Plan
to the Plan on or about December 1, 1999, is subject to the
diversification rule pursuant to Code section 401(a)(28)(B).


 


Diversification rule
means a Participant who has been a participant under the Champion Plan and Plan
for 10 years and attained age 55, may elect within the 90 day period after the
close of each Plan Year, during the qualified election period, to direct 25%
(50% in the 6th year) of their investment in the Employer Stock
Ownership Account under this Plan to another investment option. For this
purpose, qualified election period is the 6-plan-year period beginning the
first Plan Year in which the Participant has 10 years of Champion Plan and Plan
participation and attains age 55.


 


XII.                            Plan Loans:


 


Plan Loans shall be
permitted.


 


XIII.                  Participating
Employers:


 


There are no
Participating Employers pursuant to Article XIV of the Plan.


 


This Adoption Agreement
shall only be used in conjunction with the basic plan document identified as
the Blue Ridge Paper Products Inc. 401(k) Plan.


 


IN WITNESS WHEREOF, the
Employer and the Trustee have executed this Adoption Agreement and Plan on the
day and year first written.


 


	
   

  	
  EMPLOYER:

  
	
   

  	
   

  
	
   

  	
  BLUE RIDGE PAPER
  PRODUCTS INC.

  
	
   

  	
   

  
	
   

  	
  /s/ George Henson

  
	
   

  	
  Name

  
	
   

  	
   

  
	
   

  	
  CEO

  
	
   

  	
  Title

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Signature

  



 

















 


Appendix
A


 


Participating
Union Employee Locations


 


	
  Union and
  Location

  	
   

  	
  Effective Date

  	
   

  	
  Expiration Date

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Local 507- PACE

  	
   

  	
  Canton, North Carolina

  	
   

  	
  May 14, 1999

  	
   

  	
  May 14, 2006

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Local 507- PACE

  	
   

  	
  Waynesville, North
  Carolina

  	
   

  	
  May 14, 1999

  	
   

  	
  May 14, 2006

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Local 0794 PACE

  	
   

  	
  Athens, Georgia

  	
   

  	
  May 14, 1999

  	
   

  	
  May 14, 2006

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Local 0761 PACE

  	
   

  	
  Clinton, Ohio

  	
   

  	
  May 14, 1999

  	
   

  	
  May 14, 2006

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Local 0673 PACE

  	
   

  	
  Olmstead Falls, Ohio

  	
   

  	
  May 14, 1999

  	
   

  	
  May 14, 2006

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Local 1706 PACE

  	
   

  	
  Fort Worth, Texas

  	
   

  	
  May 14, 1999

  	
   

  	
  May 14, 2006

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Local 260 UAW

  	
   

  	
  Morristown, New Jersey

  	
   

  	
  May 14, 1999

  	
   

  	
  May 14, 2006

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Local 670-C

  	
   

  	
  Richmond, Virginia

  	
   

  	
  May 18, 1999

  	
   

  	
  May 15, 2001

  



 

















 


TABLE OF CONTENTS


 


	
  ARTICLE I.  DEFINITIONS.

  	
   

  
	
  1.01.

  	
   

  	
  Accounts

  	
   

  
	
  1.02.

  	
   

  	
  Adoption Agreement

  	
   

  
	
  1.03.

  	
   

  	
  Affiliate

  	
   

  
	
  1.04.

  	
   

  	
  Anniversary Date

  	
   

  
	
  1.05.

  	
   

  	
  Annual Additions

  	
   

  
	
   

  	
   

  	
  (a)                    In
  general

  	
   

  
	
   

  	
   

  	
  (b)                   Medical
  accounts

  	
   

  
	
  1.06.

  	
   

  	
  Authorized Absence

  	
   

  
	
  1.07.

  	
   

  	
  Annual Limitation

  	
   

  
	
  1.08.

  	
   

  	
  Beneficiary

  	
   

  
	
  1.09.

  	
   

  	
  Break-in-Service

  	
   

  
	
   

  	
   

  	
  (a)                    1,000
  Hours of Service Method

  	
   

  
	
   

  	
   

  	
  (b)                   Elapsed
  Time Method

  	
   

  
	
  1.10.

  	
   

  	
  Code

  	
   

  
	
  1.11.

  	
   

  	
  Compensation

  	
   

  
	
   

  	
   

  	
  (a)    In
  general

  	
   

  
	
   

  	
   

  	
  (b)                   415(c) Compensation

  	
   

  
	
   

  	
   

  	
  (c)                    414(q) Compensation

  	
   

  
	
   

  	
   

  	
  (d)                   414(s)
  Compensation

  	
   

  
	
  1.12.

  	
   

  	
  Disability

  	
   

  
	
  1.13.

  	
   

  	
  Discretionary Contributions

  	
   

  
	
  1.14.

  	
   

  	
  Early Retirement Age

  	
   

  
	
  1.15.

  	
   

  	
  Earned Income

  	
   

  
	
  1.16.

  	
   

  	
  Effective Date

  	
   

  
	
  1.17.

  	
   

  	
  Eligible Employee

  	
   

  
	
  1.18.

  	
   

  	
  Employee

  	
   

  
	
  1.19.

  	
   

  	
  Employer

  	
   

  
	
  1.20.

  	
   

  	
  Employer Account

  	
   

  
	
  1.21.

  	
   

  	
  Entry Date

  	
   

  
	
  1.22.

  	
   

  	
  ERISA

  	
   

  
	
  1.23.

  	
   

  	
  Family Member

  	
   

  
	
  1.24.

  	
   

  	
  Fiduciary

  	
   

  
	
  1.25.

  	
   

  	
  Five Percent Owner

  	
   

  
	
  1.26.

  	
   

  	
  Forfeiture

  	
   

  
	
  1.27.

  	
   

  	
  414(q)
  Compensation

  	
   

  
	
  1.28.

  	
   

  	
  414(s) Compensation

  	
   

  
	
  1.29.

  	
   

  	
  415(c) Compensation

  	
   

  
	
  1.30.

  	
   

  	
  Highly Compensated Employee

  	
   

  
	
  1.31.

  	
   

  	
  Highly Compensated
  Former Employee

  	
   

  
	
  1.32.

  	
   

  	
  Highly Compensated
  Participant

  	
   

  
	
  1.33.

  	
   

  	
  Hour of Service

  	
   

  
	
   

  	
   

  	
  (a)                    In
  general

  	
   

  
	
   

  	
   

  	
  (b)                   If
  no duties are performed

  	
   

  
	
   

  	
   

  	
  (c)                    Back
  pay

  	
   

  
	
   

  	
   

  	
  (d)                   Employment
  with Affiliates

  	
   

  
	
   

  	
   

  	
  (e)                    Special
  rules for determining a Break-in-Service

  	
   

  
	
   

  	
   

  	
  (f)                      Active
  Military Duty

  	
   

  
	
   

  	
   

  	
  (g)                   Equivalency
  methods

  	
   

  
	
  1.34.

  	
   

  	
  Investment Manager

  	
   

  
	
  1.35.

  	
   

  	
  Joint and Survivor Annuity

  	
   

  
	
  1.36.

  	
   

  	
  Key Employee

  	
   

  
	
  1.37.

  	
   

  	
  Leased Employee

  	
   

  
	
  1.38.

  	
   

  	
  Limitation Year

  	
   

  
	
  1.39.

  	
   

  	
  Matching Contributions

  	
   

  
	
  1.40.

  	
   

  	
  Maximum Permissible Amount

  	
   

  
	
  1.41.

  	
   

  	
  Net Profits

  	
   

  
	
  1.42.

  	
   

  	
  Nondeductible
  Employee Account

  	
   

  
	
  1.43.

  	
   

  	
  Nondeductible
  Employee Contribution

  	
   

  
	
  1.44.

  	
   

  	
  Nonhighly
  Compensated Participant

  	
   

  
	
  1.45.

  	
   

  	
  Non-Key Employee

  	
   

  
	
  1.46.

  	
   

  	
  Normal Retirement Age

  	
   

  
	
  1.47.

  	
   

  	
  Owner-Employee

  	
   

  
	
  1.48.

  	
   

  	
  Participant

  	
   

  
	
   

  	
   

  	
  (a)                    Active Participant

  	
   

  
	
   

  	
   

  	
  (b)                   Inactive Participant

  	
   

  
	
   

  	
   

  	
  (c)                    Former Participant

  	
   

  



 


i

















 


	
  1.49.

  	
   

  	
  Plan

  	
   

  
	
  1.50.

  	
   

  	
  Plan Year

  	
   

  
	
  1.51.

  	
   

  	
  Predecessor
  Employee Account

  	
   

  
	
  1.52.

  	
   

  	
  Predecessor Employer
  Account

  	
   

  
	
  1.53.

  	
   

  	
  Protected Benefit(s)

  	
   

  
	
   

  	
   

  	
  (a)                    Accrued
  benefit of any Participant

  	
   

  
	
   

  	
   

  	
  (b)                   Early
  retirement benefits

  	
   

  
	
   

  	
   

  	
  (c)                    Optional
  form of benefit

  	
   

  
	
  1.54.

  	
   

  	
  Qualified Domestic
  Relations Order

  	
   

  
	
  1.55.

  	
   

  	
  Qualified Election

  	
   

  
	
  1.56.

  	
   

  	
  Qualified Joint
  and Survivor Annuity

  	
   

  
	
  1.57.

  	
   

  	
  Qualified
  Nonelective Contributions

  	
   

  
	
  1.58.

  	
   

  	
  Qualified Matching
  Contributions

  	
   

  
	
  1.59.

  	
   

  	
  Rollover Account

  	
   

  
	
  1.60.

  	
   

  	
  Rollover Contribution

  	
   

  
	
  1.61.

  	
   

  	
  Salary Deferral Account

  	
   

  
	
  1.62.

  	
   

  	
  Salary Deferral Election

  	
   

  
	
  1.63.

  	
   

  	
  Self-employed Individual

  	
   

  
	
  1.64.

  	
   

  	
  Separation from Service

  	
   

  
	
  1.65.

  	
   

  	
  Service

  	
   

  
	
  1.66.

  	
   

  	
  Shareholder-employee

  	
   

  
	
  1.67.

  	
   

  	
  Spouse or Surviving Spouse

  	
   

  
	
  1.68.

  	
   

  	
  Top Paid Group

  	
   

  
	
  1.69.

  	
   

  	
  Total Balance

  	
   

  
	
  1.70.

  	
   

  	
  Trustee

  	
   

  
	
  1.71.

  	
   

  	
  Trust Fund

  	
   

  
	
  1.72.

  	
   

  	
  Valuation Date

  	
   

  
	
  1.73.

  	
   

  	
  Vested Balance

  	
   

  
	
  1.74.

  	
   

  	
  Year of Service

  	
   

  
	
   

  	
   

  	
  (a)                    1,000
  Hours of Service Method

  	
   

  
	
   

  	
   

  	
  (b)                   Elapsed
  Time Method

  	
   

  
	
  ARTICLE II.  ELIGIBILITY AND PARTICIPATION

  	
   

  
	
  2.01.

  	
   

  	
  Eligibility

  	
   

  
	
  2.02.

  	
   

  	
  Eligibility Computation
  Periods

  	
   

  
	
  2.03.

  	
   

  	
  Years of Service

  	
   

  
	
  2.04.

  	
   

  	
  Commencement
  and Termination of Participation

  	
   

  
	
   

  	
   

  	
  (a)                    Application
  for Participation

  	
   

  
	
   

  	
   

  	
  (b)                   Effective
  Date of Participation

  	
   

  
	
   

  	
   

  	
  (c)                    Determination
  of Eligibility

  	
   

  
	
   

  	
   

  	
  (d)                   Forms
  for Participation

  	
   

  
	
   

  	
   

  	
  (e)                    Reemployment

  	
   

  
	
   

  	
   

  	
  (f)                      Termination
  of Eligibility

  	
   

  
	
   

  	
   

  	
  (g)                   Inclusion
  of an Ineligible Employee

  	
   

  
	
   

  	
   

  	
  (h)                   Omission
  of an Eligible Employee

  	
   

  
	
  2.05.

  	
   

  	
  Acquisitions

  	
   

  
	
   

  	
   

  	
  (a)                    In
  general

  	
   

  
	
   

  	
   

  	
  (b)                   Entry
  Date

  	
   

  
	
   

  	
   

  	
  (c)                    Eligibility
  Requirements

  	
   

  
	
  2.06.

  	
   

  	
  Employees
  Excluded From Participation

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III.  CONTRIBUTIONS

  	
   

  
	
  3.01.

  	
   

  	
  Discretionary Contributions

  	
   

  
	
   

  	
   

  	
  (a)                    In
  general

  	
   

  
	
   

  	
   

  	
  (b)                   Contribution
  date

  	
   

  
	
   

  	
   

  	
  (c)                    Miscellaneous
  rules

  	
   

  
	
  3.02.

  	
   

  	
  Salary Deferral
  Election

  	
   

  
	
  3.03.

  	
   

  	
  Salary Deferral Agreement

  	
   

  
	
   

  	
   

  	
  (a)                    In general

  	
   

  
	
   

  	
   

  	
  (b)                   Governing rules

  	
   

  
	
   

  	
   

  	
  (c)                    Time of Payment of Salary Deferral
  Contributions

  	
   

  
	
  3.04.

  	
   

  	
  Salary Deferral
  Agreement Limitations

  	
   

  
	
   

  	
   

  	
  (a)                    Employer’s right to amend the Salary
  Deferral Agreement

  	
   

  
	
   

  	
   

  	
  (b)                   Determining taxable income

  	
   

  
	
  3.05.

  	
   

  	
  Actual Deferral
  Percentage Test

  	
   

  
	
   

  	
   

  	
  (a)                    In general

  	
   

  
	
   

  	
   

  	
  (b)                   Definition of Actual Deferral Percentage

  	
   

  
	
   

  	
   

  	
  (c)                    Prior Year Testing or Current Year Testing
  Data

  	
   

  
	
   

  	
   

  	
  (d)                   Actual Deferral Percentage Test Safe Harbor
  Contributions

  	
   

  
	
   

  	
   

  	
  (e)                    Two or more cash or deferred plans

  	
   

  
	
   

  	
   

  	
  (f)                      Special rule for Highly Compensated
  Participants

  	
   

  



 


ii

















 


	
  3.06.

  	
   

  	
  Individual
  Limitation on Salary Deferral Contributions

  	
   

  
	
   

  	
   

  	
  (a)                    Elective Deferrals or Salary Deferrals

  	
   

  
	
   

  	
   

  	
  (b)                   Excess Deferrals or Excess Salary Deferrals

  	
   

  
	
   

  	
   

  	
  (c)                    Date when Excess Deferrals are to be
  distributed

  	
   

  
	
   

  	
   

  	
  (d)                   Designation of Excess Deferrals

  	
   

  
	
   

  	
   

  	
  (e)                    Income

  	
   

  
	
   

  	
   

  	
  (f)                      Lag period income

  	
   

  
	
   

  	
   

  	
  (g)                   Coordination with Excess Contributions

  	
   

  
	
   

  	
   

  	
  (h)                   Notification by Employee

  	
   

  
	
  3.07.

  	
   

  	
  Matching
  Contributions

  	
   

  
	
  3.08.

  	
   

  	
  Nondeductible
  Employee Contributions

  	
   

  
	
   

  	
   

  	
  (a)                    In
  general

  	
   

  
	
   

  	
   

  	
  (b)                   Recharacterization
  of Excess Contributions

  	
   

  
	
  3.09.

  	
   

  	
  Actual Contribution
  Percentage Test

  	
   

  
	
   

  	
   

  	
  (a)                    In
  general

  	
   

  
	
   

  	
   

  	
  (c)                    Nondiscrimination
  Safe Harbor

  	
   

  
	
  3.10.

  	
   

  	
  Limitation
  of Multiple Use of Alternate Limit

  	
   

  
	
   

  	
   

  	
  (a)                    In
  general

  	
   

  
	
   

  	
   

  	
  (b)                   Aggregate
  Limit

  	
   

  
	
  3.11.

  	
   

  	
  Qualified
  Nonelective and Matching Contributions

  	
   

  
	
   

  	
   

  	
  (a)                    Allocation
  of Qualified Nonelective Contributions

  	
   

  
	
   

  	
   

  	
  (b)                   Actual
  Deferral Percentage Test

  	
   

  
	
   

  	
   

  	
  (c)                    Actual
  Contribution Percentage Test

  	
   

  
	
   

  	
   

  	
  (d)                   Restrictions

  	
   

  
	
   

  	
   

  	
  (e)                    Return
  of Excess Contributions

  	
   

  
	
   

  	
   

  	
  (f)                      Employer
  Election.

  	
   

  
	
  3.12.

  	
   

  	
  Rollover
  Contributions and Plan-to-Plan Transfers

  	
   

  
	
   

  	
   

  	
  (a)                    Rollovers

  	
   

  
	
   

  	
   

  	
  (b)                   Plan-to-Plan
  Transfers

  	
   

  
	
   

  	
   

  	
  (c)                    Rollover
  or Plan-to-Plan Transfer from Employer ESOP

  	
   

  
	
  3.13.

  	
   

  	
  Return of Contributions

  	
   

  
	
  3.14.

  	
   

  	
  Owner-Employee Provisions

  	
   

  
	
  3.15.

  	
   

  	
  Other
  Nondiscrimination Requirements

  	
   

  
	
  3.16.

  	
   

  	
  Qualified Military Service

  	
   

  
	
  ARTICLE IV.
  PARTICIPANT ACCOUNTS AND ALLOCATIONS

  	
   

  
	
  4.01.

  	
   

  	
  Establishment of Accounts

  	
   

  
	
   

  	
   

  	
  (a)                    Employer Matching Account

  	
   

  
	
   

  	
   

  	
  (b)                   Employer Discretionary Account

  	
   

  
	
   

  	
   

  	
  (c)                    Nondeductible Employee Account

  	
   

  
	
   

  	
   

  	
  (d)                   Unrelated Rollover Account

  	
   

  
	
   

  	
   

  	
  (e)                    Related Rollover Account Account

  	
   

  
	
   

  	
   

  	
  (f)                      Plan-to-Plan Transfer Account

  	
   

  
	
   

  	
   

  	
  (g)                   Salary Deferral Account

  	
   

  
	
   

  	
   

  	
  (h)                   Qualified Matching Contribution Account

  	
   

  
	
   

  	
   

  	
  (i)                       Qualified Nonelective Contribution Account

  	
   

  
	
   

  	
   

  	
  (j)                       Forfeiture Account

  	
   

  
	
   

  	
   

  	
  (k)                    Predecessor Employee Account

  	
   

  
	
   

  	
   

  	
  (l)                       Predecessor Employer Account

  	
   

  
	
   

  	
   

  	
  (m)                 Employer Account

  	
   

  
	
   

  	
   

  	
  (n)                   Rollover Account

  	
   

  
	
  4.02.

  	
   

  	
  Accounting
  Procedure for Allocations

  	
   

  
	
   

  	
   

  	
  (a)                    In general

  	
   

  
	
   

  	
   

  	
  (b)                   Securities

  	
   

  
	
   

  	
   

  	
  (c)                    Insurance Contracts

  	
   

  
	
  4.03.

  	
   

  	
  Allocation of
  Participant Contributions

  	
   

  
	
   

  	
   

  	
  (a)                    Nondeductible Employee Contributions

  	
   

  
	
   

  	
   

  	
  (b)                   Rollover Contributions

  	
   

  
	
   

  	
   

  	
  (c)                    Plan-to-Plan Transfers

  	
   

  
	
  4.04.

  	
   

  	
  Allocation of Net
  Income or Net Loss

  	
   

  
	
  4.05.

  	
   

  	
  Ascertainment
  of Net Income and Net Loss

  	
   

  
	
  4.06.

  	
   

  	
  Allocation
  of Employer Contributions and Forfeitures

  	
   

  
	
   

  	
   

  	
  (a)                    Discretionary
  Contributions:  Allocation in
  Proportion to Compensation

  	
   

  
	
   

  	
   

  	
  (b)                   Discretionary
  Contribution:  Integrated Allocation

  	
   

  
	
   

  	
   

  	
  (c)                    Discretionary
  Contribution:  Allocation Based on
  Cross Testing

  	
   

  
	
   

  	
   

  	
  (d)                   Salary
  Deferral Contributions

  	
   

  
	
   

  	
   

  	
  (e)                    Matching
  Contributions

  	
   

  
	
   

  	
   

  	
  (f)                      Forfeitures

  	
   

  
	
   

  	
   

  	
  (g)                   Additional
  Allocations

  	
   

  



 


iii

















 


	
  ARTICLE V.
  LIMITATIONS ON ALLOCATIONS

  	
   

  
	
  5.01.

  	
   

  	
  Participants
  Covered by this Plan Only

  	
   

  
	
   

  	
   

  	
  (a)                    In
  general

  	
   

  
	
   

  	
   

  	
  (b)                   Calculation
  of Maximum Permissible Amount

  	
   

  
	
  5.02.

  	
   

  	
  More than One Plan

  	
   

  
	
   

  	
   

  	
  (a)                    Two
  or more defined contribution plans

  	
   

  
	
   

  	
   

  	
  (b)                   Defined
  benefit plans

  	
   

  
	
   

  	
   

  	
  (c)                    Defined
  benefit plan fraction

  	
   

  
	
   

  	
   

  	
  (d)                   Defined
  contribution plan fraction

  	
   

  
	
   

  	
   

  	
  (e)                    Top-heavy
  rule

  	
   

  
	
   

  	
   

  	
  (f)                      Limiting
  Annual Additions

  	
   

  
	
   

  	
   

  	
  (g)                   Other
  limitations

  	
   

  
	
   

  	
   

  	
  (h)                   Rules
  shall comply with Code section 415

  	
   

  
	
  ARTICLE VI.
  VESTING

  	
   

  
	
  6.01.

  	
   

  	
  Employer Account
  Vesting Schedule

  	
   

  
	
  6.02.

  	
   

  	
  Vesting Computation Method

  	
   

  
	
   

  	
   

  	
  (a)                    In
  general

  	
   

  
	
   

  	
   

  	
  (b)                   Change
  In Computation Period

  	
   

  
	
  6.03.

  	
   

  	
  Years of Service

  	
   

  
	
  6.04.

  	
   

  	
  Amendment of Vesting
  Schedule

  	
   

  
	
   

  	
   

  	
  (a)                    In
  general

  	
   

  
	
   

  	
   

  	
  (b)                   Election
  Period

  	
   

  
	
  6.05.

  	
   

  	
  Other Accounts Fully Vested

  	
   

  
	
  ARTICLE VII.
  BENEFITS AND DISTRIBUTIONS

  	
   

  
	
  7.01.

  	
   

  	
  Application of Provisions

  	
   

  
	
  7.02.

  	
   

  	
  Normal Retirement Benefits

  	
   

  
	
  7.03.

  	
   

  	
  Termination
  Benefit Prior to Normal Retirement

  	
   

  
	
   

  	
   

  	
  (a)                    General
  Rule

  	
   

  
	
   

  	
   

  	
  (b)                   Miscellaneous
  provisions

  	
   

  
	
  7.04.

  	
   

  	
  Disability Benefits

  	
   

  
	
   

  	
   

  	
  (a)                    In general

  	
   

  
	
   

  	
   

  	
  (b)                   Determination of Disability

  	
   

  
	
  7.05.

  	
   

  	
  Death Benefits

  	
   

  
	
   

  	
   

  	
  (a)                    Full Vesting

  	
   

  
	
   

  	
   

  	
  (b)                   Payable to Beneficiary

  	
   

  
	
   

  	
   

  	
  (c)                    Death after distribution of balance

  	
   

  
	
   

  	
   

  	
  (d)                   Death before distribution of balance

  	
   

  
	
   

  	
   

  	
  (e)                    Calculation of payments

  	
   

  
	
   

  	
   

  	
  (f)                      Payment to a child of the Participant

  	
   

  
	
   

  	
   

  	
  (g)                   Miscellaneous

  	
   

  
	
  7.06.

  	
   

  	
  Certification
  of Separation from Service

  	
   

  
	
  7.07.

  	
   

  	
  Commencement of Benefits

  	
   

  
	
   

  	
   

  	
  (a)                    In general

  	
   

  
	
   

  	
   

  	
  (b)                   Required minimum distributions

  	
   

  
	
   

  	
   

  	
  (c)                    Provisions take precedence

  	
   

  
	
   

  	
   

  	
  (d)                   Distribution
  commencement date

  	
   

  
	
   

  	
   

  	
  (e)                    Other rules

  	
   

  
	
   

  	
   

  	
  (f)                      Distributions Prior to 30 Day Period

  	
   

  
	
  7.08.

  	
   

  	
  Settlement Options

  	
   

  
	
   

  	
   

  	
  (a)                    In general

  	
   

  
	
   

  	
   

  	
  (b)                   Plan Administrator Options

  	
   

  
	
   

  	
   

  	
  (c)                    Frequency of payments

  	
   

  
	
  7.09.

  	
   

  	
  Transitional Rules

  	
   

  
	
   

  	
   

  	
  (a)                    In general

  	
   

  
	
   

  	
   

  	
  (b)                   Distribution upon death

  	
   

  
	
   

  	
   

  	
  (c)                    Method of distribution

  	
   

  
	
   

  	
   

  	
  (d)                   Method of distribution must satisfy Code
  section 401(a)(9)

  	
   

  
	
  7.10.

  	
   

  	
  Presumption of Mental
  Competency

  	
   

  
	
  7.11.

  	
   

  	
  Financial Hardship
  Withdrawals

  	
   

  
	
   

  	
   

  	
  (a)                    In general

  	
   

  
	
   

  	
   

  	
  (b)                   Deemed Financial Hardships

  	
   

  
	
   

  	
   

  	
  (c)                    Other Financial Hardships

  	
   

  
	
   

  	
   

  	
  (d)                   Other available resources

  	
   

  
	
   

  	
   

  	
  (e)                    Withdrawal deemed necessary to satisfy
  financial need

  	
   

  
	
   

  	
   

  	
  (f)                      Limitation on Amount Withdrawn

  	
   

  
	
  7.12.

  	
   

  	
  Attainment of Age 59-1/2

  	
   

  
	
  7.13.

  	
   

  	
  Other Withdrawals

  	
   

  
	
   

  	
   

  	
  (a)(1)  Nondeductible
  Employee Account

  	
   

  
	
   

  	
   

  	
  (a)(2)  Rollover
  Account

  	
   

  
	
   

  	
   

  	
  (b)                   Restrictions on Certain Contributions

  	
   

  



 


iv

















 


	
   

  	
   

  	
  (c)                    Matching
  and Discretionary Accounts

  	
   

  
	
  7.14.

  	
   

  	
  Denial of a Request
  for Benefits

  	
   

  
	
   

  	
   

  	
  (a)                    Content
  of a denial

  	
   

  
	
   

  	
   

  	
  (b)                   Review
  procedure

  	
   

  
	
  7.15.

  	
   

  	
  Disputed Benefits

  	
   

  
	
  7.16.

  	
   

  	
  Disputed Claims

  	
   

  
	
  7.17.

  	
   

  	
  Qualified Domestic
  Relations Orders

  	
   

  
	
   

  	
   

  	
  (a)                    In
  general

  	
   

  
	
   

  	
   

  	
  (b)                   Withdrawal
  provisions

  	
   

  
	
   

  	
   

  	
  (c)                    Distribution
  provisions

  	
   

  
	
   

  	
   

  	
  (d)                   Beneficiary
  Designation

  	
   

  
	
   

  	
   

  	
  (e)                    Other
  restrictions

  	
   

  
	
   

  	
   

  	
  (f)                      Payment commencement date

  	
   

  
	
   

  	
   

  	
  (g)                   Alternate
  payee’s death

  	
   

  
	
   

  	
   

  	
  (h)                   Miscellaneous

  	
   

  
	
  7.18.

  	
   

  	
  Designation of Beneficiary

  	
   

  
	
   

  	
   

  	
  (a)                    Spouse
  is Beneficiary

  	
   

  
	
   

  	
   

  	
  (b)                   Beneficiary
  designation.

  	
   

  
	
   

  	
   

  	
  (c)                    Alternate
  payee

  	
   

  
	
  7.19.

  	
   

  	
  Location
  of Beneficiary or Participant Unknown

  	
   

  
	
  7.20.

  	
   

  	
  Distribution for
  Minor Beneficiary

  	
   

  
	
  7.21.

  	
   

  	
  Rollover Distributions.

  	
   

  
	
   

  	
   

  	
  (a)                    Direct
  Rollovers

  	
   

  
	
   

  	
   

  	
  (b)                   Definitions

  	
   

  
	
  ARTICLE VIII.
  JOINT AND SURVIVOR ANNUITY REQUIREMENTS

  	
   

  
	
  8.01.

  	
   

  	
  Provisions
  of this Article take Precedence

  	
   

  
	
  8.02.

  	
   

  	
  Qualified
  Joint and Survivor Annuity

  	
   

  
	
  8.03.

  	
   

  	
  Definitions

  	
   

  
	
   

  	
   

  	
  (a)                    Annuity
  Starting Date

  	
   

  
	
   

  	
   

  	
  (b)                   Earliest
  Retirement Age

  	
   

  
	
   

  	
   

  	
  (c)                    Election
  Period

  	
   

  
	
   

  	
   

  	
  (d)                   Pre-age
  35 Waiver

  	
   

  
	
   

  	
   

  	
  (e)                    Qualified
  Joint and Survivor Annuity

  	
   

  
	
   

  	
   

  	
  (f)                      Qualified
  Election

  	
   

  
	
  8.04.

  	
   

  	
  Qualified
  Pre-retirement Survivor Annuity

  	
   

  
	
  8.05.

  	
   

  	
  Notice Requirements

  	
   

  
	
   

  	
   

  	
  (a)                    Qualified Joint and Survivor Annuity

  	
   

  
	
   

  	
   

  	
  (b)                   Qualified Pre-retirement Survivor Annuity

  	
   

  
	
  8.06.

  	
   

  	
  Transitional Rules

  	
   

  
	
   

  	
   

  	
  (a)                    In general

  	
   

  
	
   

  	
   

  	
  (b)                   Right to Automatic Joint and Survivor
  Annuity

  	
   

  
	
   

  	
   

  	
  (c)                    Election of early survivor annuity

  	
   

  
	
   

  	
   

  	
  (d)                   Qualified Early Retirement Age

  	
   

  
	
  8.07.

  	
   

  	
  Account Balance Not
  Greater than $5,000

  	
   

  
	
  8.08.

  	
   

  	
  Consent
  Required for Certain Distributions Exceeding $5,000

  	
   

  
	
  ARTICLE IX. TOP HEAVY
  PLAN

  	
   

  
	
  9.01.

  	
   

  	
  Definitions

  	
   

  
	
   

  	
   

  	
  (a)                    Determination Date

  	
   

  
	
   

  	
   

  	
  (b)                   Permissive Aggregation Group

  	
   

  
	
   

  	
   

  	
  (c)                    Present Value of Accrued Benefits

  	
   

  
	
   

  	
   

  	
  (d)                   Required Aggregation Group

  	
   

  
	
   

  	
   

  	
  (e)                    Top-Heavy Plan Year

  	
   

  
	
   

  	
   

  	
  (f)                      Top-Heavy Ratio

  	
   

  
	
  9.02.

  	
   

  	
  Determination
  of Top-Heavy and Super Top-Heavy Status

  	
   

  
	
   

  	
   

  	
  (a)                    Top-Heavy Status

  	
   

  
	
   

  	
   

  	
  (b)                   Super Top-Heavy Status

  	
   

  
	
  9.03.

  	
   

  	
  Special Vesting
  Requirements

  	
   

  
	
  9.04.

  	
   

  	
  Special Minimum
  Allocation Requirements

  	
   

  
	
   

  	
   

  	
  (a)                    In general

  	
   

  
	
   

  	
   

  	
  (b)                   Special Rules

  	
   

  
	
  9.05.

  	
   

  	
  Special Multiple Plan Rules

  	
   

  
	
   

  	
   

  	
  (a)                    General rule

  	
   

  
	
   

  	
   

  	
  (b)                   Employees participating in only the defined
  benefit plan

  	
   

  
	
   

  	
   

  	
  (c)                    Employees participating in both plans

  	
   

  
	
  9.06.

  	
   

  	
  Change
  from Top-Heavy Plan to Non Top-Heavy Plan

  	
   

  
	
  ARTICLE X. PLAN
  ADMINISTRATOR

  	
   

  
	
  10.01.

  	
   

  	
  Plan Administrator

  	
   

  
	
  10.02.

  	
   

  	
  Signatures

  	
   

  
	
  10.03.

  	
   

  	
  General
  Powers and Authority of Plan Administrator

  	
   

  



 


v

















 


	
   

  	
   

  	
  (a)                    Plan Administrator is a Fiduciary

  	
   

  
	
   

  	
   

  	
  (b)                   Powers of Plan Administrator

  	
   

  
	
  10.04.

  	
   

  	
  Uniform Administration

  	
   

  
	
  10.05.

  	
   

  	
  Finality of Decision

  	
   

  
	
  10.06.

  	
   

  	
  Self Interest of
  Participant

  	
   

  
	
  10.07.

  	
   

  	
  Plan Records

  	
   

  
	
  10.08.

  	
   

  	
  Bonding and
  Liability of Plan Administrator

  	
   

  
	
  10.09.

  	
   

  	
  Reporting and Disclosure

  	
   

  
	
  10.10.

  	
   

  	
  Power and
  Responsibilities of the Employer

  	
   

  
	
   

  	
   

  	
  (a)                    Duties

  	
   

  
	
   

  	
   

  	
  (b)                   Power to appoint Trustee and Plan
  Administrator

  	
   

  
	
   

  	
   

  	
  (c)                    Funding policy method

  	
   

  
	
   

  	
   

  	
  (d)                   Service of legal process

  	
   

  
	
   

  	
   

  	
  (e)                    Performance reviews

  	
   

  
	
  10.11.

  	
   

  	
  Payment of Expenses

  	
   

  
	
  ARTICLE XI.
  PARTICIPANT DIRECTION OF INVESTMENTS

  	
   

  
	
  11.01.

  	
   

  	
  Participant-Directed
  Investment Account

  	
   

  
	
  11.02.

  	
   

  	
  Investment Options.

  	
   

  
	
  11.03.

  	
   

  	
  Investment Direction

  	
   

  
	
   

  	
   

  	
  (a)                    Investment election

  	
   

  
	
   

  	
   

  	
  (b)                   Absence of affirmative direction

  	
   

  
	
   

  	
   

  	
  (c)                    Change of investment election

  	
   

  
	
   

  	
   

  	
  (d)                   Transfers between options

  	
   

  
	
   

  	
   

  	
  (e)                    Oral instructions

  	
   

  
	
   

  	
   

  	
  (f)                      Other restrictions

  	
   

  
	
  11.04.

  	
   

  	
  Investment
  Direction – Employer Securities

  	
   

  
	
   

  	
   

  	
  (a)                    Definitions

  	
   

  
	
   

  	
   

  	
  (b)                   Investment Election – Employer Securities

  	
   

  
	
   

  	
   

  	
  (c)                    Proxy Voting – Employer Securities

  	
   

  
	
   

  	
   

  	
  (d)                   Tender Offers – Employer Securities

  	
   

  
	
  ARTICLE XII.
  PARTICIPANT LOANS

  	
   

  
	
  12.01.

  	
   

  	
  Availability of Loans

  	
   

  
	
  12.02.

  	
   

  	
  Loan Policy

  	
   

  
	
  12.03.

  	
   

  	
  Loan Documents

  	
   

  
	
  ARTICLE XIII. ADOPTION, TERMINATION
  AND RELATED MATTERS

  	
   

  
	
  13.01.

  	
   

  	
  Adoption Agreement

  	
   

  
	
  13.02.

  	
   

  	
  Right to Amend Reserved

  	
   

  
	
   

  	
   

  	
  (a)                    Right to Amend

  	
   

  
	
   

  	
   

  	
  (b)                   No Protected Benefit may be eliminated

  	
   

  
	
  13.03.

  	
   

  	
  Limitations on
  Employer’s Right to Amend

  	
   

  
	
  13.04.

  	
   

  	
  Right to Terminate

  	
   

  
	
  13.05.

  	
   

  	
  Suspension of Contributions

  	
   

  
	
  13.06.

  	
   

  	
  Merger, Partial Merger,
  Consolidation, and Transfer of Assets

  	
   

  
	
  13.07.

  	
   

  	
  Partial Termination

  	
   

  
	
  13.08.

  	
   

  	
  Liquidation of the Trust
  Fund

  	
   

  
	
   

  	
   

  	
  (a)                    Continuing the Trust

  	
   

  
	
   

  	
   

  	
  (b)                   Liquidating the Trust

  	
   

  
	
  13.09.

  	
   

  	
  Manner of Distribution

  	
   

  
	
  13.10.

  	
   

  	
  No Reversion to Employers

  	
   

  
	
   

  	
   

  	
  (a)                    Deductibility

  	
   

  
	
   

  	
   

  	
  (b)                   Mistake of Fact

  	
   

  
	
   

  	
   

  	
  (c)                    Initial
  Qualification

  	
   

  
	
   

  	
   

  	
  (d)                   Other Allowable Provisions

  	
   

  
	
  13.11.

  	
   

  	
  Determination of
  Returned Amount

  	
   

  
	
  ARTICLE XIV.
  PARTICIPATING EMPLOYERS

  	
   

  
	
  14.01.

  	
   

  	
  Adoption By Other Employers

  	
   

  
	
  14.02.

  	
   

  	
  Requirements of
  Participating Employers

  	
   

  
	
   

  	
   

  	
  (a)                    Trustee

  	
   

  
	
   

  	
   

  	
  (b)                   Trust Funds

  	
   

  
	
   

  	
   

  	
  (c)                    Transfers

  	
   

  
	
   

  	
   

  	
  (d)                   Participant rules

  	
   

  
	
   

  	
   

  	
  (e)                    Expenses

  	
   

  
	
  14.03.

  	
   

  	
  Designation of Agent

  	
   

  
	
  14.04.

  	
   

  	
  Employee Transfers

  	
   

  
	
  14.05.

  	
   

  	
  Participating
  Employer’s Contribution

  	
   

  
	
   

  	
   

  	
  (a)                    In general

  	
   

  
	
   

  	
   

  	
  (b)                   Contracts

  	
   

  
	
  14.06.

  	
   

  	
  Amendment

  	
   

  
	
  14.07.

  	
   

  	
  Discontinuance of
  Participation

  	
   

  



 


vi

















 


	
  14.08.

  	
   

  	
  Plan Administrator’s
  Authority

  	
   

  
	
  14.09.

  	
   

  	
  Participating
  Employer’s Contribution for Affiliate

  	
   

  
	
  ARTICLE XV.
  MISCELLANEOUS PROVISIONS

  	
   

  
	
  15.01.

  	
   

  	
  Named
  Fiduciaries and Allocation of Responsibility

  	
   

  
	
  15.02.

  	
   

  	
  Nonalienability of Benefits

  	
   

  
	
  15.03.

  	
   

  	
  Rights to Trust Assets

  	
   

  
	
  15.04.

  	
   

  	
  No Diversion of Trust Fund

  	
   

  
	
  15.05.

  	
   

  	
  Name and Address Change

  	
   

  
	
  15.06.

  	
   

  	
  Plan Not an Employment
  Contract

  	
   

  
	
  15.07.

  	
   

  	
  Controlling Law

  	
   

  
	
  15.08.

  	
   

  	
  Severability

  	
   

  
	
  15.09.

  	
   

  	
  Legal Action

  	
   

  
	
  15.10.

  	
   

  	
  Employer’s
  and Trustee’s Protective Clause

  	
   

  
	
  15.11.

  	
   

  	
  Insurer’s Protective Clause

  	
   

  
	
  15.12.

  	
   

  	
  Receipt and Release
  for Payments

  	
   

  
	
  15.13.

  	
   

  	
  Action by the Employer

  	
   

  
	
  15.14.

  	
   

  	
  Headings for Convenience

  	
   

  
	
  15.15.

  	
   

  	
  Words Used

  	
   

  
	
  15.16.

  	
   

  	
  Reference to Code or ERISA
  Sections

  	
   

  
	
  15.17.

  	
   

  	
  Counterparts

  	
   

  



 


vii

















 


ARTICLE I.  DEFINITIONS.


 


The terms in this Plan
shall have the meaning set forth in Article I, unless another meaning is
clearly required:


 


1.01.                     Accounts mean
all of the following accounts which may be maintained for a Participant under
the Plan: Salary Deferral Account, Nondeductible Employee Account, Rollover
Account (subdivided into a Unrelated Rollover Account and a Related Rollover
Account), Plan-to-Plan Transfer Account, Employer Discretionary Account (or
Discretionary Account), Employer Matching Account (or Matching Account),
Qualified Matching Contributions Account, Qualified Nonelective Contributions
Account, Predecessor Employee Account and Predecessor Employer Account.  The Accounts, maintained for each
Participant, shall constitute a subtrust, even if the investments of a
Participant’s Account(s) are commingled with the investments of another Participant’s
Account(s).  Accordingly, the
Participant Account(s) of one Participant shall not be liable for liabilities
incurred in the Participant Account(s) of another Participant.  Accounts hereunder are for accounting
purposes only and the segregation of Plan assets shall not be required.  The Plan Administrator may establish such
other Accounts as may be necessary to reflect the interest of any Participant,
Former Participant, Beneficiary or alternate payee (as defined in Code
section 414(p)) in the Plan.


 


1.02.                     Adoption Agreement means the instrument
signed by the Employer to adopt this Plan.


 


1.03.                     Affiliate
means the Employer and any corporation which is a member of a controlled
group of corporations (as defined in Code section 414(b)) which includes
the Employer; and a trade or business (whether or not incorporated) which is
under common control (as defined in Code section 414(c)) with the
Employer; any organization (whether or not incorporated) which is a member of
an affiliated service group (as defined in Code section 414(m)) which
includes the Employer; and any other entity required to be aggregated with the
Employer pursuant to Regulations under Code section 414(o).


 


1.04.                     Anniversary Date  means the last day of the Plan Year.


 


1.05.                     Annual Additions means:


 


(a)                                  In
general.  The sum of the
following amounts allocated to a Participant’s Accounts for a Limitation Year:


 


(1) Employer Contributions (including Salary
Deferral Contributions, Employer Discretionary Contributions, and Employer
Matching Contributions);


 


(2) Forfeitures;


 


(3) Nondeductible Employee Contributions; and


 


(4) except that for
Limitation Years beginning prior to January 1, 1987, “the lesser of (A)
Nondeductible Employee Contributions in excess of six percent (6%) of the
Employee’s 415(c) Compensation for the Limitation Year, or (B) one-half of the
Employee’s Nondeductible Employee Contributions,” shall be substituted for
subparagraph 1.05(a)(3).


 


(b)                                  Medical
accounts.  Amounts
allocated, after March 31, 1984, to an individual medical account, as
defined in Code section 415(l)(2), which is part of a pension or annuity
plan maintained by the Employer, are treated as Annual Additions to a defined
contribution plan. Also, amounts derived from contributions paid or accrued
after December 31, 1985, 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 Code section 416(i)(1)),
maintained by the Employer, are treated as Annual Additions to a defined
contribution plan.


 


1.06.                     Authorized Absence means an unpaid, temporary
cessation from active employment with the Employer pursuant to an established
nondiscriminatory policy, whether occasioned by illness, military service, or
any other reason.


 


1.07.                     Annual Limitation, see Section 1.11(a).


 


1.08.                     Beneficiarymeans an individual, or trustee of a trust for the benefit of an
individual, or an estate, as may be determined in connection with the
provisions of the Plan.


 


1.09.                     Break-in-Service shall have one of the following meanings, as set forth
in the Adoption Agreement:


 


(a)                                  1,000 Hours of Service Method  means the applicable computation period during
which an Employee has not completed more than 500 Hours of Service.  Further, solely for the purposes of
determining whether a Participant has incurred a one year Break-in-Service,
Hours of Service shall be recognized for “authorized leaves of absence” and
“maternity and paternity leaves of absence” as described in Plan
Section 1.33(e).  Years of Service
and one-year Breaks-in-Service shall be measured on the same computation
period.


 


(b)                                  Elapsed Time Method means the applicable computation period of 12
consecutive months during which an Employee is not employed by the Employer due
to a Separation from Service.  Further,
solely for the purposes of determining whether a Participant has incurred a
one-year Break-in-Service, Hours of Service shall be recognized for “authorized
leaves of absence” and “maternity and paternity leaves of absence.”  Years of Service and one-year
Breaks-in-Service shall be measured on the same computation period.  A Break-in-Service is a period of severance
of at least 12 consecutive months.  A
period of severance is a continuous period of time during which the Employee is
not credited with at least one Hour of Service. Such period begins on the date
the Employee retires, quits, or is discharged, or if earlier, the 12 month
anniversary of the date on which the Employee was otherwise first absent from
Service.


 


In the case of an
individual who is absent from work for maternity or paternity reasons, the 12
consecutive month period beginning on the first anniversary of the first date
of such absence shall not constitute a Break-in-Service.  For purposes of this Section 1.09(b),
an absence


 


1

















 


from work for
maternity or paternity reasons means an absence by reason of the:  (1) pregnancy of the individual; (2) birth
of a child of the individual; (3) placement of a child with the individual in
connection with the adoption of such child by such individual; or (4) care of
such child for a period beginning immediately following such birth or
placement.


 


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 Code section 414(u).


 


1.10.                     Code means the Internal Revenue Code of 1986, as
it may be amended from time to time.


 


1.11.                     Compensation.


 


(a)                                  In
general.  Compensation
has several different definitions in order to comply with the Code, and
such definitions are set forth below. 
All definitions are subject to the following provisions:


 


In addition to
other applicable limitations set forth in the Plan, and notwithstanding any
other provision of the Plan to the contrary, for Plan Years beginning on or
after January 1, 1994, 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 shall be $150,000, as adjusted by the Commissioner for increases in the
cost of living in accordance with Code section 401(a)(17)(B).  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 shall
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.


 


For Plan years beginning
on or after January 1, 1994, any reference in the Plan to the limitation
under Code section 401(a)(17) 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 shall be subject to the OBRA ‘93 annual compensation limit
in effect for that prior determination period. For this purpose, for
determination periods beginning before the first day of the first Plan Year
beginning on or after January 1, 1994, the OBRA ‘93 annual
compensation limit shall be $150,000.


 


(1) Annual Limitation. 
For Plan Years beginning prior to January 1, 1994, a
Participant’s annual compensation that may be taken into account for all
purposes under this Plan is subject to the Annual Limitation.  Annual Limitation means $200,000, as
adjusted annually by the Commissioner. 
Compensation in excess of the Annual Limitation shall be disregarded.


 


Contributions allocated
or benefits accrued under this Plan for Plan Years prior to
January 1, 1989, are not subject to the Annual Limitation, except for
Top-Heavy Plan Years. For Top-Heavy Plan Years prior to January 1, 1989,
the Annual Limitation is $200,000.


 


(2) De minimis accrued
compensation.  An Employer may include in all
definitions of Compensation amounts earned but not paid in a year because of
the timing of pay periods and pay days if these amounts are paid during the
first few weeks of the next year, the amounts are included on a uniform and
consistent basis with respect to all similarly situated employees, and no
compensation is included in more than one limitation period.  No formal election is required to include
the accrued compensation permitted under this de minimis rule.


 


(b)                                  415(c)
Compensation means:


 


(1) The Participant’s wages, salaries, fees for
professional services and other amounts received (without regard to whether or
not an amount is paid in cash) for personal services actually rendered in the
course of employment with the Employer to the extent that the amounts are
includible in gross income (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, bonuses, fringe benefits, and
reimbursements, or other expense allowances under a nonaccountable plan (as
described in section 1.62-2(c) of the Treasury Regulations)).


 


(2) In the case of a Participant who is
self-employed, i.e., is an employee within the meaning of Code
section 401(c)(1) and the Regulations thereunder, the Participant’s Earned
Income.


 


(3) Amounts described in Code section 104(a),
but only to the extent that these amounts are includible in the gross income of
the Employee.


 


(4) Amounts paid or reimbursed by the Employer for
moving expenses incurred by an Employee, but only to the extent that these
amounts are not deductible by the Employee under Code section 217.


 


(5) The value of a non-qualified stock option
granted to an Employee by the Employer, but only to the extent that the value
of the option is includible in the gross income of the Employee for the taxable
year in which granted.


 


(6) The amount includible in the gross income of
an Employee upon making the election described in Code section 83(b).


 


(7)  Compensation includes foreign earned
income (as defined in Code section 911(b)), whether or not excludible from
gross income under Code section 911.


 


(8) For Limitation Years beginning after
December 31, 1991, for purposes of applying the limitations of this
provision, Compensation for a Limitation Year is the Compensation actually paid
or made available during such Limitation Year.


 


2

















 


(9)  For Limitation Years beginning after
December 31, 1997, the 415(c) Compensation definition shall include any
elective deferrals (as defined in Code section 402(g)(3)) paid or made
available during such Limitation Year, 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 or 457.


 


(10)  For Limitation Years beginning on or after January 1, 2001, 415(c)
Compensation shall include elective amounts that are not includible in the
gross income of the Employee by reason of Code section 132(f)(4).


 


(11)  415(c) Compensation
does not include items such as:


 


(A) Contributions made by the Employer to a Plan
of deferred compensation to the extent that, before the application of the Code
section 415 limitations to that Plan, the contributions are not includible
in the gross income of the Employee for the taxable year in which contributed,
including Salary Deferral Contributions to this Plan.  In addition, Employer Contributions made on behalf of an Employee
to a Simplified Employee Pension Plan described in Code section 408(k) are
not considered as compensation for the taxable year in which contributed to the
extent such contributions are deductible by the Employee under Code
section 219(b).  Additionally, any
distributions from a plan of deferred compensation are not considered as 415(c)
Compensation, regardless of whether such amounts are includible in the gross
income of the employee when distributed. 
However, any amounts received by an Employee pursuant to an unfunded
non-qualified plan will be considered as 415(c) Compensation in the year such
amounts are includible in the gross income of the Employee.


 


(B) Amounts realized from the exercise of a
non-qualified stock option, or when restricted stock (or property) held by an
Employee either becomes freely transferable or is no longer subject to a
substantial risk of forfeiture (as described in Code section 83 and the
regulations thereunder).


 


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


 


(D)  Other amounts
which receive special tax benefits, such as premiums for group term life
insurance (but only to the extent that the premiums are not includible in the
gross income of the Employee), or contributions made by the Employer (whether
or not under a salary reduction agreement) towards the purchase of an annuity
contract described in Code section 403(b) (whether or not the
contributions are actually excludible from the gross income of the Employee).


 


(12)                            Alternative
definitions of 415(c) Compensation. 
In lieu of defining 415(c) Compensation as above, and if so specified in
the Adoption Agreement, the Plan may define 415(c) Compensation using one of the
following definitions used for employment tax purposes, as modified herein,
except for Employees who are self-employed within the meaning of Code
section 401(c)(1).


 


For Limitation Years
beginning after December 31, 1997, the 415(c) Compensation definition
shall include any elective deferral (as defined in Code section 402(g)(3))
paid or made available during such Limitation Year, 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 or 457.  For Limitation Years beginning on or after January 1,
2001, 415(c) Compensation shall include elective amounts that are not
includible in the gross income of the Employee by reason of Code
section 132(f)(4).


 


(A)  Wages, Tips and Other Compensation Box on Form W-2
(Code sections 6041 and 6051 wages).  415(c) Compensation is defined as wages within the meaning
of Code section 3401(a) and all other payments of compensation to an
Employee by the Employer (in the course of the Employer’s trade or business)
for which the Employer is required to furnish the Employee a written statement
under Code sections 6041(d) and 6051(a)(3), except the following amounts shall
be excluded unless otherwise stated in the Adoption Agreement: amounts paid or
reimbursed by the Employer for moving expenses incurred by an Employee, but
only to the extent that at the time of the payment it is reasonable to believe
that these amounts are deductible by the Employee under Code
section 217.  415(c) Compensation
under this alternative definition must be determined without regard to any
rules under Code section 3401(a) that limit the remuneration included in
wages based on the nature or location of the employment or the services
performed (such as the exception for agricultural labor in Code
section 3401(a)(2)).


 


(B)  Code section 3401(a) wages.  415(c) Compensation is defined as wages
within the meaning of Code section 3401(a) for purposes of income tax
withholding at the source but determined without regard to any rules that limit the remuneration included in wages based on
the nature or location of the employment or the services performed (such as the
exception for agricultural labor in Code section 3401(a)(2)).


 


(C)  Section 3121 wages.  415(c) Compensation is defined as wages
within the meaning of Code section 3121(a), for purposes of calculating
Social Security taxes, but determined without regard to the wage base
limitation in Code section 3121(a)(1), the limitations on the exclusions
from wages in Code section 3121(a)(5)(C) and (D) for elective contributions
and payments by reason of salary deferral agreements, the special rules in Code
section 3121(v), any rules that limit covered employment based on the type
or location of an Employee’s Employer, and any rules that limit remuneration
included in wages based on familial relationship
or based on the nature or location of the employment or the services (such as
the exceptions to the definition of employment in Code section 3121(b)(1)
through (20)).


 


(c)                                  414(q)
Compensation means for Limitation Years beginning before January 1,
1998, 415(c)
Compensation without regard to Code sections 125, 402(e)(3), and
402(h)(1)(B) and, in the case of Employer contributions made pursuant to a
salary deferral agreement, without regard to Code section 403(b).  414(q) Compensation includes elective or
salary reduction contributions to a cafeteria plan, a cash or deferred
arrangement or a tax-sheltered annuity, including Salary Deferral Contributions
to this Plan.


 


3

















 


For Limitation Years beginning
after December 31, 1997, 414(q) Compensation means 415(c) Compensation.


 


(d)                                  414(s)
Compensation  for purposes of
nondiscrimination testing hereunder, means compensation as defined in Code
section 414(s) and the Treasury regulations thereunder, as elected by the
Employer from time to time from the various options available under such
regulations, and pursuant to any rules and requirements as may be set forth in
such regulations.  To the extent
permissible under such regulations, the Employer may use different definitions
of 414(s) Compensation (i) for different nondiscrimination tests in the same
Plan Year, and (ii) for the same nondiscrimination test from year to year.  At the discretion of the Employer, 414(s)
Compensation may be limited to that compensation earned while an Employee is a
Participant, as permitted by law.


 


1.12.                     Disability  means
the inability, supported by medical evidence, to engage in substantial gainful
activity by reason of any medically determinable physical or mental impairment that
can be expected to result in death or which has lasted or can be expected to
last for a continuous period of not less than 12 months.


 


Unless specified
otherwise in the Adoption Agreement, for a Participant to establish Disability,
such Participant must furnish to the Plan Administrator evidence that the
federal Social Security Administration has determined that the Participant is
eligible to receive total disability benefits under the federal Social Security
Act.


 


1.13.                     Discretionary Contributions means
contributions which the Employer makes to the Plan for the benefit of
Participants, which is not a Salary Deferral or a Matching Contribution. All
Discretionary Contributions for a Plan Year shall be contributed to the Trustee
by the date prescribed by law (including extension thereof) for filing the
Employer’s federal income tax return for its taxable year ending with or within
such Plan Year.


 


1.14.                     Early Retirement Age  shall be age 55, unless otherwise
specified in the Adoption Agreement, and means the earliest date on which a
Participant who has Separated from Service with the Employer can elect to
receive Normal Retirement Benefits.


 


1.15.                     Earned Income means the net earnings from self-employment in the trade
or business with respect to which the Plan is established, for which personal
services of the individual are a material income-producing factor. Net earnings
shall be determined without regard to items not included in gross income and
the deductions allocable to such items. Net earnings are reduced by
contributions by the Employer to a qualified plan to the extent deductible
under Code section 404.  Net
earnings shall be determined with regard to the deduction allowed to the
taxpayer by Code section 164(f) for taxable years beginning after December 31,
1989.


 


1.16.                     Effective Date means the date as of which the Plan is first made
effective with respect to an Employer (not earlier than the first day of the
first Plan Year), and which is set forth in the Adoption Agreement. For
Employers who adopt this Plan as an amendment and restatement of a prior plan,
such amendment and restatement shall be effective as provided for in the
Adoption Agreement.


 


1.17.                     Eligible Employee means an Employee who at any time
has met the requirements of the Plan for participation in the Plan.


 


1.18.                     Employee  means any person who is employed by
the Employer or affiliated Employer, but excludes any person who is: (1) an
independent contractor; or (2) any individual who performs service for the
Employer who has been classified by the Employer as an independent contractor,
a subcontractor or in any other capacity not within the traditional common-law
meaning of the term “Employee,” even if such individual is later re-classified
either by the Internal Revenue Service or any court of competent jurisdiction
as a common-law Employee.  The term
Employee shall include any Leased Employee deemed to be Employee of the
Employer or affiliated Employer as provided in Code section 414(n) or (o)
except to the extent such Leased Employees may be excluded under the provisions
of Section 1.37, in any event, however, such Leased Employees shall only
be included for the purposes of Code section 410(b).


 


1.19.                     Employer means
any corporation, professional corporation, professional association, partnership,
S corporation, sole proprietorship or unincorporated business which shall adopt
this Plan and any successor organization which may succeed to its business and
which may elect to continue the Plan. In the case of a group of employers which
are Affiliates, all such employers shall be considered a single Employer for
purposes of establishing the Maximum Permissible Amount.  “Employer” shall include Participating
Employers (as defined in Section 14.01) unless the context requires
otherwise.


 


1.20.                     Employer Account means the combined individual Accounts of a
Participant consisting of any Matching Contributions and any Discretionary
Contributions made to the Plan on behalf of the Participant, including income,
expenses, gains, losses, and Forfeitures attributable thereto.


 


1.21.                     Entry Datemeans the date or dates specified in the Adoption Agreement; or, in the
case of a business which becomes an Employer because of an acquisition by the
Plan Sponsor, the Plan Administrator, in his sole discretion, may set an additional
Entry Date so that the eligible Employees of said business may become
Participants in the Plan in accordance with Section 2.05.


 


1.22.                     ERISA means
the Employee Retirement Income Security Act of 1974, as it may be amended from
time to time.


 


1.23.                     Family Member means, with respect to an affected Participant, such
Participant’s Spouse, such Participant’s lineal descendants and ascendants and
their Spouses, all as described in Code section 414(q)(6)(B) prior to its
repeal in the Small Business Job Protection Act of 1996, which repeal was
effective for Plan Years beginning after December 31, 1996.


 


1.24.                     Fiduciarymeans any person who (a) exercises any discretionary authority or
discretionary control respecting the management of the Plan or exercises any
authority or control respecting management or the disposition of its assets,
(b) renders investment advice for a fee or other compensation, direct or
indirect, with respect to any monies or other property of the Plan or has any
authority or responsibility to do so, or (c) has any discretionary authority or
discretionary responsibility in the administration of the Plan, including, but
not limited to, the Trustee, the Employer and its representative body, and the
Plan Administrator.


 


4

















 


1.25.                     Five Percent Owner means any person who owns (or is
considered as owning within the meaning of Code section 318) more than
five percent (5%) of the outstanding stock of the Employer or stock possessing
more than five percent (5%) of the total combined voting power of all stock of
the Employer, or in the case of an unincorporated business, any person who owns
more than five percent (5%) of the capital or profits interest in the Employer.
In determining the percentage of ownership hereunder, employers that would
otherwise be aggregated under Code section 414(b), (c), or (m) shall be
treated as separate employers.


 


1.26.                     Forfeituremeans that portion of a Participant’s Employer Account that is not
vested, and occurs on the earlier of:


 


(a)                                  the distribution of a
Former Participant’s Vested Balance; or


 


(b)                                  the
last day of the Plan Year in which the Participant incurs five (5) consecutive
one-year Breaks-in-Service.


 


Furthermore, for purposes
of paragraph (a) above, in the case of a Participant Separated from Service
whose Vested Balance is zero, said Participant shall be deemed to have received
a distribution of his Vested Balance upon his Separation from Service.  Restoration of such amounts shall occur
pursuant to Section 7.03(b)(4).  In
addition, the term Forfeiture shall also include amounts deemed to be
Forfeitures pursuant to any other provision of this Plan.


 


Such nonvested amounts
and such other amounts treated as forfeited shall be Forfeitures and shall be
treated in accordance with Section 7.03(a).


 


1.27.                     414(q) Compensation, see Section 1.11(c).


 


1.28.                     414(s) Compensation, see Section 1.11(d).


 


1.29.                     415(c) Compensation, see Section  1.11(b).


 


1.30.                     Highly Compensated Employee
effective January 1, 1997, means an Employee described in Code
section 414(q) and the Regulations thereunder, and generally means an
Employee who performed services for the Employer during the “determination
year” and is in one or more of the following groups:


 


(a)                                  Employees
who at any time during the determination year or the look-back
year were Five Percent Owners.


 


(b)                                  Employees
who received 414(q) Compensation during the look-back year in excess of $80,000 (as
adjusted at the same time and in the same manner as under Code
section 415(d), except that the base period is the calendar quarter ending
September 30, 1996).


 


(c)                                  If
so specified in the Adoption Agreement, at the Employer’s election, Employees
considered in Section 1.30(b) above may be limited to Employees in the
Top-Paid Group during the look-back year.


 


(d)                                  For
purposes of this Section 1.30 the “determination year” shall be the Plan
Year for which testing is being performed, and the “look-back year” shall be
the immediately preceding twelve-month period. 
The Employer may make a calendar year data election, under which
election the look-back year shall be the calendar year beginning with or
within the look-back
year.  Pursuant to Notice
97-45, the calendar year data election may not be used to determine whether an
Employee is a Highly Compensated Employee under Section 1.30(a) above.


 


(e)                                  A
Top-Paid Group election under Section 1.30(c) and a calendar year data
election under Section 1.30(d) must be applied consistently to the determination
year of all plans of the Employer, except that the consistency
requirement will not apply to determination years beginning with or
within the 1997 calendar year, and for determination years beginning on or after
January 1, 1998, and before January 1, 2000, satisfaction of the
consistency requirement is determined without regard to any nonretirement plans
of the Employer.


 


(f)                                    The
dollar threshold amounts specified in 1.30(b) above shall be adjusted at such
time and in such manner as is provided in Code section 415(d) and the
applicable Treasury Regulations.


 


(g)                                 In
determining who is a Highly Compensated Employee, Employees who are
non-resident aliens and who received no earned income (within the meaning of
Code section 911(d)(2)) from the Employer constituting United States
source income within the meaning of Code section 861(a)(3) shall not be
treated as Employees.  Additionally, all
Affiliated Employers shall be taken into account as a single Employer and
Leased Employees within the meaning of Code sections 414(n)(2) and 414(o)(2)
shall be considered Employees unless such Leased Employees are covered by a
plan described in Code section 414(n)(5) and are not covered in any
qualified plan maintained by the Employer. 
The exclusion of Leased Employees for this purpose shall be applied on a
uniform and consistent basis for all of the Employer’s retirement plans.  Highly Compensated Former Employees shall be
treated as Highly Compensated Employees without regard to whether they
performed services during the “determination year.”


 


(h)                     With
respect to any Plan Year commencing prior to January 1, 1997, Highly
Compensated Employee means an active Employee if, at any time during the Plan
Year or the immediately preceding Plan Year, such active Employee:


 


(1)  was a Five Percent Owner of the Employer;


 


(2)  received 414(q) Compensation from the
Employer in excess of $75,000 (as adjusted by section 415(d) of the Code);


 


(3)  received 414(q) Compensation from the
Employer in excess of $50,000 (as adjusted by section 415(d) of the Code)
and was a member of the Top Paid Group of Employees during the same Plan Year;
or


 


5

















 


(4)  received 414(q) Compensation from the
Employer in excess of fifty percent (50%) of the limit in effect for such Plan
Year under section 415(b)(1)(A) of the Code and was at any time an officer
of the Employer.


 


If an Employee is not
described in (2), (3) or (4) above for the Plan Year immediately preceding the
Plan Year for which the determination of Highly Compensated Employee is made,
he shall not be considered a Highly Compensated Employee for the determination
year unless he is a member of the group consisting of the 100
Employees paid the greatest Highly Compensated Employee Compensation during the
Plan Year for which the determination is being made.


 


1.31.                     Highly
Compensated Former Employee means a former Employee who
Separated from Service (or was deemed to have separated) prior to the
“determination year,” performed no Service for the Employer during the
determination year, and was a Highly Compensated Employee in the year of
Separation from Service or in any “determination year” after attaining age
55.  Notwithstanding the foregoing, an
Employee who Separated from Service prior to 1987 will be treated as a Highly
Compensated Former Employee only if during the separation year (or year
preceding the separation year) or any year after the Employee attains age 55
(or the last year ending before the Employee’s 55th birthday), the Employee
either received 414(q) Compensation in excess of $50,000 or was a Five Percent
Owner.  For purposes of this Section, “determination
year” shall be determined in accordance with Section 1.30.  Highly Compensated Former Employees shall be
treated as Highly Compensated Employees. 
The method set forth in this Section for determining who is a
“Highly Compensated Former Employee” shall be applied on a uniform and
consistent basis for all purposes for which the 414(q) Compensation definition
is applicable.


 


1.32.                     Highly
Compensated Participant  means any Highly Compensated Employee who
is a Participant.


 


1.33.                     Hour of Service means:


 


(a)                                  In
general.  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
Plan Year in which the duties are performed.


 


(b)                                  If
no duties are performed. 
Each hour for which an Employee is paid, or entitled to payment, by the
Employer on account of a period of time 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 Authorized Absence. No more than 501 Hours of Service
shall be credited under this subsection (b) for a single continuous period,
which may extend over more than one computation period or Plan Year. An
Employee is not credited with any hours under this paragraph (b) for any
payment made under a plan maintained solely for complying with applicable law
for worker’s unemployment compensation, or disability insurance; or for the
purpose of reimbursing the Employee for medical or medically related expenses.
Hours under this subsection (b) shall be calculated and credited pursuant
to section 2530.200b-2 of the Department of Labor Regulations which are
incorporated herein by reference.


 


(c)                                  Back
pay.  Each hour for
which back pay, irrespective of mitigation of damages, is either awarded or
agreed to by the Employer. The same hours shall not be credited both under
subsection (a) or (b), as the case may be, and under this
subsection (c). These hours shall be credited to the Employee for the Plan
Year to which the award or agreement pertains, rather than the Plan Year in
which the award, agreement or payment is made.


 


(d)                                  Employment
with Affiliates. 
Hours of Service shall be credited for employment with Affiliates of the
Employer, and any other entity required to be aggregated with the Employer
pursuant to Code section 414(o), and for any individual considered an
Employee under Code section 414(n) and (o).


 


(e)                                  Special
rules for determining a Break-in-Service.  For Plan Years beginning after 1984, solely
for purposes of determining whether a Break-in-Service has occurred in a
computation period, an Employee who is absent from work for maternity or paternity
reasons shall receive credit for the Hours of Service which would otherwise
have been credited to such Employee but for such absence, or in any case in
which such hours cannot be determined, eight (8) Hours of Service per day of
such absence. For purposes of this paragraph, an absence for maternity or
paternity reasons means an absence (1) by reason of the pregnancy of the
Employee (2) by reason of a birth of a child of the Employee, (3) by reason of
the placement of a child with the Employee in connection with the adoption of
such child by such Employee, or (4) for purposes of caring for such child for a
period beginning immediately following such birth or placement. The Hours of
Service credited under this paragraph shall be credited (1) in the computation
period in which the absence begins if such credit is necessary to prevent a
Break-in-Service in that period, or (2) in all other cases, in the following
computation period.


 


(f)                                    Active
Military Duty.  Any
Employee who is a member of the military reserves of the United States, and who
is called into duty, whether voluntarily or involuntarily, shall be credited 8
Hours of Service for each day he or she is on active duty, but no more than 40
Hours of Service shall be credited for any seven day period starting on Sunday
and ending on Saturday.


 


(g)                                 Equivalency
methods.  Hours of
Service shall be determined on the basis of the actual hours for which an
Employee is entitled to payment, unless an equivalency method for counting
Hours of Service has been elected in the Adoption Agreement. The equivalency
methods that may be so elected are:


 


(1) Days Worked. For each day, an Employee shall
be credited with 10 Hours of Service if he is entitled to be credited for at
least one (1) Hour of Service for that day.


 


(2) Weeks Worked. 
For each week, an Employee shall be credited with 45 Hours of Service if
he is entitled to be credited for at least one (1) Hour of Service for that
week.


 


(3) Semimonthly Payroll Periods Worked.  For each semimonthly payroll period, an
Employee shall be credited with 95 Hours of Service if he is entitled to be
credited for at least one (1) Hour of Service for that period.


 


6

















 


(4) Months Worked.  For each month, an Employee shall be credited with 190 Hours of
Service if he is entitled to be credited for at least one (1) Hour of Service
for that month.


 


(5) Earnings. 
One of the following two methods may be used, as applicable.


 


(A) In the case of an Employee whose compensation
is determined on the basis of an hourly rate, he will be credited with the
number of hours equal to his Compensation from time to time during the
computation period divided by the Employee’s hourly rate as in effect at such
times during the computation period, or equal to his Compensation during the
computation period divided by his lowest hourly rate of compensation during
that period, or by the lowest hourly rate of compensation payable to an
employee in the same, or a similar, job classification, reasonably defined; and
870 hours credited under this method shall be treated as equivalent to 1,000
Hours of Service, and 435 hours credited under this method shall be treated as
equivalent to 500 Hours of Service.


 


(B) In the case of an Employee whose compensation
is determined on a basis other than an hourly rate, and who is paid a fixed
rate for a specified period of time, an hourly rate shall be computed by
dividing his lowest rate of compensation during the computation period for such
period of time by the number of hours regularly scheduled for the performance
of duties during such period of time, or in the case of an Employee without a
regular work schedule, it shall be calculated on a reasonable basis which
reflects the average hours worked by the Employee over a representative period
of time; and the Employee shall be credited with the number of hours equal to
his Compensation during the computation period divided by his lowest hourly
rate so determined; and 750 hours credited under this method shall be treated
as equivalent to 1,000 Hours of Service, and 375 hours credited under this
method shall be treated as equivalent to 500 Hours of Service.


 


1.34.                     Investment Manager means an entity that (a)
has the power to manage, acquire, or dispose of Plan assets and (b) acknowledges
Fiduciary responsibility to the Plan in writing.  Such an entity must be a person, firm, or corporation registered
as an investment adviser under the Investment Advisers Act of 1940, a bank, or
an insurance company.


 


1.35.                     Joint and Survivor Annuity  means an immediate annuity
for the life of the Participant with a survivor annuity for the life of the
Spouse that is not less than 50% (and not more than 100%) of the amount that is
payable during the joint lives of the Participant and Spouse and is the
actuarial equivalent of a single life annuity for the life of the Participant
(also defined as the amount of benefit which can be purchased with the
Participant’s vested Account Balance). 
This annuity may not be terminated or reduced because of the Surviving
Spouse’s remarriage.  The percentage of
the survivor annuity under the Plan shall be 50% (unless a different percentage
is elected by the Employer in the Adoption Agreement).


 


1.36.                     Key Employeemeans an Employee as defined in Code section 416(i)(1) and the
regulations thereunder.  Generally, any
Employee or former Employee (as well as each of his Beneficiaries) is
considered a Key Employee if he, at any time during the Plan Year that contains
the Determination Date (as defined in Section 9.01(a)) or any of the
preceding four (4) Plan Years, has been included in one of the following
categories:


 


(a)                                  an officer of the
Employer (as that term is defined within the meaning of the regulations under
Code section 416) having annual 414(q) Compensation greater than 50% of
the amount in effect under Code section 415(b)(1)(A) for any such Plan
Year.


 


(b)                                  one of the ten
Employees having annual 414(q) Compensation from the Employer for a Plan Year
greater than the dollar limitation in effect under Code section 415(c)(1)(A)
for the calendar year in which such Plan Year ends and owning (or considered as
owning within the meaning of Code section 318) both more than one-half
percent (1/2%) interest and the largest interests in the Employer.


 


(c)                                  a Five Percent
(5%) Owner of the Employer or a One Percent (1%) Owner of the Employer
having an annual 414(q) Compensation from the Employer of more than
$150,000.  One Percent (1%) Owner means
any person who owns (or is considered as owning within the meaning of Code
section 318) more than one percent (1%) of the outstanding stock of the
Employer or stock possessing more than one percent (1%) of the total combined
voting power of all stock of the Employer or, in the case of an unincorporated
business, any person who owns more than one percent (1%) of the capital or
profits interest in the Employer.  In
determining percentage ownership hereunder, employers that would otherwise be
aggregated under Code sections 414(b), (c), (m) and (o) shall be treated as
separate employers.  However, in
determining whether an individual has “414(q) Compensation” of more than
$150,000, 414(q) Compensation from each employer required to be aggregated
under Code sections 414(b), (c), (m) and (o) shall be taken into account.


 


1.37.                     Leased Employee means any person (other than an Employee of the
recipient) who pursuant to an agreement between the recipient and any other
person (“leasing organization”) has performed services for the recipient (or
for the recipient and related persons determined in accordance with Code
section 414(n)(6)) on a substantially full time basis for a period of at
least one (1) year, and such services 
are performed under primary direction or control by the recipient
employer. Contributions or benefits provided a Leased Employee by the leasing
organization which are attributable to services performed for the recipient
employer shall be treated as provided by the recipient employer.  A Leased Employee shall not be considered an
Employee of the recipient if:


 


(a)                                  such employee is
covered by a money purchase pension plan providing:


 


(1)   a non-integrated employer contribution rate
of at least ten percent (10%) of compensation, as defined in Code
section 415(c)(3);


 


(2) immediate
participation; and


 


(3) full and immediate
vesting.


 


(b)                                  Leased Employees do
not constitute more than 20% of the recipient’s non-highly compensated work
force.


 


1.38.                     Limitation Year  means the Plan Year, unless otherwise specified in
the Adoption Agreement.


 


7

















 


1.39.                     Matching Contributions means contributions to the
Plan made by the Employer on behalf of a Participant that are contingent on the
Employee’s having entered into a Salary Deferral Election.


 


1.40.                     Maximum Permissible Amount means the lesser of:


 


(a)                                  $30,000 or such
larger amount as may be determined by the Commissioner of the Internal Revenue
Service for the Limitation Year, or


 


(b)                                  25% of the
Participant’s 415(c) Compensation for the Limitation Year.


 


The 415(c) Compensation
limitation referred to in (b) above shall not apply to any contribution for
medical benefits (within the meaning of Code section 401(h) or 419A(f)(2))
which are otherwise treated as an Annual Addition under Code
section 415(l)(1) or 419A(d)(2).


 


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 shall not
exceed the defined contribution dollar limitation in (a) above, multiplied by
the following fraction:


 


Number of Months in the
Short Limitation Year


12


 


1.41.                     Net Profitsmeans current and accumulated earnings of the Employer before federal
and state taxes and contributions to this or any other qualified plan.


 


1.42.                     Nondeductible Employee Account means the
individual Account of a Participant consisting of the Participant’s
Nondeductible Employee Contributions to the Plan as adjusted for income,
expenses, gains, losses and distributions attributable thereto.


 


1.43.                     Nondeductible Employee Contribution means any
Participant after-tax contribution to the Plan other than a Rollover
Contribution or a Plan-to-Plan Transfer.


 


1.44.                     Nonhighly Compensated Participant means any
Participant who is not a Highly Compensated Employee.


 


1.45.                     Non-Key Employee means any Employee or former Employee (and his
Beneficiaries) who is not a Key Employee.


 


1.46.                     Normal Retirement Age shall be 65 years of age
unless otherwise specified in the Adoption Agreement.


 


1.47.                     Owner-Employee means a Self-employed
Individual who is the sole proprietor, in the case of a sole proprietorship. If
the Employer is a partnership, Owner-Employee means a Self-employed
Individual who is a partner owning more than ten percent (10%) of either the
capital interest or profit interest of the partnership. The term Owner-Employee,
as used herein, shall be consistent with Code section 401(c)(3).


 


1.48.                     Participantmeans any Employee who has met the requirements of the Plan to become a
Participant and who continues to be a Participant in the Plan.  A person shall cease to be a Participant
when he has taken a distribution of his Vested Balance or has died and his
Beneficiary has taken a distribution of his Vested Balance.  All Participants shall be further classified
as follows:


 


(a)                                  Active
Participant means an Employee who meets the requirements of
Sections 2.01 and 2.04(b), or the requirements of Section 2.04(e).


 


(b)                                  Inactive
Participant means an Active Participant who ceases to be an
Employee but who remains an employee of an Affiliate which is not a
Participating Employer, and who has in the Plan a Total Balance which is
greater than zero.  An Inactive
Participant shall continue to be treated the same as an Active Participant in
every respect except that no contributions of any type shall be allocated to
his Accounts with the exception of those to which he may be entitled for the
Plan Year in which he ceases to be an Active Participant.  He shall not be allowed to make any
contributions unless and until he again becomes an Active Participant.


 


(c)                                  Former
Participant means an Active Participant or an Inactive
Participant who is no longer an employee of any Affiliate.


 


1.49.                     Plan
means this Plan Document, together with any Adoption Agreement executed
by the Employer, and the related Trust thereunder as well as any subsequent
amendments to the aforementioned documents.


 


1.50.                     Plan Year means
the 12-consecutive month period specified in the Adoption Agreement.


 


1.51.                     Predecessor Employee Account means the account
established and maintained by the Plan Administrator for each Participant with
respect to his interest in the Plan derived from after-tax mandatory Employee
contributions made to another plan of the Employer or an Affiliate and
transferred to this Plan by a merger or otherwise.  A Participant shall be 100% Vested in this Account, and shall
have full rights of withdrawal in accordance with procedures established by the
Administrator.


 


1.52.                     Predecessor Employer Account means the account
established and maintained by the Plan Administrator for each Participant with
respect to his interest in the Plan resulting from Employer contributions made
to another plan of the Employer or an Affiliate and transferred to this Plan by
a merger or otherwise. The balance in this account shall be administered in
accordance with all provisions relating to the Participant’s Account herein,
and shall be vested in accordance with the provisions in the Adoption Agreement
and in Article VI, or in the amendment allowing the merger and in
Article VI.


 


8

















 


1.53.                     Protected Benefit(s) means:


 


(a)                                  Accrued
benefit of any Participant, directly or indirectly.  Plan provisions indirectly affecting accrued
benefits include, for example, provisions relating to Years of Service and
Breaks-in-Service for determining benefit accrual, and to actuarial factors for
determining optional or early retirement benefits.


 


(b)                                  Early
retirement benefits. 
Any early retirement benefit or a retirement type subsidy.


 


(c)                                  Optional
form of benefit.  An
optional form of benefit is a distribution form with respect to an Employee’s
benefit that is available under the Plan or any other applicable plan qualified
under Code section 401(a) and is identical with respect to all features
relating to the distribution form, including the payment schedule, timing,
commencement, medium of distribution (e.g., in cash or in-kind), the portion of
the benefit to which such distribution features apply and the election rights
with respect to such optional forms.  To
the extent there are any differences in such features, a plan provides separate
optional forms of benefit.  Differences
in amounts of benefits, methods of calculation, or values of distribution forms
do not result in optional forms of benefit for purposes of this rule.


 


The following benefits
are not optional forms of benefits:  (1)
ancillary life insurance protection; (2) accident or health insurance benefits;
(3) social security supplements described in Code section 411(a)(9); (4)
the availability of loans (other than the distribution of an employee’s accrued
benefit upon default under a loan); (5) the right to make Nondeductible
Employee Contributions or elective deferrals described in Code
section 402(g)(3); (6) the right to direct investments; (7) the right to a
particular form of investment (e.g., investment in employer stock or securities
or investment in certain types of securities, commercial paper, or other
investment media); (8) the allocation dates for contributions, Forfeitures and
earnings, the time for making contributions (but not the conditions for
receiving an allocation of contributions or Forfeitures for a Plan Year after
such conditions have been satisfied), and the Valuation Dates for Account
Balances; (9) administrative procedures for distributing benefits, such as
provisions relating to the particular dates on which notices are given and by
which elections must be made; (10) rights that derive from administrative and
operational provisions, such as mechanical procedures for allocating investment
experience among Accounts in defined contribution plans; and (11) the
availability of financial hardship withdrawals and the rules and procedures
governing such withdrawals; and (12) any other as may be provided by law,
regulation, or court order.


 


1.54.                     Qualified Domestic Relations Order means (1) a
qualified domestic relations order, as defined in Code section 414(p) and
ERISA section 206(d), entered after December 31, 1984, or (2) a
domestic relations order entered before January 1, 1985.


 


1.55.                     Qualified Election means that term as defined in
Section 8.03(f).  No Qualified
Election shall be required if this Plan is exempted from the provisions of
Article VIII.


 


1.56.                     Qualified Joint and Survivor Annuity means an annuity
which is subject to the provisions of Article VIII.


 


1.57.                     Qualified Nonelective Contributions means the
Employer’s contributions to the Plan that are not Salary Deferral Contributions
or Matching Contributions, are allocated to Participants’ Accounts that
Participants may not elect to receive in cash until distributed from the Plan,
and that are made pursuant to Section 3.11.  Such contributions are subject to the restrictions on withdrawals
set forth in Section 7.13(b), and are immediately nonforfeitable and 100%
vested upon contribution, regardless of the age and service of the Employee or
whether the Employee is employed on a specific date.


 


1.58.                     Qualified Matching Contributions means the Employer
Matching Contributions to the Plan that are subject to the restrictions on
withdrawals set forth in Section 7.13(b), and are immediately
nonforfeitable and 100% vested upon contribution, regardless of the age and
service of the Employee or whether the Employee is employed on a specific date,
and are made pursuant to Section 3.11. 
Nonelective Contributions and/or Matching Contributions maybe treated as
elective contributions only if the conditions described in
section 1.401(k)-1(b)(5) and section 1.401(m)-1(b)(5) of the
Regulations are satisfied.


 


1.59.                     Rollover Account (related or unrelated) means the individual Account of
an Employee consisting of the Employee’s Rollover Contribution to the Plan, and
income, expenses, gains, losses and distributions attributable thereto.


 


1.60.                     Rollover Contribution (related or unrelated) means
a contribution of a qualifying rollover distribution as described in Code
section 402(c)(4) or 408(d)(3) which is distributed to an individual, and
contributed by such individual to the Plan in such manner that such portion of
the qualifying rollover distribution so contributed to the Plan does not constitute
an Annual Addition. A rollover is a related rollover if the monies are rolled
over from a plan that is or was sponsored by the Employer or an Affiliate.  All other Rollover Contributions are
unrelated Rollover Contributions.


 


1.61.                     Salary Deferral Account means the individual Account
of a Participant consisting of his Salary Deferral Contributions and, if
applicable, any Qualified Nonelective Contributions (together with portions of
certain Plan-to-Plan Transfers identified hereunder) and income, expenses,
gains, losses, and distributions attributable thereto.


 


1.62.                     Salary Deferral Election means an election by a
Participant to defer the receipt of Compensation pursuant to a Salary Deferral
Agreement as described in Section 3.03 and adjustments relating thereto,
and to have such deferred amount contributed to the Plan by the Employer on
behalf of the Participant as a Salary Deferral Contribution.


 


1.63.                     Self-employed Individual means an individual (as
provided for in Code section 401(c)(1)) who has Earned Income (as defined
in Code sections 401(c)(2) and 414(s)) for the taxable year from the trade or
business for which the Plan is established; also, an individual who would have
had Earned Income but for the fact that the trade or business had no Net Profits
for the taxable year.


 


1.64.                     Separation from Service  means an Employee’s voluntary or involuntary
termination of employment with the Employer and its Affiliates, and any
Participating Employers and their Affiliates. 
In the event of a sale by the Employer or a Participating Employer to a
purchaser who is not an Affiliate of the Employer or a Participating Employer
of (i) all or substantially all of the assets used by the Employer or
Participating Employer in a trade or


 


9

















 


business or (ii) the Employer’s or a Participating
Employer’s interest in a subsidiary, a Separation from Service shall occur on
the date of such sale with respect to an Employee who continues in employment
with the corporation or other person acquiring such assets or with such
subsidiary, as the case may be, unless the purchaser agrees in connection with
the sale to be substituted for the Employer as the sponsor of the Plan or to
establish a defined contribution plan that is qualified under Code
section 401(a) to which Plan assets and the amount of the employee’s
benefit under the Plan shall be transferred. Notwithstanding the above, a
Separation from Service shall not occur on the date of sale in the case of any
Employee with respect to whom assets and liabilities attributable to his
benefits under the Plan are transferred to a plan of the new employer
regardless of whether it is a new plan or a pre-existing plan of the former
employer.  Moreover, no Separation from
Service shall be treated as having occurred for purposes of this Plan if the
Employee is employed by an employer that, with respect to the Employer or any
Participating Employer, is (1) a corporation which is a member of a controlled
group of corporations with the Employer or any Participating Employer (within
the meaning of Code section 414(b)), (2) a partnership, joint venture or
other business organization (whether or not incorporated) which is under common
control or is affiliated with the Employer or a Participating Employer (within
the meaning of Code section 414(c)), or (3) any member of an affiliated
service group within the meaning of Code section 414(m) of which the
Employer or any Participating Employer is a member, or any other entity
required to be aggregated with the Employer pursuant to Code
section 414(o).


 


1.65.                     Service means
any period of time during which an Employee is employed by the Employer,
including any period of Authorized Absence. 
Where the Employer maintains the plan of a predecessor employer, Service
for the predecessor employer shall be treated as Service for the Employer. If
elected by the Employer in the Adoption Agreement, Service also includes a
period of employment for such designated unrelated employers, and for such
designated periods of time.


 


1.66.                     Shareholder-employee means an individual who is a
shareholder of the Employer, if the Employer is an S corporation as defined in
Code section 1361, and who owns more than five percent (5%) of the
combined voting power of all classes of common stock of the Employer eligible
to vote.


 


1.67.                     Spouse or Surviving Spouse means the Spouse or
Surviving Spouse of the Participant.  A
former Spouse shall be treated as the Spouse or Surviving Spouse of the
Participant if specifically stated in a Qualified Domestic Relations
Order.  To the extent that a Qualified
Domestic Relations Order does not redesignate a former spouse as the
beneficiary of the Participant and the divorce decree is finalized, any prior
beneficiary designation of the ex-spouse by a Participant shall be null and
void.


 


1.68.                     Top Paid Group means the top 20% of Employees who performed Service for
the Employer during the applicable year, ranked according to the amount of
414(q) Compensation received from the Employer during such year.  All Affiliated Employers shall be taken into
account as a single employer, and Leased Employees within the meaning of Code
sections 414(n)(2) and 414(o)(2) shall be considered Employees unless such
Leased Employees are covered by a plan described in Code section 414(n)(5)
and are not covered in any qualified plan maintained by the Employer or an
Affiliate.  Employees who are
non-resident aliens and who received no earned income (within the meaning of
Code section 911(d)(2)) from the Employer constituting United States source
income within the meaning of Code section 861(a)(3) shall not be treated
as Employees.  Additionally, for the
purpose of determining the number of active Employees in any year, the
following additional Employees shall also be excluded; however, such Employees
shall still be considered for the purpose of identifying the particular
Employees in the Top Paid Group:


 


(a)                                  Employees with less
than six (6) months of service;


 


(b)                                  Employees who
normally work less than 17-1/2 hours per week;


 


(c)                                  Employees who normally
work less than six (6) months during a year; and


 


(d)                                  Employees who have
not yet attained age 21.


 


In addition, if 90% or
more of the Employees of the Employer are covered under agreements the
Secretary of Labor finds to be collective bargaining agreements between
Employee representatives and the Employer, and the Plan covers only Employees
who are not covered under such agreements, then Employees covered by such
agreements shall be excluded from both the total number of active Employees as
well as from the identification of particular Employees in the Top Paid Group.


 


The foregoing exclusions
set forth in this Section shall be applied on a uniform and consistent
basis for all purposes for which the 414(q) Compensation definition is
applicable.


 


1.69.                     Total Balance means the entire interest of
a Participant or Employee in his Accounts and shall be calculated, as of any
given date, as follows:


 


(a)                                  the balance in all of
his Accounts as of the immediately preceding Valuation Date (if any); plus


 


(b)                                  any Discretionary,
Matching, Salary Deferral, Rollover or Nondeductible Employee Contribution(s),
or any Plan-to-Plan Transfer(s), refunds, Forfeitures (if applicable), or other
amounts to have been credited to his Accounts since the immediately preceding Valuation
Date (if any); minus


 


(c)                                  the sum of all
withdrawals, payments, distributions, premiums or fees paid since the
immediately preceding Valuation Date.


 


1.70.                     Trustee
means the initial trustee or trustees, or any successor trustee or
trustees at any time acting under this Plan.


 


1.71.                     Trust Fund
means the fund for the Employer held by the Trustee under the provisions
of this Plan.


 


1.72.                     Valuation Date means the last day of each Plan Year unless the Plan
Administrator establishes, in addition, one or more special Valuation Dates.


 


10

















 


1.73.                     Vested Balance means that amount in a Participant’s Accounts that is
nonforfeitable and shall be calculated, on any given date, as follows:


 


(a)                                  the Participant’s
Total Balance; minus


 


(b)                                  any nonvested amounts
in the Participant’s Employer Account that would be subject to Forfeiture if
the Participant were to Separate from Service as of that date.


 


1.74.                     Year of Service shall be defined as one of the following, as set forth
in the Adoption Agreement:


 


(a)                                  1,000 Hours of Service Method means the computation period
of 12-consecutive months, herein set forth, during which an Employee has been
credited with at least 1,000 Hours of Service; or


 


(b)                                  Elapsed
Time Method means 12-consecutive months of Service.


 


11

















 


ARTICLE II.  ELIGIBILITY AND PARTICIPATION.


 


2.01.                     Eligibility.  Any Employee who has satisfied
the eligibility requirements specified in the Adoption Agreement shall be
eligible to participate hereunder as of the date he has satisfied such
requirements.  However, if this is an
amended and restated plan, any Employee who was a Participant in the Plan prior
to the effective date of such amendment and restatement shall continue to
participate in the Plan.  The Employer
shall give each prospective Eligible Employee written notice of his eligibility
to participate in the Plan on or about the first Entry Date in which he has
satisfied the Eligibility Requirements specified in the Adoption Agreement.


 


2.02.                     Eligibility Computation Periods.  For purposes of eligibility for participation, the initial
computation period shall begin with the date on which the Employee first
performs an Hour of Service.  If any
Employer becomes an Affiliate by reason of acquisition, the initial computation
period shall begin with the date on which the Employee first performed an Hour
of Service with the acquired Employer, unless otherwise specified in the
Adoption Agreement.  The eligibility
computation period beginning after a one-year Break-in-Service shall be
measured from the date on which an Employee again performs an Hour of Service.


 


If Breaks-in-Service and
Years of Service are computed under the 1,000 Hours of Service Method, then the
eligibility computation period shall shift to the Plan Year which includes the
first anniversary of the date on which the Employee first performed an Hour of
Service.  An Employee who is credited
with the required Hours of Service (as set forth in the Adoption Agreement) in
both the initial computation period (or the computation period beginning after
a one-year Break-in-Service) and the Plan Year which includes the first
anniversary of the date on which the Employee first performed an Hour of
Service, shall be credited with two (2) Years of Service for purposes of
eligibility to Participate.


 


If Breaks-in-Service and
Years of Service are computed under the Elapsed Time Method, then subsequent
computation periods shall begin on the anniversary date of the initial computation
period.


 


2.03.                     Years of Service. 
All Years of Service with the Employer are counted for purposes of
satisfying the eligibility requirements.


 


Years of Service with any
corporation, trade or business which is a member of a controlled group of corporations
or under common control (as defined by Code sections 414(b) and 414(c)) or is a
member of an affiliated service group (as defined by Code section 414(m))
shall be recognized, or any other entity required to be aggregated with the
Employer pursuant to Code section 414(o). 
Service shall also be credited for an Employee to the extent required
under Code sections 414(n) or (o), where such Employee is considered an
Employee of an Affiliate, and as may be provided in the Adoption Agreement.


 


2.04.                     Commencement and Termination of
Participation.


 


(a)                                  Application
for Participation.  In
order to become a Participant hereunder, each Eligible Employee shall make
application to the Employer for participation in the Plan and agree to the
terms hereof. Upon the acceptance of any benefits under this Plan, such
Employee shall automatically be deemed to have made application and shall be
bound by the terms and conditions of the Plan and all amendments hereto.


 


(b)                                  Effective
Date of Participation.  Each Employee
shall become a Participant as of the next Entry Date subsequent to the Employee
fulfilling the eligibility requirements specified in the Adoption Agreement of
this Plan.


 


(c)                                  Determination
of Eligibility.  The
Plan Administrator shall determine the eligibility of each Employee for
participation in the Plan based upon information furnished by the
Employer.  Such determination shall be
conclusive and binding upon all persons, as long as the same is made pursuant
to the Plan and the ERISA.  Such
determination shall be subject to review per Section 7.14.


 


(d)                                  Forms
for Participation. 
The Plan Administrator shall notify each Employee who becomes a
Participant and provide him with such forms which are necessary for the payment
of benefits and designation of a Beneficiary. 
Before any contributions shall be made to the Plan on behalf of a
Participant, the Participant must execute such forms as to evidence a Salary
Deferral Election. If an Employee who is not a Participant wishes to make a
Rollover Contribution to the Plan, or a Plan-to-Plan Transfer is proposed to be
made to the Plan on his behalf, such Employee must execute such forms as the
Plan Administrator shall require prior to any such Rollover Contribution or
Plan-to-Plan Transfer being accepted by the Plan Administrator on behalf of the
Plan.  Provided, however, that the
Adoption Agreement allows such Rollover Contributions and/or Plan-to-Plan
Transfers.


 


(e)                                  Reemployment.  A Participant or former Participant who
Separates from Service with the Employer, and who subsequently is reemployed by
the Employer, shall become a Participant and be eligible to participate in the
Plan as of his reemployment commencement date.


 


(1) In the event such
Employee returns to Service prior to incurring a one-year Break-in-Service, such
Employee shall participate immediately upon reemployment.


 


(2)                                  In
the event such Employee returns to Service after incurring a one-year
Break-in-Service, such Employee shall be eligible to participate upon the
earlier of the next Entry Date or the date a new Salary Deferral Agreement may
be executed.


 


(f)                                    Termination
of Eligibility.


 


(1) In the event a Participant shall go from a
classification of an Eligible Employee to an ineligible Employee, such Former
Participant shall continue to vest in his interest in the Plan for each Year of
Service completed while a noneligible Employee, until such time as his
Participant’s Account shall be forfeited or distributed pursuant to the terms
of the Plan. Additionally, his interest in the Plan shall continue to share in
the earnings of the Trust Fund.


 


12

















 


(2) In the event a Participant is no longer a
member of an eligible class of Employees and becomes ineligible to participate
but has not incurred a one-year Break-in-Service, such Employee will
participate immediately upon returning to an eligible class of Employees.


 


(3) In the event an Employee who is not a member
of an eligible class of Employees becomes ineligible to participate and has
incurred a one-year Break-in-Service, such Employee shall be eligible to
participate upon the next date a Salary Deferral Agreement may be executed upon
returning to an eligible class of Employees.


 


(g)                                 Inclusion
of an Ineligible Employee. 
If, in any Plan Year, any person who should not have been included as a
Participant in the Plan is erroneously included and discovery of such incorrect
inclusion is not made until after a contribution for the year has been made,
the Employer shall not be entitled to recover the contribution made with
respect to the ineligible person regardless of whether or not a deduction is
allowable with respect to such contribution. 
In such event, the amount contributed with respect to the ineligible
person shall constitute a Forfeiture (except for Salary Deferral Contributions
which shall constitute an excess elective deferral amount described in Code
sections 401(a)(30) and 402(g)(1) and (2), and which shall be distributed to
the ineligible person, adjusted for any gain or loss) for the Plan Year in
which the discovery is made.


 


(h)                                 Omission
of an Eligible Employee. 
If, in any Plan Year, any person who should be included as a Participant
in the Plan is erroneously omitted and such omission is not discovered until
after a contribution is made by the Employer for the Plan Year, the Employer
shall make a subsequent contribution if necessary after the application of
Article III.  Such contribution
shall be made regardless of whether or not it is deductible in whole or in part
in any taxable year under the applicable provisions of the Code.  Such contribution shall not be adjusted for
any unrealized gain or loss.  Such
contribution may be made from Forfeitures if the Adoption Agreement permits the
use of Forfeitures to either reinstate previously forfeited amounts or to
reduce the Employer’s contributions under the Plan.  However, this paragraph shall not apply to Salary Deferral
Contributions.


 


2.05.                     Acquisitions.


 


(a)                                  In
general.  If an
employer becomes a member of a company or group described in
subsection (b), (c), (m), or (o) of Code section 414 by reason of
acquisition of or by the Employer, and if the Employer so approves, such
acquired employer shall adopt the Plan as a Participating Employer within the
time period described in subparagraph (b) below, unless such employer can be
excluded from adopting the Plan for a reason permitted under Code
section 410(b), and provided further that said employer elects not to
adopt the Plan as a Participating Employer.


 


(b)                                  Entry
Date.  The acquired
Employer shall adopt the Plan and the Employer shall set an Entry Date for its
eligible Employees within the Transition Period. The term Transition Period means the
period:


 


(1) beginning on the date such company or group is
acquired, and


 


(2) ending on the last day of the first Plan Year
beginning after the date of such change.


 


(c)                                  Eligibility
Requirements.  On the
first Entry Date set by the Employer for any acquired company or group referred
to in  Section 2.05(a), the
eligibility requirements that were applicable for the initial enrollment shall
be applicable for all persons who are members of such company or group, and for
all succeeding Entry Dates, the eligibility requirements applicable after the
initial enrollment shall be applicable for all persons who are members of such
company or group.


 


2.06.                     Employees Excluded From
Participation.  Unless otherwise provided
in the Adoption Agreement, the Employees not eligible to participate in the
Plan shall be those Employees who:


 


(a)                                  have not attained the
age specified in the Adoption Agreement;


 


(b)                                  have not completed
the period of Service specified in the Adoption Agreement;


 


(c)                                  are included in a
unit of Employees covered by a collective bargaining agreement between the
Employer and Employee representatives (for this purpose, “Employee
representatives” does not include any organization more than half of whose
members are Employees who are owners, officers, or executives of the Employer),
if retirement benefits were the subject of good faith bargaining and if two
percent (2%) or less of the Employees who are covered pursuant to that
agreement are professionals as defined in section 1.410(b)-9 of the
Regulations;


 


(d)                                  are nonresident
aliens (within the meaning of Code section 7701(b)(1)(B)), and who receive
no Earned Income (within the meaning of Code section 911(d)(2)) from the
Employer (or an Affiliate), which constitutes income from sources within the
United States (within the meaning of Code section 861(a)(3)).


 


13

















 


ARTICLE III.  CONTRIBUTIONS.


 


3.01.                     Discretionary Contributions.


 


(a)                                  In
general.  If elected by the Employer
in the Adoption Agreement, the Employer may make Discretionary Contributions to
the Plan in such amounts and at such times as the Employer deems
appropriate.  The amount of any such
Contribution shall be determined annually by the Employer on a discretionary
basis, unless otherwise stipulated in the Adoption Agreement.


 


(b)                                  Contribution
date.  Any
Discretionary Contribution for a Plan Year shall be contributed and paid over
to the Trustee not later than the date prescribed by law for filing of the
Employer’s federal income tax return (including extensions thereof) for the
Employer’s taxable year ending with or within such Plan Year.


 


(c)                                  Miscellaneous
rules.  In determining
the amount of Discretionary Contributions to the Plan, the Employer shall be
entitled to rely upon an estimate of the total Compensation for all
Participants, and of the amounts contributed by it.  The Employer’s determination of such Discretionary Contributions
shall be binding on all Participants, the Plan Administrator and the Trustee.


 


3.02.                     Salary Deferral Election. 
Each Participant may elect to defer receipt of his
Compensation, up to a limit specified in the Adoption Agreement and the other
provisions of this Plan, and to have that amount withheld from amounts due to
him from the Employer, paid to the Plan and credited to the Participant’s
Salary Deferral Account.  This election
shall be made as follows: For the first Plan Year following or coincident with
the Effective Date of this Plan (if this is a newly established plan), the
election shall be made as soon as administratively practicable and shall be
valid for the remainder of the Plan Year. Thereafter, the election shall be in
effect for the period of time designated in the Salary Deferral Agreement, and
shall be subject to the provisions of Sections 3.03 and 3.04.  The availability of elective deferrals
(Salary Deferral Contributions) under the Plan shall not discriminate in favor
of Highly Compensated Employees.


 


If provided for in the Adoption Agreement, the Employer may
automatically defer a percentage of Compensation identified in the Adoption
Agreement for any Employee eligible to participate who (1) has not made an
election to defer a portion of Compensation and (2) has not affirmatively opted
out of the Plan.  Participants subject
to this automatic enrollment process will be given prior written notice and a
reasonable opportunity to take affirmative action to either elect to defer a
portion of Compensation or elect not to participate in the Plan.


 


3.03.                     Salary Deferral Agreement.


 


(a)                                  In
general.  Each Plan
Year, a Participant may elect to enter into a written Salary Deferral Agreement
with the Employer which shall be applicable to a specified number of payroll
periods within the Plan Year following the date of such agreement.  The terms of any such Salary Deferral
Agreement shall provide that the Participant agrees to accept a reduction in salary
from the Employer equal to any whole percentage of his Compensation per payroll
period, or a fixed dollar amount, or some combination thereof, not to exceed
either:  (1) the percentage specified in
the Adoption Agreement for Salary Deferral Agreement for the Plan Year or (2)
the dollar limit contained in Code section 402(g) in effect at the
beginning of the calendar year. A Participant’s Salary Deferral Contributions
for a calendar year under the Plan, plus the Participant’s elective
contributions under all other plans, contracts and arrangements of the
Employer, shall not exceed the limit imposed by Code section 402(g) for
the taxable year beginning in such calendar year.  In consideration of such agreement, the Employer shall make a
Salary Deferral Contribution to the Participant’s Salary Deferral Account on
behalf of the Participant for such Plan Year in an amount equal to the total
amount by which the Participant’s Compensation from the Employer was reduced
during the Plan Year pursuant to Salary Deferral Agreement.


 


(b)                                  Governing
rules.  Salary
Deferral Agreement shall be governed by the following:


 


(1) A Salary Deferral Agreement shall apply to
each payroll period during which an effective Salary Deferral Agreement is on
file with the Employer and shall apply to the Plan Year.


 


(2) Unless otherwise provided in the Adoption
Agreement, a Salary Deferral Agreement shall be subject to change twice each
Plan Year.  First, for the six-month
period beginning on the first day of the Plan Year and second, for the
six-month period beginning on the first day of the Plan Year’s semi-annual
anniversary.  However, a Salary Deferral
Agreement may be canceled prospectively at any time.


 


(3) Unless otherwise specified in the Adoption
Agreement, if a Participant becomes ineligible for the Plan because of a change
in job classification, the Salary Deferral Agreement shall be revoked effective
the date of such change.


 


(4) An Employee who has become a Participant as a
result of the application of Section 2.04(f) to his circumstances, shall
be eligible to establish a Salary Deferral Agreement on or about the first
Entry Date following his change of status.


 


(5) If provided for in the Adoption Agreement, a
separate Salary Deferral Agreement shall apply to such portion of a
Participant’s Compensation as shall be paid as bonus amounts, as designated or
identified in the Adoption Agreement. 
In the event that the Adoption Agreement provides for a separate Salary
Deferral Agreement be applicable for any such bonus amounts, such separate
Salary Deferral Agreement may be provided for in a separate form or in the same
form as the Salary Deferral Agreement which is applicable for Compensation not
paid as a bonus amount.


 


(c)                                  Time
of Payment of Salary Deferral Contributions.  Salary Deferral Contributions accumulated
through payroll deductions shall be paid to the Trustee as of the earliest date
on which such contributions can reasonably be segregated from the Employer’s
general assets, but in any event within fifteen (15) business days of the month
after the month in which the contributions are received by the Employer.  This provision does not apply to transfers
from nonqualified plans.  The provisions
of Department of Labor Regulations section 2510.3-102 are


 


14

















 


incorporated
herein by reference.  Furthermore, any
additional Employer contributions which are allocable to the Participant’s
Salary Deferral Account for a Plan Year shall be paid to the Plan no later than
the 12-month period immediately following the close of such Plan Year.


 


3.04.                     Salary Deferral Agreement
Limitations.


 


(a)                                  Employer’s
right to amend the Salary Deferral Agreement.  The Employer may limit, revoke, or amend its
agreement to make tax-deferred contributions under Section 3.03 on behalf
of any Participant at any time, but only if it determines that such limitation,
revocation or amendment is necessary under one of the following circumstances:


 


(1) to insure that any nondiscrimination test
under Article III is met for such Plan Year; or


 


(2) to insure that a Participant’s Annual Addition
for any Limitation Year shall not exceed the Maximum Permissible Amount; or


 


(3) that the individual limit on Salary Deferral
Contributions described in Section 3.06 is not exceeded.


 


(b)                                  Determining
taxable income.  If a
Participant is prevented from making a portion of his tax-deferred savings
contributions due to a permissible limitation, revocation or amendment by the
Employer, such portion shall be considered taxable income to the Participant in
the tax year for which the contribution was made and after appropriate taxes
have been withheld shall be returned to the Participant.


 


3.05.                     Actual Deferral Percentage Test.


 


(a)                                  In general.  For each Plan Year, the total
contributions to a Participant’s Salary Deferral Account shall satisfy one of
the following tests pursuant to Code section 401(k)(3) and
section 1.401(k)-1(b)(2) of the Regulations, which are herein incorporated
by reference:


 


(1) The Actual Deferral Percentage for the Highly
Compensated Participant Group shall not be more than the Actual Deferral
Percentage of the Nonhighly Compensated Participant Group multiplied by 1.25;
or


 


(2) The excess of the Actual Deferral Percentage
for the Highly Compensated Participant Group over the Actual Deferral
Percentage for the Nonhighly Compensated Participant Group shall not be more
than two percentage points. Additionally, the Actual Deferral Percentage for
the Highly Compensated Participant Group shall not exceed the Actual Deferral
Percentage for the Nonhighly Compensated Participant Group multiplied by 2.


 


(b)                                  Definition
of Actual Deferral Percentage.  For the purposes of this Section 3.05, Actual Deferral
Percentage means, with respect to the Highly Compensated Participant Group and
Nonhighly Compensated Participant Group for a Plan Year, the average of the
ratios, calculated separately for each Participant in such group (each
Participant’s “Actual Deferral Ratio”) and expressed as a percentage, of the
amount of Salary Deferral Contributions allocated to each Participant’s Salary
Deferral Account (unreduced by any relevant distributions) for such Plan Year,
to such Participant’s 414(s) Compensation for such Plan Year, and shall be
calculated to the nearest one-hundredth of one percent (0.01%) of a
Participant’s 414(s) Compensation.


 


(c)                                  Prior
Year Testing or Current Year Testing Data. 
Effective for Plan Years beginning after December 31,
1996, the Actual Deferral Percentage of the Nonhighly Compensated Participant
Group shall be the preceding Plan Year data (“Prior Year Testing”). The
Employer may elect to use the Plan Year (“Current Year Testing”) rather than
the Prior Year Testing except that if the Current Year Testing election is
made, it may not be changed unless the Employer satisfies the requirements for
changing to Prior Year Testing as set forth in Internal Revenue Service Notice
98-1 (or superseding guidance).


 


In the case of a Plan’s
first Plan Year (other than a successor plan), the amount taken into account as
the Actual Deferral Percentage of the Nonhighly Compensated Participant Group
for the Prior Year Testing shall be 3%, unless the Employer elects to use
Current Year Testing and, therefore, uses the Actual Deferral Percentage of the
Nonhighly Compensated Participant Group during the first Plan Year.


 


Under transition relief
provided by Internal Revenue Service Notice 97-2, the Employer may elect to use
the Current Year Testing method for the 1997 Plan Year, and will be permitted
to use Prior Year Testing for the 1998 and 1999 Plan Year without receiving
approval from the Internal Revenue Service.


 


The Employer shall elect
the Prior Year Testing or Current Year Testing method in the Adoption
Agreement. The Employer  may elect to
change the testing method as provided for in Internal Revenue Service Notice
98-1 or its subsequent modification.


 


(d)                                  Actual
Deferral Percentage Test Safe Harbor Contributions.   If elected in the Adoption Agreement, an Employer shall be treated
as satisfying the Actual Deferral Percentage Test under Code
section 401(k)(3)(A)(ii) if:


 


(1)                                  The
Employer makes Matching Contributions on behalf of each Nonhighly Compensated
Participant and, at the Employer’s discretion, to the Highly Compensated
Employees in an amount equal to:


 


(A)  100% of the Salary Deferrals of the
Nonhighly Compensated Participant to the extent such Matching Contributions do
not exceed 3% of the Participant’s Compensation, and 50% of the Salary
Deferrals of the Nonhighly Compensated Participant to the extent that such
Salary Deferrals exceed 3% but do not exceed 5% of the Participant’s
Compensation.


 


(B)                                Notwithstanding
the above, an Employer shall not satisfy the Actual Deferral Percentage Test
under this nondiscrimination safe harbor if the rate of Matching Contribution
with respect to any Salary Deferrals of a Highly Compensated Employee at any
rate of Salary Deferral is greater than that with respect to a Nonhighly
Compensated Participant.


 


15

















 


(C)                                The
Plan shall not fail to satisfy the nondiscrimination safe harbor under Section 3.05(d)(1)
if (i) the rate of the Employer’s Matching Contribution does not increase as an
Participant’s rate of Salary Deferrals increase, and (ii) the aggregate amount
of Matching Contributions at such rate of Salary Deferral is at least equal to
the aggregate amount of Matching Contributions which would be made if Matching
Contributions were made on the basis of the percentages in
Section 3.05(d)(1)(A) above.


 


(2)                                  As
an alternative to the nondiscrimination safe harbor in Section 3.05(d)(1)
above the Employer may satisfy the nondiscrimination safe harbor if the
Employer is required, without regard to whether the Participant makes a Salary
Deferral, to make a contribution to a defined contribution plan, on behalf of
each Nonhighly Compensated Participant, in an amount equal to at least 3% of
the Participant’s Compensation.


 


(3)   Each Employee eligible to participate in
the Plan is, within a reasonable period before any year, given written notice
of the Employee’s rights and obligations under the nondiscrimination safe
harbor which (A) is sufficiently accurate and comprehensive to apprise the
Employee of such rights and obligations, (B) is written in a manner calculated
to be understood by the average Employee eligible to participate; and (C) each
Eligible Employee has at least 30 days following receipt of the notice to make
or modify their Salary Deferral Agreement.


 


(4)  The Employer contributions made under
Section 3.05(d)(1) or 3.05(d)(2) are not distributable to Participants or
their Beneficiaries until Separation from Service, death or Disability or
termination of  the Plan or disposition
of assets or subsidiary, and the Participant’s right to his accrued benefit
derived from Employer contributions is nonforfeitable at all times.


 


(e)                                  Two or more cash or
deferred plans. 
If two (2) or more plans which include cash or deferred arrangements are
considered one plan for the purposes of Code section 401(a)(4) or 410(b)
(other than the average benefits test under Code section 410(b)(2)(A)(ii),
as in effect for Plan Years beginning after December 31, 1988), the cash
or deferred arrangement included in such plans may be treated as one
arrangement for purposes of determining whether or not such arrangements
satisfy Code sections 401(a)(4), 410(b) and 401(k). In such a case, the cash or
deferred arrangements shall be treated as one arrangement and as one plan for
purposes of this Section and Code sections 401(a)(4), 410(b) and
401(k).  In the event  that two or more plans of the Employer which
include cash or deferred arrangements are permissively aggregated for purposes
of Code section 401(k), such aggregated plans must satisfy this Section,
and Code sections 401(k), 401(a)(4) and 410(b) as though such plans were a
single plan.  For Plan Years beginning
after December 31, 1989, plans shall be aggregated under this paragraph
(f) only if they have the same plan year and use the same Actual Deferral
Percentage Testing method. 
Notwithstanding the above, for Plan Years beginning after
December 31, 1988, an employee stock ownership plan described in Code
section 4975(e)(7) may not  be
combined with this Plan for purposes of determining whether the employee stock
ownership plan or this Plan satisfy this Section and Code sections
401(a)(4), 410(b) and 401(k).


 


(f)                                    Special rule for Highly
Compensated Participants. 
For the purposes of this Section, if a Highly Compensated
Participant is a Participant under two or more cash or deferred arrangements
(other than a cash or deferred arrangement which is part of  an employee stock ownership plan as defined
in Code section 4975(e)(7) for Plan Years beginning after
December 31, 1988) of the Employer or an Affiliate, all such cash or
deferred arrangements shall be treated as one cash or deferred arrangement for
the purpose of determining the Actual Deferral Percentage with respect to such
Highly Compensated Participant. 
However, for Plan Years beginning after December 31, 1988, if the
cash or deferred arrangements have different Plan Years, this paragraph shall
be applied by treating all cash or deferred arrangements ending with or within
the same calendar year as a single arrangement.


 


3.06.                     Individual Limitation on Salary
Deferral Contributions.


 


(a)                                  Elective
Deferrals or Salary Deferrals shall mean any
Employer Contributions made to the Plan at the election of the Participant, in
lieu of cash Compensation, and which was not currently available to the
Participant at the time of the election to defer, and shall include
contributions made pursuant to a Salary Deferral Agreement or other deferral
mechanism.  A Participant’s Elective
Deferrals for any taxable year are the sum of all employer contributions made
on behalf of such Participant pursuant to any qualified cash or deferred
arrangement as described in Code section 401(k), any Simplified Employee
Pension Plan cash or deferred arrangement as defined in Code
section 408(k) to the extent such contributions are not includible in the
individual’s gross income for the taxable year on account of Code
section 402(h)(1)(B), any eligible deferred compensation plan under Code
section 457, any plan as described under Code section 501(c)(18), and
any employer contributions made on behalf of a Participant for the purchase of
an annuity contract under Code section 403(b) pursuant to a salary deferral
agreement.


 


For purposes of
determining the dollar limitation under Code section 402(g), any deferrals
properly distributed as excess Annual Additions or returned as Excess
Contributions shall not be included.


 


(b)                                  Excess
Deferrals or Excess Salary Deferrals shall mean those
Elective Deferrals that are includible in a Participant’s gross income to the
extent such Participant’s Elective Deferrals for a calendar year exceed the
dollar limitation under Code section 402(g), as determined by the
Secretary of the Treasury for a calendar year. 
Such limitation shall apply to the individual Participant and shall
apply to all qualified cash or deferred arrangements, as described in Code
section 401(k), any Simplified Employee Pension Plan cash or deferred
arrangement as defined in Code section 408(k) to the extent such
contributions are not includible in the individual’s gross income for the
taxable year on account of Code section 402(h)(1)(B), any eligible
deferred compensation plan under Code section 457, any plan as described
under Code section 501(c)(18), and any employer contributions made on
behalf of a Participant for the purchase of an annuity contract under Code
section 403(b) pursuant to a salary deferral agreement.


 


(c)                                  Date
when Excess Deferrals are to be distributed.  For any individual who has Excess Deferrals
or Excess Salary Deferrals under this Plan, not later than the first
April 15 following the close of the individual’s taxable year, the Plan
Administrator shall distribute to such individual the amount of his Excess
Deferral (and any income allocable to such amount).


 


16

















 


(d)                                  Designation
of Excess Deferrals.  An
individual who has Excess Deferrals for a taxable year may receive a corrective
distribution of all or a portion of such deferrals during such taxable year or
by April 15 of the next taxable year. 
Such corrective distribution may be made only if all of the following
conditions are satisfied:


 


(1) The individual designates the distribution
from this Plan as an Excess Deferral prior to April 15 of the next taxable
year;


 


(2) The correcting distribution is made after the
date on which the Plan received the Excess Deferral; and


 


(3) The Plan designates the distribution as a
distribution of Excess Deferrals.


 


In order to distribute
Excess Deferrals pursuant to this paragraph, such individual must make such
designation in writing and the individual must certify or otherwise establish
that the specified amount is an Excess Deferral.


 


(e)                                  Income.  The income allocable to Excess Deferrals or
Excess Salary Deferrals is equal to the sum of the allocable gain or loss for
the taxable year of the individual and the allocable gain or loss for the
period between the end of the taxable year and the date of distribution, and is
determined by multiplying the Excess Deferrals for the taxable year of the
individual by a fraction.  The numerator
of the fraction is the amount of the total gain or loss allocated to the
individual for the taxable year. The denominator of the fraction is the total
balance of the Employee at the end of the taxable year, reduced by the gain
allocable to such total amount for the taxable year and increased by the loss
allocable to such total amount for the taxable year.


 


Effective for Plan Years
beginning on or after January 1, 1994, lag period income or gap income
(the income attributable to such Excess Contributions for the period between
the end of the Plan Year, to which such Excess Contributions relate, and the
date of distribution) shall not be required to be calculated.


 


(f)                                    Lag
period income.  If,
however, the lag period or gap period income is to be calculated, (if the
Adoption Agreement provides), the allocable income for the period between the
end of the taxable year and the distribution date is equal to ten percent (10%)
of the income allocable to Excess Deferrals for the taxable year (as calculated
under paragraph (e)) multiplied by the number of calendar months that have
elapsed since the end of the taxable year. 
A distribution occurring on or before the fifteenth day of the month
shall be treated as having been made on the last day of the preceding month,
and a distribution occurring after such fifteenth day shall be treated as
having been made on the first day of the next subsequent month.


 


(g)                                 Coordination
with Excess Contributions. 
Excess Deferrals to be distributed to a Participant for his taxable year
shall be reduced by Excess Contributions previously distributed for the Plan
Year beginning in such taxable year.


 


(h)                                 Notification
by Employee.  If the Plan is
not notified by a Participant that such Participant’s limitation of Salary
Deferral Contributions (under Code section 402(g)) as described in
paragraphs (a) and (b) of this Section 3.06 has been exceeded, the Plan
shall assume that such limitation has not been exceeded by such Participant’s
Salary Deferral Contributions to the Plan.


 


3.07.                     Matching Contributions.  If elected by the Employer in the Adoption Agreement, the
Employer can make a Matching Contribution to the Plan on behalf of each
Participant who makes a Salary Deferral Contribution or Nondeductible Employee
Contribution for that Plan Year. The amount of such Matching Contributions
shall be calculated for each Participant as specified by the Employer in the
Adoption Agreement.  All Matching
Contributions for any given Plan Year shall be contributed to the Trust by the
Employer within the time prescribed by law, including extensions of time, for
the filing of the Employer’s federal income tax return for the Employer’s
fiscal year.  The availability of
Matching Contributions (if applicable) and Nondeductible Employee Contributions
(if applicable) under the Plan shall not discriminate in favor of Highly
Compensated Employees.


 


3.08.                     Nondeductible Employee Contributions.


 


(a)                                  In
general.  If the Adoption
Agreement provides for Nondeductible Employee Contributions, a
Participant may, at his option, make such Contributions to the Plan in
cumulative amounts not to exceed ten percent (10%) of his Compensation for the
Plan Year, or such percentage as specified in the Adoption Agreement. The
amount of such Contributions, if any, shall be designated by the Participant on
a form prescribed by the Plan Administrator. 
The method of payment of such Contributions shall be by payroll
withholding unless otherwise specified in the Adoption Agreement.


 


(b)                                  Recharacterization
of Excess Contributions.  If Nondeductible
Employee Contributions are provided for in the Adoption Agreement, in any Plan
Year in which a Participant shall have an Excess Contribution amount, such
Participant may elect to treat such excess amounts pursuant to the provisions
of this subsection (b), or have such amounts distributed pursuant to Code
section 401(k)(3) and the applicable regulations.


 


A Participant may
treat his or her Excess Contribution amounts, for the Plan Year for which such
Excess Contributions relate, as an amount distributed to such Participant and
subsequently contributed by such Participant to the Plan.  Contributions which are treated in the aforementioned
manner shall be referred to as “Recharacterized” amounts.  Recharacterized amounts shall be
nonforfeitable and subject to the same distribution requirements as Salary
Deferral amounts.  Notwithstanding the
foregoing, amounts may not be Recharacterized by a Highly Compensated
Participant to the extent that such amounts in combination with other
Nondeductible Employee Contributions would exceed any stated limit under
Sections 3.07 and 3.08(a) (determined prior to applying Code
section 401(m)(2)(A) and Section 3.09).


 


Recharacterization must
occur no later than two and one-half (2 1/2) months after the last day of the
Plan Year in which such Excess Contributions arose and is deemed to occur no
earlier than the date the last Highly Compensated Participant is informed in
writing of the amount Recharacterized and the consequences thereof.  Recharacterized amounts shall be taxable to
a Participant for a Participant’s tax year in which such Participant would have
received such amounts in cash.


 


17

















 


3.09.                     Actual Contribution Percentage Test.


 


(a)                                  In
general.  For Plan
Years beginning after December 31, 1986, Nondeductible Employee
Contributions and Matching Contributions shall satisfy the tests defined in
Code section 401(m), and sections 1.401(m)-1(b)(1) and 1.401(m)-2 of
the  Regulations, which are hereby
incorporated by reference. For purposes of Sections 3.09 and 3.10 only, Matching
Contribution means any Employer Contribution made to the Plan on
account of a Salary Deferral Contribution made to the Plan, and any Forfeiture
directly or indirectly allocated on the basis of Salary Deferral Contributions
or Matching Contributions.  The tests
are as follows.


 


(1) The Actual Contribution Percentage for the
Highly Compensated Participant Group shall not exceed the greater of:


 


(A) 125% of such percentage for the Nonhighly
Compensated Participant Group for the preceding Plan Year, or


 


(B) the lesser of 200% of such percentage for the
Nonhighly Compensated Participant Group for the preceding Plan Year, or such
percentage for the Nonhighly Compensated Group for the preceding Plan Year plus
two (2) percentage points.


 


The Employer may elect to
use Current Year Testing rather than Prior Year Testing except that if the Current
Year Testing election is made, it may not be changed unless the Employer
satisfies the requirements for changing to Prior Year Testing as set forth in
Internal Revenue Service Notice 98-1 (or its subsequent modification), or as
provided by the Internal Revenue Service.


 


In the case of a Plan’s
first Plan Year (other than a successor plan), the amount taken into account as
the Actual Contribution Percentage of the Nonhighly Compensated Participant
Group for the Prior Year Testing shall be 3%, unless the Employer elects to use
Current Year Testing and, therefore, uses the Actual Contribution Percentage of
the Nonhighly Compensated Participant Group during the first Plan Year.


 


(b)                                  Nondiscrimination
Safe Harbor.  A Plan shall be
treated as satisfying the Actual Contribution Percentage Test under Code
section 401(m)(2) if:


 


(1)                                  The
Employer satisfies the nondiscrimination safe harbor for the Actual Deferral
Percentage Test in Section 3.05(d), and


 


(A)                              The
Matching Contributions made on behalf of any Participant are not made with
respect to a Participant’s Salary Deferrals in excess of 6% of the
Participant’s Compensation, and


 


(B)                                The
rate of a Participant’s Matching Contribution does not increase as the rate of
a Participant’s Salary Deferrals increase, and


 


(C)                                The
Matching Contribution with respect to any Highly Compensated Employee at any
rate of Salary Deferral Contributions is not greater than that with respect to
a Nonhighly Compensated Participant; or


 


(2)                                  The
Plan satisfies the contribution requirements of Code section 401(k)(11)(B)
or 401(k)(12), the vesting requirements of Code section 401(k)(12)(E)(i),
and the notice requirement of Code section 401(k)(12)(D).


 


3.10.                     Limitation of Multiple Use of Alternate Limit.


 


(a)                                  In
general.  For Plan Years beginning
after December 31, 1988, multiple use of the alternate limitation occurs
if the sum of the Actual Deferral Percentage of the entire group of Highly
Compensated Participants and the Actual Contribution Percentage of said
Participants exceeds the Aggregate Limit described below.


 


(b)                                  Aggregate
Limit.  The Aggregate
Limit is the greater of:


 


(1)   The
sum of:


 


(A) 1.25 times the greater of the Actual Deferral
Percentage or the Actual Contribution Percentage, and


 


(B) Two percentage points plus the lesser of the
Actual Deferral Percentage or the Actual Contribution Percentage.  In no event, however, shall this amount
exceed twice the lesser of the Actual Deferral Percentage or the Actual
Contribution Percentage; or


 


(2)  The
sum of:


 


(A) 1.25 times the lesser of the Actual Deferral
Percentage or the Actual Contribution Percentage, and


 


(B) Two percentage points plus the greater of the
Actual Deferral Percentage or the Actual Contribution Percentage.  In no event, however, shall this amount
exceed twice the greater of the Actual Deferral Percentage or the Actual
Contribution Percentage.


 


(3)  
Correction of Multiple Use:


 


(A) More than one plan: If a multiple use of the
alternate limitation occurs with respect to two or more plans or arrangements
maintained by the Employer, such multiple use shall be corrected by reducing
the Actual Deferral Percentage of Highly Compensated Participants in the manner
described in subparagraph (C) below.


 


18

















 


(B) To the extent that a Participant has unmatched
Salary Deferral Contributions, the required reductions shall be from Salary
Deferral Contributions; thereafter, Salary Deferral Contributions and Matching
Contributions shall be reduced on a pro-rata basis.


 


(C) The amount of the reduction to the Actual
Deferral Percentage of the entire group of Highly Compensated Participants
shall be calculated in the manner described in the Code section 401(k)(2)
regulations, unless otherwise stipulated in the Adoption Agreement, so that there
is no multiple use of the alternate limitation.  Unless otherwise specified in the Adoption Agreement, only the
Actual Deferral Percentages of all Highly Compensated Participants who are
eligible in both the arrangement subject to Code section 401(k) and the
Plan subject to Code section 401(m) shall be reduced.


 


3.11.                     Qualified Nonelective and Matching Contributions.


 


(a)                                  Allocation
of Qualified Nonelective Contributions.  If the Employer has elected to use Current
Year Testing, then on behalf of each Nonhighly Compensated Participant, the
Employer may, at its sole discretion, make a Qualified Nonelective Contribution
equal a percentage between 0% to 10% of each eligible individual’s
Compensation, the exact percentage to be determined each year by the Employer.


 


(1) The Employer shall
have the sole discretion to designate which Nonhighly Compensated Participants,
if any, shall receive a Qualified Nonelective Contribution, if any, for any
Plan Year.


 


(2) In any Plan Year, the
Employer may designate which test, either as described in Section 3.05 or
as described in Section 3.09 to which such Qualified Nonelective
Contributions, if any, shall be applied.


 


(b)                                  Actual
Deferral Percentage Test. 
All or part of the Qualified Nonelective Contributions and Qualified
Matching Contributions made with respect to Participants may be treated as
Salary Deferral Contributions for purposes of the Actual Deferral Percentage
Tests set forth in Section 3.05. 
Qualified Matching Contributions and Qualified Nonelective Contributions
used to satisfy the Actual Deferral Percentage shall be disregarded for
purposes of satisfying the Actual Contributions Percentage Tests set forth in
Section 3.09. Qualified Nonelective Contributions and Qualified Matching
Contributions used to satisfy the Actual Deferral Percentage Tests shall be
deemed Salary Deferral Contributions.


 


(c)                                  Actual
Contribution Percentage Test. 
Qualified Matching Contributions used to satisfy the Actual
Deferral Percentage Test are not subject to the Actual Contribution Percentage
Test.  All or part of the Qualified
Nonelective Contributions made with respect to Participants in the Plan, and
which are not used to satisfy the Actual Deferral Percentage Test, may be used
to satisfy the Actual Contribution Percentage Test.  Qualified Nonelective Contributions used to satisfy the Actual
Contribution Percentage Test shall be deemed Matching Contributions.


 


(d)                                  Restrictions.  Qualified Matching Contributions and
Qualified Nonelective Contributions used to satisfy the Actual Deferral
Percentage Test shall not be taken into account in determining whether the
requirements of the Actual Contribution Percentage Test are satisfied.  Qualified Matching Contributions and
Qualified Nonelective Contributions used to satisfy the Actual Contribution
Percentage Test shall not be taken into account in determining whether the
requirements of the Actual Deferral Percentage Test are satisfied. Only
Qualified Matching Contributions and Qualified Nonelective Contributions made
for the Plan Year may be used for purposes of satisfying the Actual Deferral
Percentage Test and Actual Contribution Percentage Test for that same Plan
Year.


 


(e)                                  Return
of Excess Contributions. 
If Qualified Matching Contributions are used to satisfy the Actual
Deferral Percentage Test, and, as a result of the test for a given Plan Year,
there are Excess Contributions, then the distribution of the Excess
Contributions shall be as follows. 
First, all Salary Deferral Contributions that were not matched with
Qualified Matching Contributions shall be distributed, and then, if required,
the Qualified Matching Contributions deemed as Salary Deferral Contributions
and the remaining Salary Deferral Contributions shall be distributed pro-rata.


 


(f)                                    Employer
Election.  The Plan Administrator may elect, in
any Plan Year, to treat all or a part of the Employer’s Matching Contributions
for such Plan Year as a Qualified Matching Contribution subject to the
restrictions of this Section 3.11.


 


3.12.                     Rollover Contributions and Plan-to-Plan Transfers.  Unless prohibited in the Adoption Agreement,
the Plan may permit Rollover Contributions (as described in Plan
Section 1.60) and/or Plan-to-Plan Transfers, subject to Plan
Administrator’s sole discretion and approval and subject to the provisions of
this Section.


 


(a)                                  Rollovers. The Trustee
shall accept Rollover Contributions from any Employee, whether or not he is
otherwise a Participant in this Plan; provided, however, that the Plan
Administrator must first certify to the Trustee that such amount qualifies as a
Rollover Contribution.


 


(b)                                  Plan-to-Plan
Transfers.   The term
“Plan-to-Plan Transfer” means a transfer of assets between this Plan and
another qualified plan.  Unless
specifically prohibited in the Adoption Agreement, the Trustee may accept
Plan-to-Plan Transfers from another qualified plan under Code
section 401(a) if the funds so transferred were held for the benefit of a
person who is an Employee, whether or not a Participant, at the time of such
transfer, provided, however, that the Plan Administrator must first certify to
the Trustee (a) that such other employee benefit plan is qualified under Code
section 401(a), and (b) what portion, if any of the funds to be received
in a Plan-to-Plan Transfer were subject to restrictions on distributions
similar to those set forth in Code section 401(k)(2)(B) or
401(a)(11)(B)(iii)(III) while in the other qualified plan.  However, if the Plan-to-Plan Transfer is the
result of a merger or partial merger of another profit sharing plan qualified
under Code section 401(a), the Employer may amend the Plan to designate
the accounts to which the monies will be applied, within the applicable limits
of the law. Notwithstanding anything herein to the contrary, a transfer
directly to this Plan from another qualified plan (or a transaction having the
effect of such a transfer) shall only be permitted if it will not result in the
elimination or reduction of a Protected Benefit.


 


19

















 


(c)                                  Rollover
or Plan-to-Plan Transfer from Employer ESOP.  Unless specifically prohibited in the Adoption Agreement, the
Plan shall accept a Rollover or Plan-to-Plan Transfer from an Employer’s
employee stock ownership plan (“ESOP”), as defined in Code section 4975(e).  The portion of an Employee’s ESOP Account
which is eligible for “diversification” (as described in Code
section 401(a)(28)(B)) may be rolled over or transferred to the Plan at
the election of such Employee. Prior to approving such rollover or transfer,
the Plan Administrator shall ascertain that the amount which is to be rolled
over or transferred, in order to satisfy the “diversification” requirement of
Code section 401(a)(28)(B), is eligible for “diversification” under the
applicable provisions of the ESOP.


 


3.13.                     Return of Contributions. 
Employer Contributions shall not be returned to the Employer
except as described in Plan Sections 13.10 and 13.11.


 


However, any Salary Deferral Contributions that are returned under
Section 13.10 shall always be returned to the Employee on whose behalf
such contributions were made, and under no circumstances shall such Salary
Deferral Contributions ever revert to the Employer.  Any such returned Salary Deferral Contributions shall be adjusted
to include earnings on such returned contributions.


 


3.14.                     Owner-Employee Provisions.  If the Plan provides contributions or benefits for one or more
Owner-Employees who control both the business for which this Plan is
established and one or more other trades or businesses, this Plan and the plan
established for such other trades or businesses must, when looked at as a
single plan, satisfy Code sections 401(a) and (d) for the employees of this and
all other trades or businesses. If the Plan provides contributions or benefits
for one or more Owner-Employees who control one or more other trades or
businesses, the employees of the other trades or businesses must be included in
a plan which satisfies Code sections 401(a) and (d) and which provides
contributions and benefits not less favorable than provided for such
Owner-Employees under this Plan. For purposes of this Section, an
Owner-Employee, or two or more Owner-Employees, shall be considered to control
a trade or business if the Owner-Employee or two or more Owner-Employees
together, (1) own the entire interest in an unincorporated trade or business,
or (2) in the case of a partnership, own more than 50% of either the capital
interest or the profits interest in the partnership.  An Owner-Employee shall be treated as owning any interest in a
partnership which is owned, directly or indirectly, by a partnership which such
Owner-Employee, or two or more such Owner-Employees, are considered to control
within the meaning of the preceding sentence.


 


3.15.                     Other Nondiscrimination
Requirements.  Any other Employer Contributions made
to the Plan, other than Rollover Contributions, that are not subject to the
nondiscrimination tests set forth in either Sections 3.05, 3.09 or 3.10, shall
be allocated on the basis of a uniform formula.  Such uniform formula shall allocate contributions to every
Eligible Employee according to Compensation or such contributions shall be the
same dollar amount for each eligible Employee. Such formula shall be specified
in the Adoption Agreement.


 


3.16.                     Qualified Military Service.  Notwithstanding any provision of this Plan
to the contrary, effective December 12, 1994, contributions, benefits and
Service credit with respect to qualified military service will be provided in
accordance with Code section 414(u).


 


20

















 


ARTICLE IV. PARTICIPANT ACCOUNTS
AND ALLOCATIONS.


 


4.01.                     Establishment of Accounts.


 


(a)                                  Employer
Matching Account. If the Employer makes any Matching
Contributions to the Plan, the Plan Administrator shall establish an Employer
Matching Account for each Participant.


 


(b)                                  Employer
Discretionary Account. If the Employer makes any
Discretionary Contributions to the Plan, the Plan Administrator shall establish
an Employer Discretionary Account for each Participant.


 


(c)                                  Nondeductible
Employee Account.  .If the
Employer allows Nondeductible Employee Contributions in the Adoption Agreement,
the Plan Administrator shall establish a Nondeductible Employee Account for
each Participant who makes a Nondeductible Employee Contribution.


 


(d)                                  Unrelated
Rollover Account. If the Adoption Agreement allows Rollover
Contributions from plans unrelated to the Employer, the Plan Administrator
shall establish an Unrelated Rollover Account for each Employee who makes such
an Unrelated Rollover Contribution or for whose benefit such an Unrelated
Rollover is made to the Plan.


 


(e)                                  Related
Rollover Account.   If the Adoption
Agreement allows Related Rollover Contributions from plans related to the
Employer, the Plan Administrator shall establish a Related Rollover Account for
each Employee who makes such a Related Rollover Contribution or for whose
benefit such a Related Rollover is made to the Plan.


 


(f)                                    Plan-to-Plan
Transfer Account.   If the Employer allows Plan-to-Plan Transfers in the
Adoption Agreement, the Plan Administrator shall establish a Plan-to-Plan
Transfer Account for each Employee who makes a Plan-to-Plan Transfer or for
whose benefit a Plan-to-Plan Transfer is made to the Plan.


 


(g)                                 Salary
Deferral Account.  The Plan Administrator
shall establish a Salary Deferral Account for each Participant and for those
Employees who are not otherwise Participants but for whose benefit Plan-to-Plan
Transfers are made which include funds subject to the restrictions on
distribution set forth in Code section 401(k)(2)(B).


 


(h)                                 Qualified
Matching Contribution Account.   If the Employer makes any Qualified Matching Contributions
to the Plan, the Plan Administrator shall establish a Qualified Matching
Contribution Account for each Participant.


 


(i)                                    Qualified
Nonelective Contribution Account.   If the Employer makes any Qualified Nonelective
Contributions to the Plan, the Plan Administrator shall establish a Qualified
Nonelective Contribution Account for each Participant.


 


(j)                                    Forfeiture
Account.  If the Plan
reallocates Forfeitures to Participants in accordance with
Section 4.06(f)(3) or 4.06(f)(4), the Plan Administrator shall establish a
Forfeiture Account for each Participant.


 


(k)                                Predecessor
Employee Account.  An
Account established on behalf of each Participant pursuant to
Section 1.51.


 


(l)                                    Predecessor
Employer Account. An Account established on behalf of each Participant
pursuant to Section 1.52.


 


(m)                              Employer
Account. Shall mean the Employer Matching Account and the Employer
Discretionary Account of each Participant.


 


(n)                                 Rollover
Account.  Shall mean the
Unrelated Rollover Account and the Related Rollover Account of each
Participant.


 


4.02.                     Accounting Procedure for Allocations.


 


(a)                                  In
general.   As of each Valuation Date, the Plan Administrator shall:


 


(1) First, allocate, as necessary under this Plan,
to such Participant’s Employer Matching Account, Forfeitures to any Participant
who is entitled to have their Forfeitures restored;


 


(2) Next, allocate to each Participant’s Accounts
any Nondeductible Employee Contributions, Related and Unrelated Rollover
Contributions, Salary Deferral Contributions, Matching Contributions,
Discretionary Contributions and Plan-to-Plan Transfers that are to be allocated
as of the Valuation Date in accordance with this Article;


 


(3) Next, allocate all withdrawals, payments or
distributions made from such Participants’ Accounts since the next preceding
Valuation Date that have not been previously allocated;


 


(4) Next, debit Participants’ Accounts for
administrative fees paid, if any;


 


(5) Next, debit Participants’ Accounts for any
insurance or annuity premiums paid, if any, and credit with any dividends
received on insurance contracts;


 


(6) Next, use Forfeitures to reduce the Employer’s
Contributions, or allocate Forfeitures to Participants, as specified in the
Adoption Agreement;


 


21

















 


(7) Finally, allocate the net income or net loss
of the Trust Fund in accordance with the computation procedures set out in
Section 4.04.


 


(b)                                  Securities.  The Valuation Date shall also be the
inventory date for securities held by the Trust. The fair market value on the
inventory date shall be used for a valuation of the securities held by the
Trust. The respective Accounts of Participants are to be adjusted in accordance
with the valuation.


 


(c)                                  Insurance
Contracts.  Allocated life insurance
and/or annuity contracts, i.e., contracts which are purchased to provide
certain specified benefits for specific Participants, shall be presented on the
Plan’s financial statements in accordance with generally accepted accounting
principles.


 


4.03.                     Allocation of Participant Contributions.


 


(a)                                  Nondeductible
Employee Contributions. All Nondeductible Employee
Contributions shall be credited to the Nondeductible Employee Account of the
Participant making the contribution as of each Valuation Date.


 


(b)                                  Rollover
Contributions. All Rollover Contributions shall be credited to the
applicable Rollover Account of the Employee making the contribution as of each
Valuation Date.


 


(c)                                  Plan-to-Plan
Transfers.   All Plan-to-Plan
Transfers shall be credited to the Plan-to-Plan Transfer Account of such
Employee as of each Valuation Date. 
Notwithstanding the preceding, any portion of a Plan-to-Plan Transfer or
Rollover contribution that the Plan Administrator has certified to the Trustee
as having been subject to the restrictions on distribution set forth in Code
section 401(k)(2)(B) while in the other qualified plan shall be credited
to the Salary Deferral Account of the Employee, as of each Valuation Date.


 


4.04.                     Allocation of Net Income or Net Loss.


 


(a)                                  As of each Valuation
Date, the Trustee or its designee shall subtract all distributions and
withdrawals since the previous Valuation Date, add to each Account the amount
of the contributions, and allocate the net earnings and gains or losses of the
fund based on the individual account activity of each such Participant’s
Account during such period pursuant to a share accounting method under which
each Participant’s investments in the investment funds shall be accounted for
in actual shares purchased by the Plan contributions and allocated to the
Participant’s Account.  For this
purpose, the Trustee or its designee, shall adopt uniform rules which conform
to applicable law and generally accepted accounting practices.  However, notwithstanding the above, a
Participant shall cease to share in any earnings after Plan assets attributable
to his Account are transferred into a disbursement account pending sale or liquidation
of the Participant’s relevant investment funds and distribution of the proceeds
thereof.


 


(b)  
If the
Plan Administrator determines in making any valuation, allocation, or adding
interest to any Account under the provisions of the Plan that the strict
application of the provisions of the Plan will not produce an equitable and
nondiscriminatory allocation among the Accounts of the Participants, it may
modify any procedure specified in the Plan for the purpose of achieving an
equitable and nondiscriminatory allocation in accordance with the general
concepts of the Plan; provided, however, that any such modification shall not
reduce the Participant’s vested Account and shall be consistent with the
provisions of Code section 401(a). 
If the Plan Administrator in good faith determines that certain expenses
of administration paid by the Trustee during the Plan Year under consideration
are not general, ordinary, and usual and should not equitably be borne by all
Participants, but should be borne only by one or more Participants, for whom or
because of whom such specific expenses were incurred, the net earnings and
adjustments in value of the Accounts shall be increased by the amounts of such
expenses, and the Plan Administrator shall make suitable adjustments by
debiting the particular Account or Accounts of such one or more Participants;
provided, however, that any such adjustment must be nondiscriminatory and
consistent with the provisions of Code section 401(a).


 


(c)  
As of each Valuation Date, any net income or net loss of the Trust Fund
that is not attributable to (a) above shall be allocated in a nondiscriminatory
manner as directed by the Plan Administrator.


 


4.05.                     Ascertainment of Net Income and Net Loss.  Net income or net loss of the
Trust Fund shall be ascertained as of each Valuation Date by the Trustee, whose
finding shall be accepted by the Plan Administrator as conclusive, and shall
mean the profit and any income received less the losses and expenses of the
Trust Fund, plus or minus any net increase or decrease in the fair market value
of the assets of the Trust Fund not realized. Such net income or net loss shall
be determined in accordance with the accounting method selected by the
Employer.  Any life insurance contracts
held by the Trustee shall be valued in accordance with  Section 4.02(c) as of the Valuation
Date, but such contracts shall be listed separately by type of contract and
allocated to the appropriate Account of each Participant for whom they are
held.


 


4.06.                     Allocation of Employer Contributions
and Forfeitures.


 


(a)                                  Discretionary
Contributions:  Allocation in Proportion
to Compensation.  If the Employer elects to make
Discretionary Contributions, all such Contributions shall be allocated to the
Employer Discretionary Account of each Participant entitled to share in the allocation
of such Contributions, as of each Valuation Date.  Except to the extent otherwise elected by the Employer in the
Adoption Agreement, only those Participants who have completed a Year of
Service during the Plan Year and who are employed on the last day of the Plan
Year shall share in the allocation of Discretionary Contributions for such Plan
Year, and then only on the basis of their respective Compensation, unless
otherwise elected by the Employer in the Adoption Agreement.  The preceding sentence notwithstanding, a
Participant who has Separated from Service, during the Plan Year for which a
Discretionary Contribution is made, due to retirement, death or Disability, and
who is otherwise eligible to receive an allocation of a Discretionary Contribution,
shall receive an allocation of the Discretionary Contribution for such Plan
Year.


 


(b)                                  Discretionary
Contributions:  Integrated Allocation.  If specified in the Adoption
Agreement, a Discretionary Contribution, if any, shall be allocated to each
Participant’s Account, except as provided in Section 9.04(a), in a dollar
amount equal to 5.7% of the sum of


 


22

















 


each
Participant’s total Compensation plus Excess Compensation.  “Excess Compensation” means, with respect to
a Plan that is integrated with Social Security, a Participant’s Compensation
which is in excess of the amount set forth in the Adoption Agreement.  If the Employer does not contribute such
amount for all Participants, each Participant will be allocated a share of the
contribution in the same proportion that his/her total Compensation plus
his/her total Excess Compensation for the Plan Year bears to the total
Compensation plus the total Excess Compensation of all Participants for the
year.  For purposes of this
subsection (b), “Taxable Wage Base” shall mean, with respect to any year,
the minimum amount of earnings which may be considered wages for such year
under Code section 3121(a)(1).


 


Notwithstanding the
preceding, 4.3% shall be substituted for 5.7% above if Excess Compensation is
based on more than 20% and less than or equal to 80% of the Taxable Wage
Base.  If Excess Compensation is based
on less than 100% and more than 80% of the Taxable Wage Base, then 5.4% shall
be substituted for 5.7% above.  The
percentage of the Taxable Wage Base which shall be the basis for determining
Excess Compensation shall be specified in the Adoption Agreement.


 


(1)  The balance of the Discretionary
Contribution over the amount allocated above, if any, shall be allocated to
each Participant’s Account in the same proportion that his/her total
Compensation for the year bears to the total Compensation of all Participants
for such year.


 


(2)  Except, however, for any Plan Year beginning
prior to January 1, 1990, and if elected in the Adoption Agreement for any
Plan Year beginning on or after January 1, 1990, a Participant who
performs less than a Year of Service during any Plan Year shall not share in
the Discretionary Contribution for that year, unless there is a short Plan Year
(a Plan Year of less than twelve (12) consecutive months) or a contribution is
required pursuant to Section 9.04(a).


 


(c)                                  Discretionary Contributions:
Allocation Based on Cross-Testing.    If specified in the Adoption
Agreement that the Plan is to utilize cross-testing as described in
Section 1.401(a)(4)-8 of the Income Tax Regulations, Employer
contributions shall be allocated to each Participant’s Account in accordance
with the following rules:


 


(i)                                     All Participants in the Plan
shall be classified as belonging to an Allocation Tier specified in the
Adoption Agreement.  Each of the
Allocation Tiers shall receive a definite, designated  portion of each Employer contribution.


 


(ii)                                  Prior to making any Employer contribution,
the Employer shall designate in a written instrument the amount of such
Employer contribution to be allocated to each Allocation Tier.  Each of these written documents shall be
signed by an authorized representative of the Employer, and shall be kept as
part of the permanent records of the Plan.


 


(iii)                               The amount of the Employer contribution
designated as belonging to each Allocation Tier shall be allocated among the
Participants in such Allocation Tier by multiplying such amount by a fraction,
the numerator of which is the Compensation of each Participant in the
Allocation Tier and the denominator of which is the aggregate of the
Compensation of all Participants in such Allocation Tier.


 


(iv)                              Alternatively, if elected in the Adoption
Agreement, the amount of the Employer contribution to each Allocation Tier
shall be allocated equally among the Participants in such Allocation Tier.


 


(v)                                 In the event the Plan is a Top-Heavy Plan for
the Plan Year, then notwithstanding the foregoing, the Employer contribution
shall be allocated so as to satisfy the minimum contribution allocation
requirements as set forth in Plan Section 9.04.


 


(vi)                              Except to the extent otherwise elected by the
Employer in the Adoption Agreement, only those Participants who have completed
a Year of Service during the Plan Year and who are employed on the last day of
the Plan Year shall share in the allocation of Discretionary Contributions for
such Plan Year.  Unless otherwise
elected in the Adoption Agreement, the preceding sentence notwithstanding, a
Participant who has Separated from Service, during the Plan Year for which a
Discretionary Contribution is made, due to retirement, death or Disability, and
who is otherwise eligible to receive an allocation of a Discretionary
Contribution, shall receive an allocation of the Discretionary Contribution for
such Plan Year.


 


(d)                                  Salary
Deferral Contributions.  Salary Deferral
Contributions shall be allocated to the Salary Deferral Account of each
Participant as of each Valuation Date.


 


(e)                                  Matching
Contributions.   If the Employer
elects to make Matching Contributions, all such Contributions shall be
allocated to the Employer Matching Account of such Participant as of each
Valuation Date, or as of such other date or period as specified in the Adoption
Agreement.  A Participant who has made a
Salary Deferral Contribution or a 
Nondeductible Employee Contribution and who has Separated from Service,
during a Plan Year for which the Employer has made a Matching Contribution, due
to retirement, death or Disability, shall be eligible to receive an allocation
of Matching Contributions notwithstanding that such Participant would otherwise
not be eligible to receive such an allocation by reason of his or her failure
to complete the minimum Service requirements or failure to be employed on the
last day of such Plan Year.


 


(f)                                    Forfeitures. 


 


(1) As of each Valuation Date Forfeitures shall
first be used, when necessary, to restore Forfeitures to the Accounts of any
Participants qualified for such restoration and then shall be used for the Plan
Year in which such Forfeitures occur and as provided for in the Adoption
Agreement.


 


(2) If specified in the
Adoption Agreement, as of each Anniversary Date any amounts which became
Forfeitures since the last Anniversary Date, and which have not been used to
reinstate previously forfeited Account Balances, if any, shall be used to
satisfy Plan expenses as follows.  All
expenses incident to the administration, termination or protection of the Plan
and Trust, including, but not limited to, actuarial, legal, accounting,
administration, management, and Trustee’s fees, shall be paid out of the
remaining


 


23

















 


Forfeitures.  If the Forfeitures are insufficient to pay
for such expenses, any remaining liabilities, may, at the Employer’s sole
discretion, be paid by the Employer. For the convenience and the facilitation
of the administration of the Plan, the Employer may pay any such expenses and
be reimbursed for those expenses out of Forfeitures, to the extent that Forfeitures
are available and to the extent that such expenses (as non-settlor functions)
are permitted, by the Department of Labor, to be reimbursed in such manner.


 


(3) Unless otherwise specified in the Adoption
Agreement, the remaining Forfeitures attributable to Matching Contributions, if
any, shall only be allocated to Participants who made a Salary Deferral
Election and one or more Salary Deferral Contributions for the applicable Plan
Year, and who were employed with the Employer on the last day of the applicable
Plan Year, and shall be allocated according to the following method:


 


(A) The Forfeitures shall be used to reduce the
Matching Contribution of the Employer hereunder for the Plan Year in which such
Forfeitures occur.


 


(4) Unless otherwise specified in the Adoption
Agreement, the remaining Forfeitures attributable to Discretionary
Contributions, if any, shall only be allocated to those Participants who have
completed a Year of Service during the Plan Year and who are employed on the
last day of the Plan Year, and shall be allocated according to one of the
following methods (A, B, or C below), as specified in the Adoption Agreement.


 


(A) The Forfeitures shall be used to reduce the
Discretionary Contribution of the Employer hereunder for the Plan Year in which
such Forfeitures occur.


 


(B) Forfeitures shall be allocated among eligible
Nonhighly Compensated Participants in accordance with the allocation formula
for Discretionary Contributions.


 


(C) Forfeitures shall be allocated among eligible
Participants in accordance with the allocation formula for Discretionary
Contributions.


 


Forfeitures allocated
under subparagraph (B), and (C) shall be allocated once a year as of the
Anniversary Date of the Plan Year, unless otherwise specified in the Adoption
Agreement.


 


(5)  If specified in
the Adoption Agreement, Forfeitures, without regard to whether attributable to
Matching Contributions or Discretionary Contributions, shall be used to reduce
any current or future Employer contributions.


 


(6) If specified in the
Adoption Agreement, Forfeitures, without regard to whether attributable to
Matching Contributions or Discretionary Contributions, shall be allocated among
eligible Participants who are credited with one (1) Year of Service and who are
employed with the Employer on the last day of the Plan Year, on the basis that
each such eligible Participant’s Total Account Balance bears to the Total
Account Balances of all eligible Participants.


 


(7) If specified in the
Adoption Agreement, Forfeitures, without regard to whether attributable to
Matching Contributions or Discretionary Contributions, shall be allocated among
eligible Participants who are credited with one (1) Year of Service and who are
employed with the Employer on the last day of the Plan Year, on the basis that
each such eligible Participant’s Compensation bears to the total Compensation
of all eligible Participants.


 


Forfeitures allocated
pursuant to paragraphs (6) and (7) above, shall be allocated once each Plan
Year as of the Anniversary Date of a Plan Year.


 


(g)                                 Additional
Allocations.   Unless specified
otherwise in the Adoption Agreement, in the event that the allocations made
pursuant to subsections (a), (b), (c), (e) or (f) of this Section 4.06,
would result in a failure to satisfy the requirements of Code
section 410(b), or of the regulations thereunder, the Plan Administrator
may determine that an additional number of Nonhighly Compensated Employees
shall be eligible to share in the allocation made under such subsections.  Such additional number of such Nonhighly
Compensated Employees shall be the minimum number necessary to enable the Plan
to qualify under Code section 410(b). 
Such additional Nonhighly Compensated Employees who shall be eligible to
share in such allocation shall be selected in the following order:


 


(1) first, from among
such Participants who were employed on the last day of the Plan Year and who
failed to complete a Year of Service in the Plan Year;


 


(2) then, from among such
Participants who were not employed on the last day of the Plan Year, ranked in
order of those who have completed the largest number of Hours of Service.


 


24

















 


ARTICLE V.
LIMITATIONS ON ALLOCATIONS.


 


5.01.                     Participants Covered by this Plan Only.


 


(a)                                  In
general. If a Participant does not participate in, and has
never participated in another qualified plan, or a welfare benefit fund as
defined in Code section 419(e), maintained by the Employer, or an
individual medical account, as defined in Code section 415(l)(2), maintained
by the Employer, which provides an Annual Addition, the total amount of Annual
Additions which may be credited to the Participant’s Account for any Limitation
Year shall 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 contributed or allocated to a
Participant’s Account would cause the Annual Additions for the Limitation Year
to exceed the Maximum Permissible Amount, the amount contributed or allocated
shall be reduced so that the Annual Additions for the Limitation Year will
equal the Maximum Permissible Amount.


 


(b)                                  Calculation
of Maximum Permissible Amount. Prior to determining a
Participant’s 415(c) 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 415(c) Compensation for the
Limitation Year, uniformly determined for all Participants 415(c) Compensation
for the Limitation Year. As soon as administratively feasible after the end of
the Limitation Year, the Maximum Permissible Amount for the Limitation Year
shall be determined on the basis of the Participant’s 415(c) Compensation for
the Limitation Year.


 


5.02.                     More than One Plan.


 


(a)                                  Two
or more defined contribution plans. This subsection (a)
applies if, in addition to this Plan, a Participant is covered under another
qualified defined contribution plan (whether or not terminated) maintained by
the Employer for the current and all prior Limitation Years.  For this purpose, another qualified defined
contribution plan shall include the Annual Additions attributable to a
Participant’s Nondeductible Employee Contributions to all defined benefit plans
(whether or not terminated) maintained by the Employer, and the Annual
Additions attributable to all welfare benefit funds (as defined in Code
section 419(e)) maintained by the Employer, and an individual medical
account (as defined in Code section 415(l)(2)) maintained by the Employer,
which provides an Annual Addition during any Limitation Year.


 


The maximum
aggregate amount in any Limitation Year is the lesser of 125 percent of the
dollar limitation determined under Code sections 415(b) and (d) in effect under
Code section 415(c)(1)(A) or 35 percent of the Participant’s 415(c)
Compensation for such Year.


 


(1) If a Participant
participates in more than one defined contribution plan maintained by the
Employer which have different Anniversary Dates, the Maximum Permissible Amount
under this Plan shall equal the maximum Annual Additions for the Limitation
Year minus any Annual Additions previously credited to such Participant’s
Accounts during the Limitation Year.


 


(2) If a Participant participates in both a
defined contribution plan subject to Code section 412 and a defined
contribution plan not subject to Code section 412 maintained by the
Employer which have the same Anniversary Date, Annual Additions shall be
credited to the Participant’s Accounts under the defined contribution plan
subject to Code section 412 prior to crediting Annual Additions to the
Participant’s Accounts under the defined contribution plan not subject to Code
section 412.


 


(3) If a Participant participates in more than one
defined contribution plan not subject to Code section 412 maintained by
the Employer which have the same Anniversary Date, the maximum Annual Additions
under this Plan shall equal the product of:


 


(A) the maximum Annual Additions for the
Limitation Year minus any Annual Additions previously credited under (1) or (2)
above, multiplied by


 


(B) a fraction, the numerator of which is the
Annual Additions which would be credited to such Participant’s Accounts under
this Plan without regard to the limitations of Code section 415 and the
denominator of which is such Annual Additions for all plans described in this
paragraph.


 


Note: (b) through
(g) below do not apply to Limitation Years beginning after December 31,
1999.


 


(b)                                  Defined
benefit plans. Subject to the exception given below, if an Employee is (or
has been) a Participant in one or more defined benefit plans and one or more
defined contribution plans maintained by the Employer, the sum of the defined
benefit plan fraction and the defined contribution plan fraction for any
Limitation Year may not exceed 1.0.


 


(c)                                  Defined
benefit plan fraction.
The defined benefit plan fraction is determined as follows:


 


(1) The defined benefit plan fraction for any
Limitation Year is a fraction (A) the numerator of which is the Projected
Annual Benefit of the Participant under all defined benefit plans (whether or
not terminated) maintained by the Employer (determined as of the close of the
Limitation Year), and (B) the denominator of which is the lesser of: (i) the
product of 1.25 multiplied by the maximum dollar limitation provided under Code
section 415(b)(1)(A) for such Limitation Year, or (ii) the product of 1.4
multiplied by the amount (the highest average Compensation, including any
adjustments) which may be taken into account under Code section 415(b)(1)(B)
for such Limitation Year.


 


(2) For purposes of applying the limitations of
Code section 415, the Projected Annual Benefit for any Participant is the
benefit, payable annually, under the terms of the Plan determined pursuant to
Regulations section 1.415-7(b)(3).


 


25

















 


(3) For purposes of applying the limitations of
Code section 415, the projected current accrued benefit for any
Participant in a Defined Benefit Plan in existence on July 1, 1982, shall
be the accrued benefit, payable annually, provided for under question T-3 of
Internal Revenue Service Notice 83-10.


 


(4) Notwithstanding (1) above, if a Participant
was a Participant as of the first day of the first Limitation Year beginning
after December 31, 1986, in one or more defined benefit plans maintained
by the Employer which were in existence on May 6, 1986, the denominator of this
fraction shall not be less than 1.25 of the sum of the annual benefits under
such plans which the Participant had accrued as of the close of the last
Limitation Year beginning before January 1, 1987, disregarding any changes
in the terms and conditions of such plan after May 5, 1986.  The preceding sentence shall apply only if
the defined benefit plans individually and in the aggregate satisfied the
requirements of Code section 415 for all Limitation Years beginning before
January 1, 1987.


 


(5) For purposes of this subsection (c) Projected
Annual Benefit means 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 shall continue employment until the normal
retirement age provided under such plan (or the current age, if later), and (B)
the Participant’s 415 Compensation for the current Limitation Year, and all
other relevant factors used to determine benefits under such plan shall remain
constant for all future Limitation Years.


 


(d)                                  Defined
contribution plan fraction.   The defined contribution plan fraction is determined as follows:


 


(1) The defined contribution plan fraction for any
Limitation Year is a fraction of:


 


(A) the numerator of which is the sum of all
Annual Additions to the Participant’s Accounts as of the close of the
Limitation Year; and


 


(B) the denominator of which is the sum of the
lesser of the following amounts determined for such year and each prior Year of
Service with the Employer:


 


(i) the product of 1.25
multiplied by the dollar limitation in effect under Code
section 415(c)(1)(A) for such Limitation Year (determined without regard
to Code section 415(c)(6)); or


 


(ii) the product of 1.4
multiplied by the amount which may be taken into account under Code
section 415(c)(1)(B) for such Limitation Year.


 


(2) Notwithstanding the foregoing, the numerator
of the defined contribution plan fraction shall be adjusted pursuant to
Regulations section 1.415-7(d)(1) and questions T-6 and T-7 of the
Internal Revenue Service Notice 83-10.


 


(3) For defined contribution plans in effect on or
before July 1, 1982, the Plan Administrator may elect for any Limitation
Year ending after December 31, 1982, that the amount taken into account in
the denominator for every Participant for all Limitation Years ending before
January 1, 1983, shall be an amount equal to the product of  (A) the denominator for the Limitation Year
ending in 1982 determined under the law in effect for the Limitation Year
ending in 1982 multiplied by (B) the transition fraction.


 


(4) For purposes of the preceding paragraph, the
term transition
fraction shall mean a fraction (A) the numerator of which is the
lesser of (1) $51,875, or (2) 1.4 multiplied by 25% of the Participant’s 415(c)
Compensation for the Limitation Year ending in 1981, and (B) the denominator of
which is the lesser of (1) $41,500 or (2) 25% of the Participant’s 415(c)
Compensation for the Limitation Year ending in 1981.


 


(5) Notwithstanding the foregoing, for any
Limitation Year in which the Plan is a Top-Heavy Plan (as determined under
Section 9.02), $41,500 shall be substituted for $51,875 in determining the
transition fraction unless an extra minimum allocation is being provided
pursuant to this Plan being found to be Top-Heavy. However, for any Limitation
Year in which this Plan is a Super-Top-Heavy Plan, $41,500 shall be substituted
for $51,875 in any event.


 


(6) If an Employee was a Participant as of the end
of the first day of the first Limitation Year beginning after December 31,
1986, in one or more defined contribution plans maintained by the Employer
which were in existence on May 6, 1986, the numerator of this fraction shall be
adjusted if the sum of this fraction and the defined benefit fraction would
otherwise exceed 1.0 under the terms of this Plan. Under the adjustment, an
amount equal to the product of (1) the excess of the sum of the fractions over
1.0 times (2) the denominator of this fraction, shall be permanently subtracted
from the numerator of this fraction. 
The adjustment is calculated using the fractions as they would be
computed as of the end of the last Limitation Year beginning before
January 1, 1987, and disregarding any changes in the terms and conditions
of the Plan made after May 5, 1986, but using the Code section 415
limitation applicable to the first Limitation Year beginning on or after
January 1, 1987.


 


The Annual Addition for
any Limitation Year beginning before January 1, 1987, shall not be
recomputed to treat all Employee contributions as Annual Additions.


 


(7) Defined Contribution Dollar Limitation:  $30,000 or such larger amount as may be
determined by the Commissioner of the Internal Revenue Service for the
Limitation Year.  For Limitation Years
prior to January 1, 1995:  $30,000
or if greater, one-fourth of the defined benefit dollar limitation set forth in
Code section 415(b)(1), as in effect for the Limitation Year.


 


(e)                                  Top-Heavy
rule.  Notwithstanding
the foregoing for any Limitation Year in which the Plan is a Top-Heavy Plan,
1.0 shall be substituted for 1.25 in subsection (d)(1)(B)(i) above.


 


26

















 


(f)                                    Limiting
Annual Additions.  If
the sum of the defined benefit plan fraction and the defined contribution plan
fraction shall exceed 1.0 in any Limitation Year for any Participant in this
Plan for reasons other than described in (h) below, the Plan Administrator
shall limit, to the extent necessary, the Annual Additions to such
Participant’s Accounts for such Limitation Year.  If, after limiting the Annual Additions to such Participant’s
Accounts for the Limitation Year, the sum of the defined benefit plan fraction
and the defined contribution plan fraction still exceed 1.0, the Plan
Administrator shall then adjust the numerator of the defined benefit plan
fraction so that the sum of both fractions shall not exceed 1.0 in any
Limitation Year.


 


(g)                                 Other
limitations. If


 


(1) the substitution of 1.0 for 1.25 and $41,500
for $51,875 above, or


 


(2) the excess benefit accruals or Annual
Additions provided for in Internal Revenue Service Notice 82-19 cause the 1.0
limitation to be exceeded for any Participant in any Limitation Year, such
Participant shall be subject to the following restrictions for each future
Limitation Year until the 1.0 limitation is satisfied:


 


(A) The Participant’s accrued benefit under the
defined benefit plan shall not increase;


 


(B) no Annual Additions may be credited to a
Participant’s Accounts; and


 


(C) no Employee Contributions (voluntary or
mandatory) shall be made under any defined benefit plan or any defined
contribution plan of the Employer.


 


(h)                                 Rules
shall comply with Code section 415.  Notwithstanding anything contained in this
Section to the contrary, the limitations, adjustments and other requirements
prescribed in this Section shall at all times comply with the provisions
of Code section 415 and the Regulations thereunder, the terms of which are
specifically incorporated herein by reference for Plan Years beginning after
December 31, 1999.


 


27

















 


ARTICLE VI. VESTING.


 


6.01.                     Employer Account Vesting Schedule.  Prior to attaining Normal Retirement Age, a Participant’s Vested
Balance in the amounts credited to his Employer Account shall be determined in
accordance with the vesting schedule specified in the Adoption Agreement.
Notwithstanding the preceding sentence, in Top-Heavy Plan Years, a
Participant’s Vested Balance in his Employer Account shall be determined
pursuant to the vesting schedule under Section 9.03 of the Plan.


 


6.02.                     Vesting Computation Method.


 


(a)                                  In
general.  If Breaks-in-Service
and Years of Service are calculated under the 1,000 Hour Method, then for
vesting purposes an Employee shall be credited with a Year of Service for each
Plan Year in which the Employee completes 1,000 or more Hours of Service.


 


If Breaks-in-Service and
Years of Service are calculated under the Elapsed Time Method, then for vesting
purposes an Employee shall be credited with a Year of Service for each
12-consecutive months of Service, which begins on the employment commencement
date.


 


(b)                                  Change
In Computation Period. 
In the event that the Plan Year is the vesting computation period and
the Plan is amended to change the Plan Year (the vesting computation period) to
a different 12-consecutive month period, the first vesting computation period
established under such amendment shall begin before the last day of the
preceding vesting computation period.  A
Participant who is credited with 1,000 Hours of Service in both the vesting
computation period under the Plan before such amendment, and in the first
vesting computation period under the Plan after such amendment, shall be
credited with two (2) Years of Service for vesting computation purposes.


 


6.03.                     Years of Service. 
Years of Service with an Affiliate and Years of
Service with an Employer whose Plan is merged with this Plan (unless otherwise
provided in the Adoption Agreement), shall be counted for vesting purposes,
unless excluded hereunder.


 


In computing periods of
Service for purposes of vesting, all Years of Service shall be counted, except
as follows (unless such Service is specifically credited pursuant to the
Adoption Agreement):


 


(a)                                  If a Former
Participant has a one-year Break-in-Service, his pre-break and post-break
Service shall be used for computing Years of Service for vesting purposes only
after he has been employed for one (1) Year of Service following the date of
his reemployment;


 


(b)                                  Any Former
Participant who under the Plan does not have a nonforfeitable right to any
interest in the Plan resulting from Employer contributions shall lose credits
otherwise allowable under (a) above if his consecutive one-year
Breaks-in-Service equal or exceed the greater of five (5) Breaks-in-Service or
the aggregate number of his pre-break Years of Service;


 


(c)                                  After five (5)
consecutive one-year Breaks-in-Service, a Former Participant’s Vested Balance
attributable to pre-break Service shall not be increased as a result of
post-break Service;


 


(d)                                  Years of Service before
Age 18;


 


(e)                                  Years of Service
before the Employer maintained this Plan or a predecessor plan.


 


6.04.                     Amendment of Vesting Schedule.


 


(a)                                  In
general.  No amendment
shall, directly or indirectly, decrease (but may increase) a Participant’s
Vested Balance in his Employer Account, determined as of the later of the date
the amendment is adopted, or the date such amendment is effective. If the
vesting schedule of the Plan is amended, or the Plan is amended in any way
that directly or indirectly affects the computation of the vested interest of
Participants (or if the Plan is deemed amended by an automatic change to or
from a Top-Heavy vesting schedule), each Participant with at least three (3)
Years of Service with the Employer may elect, within a reasonable period after
the adoption of the amendment, to have his Vested Balance computed under the
Plan without regard to such amendment.


 


(b)                                  Election
Period.  The period
during which the election, provided for in (a) above, may be made shall
commence with the date the amendment is adopted or deemed to be made, and shall
end on the latest of:


 


(1) sixty (60) days after the amendment is
adopted;


 


(2) sixty (60) days after the amendment becomes
effective; or


 


(3) sixty (60) days after a Participant is issued
written notice of the amendment by the Employer or Plan Administrator.


 


Notwithstanding
any vesting schedule specified in the Adoption Agreement, if this is an
amendment and restatement of the Plan, then the vested percentage of a
Participant’s Discretionary Account or Matching Account shall not be less than
the vested percentage attained for the Discretionary Account or Matching
Account, as applicable, as of the later of the effective date or adoption date
of this amendment and restatement.


 


6.05.                     Other Accounts Fully Vested.  The amounts credited to a Participant’s Salary Deferral Account,
Nondeductible Employee Account, and Rollover Account shall always be 100%
vested and nonforfeitable.


 


28

















 


ARTICLE VII. BENEFITS AND
DISTRIBUTIONS.


 


7.01.                     Application of Provisions.  Except as otherwise provided in Article VIII, if applicable,
the requirements of this Article shall apply to any distribution of a
Participant’s Vested Balance in his Accounts. 
In the event that the provisions of Article VIII shall apply, as
specified in the Adoption Agreement, a Participant shall be required to obtain
the consent of his or her Spouse prior to obtaining a distribution from the
Plan.  Such consent shall be in the form
of a Qualified Election.  In the event
that the provisions of Article VIII shall not apply, as specified in the
Adoption Agreement, a Participant shall not be required to obtain the consent
of his or her Spouse prior to obtaining a distribution from the Plan, unless
the Adoption Agreement specifically provides otherwise.  If such consent is required, such consent
shall be in writing and shall be witnessed by a representative of the Plan or
by a notary public.


 


7.02.                     Normal Retirement Benefits.  When a Participant attains his Normal Retirement Age, he shall be
100% vested in his Employer Accounts. Upon a Participant’s termination of
Service on or after attaining his Normal Retirement Age, his Vested Balance
shall be payable to him pursuant to the provisions of this Article VII and
Article VIII, if applicable.


 


7.03.                     Termination Benefit Prior to Normal Retirement.


 


(a)                                  General
Rule.  Upon a
Participant’s Separation from Service (for reasons other than death or
Disability) prior to his attaining Normal Retirement Age or Early Retirement
Age (unless the Adoption Agreement specifically does not provide for an Early
Retirement Age), his Vested Balance in his Accounts shall be payable in
accordance with Section 7.07 and in the manner provided in
Section 7.08 and the Adoption Agreement. Subject to the provisions of
subsection (b), a Participant’s Forfeiture, if any, shall be maintained in
his Employer Account and shall be held in the Trust as uninvested cash until it
is reallocated in accordance with Section 4.06(f).


 


(b)                                  Miscellaneous
provisions.


 


(1) If a Participant Separates from Service and
elects (under a Qualified Election, or if a Qualified Election is not
applicable, in the same manner as a Qualified Election) to receive payment of
his entire Vested Balance, the amount subject to Forfeiture shall be the
remaining balance in such Account. If the Participant elects (under a Qualified
Election, or if a Qualified Election is not applicable, in the same manner as a
Qualified Election) to have distributed less than his entire Vested Balance,
the part of the non-vested portion which shall be subject to Forfeiture is the
total non-vested portion multiplied by a fraction, the numerator of which is
the amount of the distribution from the Employer Account and the denominator of
which is the total value of the Employer Account of such Participant.


 


(2) If the value of the Vested benefit of a
Participant who has Separated from Service does not exceed $5,000 ($3,500 for
Plan Years prior to January 1, 1998), the Plan Administrator shall direct
the Trustee to cause the entire vested benefit to be paid to such Participant
in a single lump sum.


 


(3)  If a
Participant Separates from Service, there shall be no distribution of any
benefits where the present value of the nonforfeitable accrued benefit (taking
into consideration benefits derived from both Employer and Employee
contributions) is in excess of $5,000 ($3,500 for Plan Years prior to
January 1, 1998) without the consent of the Participant and, when
applicable, the consent of the Participant’s Spouse.  The consent of a Participant’s Spouse shall be required if either
the provisions of Article VIII are applicable or if such spousal consent
is otherwise specifically required, as set forth in the Adoption Agreement.


 


(4)  If any Former Participant shall be
reemployed by the Employer before incurring five (5) consecutive one-year
Breaks-in-Service, and such Former Participant had received, or was deemed to
have received, a distribution of his entire Vested Balance prior to his
reemployment, his forfeited Account shall be reinstated only if he repays the
full amount distributed to him before the earlier of five (5) years after the
first date on which the Participant is subsequently reemployed by the Employer,
or the date the Participant incurs five (5) consecutive one-year
Breaks-in-Service following the date of distribution. If an Employee is deemed
to receive a distribution pursuant to a cash-out where such Participant has a
vested percentage of zero percent (0%), and such Participant resumes employment
covered under this Plan before the date such Participant incurs five (5)
consecutive one-year Breaks-in-Service, upon the reemployment of such Former
Participant, the Employer-derived Account balance of such Former Participant
shall be restored to the amount on the date of such deemed distribution.  If a distribution occurs for any reason
other than a Separation from Service, the time for repayment may not end
earlier than five (5) years after the date of separation.


 


(5)  In the
event the Former Participant does repay the full amount distributed to him, or
in the event of a deemed distribution, the undistributed portion of the
Participant’s Account must be restored in full, unadjusted by any gains or
losses occurring subsequent to the Anniversary Date or other valuation date
coinciding with or preceding his termination.


 


(A) The source for such reinstatement shall first
be from any Forfeitures occurring during the year (or from a prior year).  If such source is insufficient, then the
Employer shall contribute an amount which is sufficient to restore any such
forfeited amounts provided, however, that if a Discretionary Contribution is
made for such year pursuant to Section 3.01, such contribution shall first
be applied to restore any such Accounts and the remainder shall be allocated in
accordance with Section 4.06(f).


 


(B) With respect to the repayment amount, the Plan
Administrator shall make a determination as to what portion of the repayment
amount remains tax-deferred, and what portion has been subject to federal
income tax.  The Plan Administrator
shall establish an appropriate account for the returned distribution,
designated as a returned distribution, by source, and by tax status.


 


29

















 


7.04.                     Disability Benefits.


 


(a)                                  In
general.  Unless the Employer
elects otherwise in the Adoption Agreement disability benefits shall be
provided prior to a Participant’s Normal Retirement Age by reason of such
Participant’s Disability. Accordingly, upon a determination of a Participant’s
Disability by the Plan Administrator, a Participant’s vested percentage in his
Employer Account shall be 100% and the Vested Balance shall be payable to such
Participant pursuant to this Article VII and Article VIII, if applicable.


 


(b)                                  Determination
of Disability.  The
Plan Administrator shall require a Participant to establish that he or she is
disabled in order to obtain a distribution under the Plan by reason of such
Disability.  The Adoption Agreement
shall specify the evidence which a Participant shall be required to provide to
the Plan Administrator in order to establish Disability.  The Adoption Agreement shall specify which
of the following shall apply:


 


(1)                                  A
Participant shall furnish to the Plan Administrator evidence that the federal
Social Security Administration has determined that the Participant is eligible
to receive total disability benefits under the federal Social Security Act; or


 


(2)                                  A
Participant shall furnish to the Plan Administrator certification of such
Disability from a licensed doctor of medicine on a form to be provided by the
Plan Administrator; or


 


(3)                                  A
Participant shall furnish to the Plan Administrator certification of such
Disability, obtained separately from at least two licensed doctors of medicine,
on a form provided by the Plan Administrator; or


 


(4)                                  A
Participant shall be required to obtain a certification of such Disability from
one or more licensed doctors of medicine. 
The Employer shall designate the doctor or doctors from whom the
Participant shall obtain such certification. 
In the event that the Participant is required to obtain such
certification of Disability from a doctor or doctors designated by the
Employer, the Employer shall bear the cost incurred by obtaining such
certification by such doctor or doctors.


 


The preceding
notwithstanding, the Adoption Agreement may specify a type or degree of
certification required to establish a Disability other than those stated in (1)
through (4) above.  In the event the
Adoption Agreement does not specify the type or degree of certification
required to establish a Disability, paragraph (1) above shall apply.


 


7.05.                     Death Benefits.


 


(a)                                  Full
Vesting.  Upon the
death of any Participant while in Service, his vested percentage in his
Employer Account shall be 100% and his Vested Balance along with any Death
Benefit due to the Trust as a result of the Participant’s death shall be
payable to the Participant’s Surviving Spouse or, if the Surviving Spouse
consents, or if there is not a Surviving Spouse, to a designated Beneficiary of
the Participant. Such payment is to be made pursuant to the provisions of
Article VIII, if applicable.


 


A Participant may waive
the benefits, otherwise payable hereunder to such Participant’s Surviving
Spouse, at any time, provided that no such waiver shall be effective unless it
satisfies the conditions of a Qualified Election made pursuant to
Section 8.03(f) (other than the notification requirements referred to
therein) that would apply to a Participant’s waiver of the Qualified Pre-retirement
Survivor Annuity.


 


(b)                                  Payable
to Beneficiary.  Upon
the death of any Participant after Separation from Service, the remaining
amounts in his Accounts which were vested at the time of his termination shall
be payable to his Beneficiary.


 


(c)                                  Death
after distribution of balance.  If the Participant dies after distribution of his Vested Balance
has commenced, the remaining portion of such Vested Balance shall continue to
be distributed at least as rapidly as under the method of distribution being
used prior to the Participant’s death.


 


(d)                                  Death
before distribution of balance. 
If the Participant dies before distribution of his Vested Balance
commences, the Participant’s entire Vested Balance shall be completely
distributed by December 31 of the calendar year containing the fifth (5th)
anniversary of the Participant’s death except to the extent that an election is
made to receive distributions in accordance with (1) or (2) below:


 


(1) If any portion of the Participant’s Vested
Balance is payable to a designated Beneficiary, distributions may be made over
the life of the designated Beneficiary or over a period certain not greater
than the life expectancy of the designated Beneficiary, if permitted under the
Adoption Agreement, commencing on or before December 31 of the calendar
year immediately following the calendar year in which the Participant died; or


 


(2) If the designated Beneficiary is the
Participant’s Surviving Spouse, the date distributions are required to begin in
accordance with (1) above shall not be earlier than the later of: (i)
December 31 of the calendar year immediately following the calendar year
in which the Participant died, or (ii) December 31 of the calendar year in
which the Participant would have attained age 70 1/2.


 


(e)                                  Calculation
of payments.  For
purposes of (d) above, payments shall be calculated by use of the return
multiples specified in Tables V and VI of Regulations section 1.72-9 and
in accordance with Proposed Regulations sections 1.401(a)(9)-1 and
1.401(a)(9)-2.


 


For the purpose of this
Section 7.05, distribution of a Participant’s interest is considered to
begin on the Participant’s Required Beginning Date (as defined in
Section 7.07(b)), or if subsection (d) above is applicable, the date
distribution is required to begin to the Surviving Spouse pursuant to
subsection (g) below.  If
distribution in the form of an annuity irrevocably commences to the Participant
before the Required Beginning Date, the date distribution is considered to
begin is the date distribution actually commences.


 


30

















 


(f)                                    Payment
to a child of the Participant. 
For purposes of paragraphs (c), (d) and (e), any amount paid to a
child of the Participant shall be treated as if it had been paid to the Surviving
Spouse if the amount becomes payable to the Surviving Spouse when the child
reaches the age of majority.


 


(g)                                 Miscellaneous.  Upon the death of any Participant,
the Surviving Spouse can direct the commencement of benefits 60 days after the
end of the Plan Year in which the death occurred.


 


Where an amount is
distributable under subsection (d) above, the Beneficiary must elect the
method of distribution no later than the earlier of:


 


(1) December 31 of the calendar year in which
distributions would be required to begin under subsection (d) above, or


 


(2) December 31 of the calendar year which
contains the fifth (5th) anniversary of the date of death of the Participant.


 


If the Participant
has no designated Beneficiary, or if the designated Beneficiary does not elect
a method of distribution, distribution of the Participant’s entire interest
must be completed by December 31 of the calendar year containing the fifth
(5th) anniversary of the Participant’s death.


 


If the Participant dies
without a designated Beneficiary surviving such Participant, the Participant’s
entire interest shall be paid to such Participant’s estate.


 


7.06.                     Certification of Separation from Service.  The Plan Administrator shall certify to the
Trustee the fact of Separation from Service of a Participant, and the amounts
due from his Accounts.


 


7.07.                     Commencement of Benefits.


 


(a)                                  In
general.  Upon a
Participant’s entitlement to a distribution of benefits under
Section 7.02, 7.03, 7.04, 7.05 or 13.08, a Participant shall file with the
Plan Administrator a written election on such form or forms, and subject to
such conditions, as the Plan Administrator shall provide.  A Participant may elect to receive a
distribution of benefits as soon as administratively practicable.  Such election shall specify whether
distribution of benefits is to begin as soon as administratively feasible,
subject to the Plan’s provisions, or to be deferred to the extent provided
below. The Plan Administrator shall distribute a Participant’s benefit pursuant
to such Participant’s election, provided that, if payments become due for any
reason including retirement at or after age 65, death or Disability, and if the
amounts due from the Participant’s Accounts (including Employer and Employee
Contributions, but not including accumulated deductible Employee Contributions)
are in excess of $5,000 ($3,500 for Plan Years prior to January 1, 1998)
payment of such amounts shall be deferred to the extent provided below unless
the Participant consents in writing to earlier payment. Furthermore, unless
otherwise specified in the Adoption Agreement, this provision shall not be
subject to the provisions of Article VIII, nor shall the consent of a
Participant’s Spouse be required.


 


(b)                                  Required
minimum distributions. For each Plan Year, a Participant’s
required minimum distributions shall satisfy Code section 401(a)(9) and
section 1.401(a)(9) of the Proposed Regulations, which are herein
incorporated by reference.


 


(c)                                  Provisions
take precedence.  The
provisions set forth in paragraphs (a) and (b) override any settlement options
in the Plan inconsistent with the above.


 


(d)                                  Distribution commencement date.  Except
as limited in paragraphs (a) and (b) above, the Trustee shall commence benefit
payments for all claims authorized for payment in a Plan Year no later than 60
days following the end of the applicable Plan Year or as soon thereafter as is
practicable, but in no event later than 180 days after the end of the
applicable Plan Year, except where such delay is required by special circumstances.  Such special circumstances include the
transfer, merger and/or consolidation of assets of this Plan with another plan,
liquidation of assets or surrender of insurance contracts, the partial or full
termination of the Plan, or irregularities discovered in the books of the Plan
as a result of an audit or investigation of the Plan, or any other unusual
circumstances that would cause a prudent man to delay allocating earnings and
losses in the Trust.  Such benefit payments
shall be delayed until the Named Fiduciaries agree that the records and books
of the Plan are in sufficient order and in accordance with generally accepted
accounting practices so that benefit payments can fairly and accurately be
made.  In such matters, the decision of
the Named Fiduciaries shall be final, binding and conclusive.  Furthermore, unless a Participant elects
otherwise, and subject to the limitations in paragraphs (a) and (b), payment of
his benefits under this Plan shall be made or commence no later than the 60th
day after the later of:


 


(1) the end of the year of his 65th birthday; or


 


(2) the end of the year in which his employment
terminates. If benefits due from a Participant’s Accounts are paid as of the
date of entitlement to such benefits, any further amount which may be due from
a Participant’s Accounts shall be paid to the recipient no later than 60 days
following the end of the Plan Year in which Separation from Service with the
Employer occurs.


 


Notwithstanding the
preceding, if a Participant elects, he or she shall receive a distribution as
soon as administratively practicable after such Participant requests a
distribution pursuant to Section 7.07(a).


 


(e)                                  Other
rules.  If a
distribution is made at a time when a Participant is not fully vested in his
Employer Account and the Participant may increase the Vested percentage in such
Account:


 


(1) a separate Account shall be established for
the Participant’s interest in his Employer Account, as of the time of the
distribution; and


 


(2)                                  at
any relevant time, the Participant’s vested portion of the separate Account
shall be equal to an amount (“X”) determined by the formula:


 


31

















 


X equals P(A plus
(R x D)) - (R x D)


 


For purposes of applying
the formula: P is the vested percentage at the relevant time, A is the Account
balance at the relevant time, D is the amount of the distribution, and R is the
ratio of the Account balance at the relevant time to the Account balance after
distribution.


 


(f)                                    Distributions
Prior to 30 Day Period. 
A distribution, to which Code sections 401(a)(11) and 417 do not apply,
may commence less than thirty (30) days after the notice required under
section 1.411(a)-11(c) of the Regulations.  Provided, however, that prior to such a distribution:


 


(1) the Plan Administrator shall clearly inform
the Participant or Beneficiary or alternate payee that he or she has the right
to a period of at least thirty (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, Beneficiary, or alternate
payee, after receiving the notice affirmatively (by signing a waiver provided
by the Plan Administrator) waives such notice period and elects a distribution.


 


7.08.                     Settlement Options.


 


(a)                                  In
general.  Subject to the
limitations set forth in the Adoption Agreement, and subject to a Qualified
Election, if the provisions of Article VIII apply, and subject to the
consent of the Participant’s Spouse, if the Adoption Agreement requires spousal
consent, distributions may only be made in one of the following methods:


 


(1) In a single lump-sum in cash, and if the
Participant has an allocated life insurance contract and so elects, the life
insurance contract, and if the Plan and/or the Participant has invested in
Employer stock, at the Participant’s election, in such Employer stock, and if
the Participant has a self-directed brokerage account and so elects, in kind
but only for the self-directed brokerage account.


 


(2) An amount specified
by a Participant which is less than the balance to the credit of the
Participant with the remainder of his account to be paid in other methods
specified in this Section.


 


(3) In the form of a fixed number of annual,
semi-annual, quarterly, or monthly payments in an amount for each Plan Year
equal to the value of the Participant’s Account as of the Anniversary Date of
each Plan Year multiplied by a fraction, the numerator of which is one (1) and
the denominator is the number of years (or applicable period) remaining in such
specified period of payments.  At the
discretion of the Participant or Beneficiary, and, if required under
Article VIII or the Adoption Agreement, with the consent of the Spouse,
the payment of any benefits as a deferred payment may be accelerated and the
unpaid balance may be distributed to such Participant or Beneficiary in a lump
sum. Such payments shall not exceed the then life expectancy of the Participant
or the then life expectancy of the Beneficiary; provided, however, if the
Beneficiary is not the Spouse of the Participant and the Beneficiary’s life
expectancy is greater than the Participant’s life expectancy, then an amount
greater than 50% of the Participant’s Vested Balance shall be scheduled to be
paid within the Participant’s life expectancy as of the commencement date of
such payments.


 


(4) By the purchase of or
providing an annuity.  However, such
annuity may not be in any form that will provide for payments over a period
extending beyond either the life of the Participant (or the lives of the
Participant and his designated Beneficiary) or the life expectancy of the
Participant (or the life expectancy of the Participant and his designated
Beneficiary).  Furthermore, all annuity
Contracts under this Plan shall be non-transferable when distributed. The Terms
of any annuity Contract purchased and distributed to a Participant or Spouse
shall comply with all the requirements of the Plan.


 


(b)                                  Plan
Administrator Options. The Plan Administrator may
satisfy the election of any annuity or installment option by the purchase of or
providing an annuity.  However, such
annuity may not be in any form that will provide for payments over a period
extending beyond either the life of the Participant (or the lives of the Participant
and his designated Beneficiary) or the life expectancy of the Participant (or
the life expectancy of the Participant and his designated Beneficiary).  Furthermore, all annuity contracts under
this Plan shall be non-transferable when distributed.  The terms of any annuity contract purchased and distributed to a
Participant or Spouse shall comply with all the requirements of the Plan.


 


(c)                                  Frequency
of payments.  Periodic
payments from an annuity shall be made not less frequently than annually.


 


7.09.                     Transitional Rules.


 


(a)                                  In
general.  Notwithstanding the
other requirements of this Article, and subject to the requirements of the
Adoption Agreement, and of Article VIII, if applicable, distribution on
behalf of any Participant, including a Five Percent Owner, may be made in
accordance with all of the following requirements (regardless of when such
distribution commences).


 


(1) The distribution by the Plan is one which
would not have disqualified such Plan under Code section 401(a)(9) as in
effect prior to amendment by the Deficit Reduction Act of 1984.


 


(2) The distribution is in accordance with a
method of distribution designated by the Participant whose interest in the Plan
is being distributed or, if the Participant is deceased, by a Beneficiary of
such Participant.


 


(3) Such designation was in writing, was signed by
the Participant or the Beneficiary, and was made before January 1, 1984.


 


(4) The Participant had a balance in one or more
Accounts under the Plan as of December 31, 1983.


 


32

















 


(5) The method of distribution designated by the
Participant or the Beneficiary specifies the time at which distributions shall
be made, and in the case of any distribution upon the Participant’s death, the
Beneficiaries of the Employee listed in order of priority.


 


(b)                                  Distribution
upon death.  A
distribution upon death of a Participant shall not be covered by the
transitional rule in this Section unless the information in the
designation contains the required information described above with respect to
the distributions to be made upon the death of the Participant.


 


(c)                                  Method
of distribution.  For
any distribution which commenced before January 1, 1984, but
continued after December 31, 1983, the Participant, or the Beneficiary to
whom such distribution is being made, shall be presumed to have designated the
method of distribution under which the distribution is being made if the method
of distribution was specified in writing and the distribution satisfies the requirements
in subparagraphs (a)(1) and (a)(5).


 


(d)                                  Method
of distribution must satisfy Code section 401(a)(9).  If a designation is revoked, any subsequent
distribution must satisfy the requirement of Code section 401(a)(9), as
amended. Any changes in the designation shall be considered to be a revocation
of the designation.  If the designation
is revoked subsequent to the date distributions are required to begin, the
Trust must distribute by the end of the calendar year following the calendar
year in which the revocation occurs, the total amount not yet distributed which
would have been required to have been distributed to satisfy Code
section 401(a)(9), and the proposed regulations thereunder, but for the
Code section 242(b)(2) election. For calendar years beginning after
December 31, 1988, but before January 1, 2002, such distributions
must meet the minimum distribution incidental benefit requirements in
section 1.401(a)(9)-2 of the Proposed Regulations. However, the mere
substitution or addition of another Beneficiary (one not named in the
designation) under the designation will not be considered to be a revocation of
the designation, so long as such substitution or addition does not alter the
period over which distributions are to be made under the designation, directly,
or indirectly (for example, by altering the relevant measuring life). In the
case where an amount is transferred or rolled over from one plan to another
plan, the rules in Q&A J-2 and Q&A J-3 of section 1.401(a)(9)-2 of
the Proposed Regulations shall apply.


 


7.10.                     Presumption of Mental Competency.


 


Each person entitled to a
payment hereunder shall be conclusively presumed to be mentally competent until
the date on which the Plan Administrator receives a written notice in a form
satisfactory to the Plan Administrator that such person is mentally incompetent
and that a guardian, conservator or other person legally vested with the care
of his estate has been appointed by a court of competent jurisdiction.  Payments shall be made to such guardian or
conservator of the estate of the jurisdiction. Any such payment so made shall
be a complete discharge of any liability of the Plan.


 


7.11.                     Financial Hardship Withdrawals.


 


(a)                                  In
general.  A withdrawal can
be made on account of financial hardship only if the withdrawal both is made on
account of an immediate and heavy financial need of the Employee and is
necessary to satisfy such financial need. The Plan Administrator shall
determine the existence of an immediate and heavy financial need and the amount
necessary to meet the need, in accordance with the nondiscriminatory and
objective standards set forth in this Section. The determination of whether an
Employee has an immediate and heavy financial need is to be made on the basis
of all relevant facts and circumstances. A financial need shall not fail to
qualify as immediate and heavy merely because such need was reasonably
foreseeable or voluntarily incurred by the Employee.


 


In the event that
the provisions of Article VIII shall apply, as specified in the Adoption
Agreement, a Participant shall be required to obtain the consent of his or her
Spouse prior to obtaining a Financial Hardship Withdrawal.  Such consent shall be in writing and shall
be witnessed by a representative of the Plan or by a notary public.  In the event that the provisions of
Article VIII shall not apply, as specified in the Adoption Agreement, a
Participant shall not be required to obtain the consent of his or her Spouse
prior to obtaining a financial hardship withdrawal unless the Adoption
Agreement specifically requires such consent.


 


(b)                                  Deemed
Financial Hardships. 
A withdrawal shall be deemed to be made on account of an immediate and
heavy financial need of the Employee if the withdrawal is on account of:


 


(1) Expenses for medical and/or dental care
described in Code section 213(d) previously incurred by the Employee, the
Employee’s Spouse, or any dependents of the Employee (as defined in Code
section 152) or necessary for these persons to obtain such medical or
dental care as described in Code section 213(d); or


 


(2) Costs directly related to the purchase of a
principal residence for the Employee (excluding mortgage payments); or


 


(3) Payment of tuition, related educational fees,
and room and board expenses for the next 12 months of post-secondary education
for the Employee, the Employee’s Spouse, children, or dependents (as defined in
Code section 152); or


 


(4) Payments necessary to prevent the eviction of
the Employee from his principal residence, or foreclosure on the mortgage of the
Employee’s principal residence.


 


The Employee shall be
required to submit evidence satisfactory to the Plan Administrator (such as
official third party documents) demonstrating the amount and nature of the
need. Generally, expenses which were incurred more than 12 months prior to the
date of the application for a financial hardship withdrawal, shall not be
deemed to be an immediate and heavy financial need.  The amount of an immediate and heavy financial need may include
any amounts necessary to pay any federal, state or local income taxes or
penalties reasonably anticipated to result from the withdrawal.


 


(c)                                  Other
Financial Hardships. 
Financial hardship withdrawals shall be limited to the reasons specified
in (b) above, unless otherwise specified in the Adoption Agreement. However, if
the Adoption Agreement specifies adoption of the general rule for determining
whether or


 


33

















 


not an
Employee has an immediate and heavy financial need, then the Plan Administrator
shall make a determination based on all relevant facts and circumstances.  A financial need may be immediate and heavy
even if it was reasonably foreseeable or voluntarily incurred by the Employee.   Generally, the expenses described in (b)
above, and the expenses incurred because of any of the events described below
would be considered to constitute an immediate and heavy financial need:


 


(1) A natural disaster;


 


(2) Death of a Spouse, a child, or a dependent;


 


(3) Divorce;


 


(4) Birth or adoption of
a child;


 


(5) Loss of full-time employment by a Spouse;


 


(6) Expenses or loss of income incurred by reason
of the Participant or the Participant’s Spouse who is a member of the military
reserves of the United States, being called into active duty;


 


(7) An unpaid leave of absence by the Participant;


 


(8) Legal expenses incurred on behalf of the
Employee, the Employee’s Spouse or children; or


 


(9) Payments to satisfy federal tax obligations
that have not been timely paid.


 


(d)                                  Other
available resources. 
A withdrawal shall not be treated as necessary to satisfy an immediate
and heavy financial need of an Employee to the extent the amount of the
withdrawal is in excess of the amount required to relieve the financial need or
to the extent such need may be satisfied from other resources that are
reasonably available to the Employee. This determination generally is to be
made on the basis of all relevant facts and circumstances. The Employee’s
resources include those assets of an Employee’s Spouse and minor children that
are reasonably available to the Employee. 
However, property held for the Employee’s child under an irrevocable
trust or under the Uniform Gifts to Minors Act shall not be treated as a
resource of the Employee.  The amount of
an immediate and heavy financial need may include any amounts necessary to pay
any federal, state, or local income taxes or penalties reasonably anticipated
to result from the withdrawal.  A
withdrawal generally may be treated as necessary to satisfy a financial need if
the Plan Administrator relies upon the Employee’s written representation,
unless the Employer or Plan Administrator has actual knowledge to the contrary,
that the need cannot reasonably be relieved:


 


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


 


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


 


(3) By cessation of Salary Deferral Contributions
under the Plan; or


 


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


 


A need cannot be
reasonably relieved by one of the actions listed above if the effect would be
to increase the amount of the need. 
Notwithstanding (3) above, a Participant may, but shall not be required
to suspend or cease his or her Salary Deferral Contributions in the event the
Employer relies upon such Participant’s written representation regarding the
amount of withdrawal necessary to satisfy a financial need.


 


(e)                                  Withdrawal
deemed necessary to satisfy financial need. Instead of a
determination of the amount necessary to satisfy the financial need being made
under (d) above, the Employer may elect in the Adoption Agreement to deem a
withdrawal necessary to satisfy an immediate and heavy financial need of an
Employee if all of the following requirements are satisfied:


 


(1) The withdrawal is not in excess of the amount
of the immediate and heavy financial need of the Employee (the amount of an
immediate and heavy financial need may include any amounts necessary to pay any
federal, state, or local income taxes or penalties reasonably anticipated to
result from the withdrawal);


 


(2) The Employee has obtained all distributions,
other than hardship withdrawals, and all nontaxable loans currently available
under all plans maintained by the Employer;


 


(3) If an Employee makes a hardship withdrawal
from this Plan, or any other plan maintained by the Employer, the Employee’s
Salary Deferral Agreement shall be revoked for the remainder of the Plan Year;


 


(4) The Employer shall prohibit the Employee from
making elective contributions and employee contributions to the Plan and all
other plans maintained by the Employer for at least 12 months after the receipt
of the hardship withdrawal (however, this does not include any mandatory
employee contribution to a defined benefit plan, nor does it include an
Employee’s Contributions to a health or welfare benefit plan); and


 


(5) The Employee may not make Salary Deferral
Contributions for the Employee’s taxable year immediately following the taxable
year of the hardship withdrawal in excess of the applicable limit under Code
section 402(g) for such next taxable year less the amount of such
Employee’s Salary Deferral Contributions for the taxable year of the hardship
withdrawal.


 


34

















 


(f)                                    Limitation
on Amount Withdrawn. 
Financial hardship withdrawals shall be made only from Salary Deferral
Contributions, and shall not be made from any income allocable to Salary
Deferral Contributions, nor shall financial hardship withdrawals ever be made
from Qualified Matching Contributions nor Qualified Nonelective
Contributions.  Financial hardship
withdrawals shall not be made from Matching Contributions and/or Discretionary
Contributions unless otherwise specified in the Adoption Agreement.


 


7.12.                     Attainment of Age 59-1/2.  If authorized in the Adoption Agreement, as of the date that a
Participant attains the age of 59 1/2, the Participant may withdraw all or any
part of his Vested Balance, and such withdrawal shall be made pursuant to
Article VIII, if Article VIII is applicable, as specified in the
Adoption Agreement.


 


7.13.                     Other Withdrawals.


 


(a)(1)                   Nondeductible
Employee Account.  Unless
prohibited in the Adoption Agreement, a Participant may, by written notice to
the Plan Administrator, withdraw from his Nondeductible Employee Account a sum
not greater than the amount of his prior Nondeductible Employee Contributions
(less any amount previously disbursed); plus any income allocable thereto.


 


(a)(2)                   Rollover
Account.  Unless prohibited in the Adoption
Agreement, a Participant may, by written notice to the Plan Administrator,
withdraw a portion or all of his Unrelated Rollover Account (less any amount
previously disbursed) at any time.


 


(b)                                  Restrictions on Certain Contributions. A Participant may not make withdrawals
from his Salary Deferral Account, Qualified Nonelective Contributions Account
or Qualified Matching Contributions Account prior to the earlier of:


 


(1) his Separation from Service, total and
permanent Disability, or death;


 


(2) his attainment of age 59 1/2;


 


(3) proven financial hardship, subject to the
approval of the Plan Administrator (however, in no event shall Qualified
Matching Contributions and/or Qualified Nonelective Contributions be withdrawn
on account of financial hardship);


 


(4) the date of the sale by the Employer of
substantially all of the assets (within the meaning of Code
section 409(d)(2)), but only with respect to Participants who continue
employment with the corporation acquiring such assets;


 


(5) the date of the sale by the Employer of
interest in a subsidiary (within the meaning of Code section 409(d)(3))
with respect to a Participant who continues employment with such subsidiary; or


 


(6) termination of the Plan without establishment
or maintenance of another defined contribution plan other than an employee
stock ownership plan (as defined in Code section 4975(e)(7)) or a
Simplified Employee Pension Plan (as defined in Code section 408(k)).


 


However, clauses (4) and
(5) shall not apply, if the sale is to a business that is an Affiliate of the Employer,
or if in conjunction with the sale, the buyer agrees to sponsor this Plan or
the buyer requests the assets and liabilities of the affected Participants to
be transferred to a Plan qualified under Code section 401(a) maintained or
installed by the buyer.


 


Furthermore, with respect
to clauses (4), (5) and (6) above, the Participants shall receive a lump sum
distribution (as defined by Code section 402(e)(4)) by reason of such
event.


 


(c)                                  Matching
and Discretionary Accounts. 
A Participant may not make withdrawals from his Employer Matching
Account or Employer Discretionary Account as set forth in (b) above, unless
otherwise specified in the Adoption Agreement.


 


7.14.                     Denial of a Request for Benefits.


 


(a)                                  Content
of a denial.  All
claims for Plan benefits shall be subject to a full and fair review.  If the Plan Administrator fully or partially
denies any claim for benefits under the Plan, the Plan Administrator shall set
forth in writing in a manner calculated to be understood by the Participant or
any other person claiming benefits, the following information:


 


(1) the specific reason for the denial;


 


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


 


(3) a description of any additional material or
information necessary for the claimant to perfect the claim and an explanation
of why such material or information is necessary;


 


(4) the appropriate information as to the steps to
be taken for the claim to be submitted for review; and


 


(5) an explanation of the Plan Administrator’s
review procedure as stipulated in this Plan.


 


(6) If notice of the denial of a claim is not
furnished to the claimant in accordance with the above within 90 days (unless
circumstances beyond the Plan Administrator’s control cause a lengthier period
before a determination of the validity of a claim can be made), the claim shall
be deemed denied.  The claimant shall
then be permitted to proceed to the review stage described in paragraph (b)
below.


 


(b)                                  Review
procedure.  The review
procedure is as follows:


 


35

















 


(1) Upon denial of a claim for benefits under the
Plan, the claimant must file a request in writing with the Plan Administrator
requesting that the claim be reviewed by the Plan Administrator.


 


(2) The written request for the claim to be
reviewed must be filed with the Plan Administrator no later than 60 days after
the claimant received written notification of the denial of the claim, or the
period described in subparagraph (a)(6) above, if applicable.  If the claim is sent to the Plan
Administrator by first class mail, the postmark shall be the date the written
request for review is submitted.


 


(3) The claimant may review all pertinent
documents relating to the denial of the claim at the Plan Administrator’s
office and at other locations, if any, so specified by the Plan
Administrator.  Upon written request,
the claimant may obtain copies of all pertinent documents relating to the
denial of the claim.  The Plan
Administrator may make a reasonable charge for the copies.


 


(4) The claimant may
submit any issues and comments regarding the denial of the claim, in writing,
to the Plan Administrator.


 


(5) The Plan Administrator shall afford such
Participant or other interested party a reasonable opportunity for a full and
fair review by the Plan Administrator of the claim under review.  The Plan Administrator shall take any and
all steps to obtain knowledge of all the pertinent facts and evidence  that are required, in the Plan
Administrator’s judgment, to render a fair decision with respect to the claim,
including obtaining legal counsel.


 


(6) The Plan Administrator shall advise the
claimant in writing of its decision within 60 days after the Plan Administrator
received the written request for a review of the claim.   The 60-day time limit shall not be
extended, except where there are special circumstances that require such an
extension, and a written description of those circumstances is sent to the
claimant within the 60-day period.  If
there is such an extension, a decision shall be made as soon as practicable,
but not later than 120 days after the receipt by the Plan Administrator of the
written request for the claim to be reviewed.


 


(7) The Plan Administrator’s decision of the claim
for review shall be communicated to the claimant in writing and, if applicable,
shall include specific references to the pertinent Plan provisions on which the
decision was based.


 


7.15.                     Disputed Benefits.  If any dispute shall arise between a Participant or other person claiming
benefits under the Plan, and the Plan Administrator, after the review of the
claim for benefits, or in the event of any dispute as to the person to whom the
payment of any benefit under the Plan shall be made, the Trustee may withhold
payment of all or any part of the benefits payable hereunder to the Participant
or other person claiming under the Participant until such dispute has been
resolved by a court of competent jurisdiction or settled by the parties
involved.


 


7.16.                     Disputed Claims.    The Plan Administrator shall have the authority to review and
settle all claims against the Plan, including claims where the settlement
amount cannot be calculated under the Plan’s benefit formula.  This authority permits the Plan
Administrator to settle, in a compromised fashion, disputed claims for benefits
and any other disputed claims made against the Plan.


 


7.17.   Qualified Domestic Relations Orders.


 


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


 


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


 


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


 


(d)                                  Beneficiary
Designation.    Unless specifically stated otherwise in a
Qualified Domestic Relations Order, in the event of a final divorce decree, any
prior beneficiary designation of the ex-spouse by a Participant shall be null
and void.


 


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


 


(f)                                    Payment commencement date.  Notwithstanding any other
provision of the Plan, in the event that a Qualified Domestic Relations Order
is received by the Plan Administrator, benefits shall be payable in accordance
with such order and with Code section 414(p) and ERISA
section 206(d).  Payments may be
made prior to the Participant’s “earliest retirement age” (as defined in Code section 414(p)
and ERISA section 206(d)), and are not subject to any other distribution
or withdrawal restrictions provided in this Plan.  The amount payable to


 


36

















 


the
Participant and to any other person other than the alternate payee named in the
order shall be adjusted accordingly.  If
annuity payments under this Plan have already commenced, the Qualified Domestic
Relations Order must provide how much of that dollar amount shall be paid to
the alternate payee.


 


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


 


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


 


(h)                                 Miscellaneous.  If this Plan is a participant-directed plan
as provided under Article XI, upon the Plan’s receipt of a domestic
relations order affecting a Participant’s Accounts, the Participant shall
continue to direct the investments in his or her Accounts.  Upon approval of the domestic relations
order as a Qualified Domestic Relations Order, the alternate payee of such
accounts shall be entitled to direct the investment of his or her own separate
interest, unless the Qualified Domestic Relations Order provides
otherwise.  If the alternate payee
declines or otherwise fails to direct the investments of his or her own
separate interest in the Participant’s Accounts, such separate interest shall be
invested in the same manner as any other portion of the Participant’s Account
as of the split date.  Tax basis in
Nondeductible Employee Contributions shall be allocated on a pro rata
basis, based on the ratio of the alternate payee’s benefit to the Participant’s
total benefit (including the portion of his or her benefit assigned to the
alternate payee).  Alternate payees
shall not be entitled to borrow money under the Plan’s loan provisions.


 


7.18.                     Designation of Beneficiary.


 


(a)                                  Spouse
is Beneficiary.  The
Beneficiary of any Death Benefit payable under the Plan shall be the
Participant’s Spouse.  Except, however,
the Participant may designate a Beneficiary other than his Spouse if:


 


(1) the Participant and his Spouse have validly
waived the Pre-retirement Survivor Annuity, if Article VIII is applicable,
or the Spouse has waived his or her right to be the Participant’s Beneficiary;


 


(2) the Participant has no Spouse; or


 


(3) the Spouse cannot be located.


 


Notwithstanding the
preceding, and pursuant to section 1.401(a)-20, Q&A-27 of the Regulations,
if it is established to the satisfaction of the Plan Administrator that a
Spouse is legally incompetent (as determined by applicable state law) to give
consent, the Spouse’s legal guardian (as appointed or recognized under
applicable state law), even if the guardian is the Participant, may give the
applicable consent.


 


(b)                                  Beneficiary
designation.  The designation of a Beneficiary shall be
made on a form satisfactory to the Plan Administrator. A Participant may at any
time revoke his designation of a Beneficiary or change his Beneficiary by
filing written notice of such revocation or change with the Plan Administrator.
However, the Participant’s Spouse must again consent in writing to any such
change or revocation unless the Spouse’s consent expressly permits designation
by the Participant without further consent by the Spouse.  In the event no valid designation of
Beneficiary exists at the time of the Participant’s death, the death benefit
shall be payable to his Spouse if living, and, if not, to his estate.  Any written consent by a Spouse of a change
of Beneficiary shall be consented to in writing, and such written consent shall
designate a Beneficiary which may not be changed without spousal consent (or
the consent of the Spouse expressly permits designations by the Participant
without any requirement of further consent by the Spouse), and the Spouse’s
consent shall acknowledge the effect of such election and shall be witnessed by
a notary public.  A party’s attorney-in-fact
shall be permitted to change the Beneficiary if and only if the power of
attorney includes the specific authority to make changes in the grantor’s
beneficial designations under employee benefit plans, and provided also that
all other requirements, including, if applicable, Spousal consent, have been
satisfied.


 


The preceding
notwithstanding, Spousal consent to a Participant’s election to waive death
benefits is not required if, pursuant to section 1.401(a)-20,
Q&A-12(b) of the Regulations, it is established to the satisfaction of the
Plan Administrator that the Spouse is legally incompetent to give consent.  Where such Spouse is not legally competent
to give consent, the Spouse’s legal guardian, even if the legal guardian is the
Participant, may give the appropriate consent. 
For purposes of this Section, legal guardianship and legal competency
shall be determined by the laws of the state having jurisdiction.


 


(c)                                  Alternate
payee.  An individual
who is designated as an alternate payee in a Qualified Domestic Relations Order
(as defined in Code section 414(p) and ERISA section 206(d)) relating
to a Participant’s benefits under this Plan shall be treated as a Beneficiary
hereunder, to the extent provided by such order.


 


7.19.                     Location of Beneficiary or Participant Unknown.  In the event that all, or any portion, of
the distribution payable to a Participant or his Beneficiary hereunder shall,
at the Participant’s attainment of his Normal Retirement Age, remain unpaid
solely by reason of the inability of the Plan Administrator to locate such
Participant or his Beneficiary, after sending a certified or registered letter,
return receipt requested to the last known address, then the Plan Administrator
may attempt to ascertain the whereabouts of such Participant or Beneficiary,
through programs established by the Social Security Administration or the
Internal Revenue Service. However, if such efforts should fail to locate such
Participant or Beneficiary, then the remaining amount distributable with
respect to such Participant or his Beneficiary may be reallocated in the same
manner as a Forfeiture, if so directed by the Plan Administrator. In the event
a Participant or Beneficiary is located subsequent to his benefit being
reallocated, and such person claims such reallocated benefit, such benefit shall
be restored out of current year Forfeitures, unadjusted for gains or
losses.  The preceding notwithstanding,
if an Employee has


 


37

















 


terminated Service with
the Employer and the value of such Employee’s vested Account is not greater
than $5,000 ($3,500 for Plan Years prior to January 1, 1998), the
Employee’s Vested Balance shall be distributable to such Employee immediately
upon his date of termination, and the nonvested portion shall become immediately
forfeitable. If the Plan Administrator is not able to locate an Employee
described in the preceding sentence, after such Participant has incurred a
one-year Break-in-Service, the vested portion may be treated as a Forfeiture,
subject to reinstatement in the manner described in this Section 7.19.


 


In the event that the
Plan is terminated, the benefits maintained in an account under the Plan, on
the date of such termination, for the benefit of a Participant, Beneficiary, or
Alternate Payee who cannot be located, shall be maintained outside the Plan.
Any such benefits may be maintained by the purchase of an annuity, the
establishment of an individual retirement arrangement (as described in Code
sections 408(a) or (b)), or by some other method or methods which meet
applicable Department of Labor requirements. The Plan Administrator shall have
the sole discretion in determining which method or manner, or combination
thereof, from among the preceding, shall be utilized for the purpose of
maintaining such benefits. The duty of the Named Fiduciaries (as defined in
Section 15.01) hereunder, to maintain any such benefits under the Plan,
shall be extinguished upon the placement of such benefits outside the Plan in
the manner described in this paragraph.


 


7.20.                     Distribution for Minor Beneficiary.  In the event a distribution is to be made to
a minor, then the Administrator may direct that such distribution be paid to
the legal guardian, or if none, to a parent of such Beneficiary or a
responsible adult with whom the Beneficiary maintains his residence, or to the
custodian for such Beneficiary under the Uniform Gift to Minors Act or Gift to
Minors Act if such is permitted by the laws of the state in which the
Beneficiary resides.  Such a payment to
the legal guardian, custodian or parent of a minor Beneficiary shall fully
discharge the Trustee, Employer, and Plan from further liability on account
thereof.


 


7.21.                     Rollover Distributions.


 


(a)                                  Direct
Rollovers.  The
provisions of this Section shall apply to distributions made on or after
January 1, 1993.  Notwithstanding
any provision of the Plan to the contrary, that would otherwise limit a
Distributee’s election under this Section, a Distributee may elect, at the time
and in the manner prescribed by the Plan Administrator, to have any portion of
an Eligible Rollover Distribution paid directly to an Eligible Retirement Plan
specified by a Distributee in a Direct Rollover.


 


(b)                                  Definitions.  The following definitions shall apply for
the purposes of this Section 7.21.


 


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


 


(2) Distributee
means any of the following: an Employee; a former Employee; an Employee’s or
former Employee’s Spouse; an Employee’s or former Employee’s Surviving Spouse;
an Employee’s or former Employee’s Spouse or former Spouse who is an alternate
payee under a Qualified Domestic Relations Order, as defined in Code
section 414(p), with regard to the interest of such Spouse or former
Spouse.


 


(3) Eligible
Retirement Plan means an individual retirement account described in
Code section 408(a), an individual retirement annuity described in Code
section 408(b), an annuity plan described in Code section 403(b), or
a qualified trust described in Code section 401(a), that accepts a
Distributee’s Eligible Rollover Distribution. 
However, in the case of an Eligible Rollover Distribution to the
Surviving Spouse (or to a former Spouse who is an alternate payee under a
Qualified Domestic Relations Order), an Eligible Retirement Plan is an
individual retirement account or individual retirement annuity.


 


(4) Eligible
Rollover Distribution means any distribution of all or any portion
of the balance to the credit of a Distributee, except that an Eligible Rollover
Distribution does not include:


 


(i) 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 a
Distributee or the joint lives (or joint life expectancies) of a Distributee
and the Distributee’s designated Beneficiary, or for a specified period of ten
years or more;


 


(ii)  any distribution to the extent required
under Code section 401(a)(9);


 


(iii) Effective
January 1, 1999, any hardship distribution described in Code section 401(k)(2)(B)(i)(IV);


 


(iv) 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).


 


38

















 


ARTICLE VIII. JOINT AND SURVIVOR
ANNUITY REQUIREMENTS.


 


8.01.                     Provisions of this Article take
Precedence.  The provisions of this
Article shall apply, notwithstanding any conflicting provision in this
Plan, to any Participant who is credited with at least one (1) Hour of Service
with the Employer on or after August 23, 1984, and such other Participants
as provided for in this Article, unless the Adoption Agreement (a) does not
permit the payment of benefits in the form of a life annuity; (b) does not
permit Plan-to-Plan Transfers; and (c) specifically excludes the provisions of
this Article.


 


8.02.                     Qualified Joint and Survivor Annuity.  Unless an optional form of benefit is selected by a
Participant pursuant to a Qualified Election within the Notice Period ending on
the Annuity Starting Date, a married Participant’s Vested Balance shall be paid
in the form of a Qualified Joint and Survivor Annuity and an unmarried
Participant’s Vested Balance shall be paid in the form of a life annuity.  A Participant may elect to have such an
annuity distributed upon the attainment of the Earliest Retirement Age under
the Plan and Adoption Agreement.


 


8.03.                     Definitions.  For purposes of this Article VIII, the
following terms shall have the meaning provided herein.


 


(a)                                  Annuity
Starting Date means the first day of the first period for
which an amount is paid as an annuity or any other form.


 


(b)                                  Earliest
Retirement Age means the earliest date on which, under the
Plan and Adoption Agreement, a Participant may elect to receive retirement
benefits.


 


(c)                                  Election
Period means the period which begins on the first day of the
Plan Year in which a Participant attains age 35 and ends on the date of a
Participant’s death. If a Participant Separates from Service prior to the first
day of the Plan Year in which age 35 is attained, with respect to the Account
balance as of the date of separation, the Election Period shall begin on the
date of separation.


 


(d)                                  Pre-age
35 Waiver means the special Qualified Election waiver of the
Qualified Pre-retirement Survivor Annuity, by a Participant who shall not have
attained age 35 as of the end of any current Plan Year. Such waiver shall be
for the period beginning on the date of such election and ending on the first
day of the Plan Year in which the Participant shall attain age 35.


 


Such special Qualified
Election shall not be valid unless a Participant receives a written explanation
of the Qualified Pre-retirement Survivor Annuity in such terms as are
comparable to the explanation required under Section 8.05.  Qualified Pre-retirement Survivor Annuity
coverage shall be automatically reinstated as of the first day of the Plan Year
in which the Participant attains age 35. Any new waiver on or after such date
shall be subject to the full requirements of this Article.


 


(e)                                  Qualified
Joint and Survivor Annuity means an immediate annuity for the
life of the Participant with a survivor annuity for the life of the Spouse
which is not less than fifty percent (50%) nor more than one-hundred percent (100%)
of the amount of the annuity which is payable during the joint lives of the
Participant and the Spouse, and which is the amount of benefit which can be
purchased with the Participant’s Vested Account Balance. The percentage of the
survivor annuity under the Plan shall be fifty percent (50%) unless a different
percentage is provided for in the Adoption Agreement.


 


(f)                                    Qualified
Election means a waiver of a Qualified Joint and Survivor
Annuity or a Qualified Pre-retirement Survivor Annuity.  Any waiver of a Qualified Joint and Survivor
Annuity or a Qualified Pre-retirement Survivor Annuity shall not be effective
unless:


 


(1) a Participant’s Spouse consents in writing to
the election;


 


(2) the election designates a specific
Beneficiary, including any class of Beneficiaries or any contingent
Beneficiaries, which may not be changed without spousal consent (or the Spouse
expressly permits designations by the Participant without any further spousal
consent);


 


(3) the Spouse’s consent acknowledges the effect of
the election; and


 


(4) the Spouse’s consent is witnessed by a Plan
representative or a notary public.


 


Also, a Participant’s
waiver of a Qualified Joint and Survivor Annuity shall not be effective unless
the Qualified Election designates the form of benefit payment (method of
distribution) which may not be changed without spousal consent (or the Spouse
expressly permits designations by the Participant without any further spousal
consent).


 


Exceptions to spousal
consent.  A waiver shall be deemed a
Qualified Election if it is established to the Plan Administrator’s
satisfaction that:


 


(1) there is no Spouse; or


 


(2) that the Spouse cannot be located; or


 


(3) pursuant to section 1.401(a)-20,
Q&A-27 of the Income Tax Treasury Regulations, the Spouse is legally
incompetent to give consent.


 


In the event that the
Spouse is not legally competent to give consent, then the Spouse’s legal
guardian, even if the guardian is the Participant, may give such consent.  For purposes of the preceding, legal
competency and legal guardianship shall be determined by state law.  Where there is a question as to which state
has jurisdiction to determine such matters, the Plan Administrator may
determine which jurisdiction shall control.


 


39

















 


Any consent by a Spouse
obtained under this provision (or the establishment that the consent of a
Spouse may not be obtained) shall be effective only with respect to such
Spouse.  A consent that permits
designations by a Participant without any requirement of further consent by
such Spouse must acknowledge that the Spouse has the right to limit consent to
a specific Beneficiary, and a specific form of benefit (method of distribution)
where applicable, and that the Spouse voluntarily elects to relinquish either
or both of such rights.  A revocation of
a prior waiver may be made by a Participant without the consent of the Spouse
at any time before commencement of benefits. 
The number of revocations shall not be limited.  No consent obtained under this provision
shall be valid unless a Participant has received notice as provided in
Section 8.05.


 


8.04.                     Qualified Pre-retirement Survivor Annuity.  Unless an optional form of benefit has been
selected by a Participant pursuant to a Qualified Election, if a Participant
dies before the Annuity Starting Date, then the Participant’s Vested Account
Balance shall be applied, at the discretion of the Surviving Spouse, toward the
purchase of an annuity for the life of the Surviving Spouse, subject to the
restrictions of Sections 8.07 and 8.08. The Surviving Spouse may elect to have
such annuity distributed within a reasonable period after the Participant’s
death.


 


8.05.                     Notice Requirements.


 


(a)                                  Qualified
Joint and Survivor Annuity. 
In the case of a Qualified Joint and Survivor Annuity as described in
this Article, the Plan Administrator shall, no less than thirty (30) days and
no more than ninety (90) days prior to the Annuity Starting Date, provide each
Participant a written explanation of:


 


(1) the terms and conditions of a Qualified Joint
and Survivor Annuity;


 


(2) the Participant’s right to make, and the
effect of an election to waive, the Qualified Joint and Survivor Annuity form
of benefit;


 


(3) the rights of the Participant’s Spouse; and


 


(4) the right to make, and the effect of, a
revocation of a previous election to waive the Qualified Joint and Survivor
Annuity.


 


(b)                                  Qualified
Pre-Retirement Survivor Annuity.  In the case of a Qualified Pre-retirement Survivor Annuity, the
Plan Administrator shall provide each Participant within the applicable period
for such Participant, a written explanation of the Qualified Pre-retirement
Survivor Annuity in such terms and in such manner as would be comparable to the
explanation provided for meeting the requirements in subsection (a) above
applicable to a Qualified Joint and Survivor Annuity.


 


The applicable period for
a Participant is whichever of the following periods ends last:


 


(1) the period beginning with the first day of the
Plan Year in which a Participant attains age 32 and ending with the close of
the Plan Year preceding the Plan Year in which a Participant attains age 35;


 


(2) a reasonable period ending after an Employee
becomes a Participant;


 


(3) a reasonable period ending after this
Article first applies to a Participant.


 


Notwithstanding the
preceding, notice must be provided within a reasonable period ending after
Separation from Service in the case of a Participant who Separates from Service
before attaining age 35.


 


For purposes of this
subsection, a reasonable period ending after the enumerated events described in
(2) and (3) is the end of the two (2) year period beginning one (1) year prior
to the date the applicable event occurs, and ending one (1) year after such
date.  In the case of a Participant who
Separates from Service before the Plan Year in which age 35 is attained, notice
shall be provided within the two (2) year period beginning one (1) year prior
to separation and ending one (1) year after separation.  If such a Participant thereafter returns to
employment with the Employer, the applicable period for such Participant shall
be redetermined in accordance with this Article.


 


8.06.                     Transitional Rules.


 


(a)                                  In
general.  Participants who
satisfy the following conditions shall have the opportunity to elect to
have their benefits paid in accordance with subsection (b). This
Section 8.06 applies to Participants who were not receiving benefits under
the Plan on August 23, 1984, and who:


 


(1) are credited with at least one (1) Hour of
Service under this Plan (or a predecessor plan) in a Plan Year beginning on or
after January 1, 1976, and had at least ten (10) Years of vesting Service
when they Separated from Service with the Employer; or


 


(2) are credited with at least one (1) Hour of
Service under this Plan (or a predecessor plan) on or after September 2,
1974, and who are not otherwise credited with any Service in a Plan Year
beginning on or after January 1, 1976.


 


Participants described in
this subparagraph (a) shall be afforded the opportunity to make the appropriate
election during the period commencing on August 23, 1984, and ending on
the date benefits would otherwise commence to such Participants.


 


(b)                                  Right
to Automatic Joint and Survivor Annuity.  For a Participant described in
subsection (a) above, benefits under the Plan shall be distributed in the
form of a Qualified Joint and Survivor Annuity, unless a Participant elects
otherwise.  A Participant described in
subsection (a)(2) above who has elected to have his benefits paid in
accordance with this Section 8.06, and any Participant described in
subsection (a)(1) above, who does not make such election or who is
described in subsection (a)(1), but does not have at least ten (10) Years
of vesting Service upon Separation from Service, shall have benefits
distributed in accordance with all of the following requirements of this
subsection.


 


40

















 


Benefits received under
the Plan shall be provided in the form of a Qualified Joint and Survivor
Annuity, unless a Participant has elected otherwise during the applicable
election period, if benefits in the form of a life annuity become payable to a
married Participant who:


 


(1) begins to receive payments under the Plan on
or after Normal Retirement Age; or


 


(2) dies on or after Normal Retirement Age while
still working for the Employer; or


 


(3) begins to receive benefit payments on or after
Qualified Early Retirement Age; or


 


(4) Separates from Service on or after attaining
Normal Retirement Age (or Qualified Early Retirement Age) and after satisfying
the eligibility requirements for the payment of benefits under the Plan and
thereafter dies before beginning to receive such benefits.


 


For this
subsection (b), the applicable election period shall begin at least six
(6) months before a Participant attains Normal Retirement Age (or Qualified
Early Retirement Age) and shall end no more than 90 days before the
commencement of benefits.  Any election
under this provision shall be in writing and may be changed by a Participant at
any time.


 


(c)                                  Election
of early survivor annuity.  A Participant who is employed after attaining Qualified Early
Retirement Age, shall be able to elect, during the applicable election period,
to have a survivor annuity payable upon death. 
If a Participant elects the survivor annuity, payments under such
annuity must not be less than the payments which would have been paid to the
Spouse under a Qualified Joint and Survivor Annuity if such Participant had
retired on the day before such Participant’s death.


 


For this
subsection (c), the applicable election period begins on the later of the
90th day before a Participant attains Qualified Early Retirement Age, or the
date on which participation begins, and the election period ends on the date a
Participant terminates employment.  Any
election under this provision shall be in writing and may be changed by a
Participant at any time.


 


(d)                                  Qualified
Early Retirement Age. 
For purposes of Section 8.06, Qualified Early Retirement Age is the
latest of:


 


(1) the earliest date, under the Plan (or as
specified in the Adoption Agreement) on which a Participant may elect to
receive retirement benefits;


 


(2) the first day of the 120th month beginning
before a Participant reaches Normal Retirement Age; or


 


(3) the date a Participant
begins participation.


 


8.07.                     Account Balance Not Greater than $5,000.  The provisions of this
Article shall not apply for any Participant whose Vested Balance, at the
Annuity Starting Date, is not greater than $5,000.  Specifically, the otherwise applicable consent requirements shall
not apply.  In such event, a
Participant’s Vested Account Balance shall be distributed in a lump sum.


 


8.08.                     Consent Required for Certain Distributions Exceeding $5,000.  A partial or total distribution may not be
made when the present value of the nonforfeitable accrued benefit (including
Employer and Employee contributions, but not including accumulated deductible
Employee contributions) exceeds $5,000, unless the distribution is consented to
in writing by the Participant and Participant’s Spouse, if any (or where either
the Participant or the Spouse has died, the survivor).  Notwithstanding the preceding, a
distribution may be made without consent if, and only if, the distribution is
automatically in the form of a Qualified Pre-retirement Survivor Annuity or a
Qualified Joint and Survivor Annuity.


 


The consent of a
Participant and such Participant’s Spouse shall be obtained in writing within
the 90 day period ending on the Annuity Starting Date.  The Plan Administrator shall notify a
Participant and such Participant’s Spouse of the right to defer any
distribution until such Participant’s Account Balance is no longer immediately
distributable.  Notwithstanding the
preceding, only a Participant need consent to the commencement of a
distribution in the form of a Qualified Joint and Survivor Annuity while the
Account balance is immediately distributable. 
An Account is immediately distributable if any part of the Account
balance could be distributed to a Participant (or Surviving Spouse) before a
Participant attains (or would have attained if not deceased) the later of
Normal Retirement Age, or age 62.


 


For purposes of the
preceding paragraph, the applicable notice shall include a general description
of the material features, and an explanation of the relative values of, the
optional forms of benefit (methods of distribution) available under the
Plan.  Such explanation shall be in a
manner that would satisfy the notice requirements of Section 8.05(a), and
Code section 417(a)(3), and shall be provided no less than 30 days and no
more than 90 days prior to the Annuity Starting Date.


 


41

















 


ARTICLE IX. TOP HEAVY PLAN.


 


The provisions of this
Article shall supersede any conflicting provisions in the Plan or Adoption
Agreement if the Plan is or becomes Top-Heavy for any Plan Year beginning after
December 31, 1983.


 


9.01.                     Definitions.  If
the Plan is or becomes Top-Heavy in any Plan Year beginning after
December 31, 1983, the provisions of this Article shall supersede any
conflicting provisions in the Plan or Adoption Agreement.


 


(a)                                  Determination
Date means, with respect to any Plan Year, the last day of
the preceding Plan Year, or, in the case of the first Plan Year, the last day
of such Plan Year.


 


(b)                                  Permissive
Aggregation Group means that group of plans in a Required
Aggregation Group, together with any plan or plans of the Employer not required
to be included in the Required Aggregation Group, provided the resulting group,
taken as a whole, would continue to satisfy the provisions of Code sections
401(a)(4) and 410.


 


(c)                                  Present
Value of Accrued Benefits means the present discounted value
of all Participants’ accrued benefits under all defined benefit plans
maintained by the Employer, discounted using the interest and mortality rates
specified in the Adoption Agreement, if applicable.


 


(d)                                  Required
Aggregation Group means that group of plans composed of each:


 


(1) plan of the Employer in which at least one Key
Employee participates or participated at any time during the Determination
Period (regardless of whether the plan is terminated), and


 


(2) any other qualified plan of the Employer which
enables any plan in which a Key Employee participates to meet the requirements
of Code section 401(a)(4) or 410.


 


(e)                                  Top-Heavy
Plan Year means a Plan Year commencing after
December 31, 1983, in which the Plan is a Top-Heavy or a Super-Top-Heavy
Plan.


 


(f)                                    Top-Heavy
Ratio means the following:


 


(1) If the Employer maintains one or more defined
contribution plans (including any Simplified Employee Pension Plan) and the
Employer has not maintained any defined benefit plan which during the five-year
(5) period ending on the Determination Date has or has had accrued benefits,
the Top-Heavy Ratio for this Plan alone or for the Required Aggregation Group
or the Permissive Aggregation Group (whichever is applicable) is a fraction,
the numerator of which is the sum of the Total Balances of all Key Employees as
of the Determination Date (including any part of any Account balance
distributed in the five-year (5) period ending on the Determination Date, but
excluding any Account balance due to unrelated Rollovers and/or Plan-to-Plan
Transfers), and the denominator of which is the sum of all Total Balances (including
any part of any Account balance distributed in the five-year (5) period ending
on the Determination Date, provided that with respect to death benefits, the
amount used for Top-Heavy testing is the amount determined as above immediately
prior to a Participant’s death, including the cash value of life insurance
policies, if any), both computed in accordance with Code section 416 and
the regulations promulgated thereunder. Both the numerator and denominator of
the Top-Heavy Ratio are adjusted to reflect any contribution which is due but
unpaid as of the Determination Date, but which is required to be taken into
account on that date under Code section 416 or the regulations promulgated
thereunder.


 


(2) If the Employer maintains one or more defined
contribution plans (including any Simplified Employee Pension Plan) and the
Employer maintains or has maintained one or more defined benefit plans which
during the five-year (5) period ending on the Determination Date has or has had
any accrued benefits, the Top-Heavy Ratio for any Required Aggregation Group or
Permissive Aggregation Group (whichever is applicable) is a fraction, the
numerator of which is the sum of Total Account Balances under the aggregated
defined contribution plan or plans for all Key Employees determined in
accordance with subsection (1) above (including any part of any Account
balance distributed in the five-year (5) period ending on the
Determination Date, but excluding any Account balance due to unrelated
Rollovers and/or Plan-to-Plan Transfers), and the Present Value of Accrued
Benefits under the aggregated defined benefit plan or plans for all Key
Employees as of the Determination Date, and the denominator of which is the sum
of the Total Balances under the aggregated defined contribution plans for all
Participants (including any part of any Account Balance distributed in the
five-year (5) period ending on the Determination Date, but excluding any
Account Balance due to unrelated Rollovers and/or Plan-to-Plan Transfers), and
the Present Value of Accrued Benefits under the defined benefit plan or plans
for all Participants as of the Determination Date, all determined in accordance
with Code section 416 and the regulations promulgated thereunder. The
accrued benefits under a defined benefit plan in both the numerator and
denominator of the Top-Heavy Ratio shall include any distribution of an accrued
benefit made in the five-year (5) period ending on the Determination Date.


 


(3) For purposes of subsections (1) and (2) above,
the values used for determining the Top-Heavy Ratio shall be determined as of
the most recent Valuation Date that falls within or ends with the 12-month
period ending on the Determination Date except as provided in Code
section 416 and the regulations promulgated thereunder for the first and
second years of a defined benefit plan. The Account balances and accrued
benefits of a Participant (A) who is not a Key Employee, but who was a Key
Employee in a prior year, or (B) who has not been credited with at least one
(1) Hour of Service with any Employer maintaining this Plan at any time during
the five-year (5) period ending on the Determination Date shall be disregarded.
The calculation of the Top-Heavy Ratio, and the extent to which distributions,
rollovers, and transfers are taken into account shall be made in accordance
with Code section 416 and the regulations promulgated thereunder. Any
amount attributable to accumulated deductible Employee contributions (as
defined in Code section 72(o)(5)(A)) shall be disregarded for purposes of
computing the Top-Heavy Ratio. When aggregating plans, the value of Account
balances and accrued benefits shall be calculated with reference to the
Determination Dates that fall within the same calendar year.


 


42

















 


The accrued benefit of a
Participant other than a Key Employee shall be determined under (A) the method,
if any, that uniformly applies for accrual purposes under all defined benefit
plans maintained by the Employer, 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 rule of Code section 411(b)(1)(C).


 


9.02.                     Determination of Top-Heavy and Super
Top-Heavy Status.


 


(a)                                  Top-Heavy
Status.  This Plan
shall be a Top-Heavy Plan for any Plan Year commencing after December 31,
1983, if any of the following conditions exists:


 


(1) this Plan is not part of any Required
Aggregation Group or Permissive Aggregation Group of plans and the Top-Heavy
Ratio for this Plan exceeds 60%; or


 


(2) this Plan is a part of a Required Aggregation
Group of Plans but not part of a Permissive Aggregation Group, and the
Top-Heavy Ratio for the Required Aggregation Group of plans exceeds 60%; or


 


(3) this Plan is a part of a Required Aggregation
Group and part of a Permissive Aggregation Group of plans, and the Top-Heavy
Ratio for the Permissive Aggregation Group exceeds 60%.


 


(b)                                  Super
Top-Heavy Status. 
This Plan shall be a Super-Top-Heavy Plan for any Plan Year commencing
after December 31, 1983, if, after first substituting the term 90% for the
term 60% each time it appears in Section 9.02 (a), the Plan would meet the
test for being a Top-Heavy Plan specified therein.


 


9.03.                     Special Vesting Requirements.  For any Top-Heavy Plan Year, the vesting
schedule shall provide for 100% vesting after three (3) Years of Service
unless the vesting schedule in the Adoption Agreement provides for vesting
on a schedule which is at least as rapid as required for Top-Heavy plans
under Code section 416(b). The minimum vesting schedule applies to
all benefits within the meaning of Code section 411(a)(7) except those
attributable to Participant contributions (which shall be 100% vested at all
times), including benefits accrued before the effective date of Code 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. However, this Section does not
apply to the Employer Account Balance of any Employee who does not have one
Hour of Service after the Plan has initially become a Top-Heavy Plan; such
Employee’s vested percentage in his Employer Account shall be determined
without regard to this Section.


 


9.04.                     Special Minimum Allocation
Requirements.


 


(a)                                  In
general.  For any
Top-Heavy Plan Year, except as otherwise provided in subsection (b) below,
for purposes of the minimum Top-Heavy allocation, the Employer Contributions
and Forfeitures allocated on behalf of any Participant who is not a Key
Employee shall not be less than the lesser of three percent (3%) of such
Participant’s 414(q) Compensation or (in the case where the Employer has no
defined benefit plan which designates this Plan to satisfy Code
section 401) the largest percentage of Employer Contributions and
Forfeitures, as a percentage of the lesser of a Key Employee’s 414(q)
Compensation, or Annual Limitation (adjusted pursuant to Code
section 401(a)(17)), allocated on behalf of any Key Employee for such
year.


 


The minimum
allocation shall be determined without regard to any Social Security
contributions. The minimum allocation required (to the extent required to be
nonforfeitable under Section 9.03 and Code section 416(b)) shall not
be forfeited under Code section 411(a)(3)(B) or 411(a)(3)(D). This minimum
allocation shall be made even though, under other Plan provisions, a
Participant would not otherwise be entitled to receive an allocation, or would
have received a lesser allocation for the year because of:


 


(1) a Participant’s failure to complete a
specified number of Hours of Service (if any, as set forth in the Adoption
Agreement); or


 


(2) a Participant’s failure to make or authorize
any Salary Deferral Contributions; or


 


(3) Compensation less than a stated amount.


 


A minimum Top-Heavy
allocation, made on behalf of a Non-Key Employee shall be allocated to a
Non-Key Participant’s Salary Deferral Account for each Plan Year in which the
Plan is a Top-Heavy Plan. Salary Deferral Contributions, Matching Contributions
and Discretionary Contributions (and any other Employer Contributions) to the
Plan shall be combined to determine the largest contribution made or required
to be made for Key Employees.


 


The preceding provisions
of this Section 9.04 shall not apply to this Plan if, pursuant to the
Adoption Agreement, this Plan enables a qualified defined benefit plan in the
Required Aggregation Group of the Employer to meet the requirements of Code
section 401(a)(4) or Code section 410.


 


(b)                                  Special
Rules.


 


(1)  In determining a Non-Key Employee’s required
minimum allocation, such a Non-Key Employee’s Salary Deferral Contributions for
the Plan Year shall not be taken into account.


 


(2) The provisions in subsection (a) above
shall not apply to any Participant who was not employed by the Employer on the
last day of the Plan Year (unless otherwise specified in the Adoption
Agreement).


 


(3) The provisions of subsection (a) shall
not apply to any Participant to the extent such Participant is covered under
any other qualified plan or plans of the Employer and the Employer has provided
in the Adoption Agreement that the minimum allocation or benefit requirement
applicable to Top-Heavy Plans shall be met in such other plan or plans.


 


43

















 


9.05.                     Special Multiple Plan Rules.


 


(a)                                  General
rule.  For any
Top-Heavy Plan Year, the term “1.0” shall be substituted for the term “1.25”
each time such term appears in the definition of defined benefit plan fraction
and the definition of the defined contribution plan fraction as provided in
Section 5.02.


 


(b)                                  Employees
participating in only the defined benefit plan.  Employees participating in only the defined
benefit plan shall receive the defined benefit minimum contribution required by
Code section 416. Employees participating in only this Plan shall receive
the minimum allocation required under Section 9.04.


 


(c)                                  Employees
participating in both plans. 
Employees participating in both this Plan and a defined benefit plan
maintained by the Employer are not required to receive a minimum contribution
under each plan. The Plan Administrator shall set forth which of the applicable
provisions below shall override the other terms of the Plan, to the extent
necessary to satisfy the requirements of Code section 415 and/or avoid
duplication of the required aggregation of multiple plans.


 


(1) The Employer shall provide the minimum
contribution solely under this Plan, and the minimum contribution must equal
five percent (5%) of each Non-Key Employee’s 414(q) Compensation for each year
with respect to which both plans are treated as Top- Heavy; or


 


(2) The Employer shall provide the minimum benefit
under the defined benefit plan required by Code section 416 for each year
with respect to which both plans are treated as Top-Heavy; or


 


(3) The Employer shall provide the minimum benefit
by a floor offset approach (pursuant to Revenue Ruling 76-259, 1976-2 C. B.
111) under which the defined benefit minimum is provided in the defined benefit
plan and is offset by the benefits provided under this Plan.


 


(4) The Plan Administrator shall prove, using a
comparability analysis (pursuant to Revenue Ruling 81-202, 1981-2 C. B. 93)
that the plans are providing benefits at least equal to the defined benefit
minimum.


 


9.06.                     Change from Top-Heavy Plan to Non
Top-Heavy Plan.  In the event that the Plan becomes a
Top-Heavy Plan, such change shall be treated as a Plan amendment which affects
the vesting schedule. In the event that the Plan, thereafter, ceases to be a
Top-Heavy Plan, the effect of again following the regular vesting schedule(s)
(as specified in the Adoption Agreement) shall be treated as a Plan amendment
which affects the vesting schedule, and shall be governed by the provisions of
Section 6.04.


 


44

















 


ARTICLE X. PLAN ADMINISTRATOR.


 


10.01.              Plan Administrator.  The Plan Sponsor shall be the Plan Administrator, unless the Plan
Sponsor, by action of its governing body, appoints one or more individuals, or
another company, as Plan Administrator. 
Any person, including, but not limited to, the Employees of the Plan
Sponsor, shall be eligible to serve as the Plan Administrator.  Any person or company so appointed shall
signify his acceptance by filing written acceptance with the Plan Sponsor.  A Plan Administrator may resign by
delivering his written resignation to the Plan Sponsor or be removed by the
Plan Sponsor by delivery, to the Plan Administrator, of written notice of
removal.  Such removal shall take effect
on the date specified in the written notice, or, if no date is so specified,
upon delivery to the Plan Administrator. Upon the resignation or removal of a
Plan Administrator, the Plan Sponsor shall promptly designate in writing a
successor to this position. If the Plan Sponsor does not appoint a successor
Plan Administrator, the Plan Sponsor shall function as the Plan Administrator.


 


If the Plan Sponsor
serves as Plan Administrator, the Plan Sponsor may, by action of its governing
body, appoint a committee consisting of more than one (1) person (hereinafter
referred to as the “Committee”) who shall assist the Plan Administrator in the
administration of the Plan.  All actions
taken by the Committee shall be deemed actions taken by the Plan Administrator,
and the Plan Administrator shall, alone, have Fiduciary responsibility in
connection with such actions, except with respect to willful misconduct or
gross negligence.  All usual and
reasonable expenses of the Committee may be paid in whole or in part by the
Plan Administrator, and expenses not paid by the Plan Administrator shall be
paid by the Trustee out of the principal or income of the Trust.  The members of the Committee shall not
receive compensation with respect to their services for the Committee.  The Committee shall have such powers as may
be necessary to discharge its duties, including all powers set forth in
Section 10.03(b).  A majority of
the members of the Committee shall constitute a quorum for the transaction of
business.  No action shall be taken
except upon a majority vote of the Committee members.  An individual shall not vote or decide upon any matter relating
solely to himself or vote in any case in which his individual rights or claim
to any benefit under the Plan is particularly involved.  If, in any case in which a Committee member
is so disqualified to act, and the remaining members cannot agree, the
governing body of the Plan Sponsor shall appoint a temporary substitute member
to exercise all the powers of the disqualified member concerning the matter
relating to such disqualification.


 


10.02.              Signatures. 
The Plan Administrator shall designate the person or persons who shall
be authorized to sign for the Plan Administrator.


 


10.03.              General Powers and Authority of Plan
Administrator.


 


(a)                                  Plan
Administrator is a Fiduciary.  The Plan Administrator shall be a Named Fiduciary of the Plan.


 


(b)                                  Powers
of Plan Administrator. 
The Plan Administrator shall control and manage the operation and
administration of the Plan according to its terms and provisions, and shall have
all powers necessary to accomplish these purposes, including, but not limited
to, the sole and absolute discretion:


 


(1) to make written rules, regulations and by-laws
for the administration of the Plan, provided such are not inconsistent with the
terms and provisions of the Plan, copies of which shall be delivered to the
Trustee and to the Employer in order to be effective;


 


(2) to construe, within its sole discretion, all
terms, provisions, conditions and limitations of the Plan (provided that, in
all cases the construction which shall be required and which shall control
shall permit the Plan to comply with ERISA or qualify under Code
section 401);


 


(3) to correct any defect, supply any omission, or
reconcile any inconsistency that may appear in this Plan, in such manner and to
such extent as it shall deem expedient to carry the Plan into effect for the
greatest benefit of all interested parties;


 


(4) to select, employ and compensate such
investment professionals, retirement plan professionals, accountants, advisers,
attorneys, recordkeepers, consultants, advisors and other agents and employees
as it may deem necessary or advisable in the proper and efficient
administration of this Plan;


 


(5) to determine all questions relating to
eligibility for participation, vesting and benefits, including the authority to
settle, in a compromised fashion, any disputed claims against the Plan;


 


(6) to direct the Trustee concerning the payment
and distribution of the Trust Fund;


 


(7) to establish and maintain records concerning
the Accounts of the Participants;


 


(8) to determine, through
a reasoned process, the appropriate allocation of expenses between the Plan
Sponsor and the Plan;


 


(9) to file with the appropriate government agency
(or agencies) annual reports, plan descriptions, summary plan descriptions, and
other pertinent documents which may be duly requested;


 


(10) to determine the
proper voting of proxy materials, except with respect to Employer Securities
(as defined in Section 11.04(a)), related to the Investment Options (as
defined in Section 11.02) or to appoint a committee to handle the
same.  Generally, a proxy will be voted
to support the management proposals, however, proposals which could be
detrimental to the interests of the Plan and the Participants will be voted
against;


 


(11) to delegate to one or more officers of the
Employer, or, if there is a Committee, to one or more members of the Committee,
the right to act on behalf of the Plan Administrator in all matters connected
with the administration of the Plan and Trust;


 


(12) to delegate to one or more individuals such
of the above powers and duties as the Plan Administrator shall deem
appropriate;


 


45

















 


(13) to establish
reasonable contingency plans in the event there is a failure of the written
rules, regulations and by-laws for the administration of the Plan due to the
year 2000; and


 


(14) to interpret
“written,” including any derivative of that term, in accordance with statutory
and regulatory provisions which impact electronic transmissions and retention
of information and documentation; and


 


(15) to amend the Plan
for the following purposes: to maintain the Plan’s qualification under Code
Sections 401(a) and 501(a); to make administrative changes to the Plan that do
not significantly change the Plan’s benefits; to appoint or remove a Trustee;
and to consent to the adoption of the Plan by other business entities.


 


Notwithstanding any other
provisions of this Plan to the contrary, the Plan Administrator may establish
reasonable alternative procedures to manage the operation and administration of
the Plan, in the event that there is a failure of standard practices and
procedures due to a year 2000 problem.


 


10.04.              Uniform Administration.  Whenever, in the administration of the Plan, any action is taken
by the Plan Administrator, such action shall be uniform in nature as applied to
all persons similarly situated and no such action shall be taken which shall
discriminate in favor of Participants who are officers, shareholders, or are
Highly Compensated Participants.


 


10.05.              Finality of Decision.  The decision of the Plan Administrator in matters within its
jurisdiction involving the Plan shall be final, binding and conclusive upon the
Employer and upon each Employee, Participant, Beneficiary, alternate payee and
every other person or party.  The Plan
Administrator shall have the exclusive discretionary authority to construe the
terms of the Plan, and the exclusive discretionary authority to determine
eligibility for all benefits hereunder. 
Any such determination and/or interpretation, of the Plan, adopted by
the Plan Administrator shall be final and conclusive and shall bind all
parties.


 


10.06.              Self Interest of Participant. 
No agent or representative of the Plan Administrator shall
have any right to vote or decide upon any matter relating solely to himself, or
to any of his rights, or benefits under the Plan.


 


10.07.              Plan
Records.  The Plan Administrator shall keep
appropriate records of its acts and determinations in the administration of the
Plan, and shall make such records as they pertain to any Participant or
Beneficiary available for examination by such Participant, Beneficiary, or
alternate payee during normal business hours.


 


10.08.              Bonding and Liability of Plan
Administrator.  A bond or other security shall be required
of any individual empowered to act on behalf of the Plan Administrator to the
extent required by ERISA. The Employer shall indemnify and save such
individuals, and hold each of them harmless from the effects and consequences
of their acts, their omissions and conduct in their official capacity, except
to the extent that such effects and consequences shall result from their own
willful misconduct or gross negligence.


 


10.09.              Reporting and Disclosure.  The Plan Administrator shall file or cause to be filed with the
appropriate offices of the Internal Revenue Service and the Department of Labor
all reports, returns, notices and other information required under ERISA, the
Code, or applicable regulations and shall provide the Participants and their
Beneficiaries, and any alternate payees with such information as may be
required by ERISA, the Code, or any applicable regulations.


 


10.10.              Power and Responsibilities of the
Employer.


 


(a)                                  Duties.  The Employer shall supply all such
information to the Plan Administrator and the Trustee as is necessary for each
to fulfill its duties hereunder.


 


(b)                                  Power
to appoint Trustee and Plan Administrator.  The Employer shall be empowered to appoint
and remove the Trustee, Additional Trustees, Successor Trustees, Joint
Trustees, Co-Trustees and/or the Plan Administrator from time to time as it
deems necessary for the proper administration of the Plan.


 


(c)                                  Funding
policy method.  The
Employer shall establish a “funding policy and method,” i.e., it shall
determine whether the Plan has a short term need for liquidity (e.g., to pay
benefits) or whether liquidity is a long term goal and investment growth (and
stability of the same) is a more current need, or may appoint a qualified party
to do so.  The Employer or its delegate
shall communicate such needs and goals to the Trustee, who shall coordinate
such Plan needs with its investment policy. 
The communication of such a “funding policy and method” shall not,
however, constitute a directive to the Trustee as to investment of the Trust
Funds.  Such funding policy and method
shall be consistent with the objectives of this Plan and with the requirements
of Title I of ERISA.


 


(d)                                  Service
of legal process.  The
Employer shall serve as agent for the service of legal process at its principal
office.


 


(e)                                  Performance
reviews.  The Employer
shall periodically review the performance of any Fiduciary or other person to
whom duties have been delegated or allocated by it under the provisions of this
Plan or pursuant to procedures established hereunder.  This requirement may be satisfied by formal periodic review by
the Employer or by a qualified party specifically designated by the Employer,
through day-to-day contact and evaluation, or through other appropriate means.


 


10.11.              Payment of Expenses.  All expenses of administration not paid by the Employer or
charged to the Participant shall be paid out of the Trust Fund. Such expenses
shall include any reasonable expenses incident to the administration of the
Plan, including, but not limited to, reasonable fees of retirement plan and
investment professionals, accountants, counsel, consultants, advisers and other
specialists and their agents, and other costs of administering the Plan, including,
but not limited to, fees associated with any investment option or with
activities related to Participants and their Accounts (e.g., processing loans,
hardship withdrawals, or investment direction).  Until paid, the expenses shall constitute a liability of the
Trust Fund.  However, the Employer may
reimburse the Trust Fund for any administration expenses incurred. Any
administration expenses paid to the Trust Fund as a reimbursement shall not be
considered an Employer contribution.


 


46

















 


ARTICLE XI. PARTICIPANT
DIRECTION OF INVESTMENTS.


 


11.01.              Participant-Directed Investment
Account.  Unless otherwise specified in the Adoption
Agreement, each Participant shall be empowered to direct the investment of his
monies in all his Accounts among the Investment Options made available under
the Plan.  In this regard, unless
otherwise specified in the Adoption Agreement, the Plan shall be intended to be
an ERISA section 404(c) plan and, thereby, the Plan Fiduciaries may be
relieved of liability for losses which may occur as a result of Participants’
investment direction. Notwithstanding the general and specific powers granted
the Trustee under the Trust, the Trustee shall invest all or a portion of the
Participants’ Accounts in the amounts and manner set forth in this Article,
unless otherwise specified in the Adoption Agreement.  The transfers of monies between Investment Options shall be
invested at the direction of the Plan Administrator.  The amounts and timing of the transfers shall be provided in the
form of written instruments from the Plan Administrator to the Trustee.


 


11.02.              Investment Options.  The Employer, with the consent of the Trustee, shall establish,
maintain and make available to Participants a selection of options for the
investment of all Participants’ Accounts. 
The Employer, with the consent of the Trustee, shall select these
options from time to time in its sole discretion.  Such options shall be referred to herein as Investment
Options.  At any time, the Trustee or
Employer may, at their sole discretion, close any option to future
purchases.  Investment Options may have
different investment objectives and varying degrees of risk and potential for
appreciation.  Such Investment Options
may include, without limitation, shares of registered investment companies,
pooled separate accounts of life insurance companies, single or commingled
trust offered by a bank, group annuity contracts with life insurance companies,
employer securities, limited partnerships, and certificates of deposit, or any
combination thereof.  The Employer shall
provide such investment information as shall be necessary to comply with the
regulations issued pursuant to ERISA section 404(c).


 


11.03.              Investment Direction.


 


(a)                                  Investment
election.  A
Participant who has established any Account within the Plan shall, by filing a
written direction with the Plan Administrator, specify the percentage of his
Accounts which are to be invested in each of the Investment Options described
in Section 11.02. The Plan Administrator may limit the percentage
alternatives available in a uniform and non-discriminatory manner. Any
investment direction given by a Participant shall be deemed to be a continuing
direction until changed.


 


(b)                                  Absence
of affirmative direction. 
If a Participant fails to provide the Plan with an investment direction,
the Plan Administrator will direct the investment of the Participant’s account,
until such time as the Participant provides his or her first affirmative
direction.  In consideration of the risk
tolerances, time horizons and investment needs of the average Participant, and
of the common investment allocations of large retirement plans, Accounts for
Participants who do not affirmatively select their investment options will be
invested according to the percentage allocations of the moderate asset
allocation model.  Such monies will
continue to be invested using the percentage allocations of that model until
and unless the Plan Administrator decides to change this decision for all
Participants who have not provided investment directions or until the Plan
Administrator determines that a different investment selection is appropriate
for a Participant.  In making these
decisions, the Plan Administrator is not responsible for inquiring into the
specific goals or needs of a Participant.


 


(c)                                  Change
of investment election. 
As of the beginning of the Plan Year, and at least quarterly thereafter
(unless otherwise specified in the Adoption Agreement), and at any other time
so designated by the Plan Administrator, a Participant may, by a writing filed
with the Plan Administrator, establish new investment directions. The Plan
Administrator may implement such procedural rules it deems necessary to permit
the transfer among the Investment Options.


 


(d)                                  Transfers
between options. 
Participants shall be provided with a reasonable opportunity to give
investment instructions in writing to the Plan Administrator, who shall comply
with such instructions.  The Plan
Administrator shall decline instructions which would generate income that would
be taxable to the Trust. The Plan Administrator shall also establish
limitations on the frequency with which a Participant may give investment
instructions.  Compliance with such
instructions shall at all times be subject to any restrictions provided under
the applicable contracts with the investment products.


 


(e)                                  Oral
instructions.  The
Plan Administrator may, at its sole discretion, establish procedures to receive
investment instructions orally.  If such
procedures are established, any oral instruction shall be followed by a written
confirmation of such instructions and shall be sent to the Participant by first
class mail or other reasonable means.


 


(f)                                    Other
restrictions.  If a
Plan is subject to the provisions of this Article, and a Participant or
Beneficiary requests a distribution of his benefits, the timing, manner and
form of any such distribution shall be subject to the conditions and
obligations of the investment option or options selected by the Participant, as
well as those of the Plan.  Furthermore,
the Plan Administrator shall have the authority, for administrative reasons, to
instruct the Trustee to transfer monies to a segregated option that is a
federally insured savings account, certificate of deposit in a bank or savings
and loan association, money market option, or other short-term debt security
acceptable to the Trustee until such time as an allocation pursuant to this
Plan can be made.  Such administrative
reasons shall include, but are not limited to, the transfer of monies from
another plan to this Plan, the liquidation of an investment option, the
delivery of monies to the Trust upon the maturity of bonds or Guaranteed
Investment Contracts or other such instruments, and upon the termination or
partial termination of the Plan.  Also,
the Employer and/or the Trustee shall have the power to liquidate options and
transfer them to one or more segregated accounts, as described in the preceding
sentence, if the Employer and/or the Trustee believes it is prudent to do so in
light of the Employer’s and/or Trustee’s fiduciary duties to the Plan’s
Participants.  The Employer and/or
Trustee shall have the authority to take such actions, without any prior notice
to Participants, but shall notify the Plan Administrator of the Trustee’s
action as soon as practicable thereafter. 
The Plan Administrator shall notify the affected Participants and
Beneficiaries within 90 days of any such transfer.


 


11.04                 Investment Direction – Employer
Securities.  


 


(a)                                  Definitions.    For purposes of this Article the
following definition applies:


 


(1) Employer Securities –
means shares of common stock issued by the Plan Sponsor, as identified in the
Adoption Agreement.


 


47

















 


(2) Responsible Fiduciary
– means the individual or party identified in the Adoption Agreement


 


(b)                      Investment
Election – Employer Securities.  


 


(1)   Participant Election - If provided for in
the Adoption Agreement, a Participant may file a written direction with the
Plan Administrator specifying which percentage of his Accounts are to be
invested in Employer Securities.  The
Plan Administrator may limit the Accounts and the percentage alternatives
available to be invested in Employer Securities in a uniform and
non-discriminatory manner.  Any
restrictions on transferring from or into Employer Securities will be specified
in the Adoption Agreement and comply with federal securities law.


 


(2)  Employer Contributions and Forfeitures.  In the event that Employer Contributions are
invested in Employer Securities, as specified in the Adoption Agreement, a
Participant may elect, in accordance with procedures established by the Plan
Administrator, to transfer (and the Adoption Agreement shall specify if such
transfer is irrevocable) a percentage of the amounts in his Employer
Contributions that are invested in Employer Securities pursuant to the
restrictions identified in the Adoption Agreement.


 


(c)                      Proxy Voting – Employer Securities.    When the Plan Sponsor files preliminary or
final proxy solicitation materials with the Securities and Exchange Commission,
the Plan Sponsor shall cause a copy of all materials to be simultaneously sent
to the Responsible Fiduciary.  Based on
these materials, the Responsible Fiduciary will ensure that a voting
instruction form is prepared.  At the
time of mailing of notice of each annual or special stockholders’ meeting of
the Plan Sponsor, the Plan Sponsor shall cause a copy of the notice and all proxy
solicitation materials to be sent to each Participant and Beneficiary with an
interest in Employer Securities held in the Trust, together with the foregoing
voting instruction form to be returned to the Responsible Fiduciary or its
designee.  The Responsible Fiduciary
shall provide the Trustee with a copy of any materials provided to the
Participants and Beneficiaries and shall certify to the Trustee that the
materials have been mailed or otherwise sent to the Participants and
Beneficiaries.


 


Each Participant and
Beneficiary with an interest in Employer Securities held in the Trust shall
have the right to direct the manner in which to vote the number of shares of
the Employer Securities reflecting such Participant’s or Beneficiary’s
proportional interest in the Employer Securities held in the Trust (both vested
and unvested).  Directions from a
Participant or Beneficiary to the Responsible Fiduciary concerning the voting
of the Employer Securities shall be communicated in a then acceptable written
format.  These directions shall be held
in confidence by the Responsible Fiduciary and shall not be divulged to the
Plan Sponsor, or any officer or employee thereof, or any other person.  Upon its receipt of the directions, the
Responsible Fiduciary shall direct the Trustee on how to vote the shares of the
Employer Securities reflecting the Participant’s or Beneficiary’s proportional
interest in the Employer Securities held in the Trust as directed by the
Participant.


 


If applicable, select
Option 1, 2 or 3:


 


Option #1:  Shares of the Employer Securities reflecting
Participant’s or Beneficiary’s proportional interest in the Employer Securities
held in the Trust (both vested and unvested) for which it has received no
directions from Participants or Beneficiaries shall be voted in the same
proportion on each issue as it votes those shares for which it received voting
directions from Participants and Beneficiaries.  Shares of the Employer Securities not credited to Participants’
or Beneficiaries’ Accounts shall be voted in the same proportion on each issue
as it votes those shares credited to Participants’ or Beneficiaries’ Accounts
for which it received voting directions from Participants or
Beneficiaries.  If the Responsible
Fiduciary determines that it would be imprudent to vote shares of Employer
Securities in the manner described herein, he or she will change the manner in
which shares are voted so as to comply with his or her fiduciary
responsibilities under the applicable law.


 


Option #2:  Shares of the Employer Securities reflecting
Participants’ or Beneficiaries’ proportional interest in the Employer
Securities held in the Trust (both vested and unvested) for which it has
received no directions from Participants or Beneficiarys shall not be
voted.  Shares of the Employer
Securities held in the Trust that are not credited to Participants’ or
Beneficiaries’ Accounts shall not be voted. 
If the Responsible Fiduciary determines that it would be imprudent to
vote shares of Employer Securities in the manner described herein, he or she
will change the manner in which shares are voted so as to comply with his or
her fiduciary responsibilities under the applicable law.


 


Option #3:  Shares of the Employer Securities, held in
the Trust, irregardless of if the shares are credited to Participants’ or
Beneficiaries’ Accounts, shall be voted by the Responsible Fiduciary.


 


(d)                      Tender Offers – Employer Securities.    Upon commencement of a tender offer for any
securities held in the Trust that are Employer Securities, the Responsible
Fiduciary shall notify each Participant or Beneficiary of the tender offer and
utilize its best efforts to timely distribute or cause to be distributed to
each Participant or Beneficiary the same information that is distributed to
other stockholders of the Plan Sponsor in connection with the tender
offer.  The Plan Sponsor shall provide
the Responsible Fiduciary with a copy of any material provided to the
Participants and Beneficiaries.  The
Responsible Fiduciary shall certify to the Trustee that the materials have been
mailed or otherwise sent to Participants and Beneficiaries.


 


48

















 


Each Participant and
Beneficiary shall have the right to direct the Responsible Fiduciary to tender
or not to tender some or all of the shares of the Employer Securities
reflecting his proportional interest in the Employer Securities held in the
Trust (both vested and unvested). 
Directions from a Participant or Beneficiary to the Responsible
Fiduciary concerning the tender of the Employer Securities shall be communicated
in a then acceptable written format. 
These directions shall be held in confidence by the Responsible
Fiduciary and shall not be divulged to the Plan Sponsor, or any officer or
employee thereof, or any other person except to the extent that the consequences
of such directions are reflected in reports regularly communicated to any such
persons in the ordinary course of the performance of the Responsible
Fiduciary’s services hereunder.  The
Responsible Fiduciary shall tender shares of Employer Securities as directed by
the Participant or Beneficiary.  To the
extent that Participants and Beneficiaries fail to affirmatively direct the
Responsible Fiduciary or fail to issue valid directions to the Responsible
Fiduciary to tender shares of the Employer Securities credited to their
Accounts, they will be deemed to have instructed the Responsible Fiduciary not
to tender those shares.  Accordingly,
the Responsible Fiduciary shall not tender shares of Employer Securities credited
to a Participant’s or Beneficiary’s Accounts for which it has received no
directions or invalid directions from him.


 


The Responsible Fiduciary
shall tender that number of shares of the Employer Securities not credited to
the Participants’ and Beneficiaries’ Accounts which is determined by multiplying
the total number of shares of the Employer Securities not credited to
Participants’ and Beneficiaries’ Accounts by a fraction of which the numerator
is the number of shares of the Employer Securities credited to Participants’
and Beneficiaries’ Accounts for which the Responsible Fiduciary has received
valid directions from Participants and Beneficiaries to tender (which
directions have not been withdrawn as of the date of this determination) and of
which the denominator is the total number of shares of the Employer Securities
credited to the Participants’ and Beneficiaries’ Accounts.


 


A Participant or
Beneficiary who has directed the Responsible Fiduciary to tender some or all of
the shares of the Employer Securities credited to his Accounts may, at any time
prior to the tender offer withdrawal date, direct the Responsible Fiduciary to
withdraw some or all of the tendered shares, and the Responsible Fiduciary
shall withdraw the directed number of shares from the tender offer prior to the
tender offer withdrawal deadline.  Prior
to the withdrawal deadline, if any shares of the Employer Securities not
credited to Participants’ or Beneficiaries’ Accounts have been tendered, the
Responsible Fiduciary shall redetermine the number of shares of the Employer
Securities that would be tendered under this Section if the date of the
foregoing withdrawal were the date of determination, and withdraw from the
tender offer the number of shares of the Employer Securities not credited to
Participants’ or Beneficiaries’ Accounts necessary to reduce the amount of
tendered Employer Securities not credited to Participants’ or Beneficiaries’
Accounts to the amount so redetermined. 
A Participant or Beneficiary shall not be limited as to the number of
directions to tender or withdraw that he may give to the Responsible Fiduciary.


 


A direction by a
Participant or Beneficiary to the Responsible Fiduciary to tender shares of the
Employer Securities reflecting his proportional interest in the Employer
Securities held in the Trust shall not be considered a written election by him
to withdraw, or have distributed, any or all of his withdrawable shares.  The Responsible Fiduciary shall credit to
each proportional interest of the Participant or Beneficiary from which the
tendered shares were taken the proceeds received by the Responsible Fiduciary
in exchange for the shares of Employer Securities tendered from that interest.


 


The Responsible Fiduciary
will comply with the provisions of this Section 11.04(d) unless he or she
determines that it is imprudent to do so, in which case he or she will carry
out the provisions of this Section in a manner which complies with his or
her fiduciary responsibilities under applicable law.


 


49

















 


ARTICLE XII.
PARTICIPANT LOANS.


 


12.01.              Availability of Loans.    The Plan may
permit a Participant to obtain a loan from the Plan.  The Plan’s written loan policy shall set forth all loan rules and
restrictions.


 


12.02.              Loan
Policy.  The Loan Policy shall be a written
document setting forth the specific provisions for Participant loans, and is
herein incorporated as part of the Plan by reference. A signed copy of the Loan
Policy shall be kept on file by the Plan Administrator, and also shall be set
forth in the Summary Plan Description for the Plan. The Loan Policy shall
include (1) the identity of the person or position authorized to administer the
Participant Loan program; (2) a procedure for applying for loans; (3) the basis
on which loans shall be approved or denied; (4) limitations (if any) on the
types and amounts of loans offered; (5) the procedure under the program for
determining a reasonable rate of interest; (6) the types of collateral which
may secure a Participant loan; (7) the events constituting default and the
steps that shall be taken to preserve Plan assets in the event of such default;
and (8) all other information sufficient to apprise all possible borrowers of
the scope and procedures of the loan program. 
Loans shall be available to Plan Participants on a nondiscriminatory
basis without regard to any individual’s race, color, religion, sex, age or
national origin.


 


12.03.              Loan Documents.  The
originals of all promissory notes and other forms requested by the Trustee in
respect of any loan shall be retained by the Trustee (or an authorized
representative of the Trustee), or the Plan Administrator (or an authorized
representative of the Plan Administrator) as long as the loan is outstanding.


 


50

















 


ARTICLE XIII. ADOPTION,
TERMINATION AND RELATED MATTERS.


 


13.01.              Adoption Agreement.  The Employer shall adopt this Plan by its Adoption Agreement
complete in every respect and agreeing to be bound as an Employer by all the
terms of the Plan with respect to its Eligible Employees. The Adoption
Agreement shall specify the Effective Date of such adoption of the Plan and
shall become, to such Employer and its Employees, a part of this Plan. The
Employer shall be solely responsible for establishing and maintaining the
tax-qualified status of this Plan.


 


13.02.              Right to Amend Reserved.


 


(a)                                  Right
to Amend.  The
Employer, by action of its corporate officers, general manager (if applicable),
managing partner (if applicable), or any individual appointed pursuant to
Section 10.01 (regarding the Plan Administrator), shall have the right at
any time and from time to time to amend the Plan, subject to the limitations of
this Section 13.02(a).  However,
any amendment which affects the rights, duties or responsibilities of the Trustee
or Plan Administrator, may only be made with the Trustee’s and Plan
Administrator’s written consent.


 


Notwithstanding the
immediately preceding paragraph, an amendment shall require the approval or
ratification of the Plan Sponsor’s Board 
of Directors if the effect of such amendment is to:


 


(1)                                  terminate
the Plan;


(2)                                  allow
for merger and/or transfer of any assets and/or liabilities from or to the
Plan; and


(3)                                  amend
the Plan for any other purpose, which has not been delegated to the Committee
below.


 


The
Committee shall have the authority to amend the Plan for the following
purposes:


 


(1)                                  to
maintain the Plan’s qualification under Code Sections 401(a) and 501(a);


(2)                                  to
make administrative changes to the Plan that do not significantly change the
Plan’s benefits;


(3)                                  to
determine contributions to the Plan, reduce, suspend, or discontinue
contributions to the Plan;


(4)                                  to
appoint or remove a Trustee; and


(5)                                  to
consent to the adoption of the Plan by other business entities.


 


(b)                                  No
Protected Benefit may be eliminated.  No amendment to the Plan shall eliminate a
Protected Benefit, except to the extent permitted under Regulation
section 1.411(d)(6).


 


13.03.              Limitations on Employer’s Right to
Amend.  No such amendment shall, without a
Participant’s consent (except as otherwise specifically permitted under this
Plan), deprive, limit, lessen or restrict any vested right or interest to which
any Participant is already entitled under the Plan. Furthermore, no such
amendment may decrease the Vested Balance of a Participant, nor may it
eliminate or reduce an Early Retirement benefit, nor may it eliminate a
Protected Benefit.


 


13.04.              Right to Terminate.  The Employer reserves the right to terminate the Plan in whole or
in part with respect to its Employees at any time by giving written notice to
the Trustee. Any such notice shall designate the Effective Date of such
termination. Upon the termination or partial termination of the Plan by an
Employer with respect to its Employees by an Employer, the affected Participants
with respect to whom the Plan has wholly or partially terminated, shall be 100%
vested in their Accounts.  After payment
of all expenses, and the proportionate adjustment of Participants’ Accounts to
reflect such expenses, net income or loss of the Trust Fund and allocation to
date of termination, and requirements of section 401(k)(2)(B) of the Code,
benefits shall be distributed to each Participant, as soon as administratively
practicable, as provided herein. The Employer may notify the Internal Revenue
Service in writing of such termination with respect to its Employees.


 


Upon such termination,
the Employer may distribute all amounts held under the Plan except, however,
that amounts attributable to salary deferrals shall not be distributed if the
affected Participants shall be employed by a successor employer maintaining a
qualified plan with a salary deferral arrangement.


 


13.05.              Suspension of Contributions.  In the event of a complete discontinuance of substantial Employer
contributions to this Plan, the vested percentage of each Participant in his
Employer Account shall be 100%.


 


13.06.              Merger,
Partial Merger, Consolidation, and Transfer of Assets. 
This Plan and Trust may be merged, partially merged, or
consolidated with, or assets and/or liabilities may be transferred to, or from,
any other plan and trust only if the benefits which would be received by a
Participant of this Plan, in the event of a termination of the Plan immediately
after such transfer, merger or consolidation, are at least equal to the
benefits the Participant would have received if the Plan had terminated
immediately before such transfer, merger or consolidation, and such transfer,
merger or consolidation does not otherwise result in the elimination or
reduction of any Protected Benefit, nor cause any Participant to vest less
rapidly in any Employer Account than would have otherwise been the case prior
to said transfer, merger, or consolidation.


 


Unless specifically
prohibited in the Adoption Agreement, the Plan shall accept assets transferred
from a Plan qualified under Code section 401(a).  Upon the transfer of any assets or liabilities in connection with
the merger, partial merger, or consolidation of another plan qualified under
Code section 401(a) with this Plan, the Plan Administrator may direct that
the total of Employee transfers made in cash after a Valuation Date be
segregated into a separate account for each Participant in a federally insured
savings account, certificate of deposit in a bank or savings and loan
association, money market fund, or other short-term debt security acceptable to
the Trustee until such time as the allocations pursuant to this Plan have been
made, at which time they may remain segregated or be invested as part of the
general Trust Fund, to be determined by the Plan Administrator.


 


Any amounts transferred
to this Plan from another plan, as described in the preceding paragraph, that
are attributable to contributions from the Employer that maintained such plan,
shall be fully vested upon such merger, unless otherwise provided in the
Adoption Agreement or in an amendment to the Plan addressing such transfer,
merger, or consolidation.


 


51

















 


13.07.              Partial Termination.  Upon a determination by the Plan Administrator in its sole and
absolute discretion, that a partial termination of the Plan has occurred with
respect to a group of Participants, the Trustee shall, in accordance with the
directions of the Plan Administrator, allocate and segregate for the benefit of
the affected Employees then or theretofore employed by the Employer with
respect to which the Plan is being terminated the proportionate interest of
such Participants in the Trust Fund. The funds so allocated and segregated
shall be used by the Trustee to pay benefits to or on behalf of Participants in
accordance with Section 13.08.


 


13.08.              Liquidation of the Trust Fund.  Upon termination or partial termination of the Plan, the Accounts
of all Participants affected thereby shall become fully vested, and the Plan
Administrator shall direct the Trustee to implement either subsection (a)
or (b) below.


 


(a)                                  Continuing
the Trust.  Under this
option, the Trustee shall continue to administer the Trust Fund and pay Account
balances in accordance with Section 7.07, to Participants affected by the
termination upon their termination of employment or to their Beneficiaries upon
such a Participant’s death, until the Trust Fund has been liquidated.


 


(b)                                  Liquidating
the Trust.  Under this
option, the Trustee shall, as soon as administratively practicable, distribute
the assets remaining in the Trust Fund, after payment of any expenses properly
chargeable thereto, to Participants, Former Participants and Beneficiaries in
proportion to their respective Account balances. In case the Plan Administrator
directs liquidation of the Trust Fund pursuant to paragraph (a) of this
Section, the expenses of administering the Plan and Trust, if not paid by the
Employer, shall be paid from the Trust Fund. 
A liquidation of the Trust Fund may be delayed in the event the Employer
has made an application with the Internal Revenue Service for a determination
of the Plan’s qualified status upon termination and such liquidation is pending
a favorable determination.


 


13.09.              Manner of Distribution.  To the extent that no discrimination in value results, any
distribution after termination of the Plan may be made, in whole or in part, in
cash, in securities or other assets in kind, or in non-transferable annuity
contracts, as the Plan Administrator shall determine. All non-cash
distributions shall be valued at fair market value as of the date of
distribution. Distributions due to the termination or partial termination of
the Plan shall be made in accordance with the modes of distribution provided
for in the Plan. Except, however, that in the event of the termination of the
Plan and liquidation of the Trust, distributions shall only be made in a lump
sum unless the Adoption Agreement provides for the purchase of annuities.


 


13.10.              No Reversion to Employers.  Except as provided herein, no portion of the principal or the
income of the Trust Fund shall revert to or be recoverable by the Employer (or
any Participating Employer) or ever be used for or diverted to any purpose
other than for the exclusive benefit of the Participants, Beneficiaries or
alternate payees, provided, however, that:


 


(a)                                  Deductibility.  All Employer contributions are conditioned
upon the deductibility of the contributions under section 404 of the Code,
then, to the extent the deduction is disallowed, the Plan shall, upon written
request of the Employer (or Participating Employer), return such amounts as may
be permitted by law to such Employer (or Participating Employer) as
appropriate, within one year after the date the deduction is disallowed; and


 


(b)                                  Mistake
of Fact.  If a
contribution or any portion thereof is made by the Employer (or Participating
Employer) by a mistake of fact, the Plan shall, upon written request of the
Employer, return such amounts as may be permitted by law to the Employer (or
Participating Employer), within one year after the date of payment to the
Trust; and


 


(c)                                  Initial Qualification.  All Employer contributions are
conditioned upon the initial qualification of the Plan and Trust under Code
sections 401 and 501.  The contributions
of the Employer (or of a Participating Employer) to the Trust for all Plans
Years, with the gains and losses thereon, shall be returned by the Plan to the
Employer (or such Participating Employer), within one year in the event that
the Commissioner of the Internal Revenue Service either issues an adverse
determination on the initial qualification of the Plan and Trust or fails to
rule that the Plan and Trust were as of such date qualified and tax-exempt
(within the meaning of Code sections 401 and 501); and


 


(d)                                  Other
Allowable Provisions. 
Assets may be returned to the Employer (or Participating Employer) to
the extent such return is permitted by ERISA, the Code, the Income Tax
Regulations, Department of Labor Regulations, or any other authorities or
guidance issued by the United States Department of Treasury, the Internal
Revenue Service, or the Department of Labor.


 


13.11.              Determination of Returned Amount.  Provided, however, that the return of any
contributions to the Employer (or Participating Employer) pursuant to
Section 13.10 (a), (b) or (d), shall satisfy the following requirements:


 


(a)                                  the amount returned
shall not exceed the amount which would have been contributed had there been no
error in determining the deduction or mistake of fact, as the case may be;


 


(b)                                  the amount returned
shall not include the earnings attributable to such contributions;


 


(c)                                  the amount returned
shall be reduced by any losses attributable to such contributions;


 


(d)                                  the individual
Account of any Participant (or Beneficiary or alternate payee) shall not be
reduced, by the return of such contributions, to less than such Account would
have been had the returned contributions never been made.


 


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ARTICLE XIV. PARTICIPATING
EMPLOYERS.


 


14.01.              Adoption By Other Employers.  Notwithstanding anything herein to the contrary, with the consent
of the Employer and Trustee, any other corporation or entity, whether an
Affiliate or subsidiary or not, may adopt this Plan and all of the provisions
hereof, and participate herein and be known as a Participating Employer, by
delivering to the Employer and Trustee a properly executed document evidencing
said intent and will of such Participating Employer.


 


14.02.              Requirements of Participating Employers.


 


(a)                                  Trustee.  Unless otherwise specifically
provided in the Adoption Agreement, each such Participating Employer shall be
required to use the same Trustee as provided in this Plan, or as provided in
such separate Trust Agreement as shall be specified in the Adoption Agreement.


 


(b)                                  Trust
Funds.  The Trustee
may, but shall not be required to, commingle, hold and invest as one Trust Fund
all contributions made by Participating Employers, as well as all increments
thereof.  However, the assets of the
Plan shall, on an ongoing basis, be available to pay benefits to all
Participants and Beneficiaries under the Plan without regard to the Employer or
Participating Employer who contributed such assets.


 


(c)                                  Transfers.  The transfer of any Participant from or to
the Employer or a Participating Employer, whether an Employee of the Employer
or a Participating Employer, shall not affect such Participant’s rights under
the Plan, and all amounts credited to such Participant’s Account as well as his
accumulated service time with the transferor or predecessor, and his length of
participation in the Plan, shall continue to his credit.


 


(d)                                  Participant
rules.  All rights and
values forfeited by termination of employment shall inure, in accordance with
Section 4.06(f), only to the benefit of the Participants of the Employer
or Participating Employer by which the forfeiting Participant was employed,
except if the Forfeiture is for an Employee whose Employer is an Affiliated
Employer (as defined in Section 1.19), then said Forfeiture shall inure to
the benefit of the Participants of those employers who are Affiliates, unless
otherwise provided in the Adoption Agreement. 
Should an Employee of one (“First”) Employer be transferred to an
associated (“Second”) Employer which is an Affiliate, such transfer shall not
cause his Account balance (generated while an Employee of the “First” Employer)
in any manner, or by any amount to be forfeited.  Such Employee’s Participant Account balance for all purposes of
the Plan, including length of Service, shall be considered as though he had
always been employed by the “Second” Employer, and as such had received
contributions, Forfeitures, earnings or losses, and appreciation or
depreciation in value of assets totaling the amount so transferred.


 


(e)                                  Expenses.  Any expenses of the Trust which are
to be paid by the Employer or borne by the Trust Fund shall be paid by each
Participating Employer in the same proportion that the total amount standing to
the credit of all Participants employed by such Employer bears to the total
standing to the credit of all Participants.


 


14.03.              Designation of Agent.  Each Participating Employer shall be deemed to be a part of this
Plan; provided, however, that with respect to all of its relations with the
Trustee and the Plan Administrator for the purpose of this Plan, each
Participating Employer shall be deemed to have designated irrevocably the
Employer as its agent.  Unless the
context of the Plan clearly indicates the contrary, the word “Employer” shall
be deemed to include each Participating Employer as related to its adoption of
the Plan.


 


14.04.              Employee Transfers.  It is anticipated that an Employee may be transferred between
Participating Employers, and in the event of any such transfer, the Employee
involved shall carry with him his accumulated Service and eligibility.  No such transfer shall effect a termination
of employment hereunder, and the Participating Employer to which the Employee
is transferred shall thereupon become obligated hereunder with respect to such
Employee in the same manner as was the Participating Employer from whom the
Employee was transferred.


 


14.05.              Participating Employer’s Contribution.


 


(a)                                  In
general.  A Participating Employer’s
Contributions shall be applied according to one of the following methods as
specified in the Adoption Agreement:


 


(1) All contributions made by a Participating
Employer and the allocation of related Forfeitures, as provided for in this
Plan, 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. 
On the basis of the information furnished by the Plan Administrator, the
Trustee shall keep separate books and records concerning the affairs of each
Participating Employer hereunder and as to the Accounts and credits of the
Employees of each Participating Employer.


 


(2) Any contribution or Forfeiture subject to
allocation during each Plan Year shall be allocated among all Participants of
all Participating Employers in accordance with the provisions of this
Plan.  On the basis of the information
furnished by the Plan Administrator, the Trustee shall keep separate books and
records concerning the affairs of each Participating Employer hereunder and as
to the Accounts and credits of the Employees of each Participating Employer.


 


(b)                                  Contracts.    The Trustee may, but need not,
register contracts so as to evidence that a particular Participating Employer
is the interested Employer hereunder, but in the event of an Employee transfer
from one Participating Employer to another, the employing Employer shall
immediately notify the Trustee thereof.


 


53

















 


14.06.              Amendment. 
Amendment of this Plan shall only be done by the Employer, and with the
consent of the Trustee, where such consent is necessary in accordance with the
terms of the Plan.  Written action by
each and every Participating Employer, and with the consent of the Trustee
where such consent is necessary in accordance with the terms of the Plan or the
Adoption Agreement, shall only be required if so provided in the Adoption
Agreement.


 


14.07.              Discontinuance of Participation.  Any Participating Employer shall be permitted to discontinue or
revoke its participation in the Plan. 
At the time of any such discontinuance or revocation, satisfactory evidence
thereof and of any applicable conditions imposed shall be delivered to the
Trustee.  The Trustee shall thereafter
transfer, deliver and assign Contracts and other Trust Fund assets allocable to
the Participants of such Participating Employer to such new Trustee as shall
have been designated by such Participating Employer, in the event that it has
established a separate plan qualified under Code section 401(a) for its
Employees; provided, however, that no such transfer shall be made if the result
is the elimination or reduction of any Protected Benefit.  If no successor is designated, the Trustee
shall retain such assets for the Employees of said Participating Employer
pursuant to the provisions of Article XII hereof, or the provisions of
such separate Trust Agreement as shall be in effect (as provided in the
Adoption Agreement).  In no such event
shall any part of the corpus or income of the Trust as it relates to such
Participating Employer be used for or delivered for purposes other than the
exclusive benefit of the Employees (and their Beneficiaries) of such
Participating Employer.


 


14.08.              Plan Administrator’s Authority.  The Plan Administrator shall have authority to make any and all
necessary rules or regulations, binding upon all Participating Employers and
all Participants, to effectuate the purpose of this Article.


 


14.09.              Participating Employer’s Contribution for Affiliate.  If any Participating Employer is prevented
in whole or in part from making a contribution to the Trust Fund which it would
otherwise have made under the Plan by reason of having no current or
accumulated earnings or profits, or because such earnings or profits are less
than the contribution which it would otherwise have made, then, pursuant to
Code section 404(a)(3)(B), so much of the contribution which such Participating
Employer was so prevented from making may be made, for the benefit of the
participating Employees of such Participating Employer, by the other
Participating Employers who are members of the same affiliated group within the
meaning of Code section 1504, to the extent of their current or
accumulated earnings or profits. 
However, any such contribution by each such other Participating Employer
shall be limited to the proportion of its total current and accumulated earnings
or profits remaining after adjustment for its contribution to the Plan made
without regard to this paragraph which the total prevented contribution bears
to the total current and accumulated earnings or profits of all the
Participating Employers remaining after adjustment for all contributions made
to the Plan without regard to this paragraph. 
A Participating Employer, on behalf of whose Employees a contribution is
made under this paragraph, shall not reimburse the contributing Participating
Employers.


 


54

















 


ARTICLE XV. MISCELLANEOUS
PROVISIONS.


 


15.01.              Named Fiduciaries and Allocation of Responsibility.  The Named Fiduciaries of this Plan are (1) the
Employer and (2) the Plan Administrator. 
The Named Fiduciaries shall have only those powers, duties,
responsibilities, and obligations as are specifically given them under the
Plan.  In general, the Employer shall
have sole and absolute discretion for making the contributions provided for
under Article III, and shall have sole and absolute discretion to appoint
and remove the Trustee and the Plan Administrator; to formulate the Plan’s
“funding policy and method;” and to amend or terminate, in whole or in part,
the Plan.  The Plan Administrator shall
have sole and absolute discretion for the administration of the Plan, which
responsibility includes the sole and absolute discretion to interpret the Plan
and to determine eligibility for benefits, including the amount of
benefits.   The Trustee shall have sole and
absolute discretion of management of the assets held under the Trust, except
those assets, the management of which have been assigned to an Investment
Manager, who shall have sole and absolute discretion for the management of the
assets assigned to it, all as specifically provided herein.  Each Named Fiduciary warrants that any
directions given, information furnished, or action taken by it shall be in
accordance with the provisions herein, authorizing or providing for such
direction, information or action. 
Furthermore, each Named Fiduciary may rely upon any such direction,
information or action of another Named Fiduciary as being proper under the
provisions of the Plan, and is not required to inquire into the propriety of
any such direction, information or action. 
It is intended under the provisions of the Plan that each Named
Fiduciary shall be responsible for the proper exercise of its own powers,
duties, responsibilities and obligations under the Plan.  No Named Fiduciary shall guarantee the Trust
Fund in any manner against investment loss or depreciation in asset value.  Any person or group may serve in more than
one Fiduciary capacity.  In the
furtherance of their responsibilities hereunder, the Named Fiduciaries shall be
empowered with the sole discretion to resolve ambiguities, inconsistencies and
omissions, which findings shall be binding, final and conclusive.


 


15.02.              Nonalienability of Benefits. The rights of Participants
and Beneficiaries to receive any benefit payment under this Plan may not be
anticipated, assigned (either at law or in equity), alienated or subject to
attachment, garnishment, levy, execution or other legal or equitable process,
except to the extent otherwise provided for herein with respect to:


 


(a)                                  Qualified
Domestic Relations Orders;


 


(b)                                  Loans to
Participants;


 


(c)                                  An
offset of a Participant’s benefits under this Plan that is the result of a
judgment of conviction for a crime involving the Plan, or under a civil
judgment (including a consent order or decree) for a violation of fiduciary
responsibilities under ERISA, or under a settlement agreement between the
Participant and the Secretary of Labor for a violation (or alleged violation)
of fiduciary responsibilities (including fiduciary duties) that orders or
requires the Participant to pay the Plan issued or entered into on or after
August 5, 1997. However, the judgment, order, decree, or settlement
agreement must specifically provide for the offset of all or part of the amount
ordered or required to be paid to the Plan against the Participant’s benefits
under this Plan. If Article VIII applies to the Plan, the Participant’s
spouse, if any, must consent in writing to the offset and the Spouse’s consent
must be witnessed by a notary public or a Plan representative, unless the Plan
has a Qualified Election on file, or the judgment, order, decree, or settlement
requires the Participant’s spouse to pay the Plan, or under the judgment,
order, decree, or settlement the Participant’s spouse retains the right to
their benefits under Article VIII, determined pursuant to the requirements
under Code section 401(a)(13)(D).


 


This provision shall not preclude the enforcement of a federal tax levy
made pursuant to Code section 6331, or the collection by the United States
on a judgment resulting from an unpaid tax assessment.


 


15.03.              Rights to Trust Assets.  No Employee or Beneficiary shall have any right to, or interest
in, any assets of the Trust Fund except as provided under this Plan, and then
only to the extent of the benefits payable to such Employee or Beneficiary out
of the Trust Fund.


 


15.04.              No Diversion of Trust Fund. 
No part of the Trust Fund shall be used for, or diverted to,
purposes other than for the exclusive benefit of the Participants and their
Beneficiaries.


 


15.05.              Name and Address Change.  Each
Participant and each Beneficiary of a deceased Participant shall at all times
be responsible for notifying the Plan Administrator of any change in his name
or address. If any check payment of a benefit hereunder (which was mailed to
the last address of the payee as shown on the records of the Plan
Administrator) is returned unclaimed, further payments shall be discontinued
until the Plan Administrator directs otherwise.


 


15.06.              Plan Not an Employment Contract.  The adoption and continuance of this Plan by the Employer (or
Participating Employer) shall not be deemed to constitute a contract of
employment between the Employer (or Participating Employer) and any
Participant, Employee or other person; nor shall it be deemed to be
consideration for, inducement to, or a condition of employment of any person.


 


15.07.              Controlling Law. 
All legal questions pertaining to the Plan, all constructions and all
regulations shall be determined in accordance with the laws of the State of the
Employer unless otherwise preempted by ERISA or other federal law.


 


15.08.              Severability.  If any provision of this Plan
shall be held invalid or illegal for any reason, such illegality or invalidity
shall not affect the remaining provisions, but each provision shall be fully
severable, and the Plan shall be construed and enforced as if such illegal or
invalid provision had never been inserted.


 


15.09.              Legal Action.  In the event any claim, suit, or proceeding
is brought regarding the Trust and/or Plan established hereunder to which the
Trustee or the Plan Administrator may be a party, and such claim, suit, or
proceeding is resolved in favor of the Trustee or Plan Administrator, they
shall be entitled to be reimbursed from the Trust Fund for any and all costs,
attorney’s fees, and other expenses pertaining thereto incurred by them for
which they shall have become liable.


 


55

















 


15.10.              Employer’s and Trustee’s Protective Clause.  Neither the Employer (nor any Participating
Employer) nor the Trustee, nor their successors, shall be responsible for the
validity of any Contract issued hereunder or for the failure on the part of the
insurer to make payments provided for by any such Contract, or for the action
or omission by any person which may delay payment or render a Contract null and
void or unenforceable in whole or in part.


 


15.11.              Insurer’s Protective Clause.  Any insurer who shall issue a Contract hereunder shall not have
any responsibility for the validity of this Plan or for the tax or legal
aspects of this Plan.  The insurer shall
be protected and held harmless in acting in accordance with any written
direction of the Trustee, and shall have no duty to see to the application of
any funds paid to the Trustee, nor be required to question any actions directed
by the Trustee.  Regardless of any
provision of this Plan, the insurer shall not be required to take or permit any
action or allow any benefit or privilege contrary to the terms of any Contract
which it issues hereunder, or the rules of the insurer.


 


15.12.              Receipt and Release for Payments.  Any payment to any Participant, his legal representative,
Beneficiary, any alternate payee, or to the estate of a Participant,
Beneficiary or alternate payee,  or to
any guardian or committee appointed for such Participant, Beneficiary,
alternate payee, or estate in accordance with the provisions of the Plan,
shall, to the extent thereof, be in full satisfaction of all claims hereunder
against the Trustee and the Employer (or Participating Employer), either of
whom may require such Participant, legal representative, Beneficiary, alternate
payee, guardian, or committee, or administrator or executor or such estate, as
a condition precedent to such payment, to execute a receipt and release thereof
in such form as shall be determined by the Trustee or Employer.


 


15.13.              Action by the Employer.  Whenever the Employer under the terms of the Plan is permitted or
required to do or perform any act or matter or thing, it shall be done and
performed by a person duly authorized by its legally constituted authority.


 


15.14.              Headings for Convenience. 
Headings of Articles and Sections are included solely for
convenience or reference, and if there is any conflict between such headings
and the text of this Plan, the text shall control.


 


15.15.              Words Used.  Wherever appropriate, the
masculine gender shall be construed to include the feminine gender and neuter,
and the feminine gender shall be construed to include the masculine gender and
neuter. Words used in the singular shall be construed to include plurals, and
the plural to include the singular.


 


15.16.              Reference to Code or ERISA Sections.  Reference to the provision of any
particular section of the Code or ERISA shall be deemed reference to any
section of the Code or ERISA which may hereafter contain the same or
similar provision.


 


15.17.              Counterparts.  This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, but all
counterparts shall, together, constitute only one Plan document.


 


56