**Exhibit 10d**

 

WILLIAMS FURNACE CO.

 

EMPLOYEES PROFIT SHARING RETIREMENT PLAN

 

*2009 Amendment and Restatement*

 

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**WILLIAMS FURNACE CO.**

**EMPLOYEES PROFIT SHARINGRETIREMENT PLAN**

 

**WHEREAS,** Williams Furnace Co. (hereinafterreferred to as the “Employer”) heretofore adopted the Williams Furnace Co.Employees Profit Sharing Retirement Plan (hereinafter referred to as the “Plan”)for the benefit of its eligible Employees, effective as of January 1,1982; and

 

**WHEREAS,**the Employer reserved the right to amendthe Plan; and

 

**WHEREAS,**the Employer wishes to amend the Plan inorder to comply with changes permitted or required by the Economic Growth andTax Relief Reconciliation Act of 2001 (“EGTRRA”), technical corrections made bythe Job Creation and Worker Assistance Act of 2002 (“JCWAA”), and otherregulations and guidance published by the Internal Revenue Service that areeffective after December 31, 2001, including final regulations issuedunder Section 415 of the Internal Revenue Code of 1986, as amended (the “Code”)  and to add or modify certain administrativeprovisions to add a qualified cash or deferred arrangement under Section 401(k) ofthe Code; and

 

**WHEREAS,**it is intended that the Plan is tocontinue to be a qualified profit sharing plan under Section 401(a) and501(a) of the Internal Revenue Code for the exclusive benefit of theParticipants and their Beneficiaries; and

 

**WHEREAS,**it is intended that the cash or deferralarrangement forming part of the Plan is to continue to qualify under Section 401(k) ofthe Internal Revenue Code;

** **

**NOW,THEREFORE,**thePlan is hereby amended by restating the Plan, effective as of January 1,2009, except where the provisions of the Plan (or the requirements ofapplicable law) shall otherwise specifically provide, in its entirety asfollows:

 

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**TABLE OF CONTENTS**

 
| **ARTICLE ONE—DEFINITIONS**                   |
|----------------------------------------------------|
| 1.1                                                | Account |
| 1.2                                                | Administrator |
| 1.3                                                | Beneficiary |
| 1.4                                                | Break in Service |
| 1.5                                                | Code |
| 1.6                                                | Compensation |
| 1.7                                                | Disability |
| 1.8                                                | Effective Date |
| 1.9                                                | Employee |
| 1.10                                               | Employer |
| 1.11                                               | Employment Date |
| 1.12                                               | Fail-Safe Contribution |
| 1.13                                               | Highly-Compensated  Employee |
| 1.14                                               | Hour of Service |
| 1.15                                               | Leased Employee |
| 1.16                                               | Nonhighly-Compensated  Employee |
| 1.17                                               | Normal Retirement Date |
| 1.18                                               | Participant |
| 1.19                                               | Plan |
| 1.20                                               | Plan Year |
| 1.21                                               | Trust |
| 1.22                                               | Trustee |
| 1.23                                               | Valuation Date |
| 1.24                                               | Year of Service |
|                                               |   |
| **ARTICLE TWO—SERVICE DEFINITIONS AND RULES** |
| 2.1                                                | Year of Service |
| 2.2                                                | Break in Service |
| 2.3                                                | Leave of Absence |
| 2.4                                                | Rule of Parity on  Return to Employment |
| 2.5                                                | Service in Excluded Job  Classifications or with Related Companies |
|                                               |   |
| **ARTICLE THREE—PLAN  PARTICIPATION**         |
| 3.1                                                | Participation |
| 3.2                                                | Re-employment of Former  Participant |
| 3.3                                                | Termination of  Eligibility |
| 3.4                                                | Compliance with USERRA |

 

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| **ARTICLE FOUR—ELECTIVE  DEFERRALS, EMPLOYER CONTRIBUTIONS, ROLLOVERS AND TRANSFERS FROM OTHER PLANS** |
|-------------------------------------------------------------------------------------------------------------|
| 4.1                                                                                                         | Elective Deferrals |
| 4.2                                                                                                         | Employer Contributions |
| 4.3                                                                                                         | Rollovers and Transfers  of Funds from Other Plans |
| 4.4                                                                                                         | Timing of Contributions |
| 4.5                                                                                                         | Employee After-Tax  Contributions |
| 4.6                                                                                                         | Allocation of Service  Credit |
|                                                                                                        |   |
| **ARTICLE FIVE—ACCOUNTING RULES**                                                                      |
| 5.1                                                                                                         | Investment of Accounts  and Accounting Rules |
|                                                                                                        |   |
| **ARTICLE SIX—VESTING AND RETIREMENT BENEFITS**                                                        |
| 6.1                                                                                                         | Vesting |
| 6.2                                                                                                         | Forfeiture of Nonvested  Balance |
| 6.3                                                                                                         | Distribution of Less  than Entire Vested Account Balance |
| 6.4                                                                                                         | Normal Retirement |
| 6.5                                                                                                         | Disability |
|                                                                                                        |   |
| **ARTICLE SEVEN—MANNER AND TIME OF DISTRIBUTING  BENEFITS**                                            |
| 7.1                                                                                                         | Manner of Payment |
| 7.2                                                                                                         | Time of Commencement of  Benefit Payments |
| 7.3                                                                                                         | Furnishing Information |
| 7.4                                                                                                         | Minimum Distribution  Requirements |
| 7.5                                                                                                         | Amount of Death Benefit |
| 7.6                                                                                                         | Designation of  Beneficiary |
| 7.7                                                                                                         | Distribution of Death  Benefits |
| 7.8                                                                                                         | Eligible Rollover  Distributions |
|                                                                                                        |   |
| **ARTICLE EIGHT—LOANS AND IN-SERVICE WITHDRAWALS**                                                     |
| 8.1                                                                                                         | Loans |
| 8.2                                                                                                         | Hardship Distributions |
| 8.3                                                                                                         | Withdrawals After Age  591⁄2 65 |
| 8.4                                                                                                         | Withdrawals of  After-Tax Contributions |
| 8.5                                                                                                         | Withdrawals of Rollover  Contributions |
| 8.6                                                                                                         | Withdrawals of Employer  Contributions for Other Financial Needs |
|                                                                                                        |   |
| **ARTICLE NINE—ADMINISTRATION OF THE PLAN**                                                            |
| 9.1                                                                                                         | Plan Administration |
| 9.2                                                                                                         | Claims Procedure |
| 9.3                                                                                                         | Trust Agreement |

 

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| **ARTICLE TEN—SPECIAL COMPLIANCE PROVISIONS**     |
|--------------------------------------------------------|
| 10.1                                                   | Distribution of Excess  Elective Deferrals |
| 10.2                                                   | Limitations on  401(k) Contributions |
| 10.3                                                   | Nondiscrimination Test  for Employer Matching Contributions |
|                                                   |   |
| **ARTICLE ELEVEN—LIMITATION ON ANNUAL ADDITIONS** |
| 11.1                                                   | Rules and  Definitions |
|                                                   |   |
| **ARTICLE TWELVE—AMENDMENT AND TERMINATION**      |
| 12.1                                                   | Amendment |
| 12.2                                                   | Termination of the Plan |
|                                                   |   |
| **ARTICLE THIRTEEN—TOP-HEAVY PROVISIONS**         |
| 13.1                                                   | Applicability |
| 13.2                                                   | Definitions |
| 13.3                                                   | Allocation of Employer  Contributions and Forfeitures for a Top-Heavy Plan Year |
| 13.4                                                   | Vesting |
|                                                   |   |
| **ARTICLE FOURTEEN—MISCELLANEOUS PROVISIONS**     |
| 14.1                                                   | Plan Does Not Affect  Employment |
| 14.2                                                   | Successor to the  Employer |
| 14.3                                                   | Repayments to the  Employer |
| 14.4                                                   | Benefits not Assignable |
| 14.5                                                   | Merger of Plans |
| 14.6                                                   | Investment Experience  not a Forfeiture |
| 14.7                                                   | Construction |
| 14.8                                                   | Governing Documents |
| 14.9                                                   | Governing Law |
| 14.10                                                  | Headings |
| 14.11                                                  | Counterparts |
| 14.12                                                  | Location of Participant  or Beneficiary Unknown |
| 14.13                                                  | Distribution to Minor  or Legally Incapacitated |

 

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**ARTICLE ONE—DEFINITIONS**

 

For purposes ofthe Plan, unless the context or an alternative definition specified withinanother Article provides otherwise, the following words and phrases shallhave the definitions provided:

 

**1.1****                              ****“ACCOUNT”**shall mean the individual bookkeepingaccounts maintained for a Participant under the Plan which shall record (a) theParticipant’s allocations of Employer contributions and forfeitures, (b) amountsof Compensation deferred to the Plan pursuant to the Participant’s election, (c) anyamounts transferred to this Plan under Section 4.3 from another qualifiedretirement plan, or from another qualified plan in connection with a planmerger, (d) any after-tax contributions made to the Plan under Section 4.5,and (e) the allocation of Trust investment experience.

 

**1.2****                              ****“ADMINISTRATOR”**shall mean the Plan Administratorappointed from time to time in accordance with the provisions of Article Ninehereof.

 

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

 

**1.4****                              ****“BREAK IN SERVICE”**shall have the meaning set forth in Article Two.

 

**1.5****                              ****“CODE”**shall mean the Internal Revenue Code of1986, as amended from time to time.

 

**1.6****                              ****“COMPENSATION”**shall mean the compensation paid to aParticipant by the Employer for the Plan Year, but exclusive of any program ofdeferred compensation or additional benefits payable other than in cash andexclusive of any compensation received prior to his becoming a Participant inthe Plan.  Compensation shall include anyamounts deferred under a salary reduction agreement in accordance with Section 4.1or under a Code Section 125 plan maintained by the Employer.

 

Notwithstandingthe foregoing, Compensation shall exclude nonqualified moving expensereimbursements, taxable fringe benefits, excess group term life insurance, andtaxable medical or disability benefits.

 

Any Compensationpaid after the Participant’s severance from employment with the Employer(except for Compensation attributable to the pay period in which the severancefrom employment occurred) shall not be treated as Compensation for purposes of Section 4.1and Section 4.2.

 

In addition to other applicable limitations set forthin the Plan, and notwithstanding any other provision of the Plan to thecontrary, the annual Compensation of each Participant taken into

 

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account under the Plan shall not exceed $245,000 forthe 2009 calendar year, and shall be adjusted annually by the Secretary of theTreasury or his delegate for increases in the cost of living in accordance withSection 401(a)(17)(B) of the Code. The cost-of-living adjustment in effect for a calendar year applies toany period, not exceeding twelve (12) months, over which Compensation isdetermined (determination period) beginning in such calendar year.  If a determination period consists of fewerthan twelve (12) months, the annual compensation limit shall be multiplied by afraction, the numerator of which is the number of months in the determinationperiod, and the denominator of which is twelve (12).

 

For purposes of determining who is aHighly-Compensated Employee, Compensation shall mean “Compensation” as definedabove.  However, in the event, thedefinition of Compensation excludes commission paid salesmen, compensation forservices on the basis of a percentage for profits, commissions on insurancepremiums, tips, bonuses, fringe benefits, and/or reimbursements or expenseallowances under a nonaccountable plan (as described in Regulation Section 1.62-2(c)),such excluded amounts shall be taken into account.

 

For purposes of applying the limitations described in Section 11.1,and for purposes of defining compensation under Section 1.13 and Article Thirteenof the Plan, compensation paid or made available during such limitations years(or Plan Years) shall include elective amounts that are not includible in thegross income of the Employee by reason of Section 125, 132(f)(4),402(g)(3), 402(h)(1)(B), 457(b) or 403(b) of the Code.

 

**1.7****                              ****“DISABILITY”**shall mean a “permanent and total”disability incurred by a Participant while in the employ of the Employer.  A Participant shall be deemed “disabled” if,in the opinion of the Administrator and based upon appropriate medical adviceand examination, he is unable to perform his normal work for the Employer orany other work for which he is qualified by reason of education, training orexperience.

 

**1.8****                              ****“EFFECTIVE DATE.” **The Plan’s initial Effective Date was January 1,1982.  The Effective Date of thisrestated Plan, on and after which it supersedes the terms of the existing Plandocument, is January 1, 2009, except where the provisions of the Plan (orthe requirements of applicable law) shall otherwise specifically provide.  The rights of any Participant who terminatedemployment with the Employer prior to the applicable date shall be establishedunder the terms of the Plan and Trust as in effect at the time of the Participant’stermination from employment, unless the Participant subsequently returns toemployment with the Employer, or unless otherwise provided under the terms ofthe Plan.  Rights of spouses andBeneficiaries of such Participants shall also be governed by those documents.

 

**1.9****                              ****“EMPLOYEE”**shall mean a common law employee of theEmployer.   The term “Employee” shallalso include any Leased Employee deemed to be an Employee of the Employerprovided in Section 414(n) or 414(o) of the Code.

 

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**1.10****                       ****“EMPLOYER”**shall mean Williams Furnace Co. and anysubsidiary or affiliate which is a member of its “related group” (as defined inSection 2.5) which has adopted the Plan (a “Participating Affiliate”), andshall include any successor(s) thereto which adopt this Plan.  Any such subsidiary or affiliate of WilliamsFurnace Co. may adopt the Plan with the approval of its board of directors (ornoncorporate counterpart) subject to the approval of Williams Furnace Co.  The provisions of this Plan shall apply equallyto each Participating Affiliate and its Employees except as specifically setforth in the Plan; provided, however, notwithstanding any other provision ofthis Plan, the amount and timing of contributions under Article 4 to bemade by any Employer which is a Participating Affiliate shall be made subjectto the approval of Williams Furnace Co. For purposes hereof, each Participating Affiliate shall be deemed tohave appointed Williams Furnace Co. as its agent to act on its behalf in allmatters relating to the administration, amendment, termination of the Plan andthe investment of the assets of the Plan. For purposes of the Code and ERISA, the Plan as maintained by WilliamsFurnace Co. and the Participating Affiliates shall constitute a single plan ratherthan a separate plan of each Participating Affiliate.  All assets in the Trust shall be available topay benefits to all Participants and their Beneficiaries.

 

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

 

**1.12****                       ****“FAIL-SAFE CONTRIBUTION”**shall mean a qualified nonelective contributionwhich is a contribution (other than matching contributions or QualifiedMatching Contributions (within the meaning of Section 10.2)) made by theEmployer and allocated to Participants’ accounts that the Participants may notelect to receive in cash until distribution from the Plan; that arenonforfeitable when made; and that are distributable only in accordance withthe distribution provisions under Section 401(k) of the Code and theregulations promulgated thereunder.

 

**1.13****                       ****“HIGHLY-COMPENSATED EMPLOYEE”**shall mean any Employee of the Employerwho:

 

(a)                                  was a five percent (5%) owner of theEmployer (as defined in Section 416(i)(1)) of the Code) at any time duringthe “determination year” or “look-back year”; or

 

(b)                                 earned more than $105,000 of Compensationfrom the Employer during the “look-back year” and was in the top twenty percent(20%) of Employees by Compensation for such year.  The $80,000 amount shall be adjusted at thesame time and in the same manner as under Section 415(d) of the Code.

 

An Employee who terminated employment prior to the“determination year” shall be treated as a Highly-Compensated Employee for the“determination year” if such Employee was a Highly-Compensated Employee whensuch Employee terminated employment, or was a Highly-Compensated Employee atany time after attaining age fifty-five (55).

 

For purposes ofthis Section, the “determination year” shall be the Plan Year for which adetermination is being made as to whether an Employee is a Highly-CompensatedEmployee.

 

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The “look-backyear” shall be the twelve (12) month period immediately preceding the “determinationyear”.

 

**1.14****                       ****“HOUR OF SERVICE”**shall have the meaning set forth below:

 

(a)                                  AnHour of Service is each hour for which an Employee is paid, or entitled topayment, for the performance of duties for the Employer, during the applicablecomputation period.

 

(b)                                 An Hour of Service is each hour for whichan Employee is paid, or entitled to payment, by the Employer on account of aperiod of time during which no duties are performed (irrespective of whetherthe employment relationship has terminated) due to vacation, holiday, illness,incapacity (including disability), layoff, jury duty, military duty, or leaveof absence.  Notwithstanding thepreceding sentence,

 

(i)                                     No more than five hundred and one (501)Hours of Service shall be credited under this paragraph (b) to anyEmployee on account of any single continuous period during which the Employeeperforms no duties (whether or not such period occurs in a single computationperiod).  Hours under this paragraph willbe calculated and credited pursuant to Section 2530.200b-2 of theDepartment of Labor Regulations which is incorporated herein by reference;

 

(ii)                                Anhour for which an Employee is directly or indirectly paid, or entitled topayment, on account of a period during which no duties are performed shall notbe credited to the Employee if such payment is made or due under a planmaintained solely for the purpose of complying with applicable workmen’scompensation, or unemployment compensation or disability insurance laws; and

 

(iii)                             Hoursof Service shall not be credited for a payment which solely reimburses anEmployee for medical or medically related expenses incurred by the Employee.

 

For purposes ofthis paragraph (b), a payment shall be deemed to be made by or due from theEmployer regardless of whether such payment is made by or due from the Employerdirectly, or indirectly through, among others, a trust fund, or insurer, towhich the Employer contributes or pays premiums and regardless of whethercontributions made or due to the trust fund, insurer or other entity are forthe benefit of particular Employees or are on behalf of a group of Employees inthe aggregate.

 

(c)                                  AnHour of Service is each hour for which back pay, irrespective of mitigation ofdamages, is either awarded or agreed to by the Employer.  The same Hours of Service shall not becredited both under paragraph (a) or paragraph (b), as the case may be, andunder this paragraph (c).  Thus, forexample, an Employee who receives a back pay award following a determinationthat he was paid at an unlawful rate for Hours of Service previously creditedshall not be entitled to additional credit for the same Hours of Service.  Crediting of Hours of Service for back payawarded or agreed to with respect to periods described in paragraph (b) shallbe subject to the limitations set forth in that paragraph.

 

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(d)                                 Hours of Service under this Section shallbe determined under the terms of the Family and Medical Leave Act of 1993 andthe Uniformed Services Employment and Reemployment Rights Act of 1994.

 

In crediting Hoursof Service, the “weeks of employment” method shall be utilized.  Under this method, an Employee shall becredited with forty-five (45) Hours of Service for each week for which theEmployee would be required to be credited with at least one (1) Hour ofService pursuant to the provisions enumerated above.

 

Hours of Serviceshall be credited for employment with other members of an affiliated servicegroup (under Section 414(m) of the Code), a controlled group ofcorporations (under Section 414(b) of the Code), or a group of tradesor businesses under common control (under Section 414(c) of the Code)of which the Employer is a member, and any other entity required to beaggregated under Section 414(o) of the Code.

 

Hours of Serviceshall be credited for any individual considered an Employee for purposes ofthis Plan under Section 414(n) or Section 414(o) of theCode.

 

**1.15****                       ****“LEASED EMPLOYEE”**shall mean any person (other than anemployee of the recipient) who, pursuant to an agreement between the recipientEmployer and any other person or organization, has performed services for therecipient Employer (determined in accordance with Section 414(n)(6) ofthe Code) on a substantially full-time basis for a period of at least one (1) yearand where such services are performed under the primary direction and controlof the recipient Employer.  A personshall not be considered a Leased Employee if the total number of LeasedEmployees does not exceed twenty percent (20%) of the Nonhighly-CompensatedEmployees employed by the recipient Employer, and if any such person is coveredby a money purchase pension plan providing (a) a nonintegrated employercontribution rate of at least ten percent (10%) of compensation, as defined in Section 11.1(b)(2) ofthe Plan but including amounts contributed pursuant to a salary reduction agreementwhich are excludable from the employee’s gross income under Sections 125,402(e)(3), 402(g), 402(h)(1)(B), 403(b), or 457(b) of the Code, and shallalso include elective amounts that are not includible in the gross income ofthe Employee by reason of Section 132(f) of the Code, (b) immediateparticipation, and (c) full and immediate vesting.

 

**1.16****                       ****“NONHIGHLY-COMPENSATED EMPLOYEE”**shall mean an Employee of the Employerwho is not a Highly-Compensated Employee.

 

**1.17****                       ****“NORMAL RETIREMENT DATE”**shall mean the Participant’s sixtieth(60th) birthday.  The date on which theParticipant attains age sixty (60) shall be the Participant’s Normal RetirementAge.

 

**1.18****                       ****“PARTICIPANT”**shall mean any Employee who has satisfiedthe eligibility requirements of Article Three and who is participating inthe Plan.

 

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**1.19****                       ****“PLAN”**shall mean the Williams Furnace Co.Employees Profit Sharing Retirement Plan, as set forth herein and as may beamended from time to time.

 

**1.20****                       ****“PLAN YEAR”**shall mean the twelve (12)-consecutivemonth period beginning January and ending December 31.

 

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

 

**1.22****                       ****“TRUSTEE”**shall mean the Trustee or Trusteesappointed by the Employer, and any successors thereto.

 

**1.23****                       ****“VALUATION DATE”**shall mean each day on which the New YorkStock Exchange is open for business.

 

**1.24****                       ****“YEAR OF SERVICE” or “SERVICE”**and the special rules with respectto crediting Service are in Article Two of the Plan.

 

**ARTICLE TWO—SERVICE DEFINITIONS AND RULES**

 

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

 

**2.1****                              ****YEAR OF SERVICE. **For purposes of determining an Employee’s eligibilityto participate in the Plan, an Employee shall be credited with a Year ofService if he completes at least one thousand (1,000) Hours of Service duringthe twelve (12)-consecutive month period commencing on his EmploymentDate.  If an Employee fails to becredited with at least one thousand (1,000) Hours of Service during thatcomputation period, he shall be credited with a Year of Service if he iscredited with at least one thousand (1,000) Hours of Service in any Plan Yearcommencing on or after his Employment Date. For purposes of determining an Employee’s nonforfeitable right to thatportion of his Account attributable to Employer contributions under theschedule set forth in Section 6.1, an Employee shall be credited with aYear of Service for each Plan Year in which he is credited with at least onethousand (1,000) Hours of Service.  Foreligibility purposes, an Employee shall be credited with a Year of Service asof the last day of each such twelve (12) month period.  For vesting purposes, an Employee shall becredited with a Year of Service upon completion of the one thousandth (1,000th) hour in each such twelve (12)-month period.

 

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**2.2****                              ****BREAK IN SERVICE. **A Break in Service shall be a twelve (12)-monthcomputation period (as used for measuring Years of Service for vestingpurposes) in which an Employee or Participant is not credited with at leastfive hundred and one (501) Hours of Service.

 

**2.3****                              ****LEAVE OF ABSENCE. **A Participant on an unpaid leave of absence pursuantto the Employer’s normal personnel policies shall be credited with Hours ofService at his regularly-scheduled weekly rate while on such leave, providedthe Employer acknowledges in writing that the leave is with its approval.  These Hours of Service shall be credited onlyfor purposes of determining if a Break in Service has occurred and, unlessspecified otherwise by the Employer in writing, shall not be credited foreligibility to participate in the Plan, vesting, or qualification to receive anallocation of Employer contributions and forfeitures.  Hours of Service during a paid leave ofabsence shall be credited as provided in Section 1.14.

 

For any individualwho is absent from work for any period by reason of the individual’s pregnancy,birth of the individual’s child, placement of a child with the individual inconnection with the individual’s adoption of the child, or by reason of theindividual’s caring for the child for a period beginning immediately followingsuch birth or adoption, the Plan shall treat as Hours of Service, solely for determiningif a Break in Service has occurred, the following Hours of Service:

 

(a)                                  theHours of Service which otherwise normally would have been credited to suchindividual but for such absence; or

 

(b)                                 inany case where the Administrator is unable to determine the Hours of Service,on the basis of an assumed eight (8) hours per day.

 

In no event shall more than five hundred and one (501)of such hours be credited by reason of such period of absence.  The Hours of Service shall be credited in thecomputation period (used for measuring Years of Service for vesting purposes)which starts after the leave of absence begins. However, the Hours of Service shall instead be credited in thecomputation period in which the absence begins if it is necessary to credit theHours of Service in that computation period to avoid the occurrence of a Breakin Service.

 

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

 

(a)                                  Ifa Participant incurs five (5) or more consecutive Breaks in Service, anyYears of Service performed thereafter shall not be used to increase thenonforfeitable interest in his Account accrued prior to such five (5) ormore consecutive Breaks in Service.

 

(b)                                 Ifwhen a Participant incurred a Break in Service, he was not vested in anyportion of his Account derived from Employer contributions, his pre-Break Yearsof Service shall be 

 

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disregarded if hisconsecutive Breaks in Service equal or exceed five (5).  Effective for Plan Years beginning on andafter January 1, 2006, the words “derived from Employer contributions”shall be removed from the preceding sentence.

 

Subject to the preceding paragraphs of this Section,an Employee’s pre-Break Years of Service and post-Break Years of Service shallcount in determining the vested percentage of the Employee’s Account derivedfrom all Employer contributions (i.e., Employer contributions attributable toemployment before and after the Employee’s Break in Service).

 

**2.5****                              ****SERVICE IN EXCLUDED JOBCLASSIFICATIONS OR WITH RELATED COMPANIES**

 

(a)                                  *Service while a Member of anIneligible Classification of Employees**.*  An Employeewho is a member of an ineligible classification of Employees shall not beeligible to participate in the Plan while a member of such ineligibleclassification.  However, if any suchEmployee is transferred to an eligible classification, such Employee shall becredited with any prior periods of Service completed while a member of such anineligible classification both for purposes of determining his Years of Serviceunder Section 2.1 and his “Months of Service” under Section 3.1.  For this purpose, an Employee shall beconsidered a member of an ineligible classification of Employees for any periodduring which he is employed in a job classification which is excluded fromparticipating in the Plan under Section 3.1 below.

 

(b)                                 *Service with Related GroupMembers**.*  Subject to Section 2.1, for each PlanYear in which the Employer is a member of a “related group”, as hereinafterdefined, all Service of an Employee or Leased Employee (hereinaftercollectively referred to as “Employee” solely for purposes of this Section 2.5(b))with any one or more members of such related group shall be treated asemployment by the Employer for purposes of determining the Employee’s Years ofService under Section 2.1 and his Months of Service under Section 3.1.  The transfer of employment by any suchEmployee to another member of the related group shall not be deemed toconstitute a retirement or other termination of employment by the Employee forpurposes of this Section, but the Employee shall be deemed to have continued inemployment with the Employer for purposes of determining the Employee’s Yearsof Service and his Months of Service. For purposes of this subsection (b), “related group” shall mean theEmployer and all corporations, trades or businesses (whether or notincorporated) which constitute a controlled group of corporations with theEmployer, a group of trades or businesses under common control with theEmployer, or an affiliated service group which includes the Employer, withinthe meaning of Section 414(b), Section 414(c), or Section 414(m),respectively, of the Code or any other entity required to be aggregated underCode Section 414(o).

 

(c)                                  *Construction**.* This Section isincluded in the Plan to comply with the Code provisions regarding the creditingof Service, and not to extend any additional rights to Employees in ineligibleclassifications other than as required by the Code and regulations thereunder.

 

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**ARTICLE THREE—PLAN PARTICIPATION**

 

**3.1****                              ****PARTICIPATION.** Subject to the following provisions of this Section 3.1**, a**ll Employees participating in the Plan prior to the Plan’srestatement shall continue to participate, subject to the terms hereof.

 

Each other eligible Employee shall become aParticipant under the Plan effective as of the first day of the calendar monthcoincident with or next following the Employee’s completion of one (1) Yearof Service (effective as of January 1, 2009, coincident with or nextfollowing his completion of one (1) Month of Service).

 

In no event, however, shall any Employee (or otherindividual) participate under the Plan unless he is included in a unit ofEmployees covered by a collective bargaining agreement between the Employer andthe Employee representatives which bargaining agreement expressly provides forinclusion in the Plan.  Provided,however, that no otherwise eligible Employee participate under the Plan whilehe is (i) employed as an independent contractor on the payroll records ofthe Employer (regardless of any subsequent reclassification by the Employer,any governmental agency or court); or (ii) employed as a Leased Employee;

 

**3.2****                              ****RE-EMPLOYMENT OF FORMERPARTICIPANT. **A vested Participant (or a nonvestedParticipant whose prior Service cannot be disregarded) whose participation ceasedbecause of termination of employment with the Employer shall resumeparticipating upon his reemployment as an eligible Employee; provided, however,that such an individual shall be entitled to commence elective deferrals(within the meaning of Section 4.1) as soon as administratively possiblefollowing his return to participation in the Plan.

 

**3.3****                              ****TERMINATION OF ELIGIBILITY. **In the event a Participant is no longer a member of aneligible class of Employees and he becomes ineligible to participate, suchEmployee shall resume participating upon his return to an eligible class ofEmployees; provided, however, that such an individual shall be entitled tocommence elective deferrals (within the meaning of Section 4.1) as soon asadministratively possible following his return to participation in the Plan.

 

In the event anEmployee who is not a member of an eligible class of Employees becomes a memberof an eligible class, such Employee shall participate upon becoming a member ofan eligible class of Employees, if such Employee has otherwise satisfied theeligibility requirements of Section 3.1 and would have otherwisepreviously become a Participant; provided, however, that such an individualshall be entitled to commence elective deferrals (within the meaning of Section 4.1)as soon as administratively possible following his becoming a Participant.

 

Notwithstandingthe foregoing, if a Participant is no longer covered by a collective bargainingagreement and, as a result, becomes eligible to participate in the ContinentalMaterials Corporation Employees Profit Sharing Retirement Plan (the “ContinentalMaterials Plan”), his Account under the Plan shall be transferred to theContinental Materials Plan and his Years of Service under the Plan shall becredited to the Continental Materials Plan. Correspondingly, if a 

 

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Participant in theContinental Materials Plan becomes covered by a collective bargaining agreementand, as a result, becomes eligible to participate in the Plan, his accountunder the Continental Materials Plan shall be transferred to the Plan and his “yearsof service” under the Continental Materials Plan shall be credited to the Plan.

 

**3.4****                              ****COMPLIANCE WITH USERRA. **Notwithstanding any provision of this Plan to thecontrary, Participants shall receive service credit and be eligible to makedeferrals and receive Employer contributions with respect to periods ofqualified military service (within the meaning of Section 414(u)(5) ofthe Code) in accordance with Section 414(u) of the Code.

 

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

 

**4.1****                              ****ELECTIVE DEFERRALS**

 

(a)                                  *Elections**. *AParticipant may elect to defer a portion of his Compensation for a Plan Year ona pre-tax basis.  The amount of aParticipant’s Compensation contributed in accordance with the Participant’selection shall be withheld by the Employer from the Participant’s Compensationon a ratable basis throughout the Plan Year. Notwithstanding the foregoing, a Participant may elect to contribute allor a portion of any bonus payments paid to him during the Plan Year.  For purposes of making elective deferralspursuant to this Section, only Compensation earned while eligible to make suchdeferrals shall be considered.  Theamount deferred on behalf of each Participant shall be contributed by theEmployer to the Plan and allocated to the portions of the Participant’s Accountconsisting of pre-tax contributions.

 

Each Participantwho is a Nonhighly-Compensated Employee may elect to contribute from onepercent (1%) to fifty percent (50%) of such Participant’s Compensation as apre-tax contribution.  Each Participantwho is a Highly-Compensated Employees may elect to contribute one percent (1%)to fifteen percent (15%) of such Participant’s Compensation as a pre-taxcontribution.

 

(b)                                 *Changes in Election**. *AParticipant may prospectively elect to change or revoke the amount (orpercentage) of his elective deferrals during the Plan Year by filing a written electionwith the Employer, or via such other method as permitted by applicable law.

 

(c)                                  *Limitations on Deferrals**. *Except to the extent permitted under Section 4.1(e), no Participant shall be permitted to makeelective deferrals during any taxable year in excess of the dollar limitationcontained in Section 402(g) of the Code in effect for such taxableyear.

 

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

 

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(e)                                  *Catch-upContributions**. *All Participants who are eligible to make elective deferrals under Section 4.1(a) andwho have attained age fifty (50) before the close of the taxable year shall beeligible to make catch-up contributions in accordance with, and subject to thelimitations of, Section 414(v) of the Code.  The dollar limit on Catch-up Contributionsunder Section 414(v)(2)(B)(i) of the Code is $1,000 for taxable yearsbeginning in 2002, increasing by $1,000 for each year thereafter up to $5,000for taxable years beginning in 2006 and later years.  After 2006, the $5,000 limit will be adjustedby the Secretary of the Treasury for cost-of-living increases under Section 414(v)(2)(C) ofthe Code.  Any such adjustments will bein multiples of $500.

 

Suchcatch-up contributions shall not be taken into account for purposes of theprovisions of the Plan implementing the required limitations of Section 402(g) and415 of the Code.  The Plan shall not betreated as failing to satisfy the requirements of the Plan implementing therequirements of Section 401(k)(3), 401(k)(11), 401(k)(12), 402A, 410(b),or 416 of the Code, as applicable, by reason of the making of such catch-upcontributions.  Any intended catch-upcontribution shall not be subject to an Employer match.

 

**4.2****                              ****EMPLOYER CONTRIBUTIONS**

 

(a)                                  *EmployerMatching Contributions**. *For each Plan Year, theEmployer may contribute to the Plan, on behalf of each Participant eligibleunder Section 4.2(b), such amount, if any, as may be determined by theEmployer’s board of directors of the Employer, as the case may be.  Any such contribution shall be allocatedamong the Accounts of such eligible Participants employed by the applicableEmployer in accordance with the ratio that each such eligible Participant’sCompensation bears to the total Compensation of all such eligible Participantsemployed by the applicable Employer for the Plan Year.  Provided, however, that for such purposes, aParticipant’s Compensation shall be taken into account only for the periodduring which the Participant made elective deferrals for the Plan Year.  In this regard, the rate of Employercontribution, if any, may vary among the Participating Affiliates.

 

(b)                                 *Eligibilityfor Employer Matching Contributions**. *To be eligible for a shareof Employer matching contributions under Section 4.2(a), a Participantmust (1) have been credited with at least one thousand (1,000) Hours ofService in the Plan Year, and (2) be employed by the Employer on the lastday of the Plan Year for which such matching contribution is made to the Plan ;provided, however, that if the Participant’s failure to be credited with atleast one thousand (1,000) Hours of Service and/or to be employed by theEmployer on the last day of the Plan Year is due to the Participant’s Disability,death or retirement on or after his Normal Retirement Date during the PlanYear, such Participant shall nevertheless be entitled to share in theallocation of any matching contributions for such Plan Year.

 

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**4.3****                              ****ROLLOVERS AND TRANSFERS OF FUNDS FROM OTHER PLANS. **With the approval of theAdministrator, there may be paid to the Trustee amounts which have been heldunder the following types of plans:

 

(1)                                  a qualifiedplan described in Section 401(a) or 403(a) of the Code,including after-tax employee contributions and excluding designated Rothcontributions under Section 402A of the Code;

 

(2)                                  an annuitycontract described in Section 403(b) of the Code, including after-taxemployee contributions and excluding designated Roth contributions under Section 402Aof the Code;

 

(3)                                  an eligibleplan under Section 457(b) of the Code which is maintained by a state,political subdivision of a state, or any agency or instrumentality of a stateor political subdivision of a state, including after-tax employeecontributions; and

 

(4)                                  an individualretirement account which was used solely as a conduit from a qualified plandescribed in Section 401(a) of the Code.

 

Anyamounts so transferred on behalf of any Employee shall be nonforfeitable andshall be maintained under a separate Plan account, to be paid in addition toamounts otherwise payable under this Plan. The amount of any such account shall be equal to the fair market valueof such account as adjusted for income, expenses, gains, losses, andwithdrawals attributable thereto.

 

AnEmployee who would otherwise be eligible to participate in the Plan but for thefailure to satisfy the service requirement for participation as set forth underSection 3.1, shall be eligible to complete a rollover to the Plan.  Such an Employee shall also be eligible toobtain a loan or withdrawal in accordance with the provisions of Article Eightprior to satisfying such age and/or service requirement.

 

**4.4****                              ****TIMING OF CONTRIBUTIONS. **Employercontributions shall be made to the Plan no later than the time prescribed bylaw for filing the Employer’s federal income tax return (including extensions)for its taxable year ending with or within the Plan Year.  Elective deferrals under Section 4.1shall be paid to the Plan as soon as administratively possible, but no laterthan the fifteenth (15th) business dayof the month following the month in which such deferrals would have beenpayable to the Participant in cash, or such later date as permitted orprescribed by the Department of Labor.

 

**4.5****                              ****EMPLOYEE AFTER-TAX CONTRIBUTIONS. **A Participantshall be permitted to make after-tax contributions to the Plan in accordancewith procedures established by the Administrator which shall be consistentlyapplied and which may be changed from time to time.  A Participant may prospectively elect tochange or revoke the amount (or percentage) of his after-tax contributionsduring the Plan Year in accordance with procedures established by theAdministrator.

 

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Employeeafter-tax contributions shall be subject to the limitations under Section 10.3and Section 11.1 and shall not exceed ten percent (10%) of the Participant’sCompensation for the Plan Year.

 

Anyafter-tax contributions made by a Participant shall be contributed by theEmployer to the Plan and allocated to the portion of the Participant’s Accountconsisting of after-tax contributions.  AParticipant shall have a nonforfeitable interest at all times in that portionof his Account attributable to any after-tax contributions made to the Planpursuant to this Section 4.5.  Anysuch after-tax contributions shall be distributed at the same time as othervested benefits would be distributed under the Plan.

 

**ARTICLE FIVE—ACCOUNTING RULES**

 

**5.1****                              ****INVESTMENT OF ACCOUNTS AND ACCOUNTING RULES**

 

(a)                                  *InvestmentFunds**. *The investment of Participants’ Accounts shall be made in a mannerconsistent with the provisions of the Trust. The Administrator, in its discretion, may allow the Trust to provide forseparate funds for the directed investment of each Participant’s Account.

 

(b)                                 *ParticipantDirection of Investments**. *In the event Participants’Accounts are subject to their investment direction, each Participant (including,for this purpose, any former Employee, Beneficiary, or “alternate payee”(within the meaning of Section 14.4 below) with an Account balance) maydirect how his Account (or such portion thereof which is subject to hisinvestment direction) is to be invested among the available investment funds inthe percentage multiples established by the Administrator.  In the event a Participant fails to make aninvestment election, with respect to all or any portion of his Account subjectto his investment direction, the Trustee shall invest all or such portion ofhis Account in the investment fund to be designated by the Administrator.  A Participant may change his investmentelection, with respect to future contributions and, if applicable, forfeitures,and/or amounts previously accumulated in the Participant’s Account inaccordance with procedures established by the Administrator.  Any such change in a Participant’s investmentelection shall be effective at such time as may be prescribed by theAdministrator.  However, where it deemsappropriate, and subject to the requirements of applicable law, theAdministrator may decline to implement, or otherwise limit the frequency bywhich a Participant may direct the investment of his Account.  If the Plan’s recordkeeper or investments arechanged, the Administrator may apply such administrative rules andprocedures as are necessary to provide for the transfer of records and/orassets, including without limitation, the suspension of Participant’sinvestment directions, withdrawals and distributions for such period of time asis necessary, and the transfer of Participants’ Accounts to designated funds oran interest bearing account until such change has been completed.

 

Notwithstandingthe foregoing, if, pursuant to Section 4.02 of the Trust, an investmentmanager (within the meaning of Section 3(38) of the Employee RetirementIncome

 

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SecurityAct of 1974, as amended (“ERISA”)) is appointed by a named fiduciary pursuantto Section 402(c)(3) of ERISA, a Participant may elect to have suchinvestment manager direct the investment of his Account in accordance with theprovisions of the preceding paragraph.

 

(c)                                  *Allocationof Investment Experience**. *As of each Valuation Date,the investment fund(s) of the Trust shall be valued at fair market value,and the income, loss, appreciation and depreciation (realized and unrealized),and any paid expenses of the Trust attributable to such fund shall beapportioned among Participants’ Accounts within the fund based upon the valueof each Account within the fund as of the preceding Valuation Date.

 

(d)                                 *Allocationof Contributions**. *Employer contributions shallbe allocated to the Account of each eligible Participant as of the last day ofthe period for which the contributions are made, or as soon as administrativelypossible thereafter.  Forfeitures whicharise in a Plan Year shall be allocated as of the last day of such Plan Year,or as soon as administratively possible thereafter.

 

(e)                                  *Mannerand Time of Debiting Distributions**. *For any Participant who isentitled to receive a distribution from his Account, such distribution shall bemade in accordance with the provisions of Section 7.1 and Section 7.2.  The amount distributed shall be based uponthe fair market value of the Participant’s vested Account as of the ValuationDate preceding the distribution.

 

**ARTICLE SIX—VESTING AND RETIREMENTBENEFITS**

 

**6.1****                              ****VESTING. **A Participantshall at all times have a nonforfeitable (vested) right to his Account derivedfrom elective deferrals (within the meaning of Section 4.1), after-taxcontributions (under Section 4.5), Employer Fail-Safe Contributions, “QualifiedMatching Contributions” (within the meaning of Section 10.2 below), androllovers or transfers from other plans, as adjusted for investmentexperience.  Except as otherwise providedwith respect to Normal Retirement, Disability, or death, a Participant shallhave a nonforfeitable (vested) right to a percentage of the value of hisAccount derived from Employer matching contributions under Section 4.2 asfollows:

 
| **Years of  Service**     | ** ** | **Vested Percentage** | ** ** |
|---------------------------|------------|-----------------------|------------|
| *Less than 1 year*        | * *   | *0*                   | *%*        |
| *1 year but less than 2*  | * *   | *20*                  | *%*        |
| *2 years but less than 3* | * *   | *30*                  | *%*        |
| *3 years but less than 4* | * *   | *40*                  | *%*        |
| *4 years but less than 5* | * *   | *60*                  | *%*        |
| *5 years but less than 6* | * *   | *80*                  | *%*        |
| *6 years and thereafter*  | * *   | *100*                 | *%*        |

** **

**6.2****                              ****FORFEITURE OF NONVESTED BALANCE. **The nonvestedportion of a Participant’s Account, as determined in accordance with Section 6.1,shall be forfeited as of the earlier of (i) as soon as administrativelypractical following the date on which the Participant receives

 

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distributionof his vested Account or (ii) as soon as administratively practical afterthe last day of the Plan Year in which the Participant incurs five (5) consecutiveBreaks in Service.  However, noforfeiture shall occur solely as a result of a Participant’s withdrawal ofEmployee after-tax contributions.  Theamount forfeited shall be used to pay Plan administrative expenses, used toreduce Employer contributions under Section 4.2(a), or used to restorepreviously forfeited amounts under this Section 6.2.

 

Ifthe Participant returns to the employment of the Employer prior to incurringfive (5) consecutive one (1)-year Breaks in Service, and prior toreceiving distribution of his vested Account, the nonvested portion shallremain in the Participant’s Account. However, if the nonvested portion of the Participant’s Account wasallocated as a forfeiture as the result of the Participant receivingdistribution of his vested Account balance (including a “deemed” distributionunder Section 7.2), the nonvested portion shall be restored if:

 

(a)                                  the Participantresumes employment prior to incurring five (5) consecutive Breaks inService; and

 

(b)                                 the Participantrepays to the Plan, as of the earlier of (i) the date which is five (5) yearsafter his reemployment date or (ii) the date which is the last day of theperiod in which the Participant incurs five (5) consecutive Breaks inService, an amount equal to the total distribution derived from Employercontributions under Section 4.2 and, if applicable, Section 13.3.

 

Uponrepayment, the Employer-derived benefit required to be restored by this Section shallnot be less than in the account balance of the Employee, both the amountdistributed and the amount forfeited, unadjusted by any subsequent gains orlosses.  The amount required to berestored shall be made by a special Employer contribution or from the nextsucceeding Employer contribution and forfeitures, as appropriate.

 

AnyYears of Service for which a Participant received a cash-out shall berecognized for purposes of vesting and eligibility under the Plan.

 

**6.3****                              ****DISTRIBUTION OF LESS THAN ENTIRE VESTED ACCOUNT BALANCE. **If a distribution (includinga withdrawal) of any portion of a Participant’s Account is made to theParticipant at a time when he has a vested percentage in such Account equal toless than one-hundred percent (100%), a separate record shall be maintained ofsaid Account balance.  The Participant’svested interest at any time in this separate account shall be an amount equalto the formula *P(AB+D)-D,*where *P* is the vested percentage at the relevanttime, *AB* is the Account balanceat the relevant time, and *D* isthe amount of the distribution (or withdrawal) made to the Participant.

 

**6.4****                              ****NORMAL RETIREMENT. **A Participantwho is in the employment of the Employer at his Normal Retirement Age shallhave a nonforfeitable interest in one hundred percent (100%) of his Account, ifnot otherwise one hundred percent (100%) vested under the vesting schedule in

 

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Section 6.1.  A Participant who continues employment withthe Employer after his Normal Retirement Age shall continue to participateunder the Plan.

 

**6.5****                              ****DISABILITY. **If aParticipant incurs a Disability, the Participant shall have a nonforfeitableinterest in one hundred percent (100%) of his Account, if not otherwise onehundred percent (100%) vested under the vesting schedule in Section 6.1.  Payment of such Participant’s Account balanceshall be made at the time and in the manner specified in Article Seven,following receipt by the Administrator of the Participant’s writtendistribution request.

 

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

 

**7.1****                              ****MANNER OF PAYMENT. **The Participant’svested Account shall be distributed to the Participant (or to the Participant’sBeneficiary in the event of the Participant’s death) in a single lump-sumpayment.

 

**7.2**                               **TIME OFCOMMENCEMENT OF BENEFIT PAYMENTS. **Subject to thefollowing provisions of this Section, unless the Participant elects otherwise,distribution of the Participant’s vested Account shall normally be made orcommence no later than the sixtieth (60) day after the later of the close ofthe Plan Year in which:  (a) theParticipant attains age sixty-five (65) (or Normal Retirement Date, ifearlier), (b) occurs the tenth (10th) anniversary of the year in which the Participantcommenced participation in the Plan, or (c) the Participant seversemployment with the Employer. Distribution shall not be made to a Participant without his consent (andspouse’s consent, if required) if his vested Account exceeds $5,000 and suchAccount is immediately distributable (within the meaning of Section 1.411(a)-11(c)(4) ofthe IRS Regulations).

 

Notwithstandingthe foregoing, if the Participant’s vested Account does not exceed $5,000, theParticipant’s entire vested Account shall be normally distributed to theParticipant (or, in the event of the Participant’s death, his Beneficiary) in alump-sum payment as soon as administratively practicable following the date theParticipant retires, dies or otherwise terminates from employment.  However, in the event of a mandatory distributionto a Participant whose vested Account is greater than $1,000, if theParticipant does not elect to have such automatic distribution paid directly toan eligible retirement plan specified by the Participant in a direct rolloveror to receive the distribution directly in accordance with Section 7.1,then the Plan Administrator shall pay the distribution in a direct rollover toan individual retirement plan designated by the Plan Administrator.

 

AParticipant who is not vested in any portion of his Account shall be deemed tohave received distribution of such portion of his Account as of the end of thePlan Year following the Plan Year in which he terminates from employment.

 

Inno event shall distribution of the Participant’s vested Account be made orcommence later than the April 1st following the end of the calendar yearin which the Participant attains age seventy

 

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andone-half (701⁄2), or, except for a Participant who is a five percent (5%) ownerof the Employer (within the meaning of Section 401(a)(9)(C) of theCode), if later, the April 1st following the calendar year in which theParticipant retires from employment with the Employer (the “required beginningdate”).

 

Notwithstandingthe provisions of Section 7.1, in the event distribution is required to bemade while the Participant is employed by the Employer, the Participant mayelect to receive the minimum amount required to be distributed pursuant to theprovisions of Section 401(a)(9) of the Code and the regulationsthereunder.

 

**7.3****                              ****FURNISHING INFORMATION. **Prior to thepayment of any benefit under the Plan, each Participant or Beneficiary may berequired to complete such administrative forms and furnish such proof as may bedeemed necessary or appropriate by the Employer, Administrator, and/or Trustee.

 

**7.4****                              ****MINIMUM DISTRIBUTION REQUIREMENTS.**

 

(a)**                                 *****General Rules.***

 

(1)                                  Effective Date***.***  The provisions of this Article willapply for purposes of determining required minimum distributions.  Unless otherwise specified, the provisions ofthis Article will apply to calendar years beginning after December 31,2002.

 

(2)                                  Precedence***.***  The requirements of this Article willtake precedence over any inconsistent provisions of the Plan; provided,however, that this Article shall not require the Plan to provide any formof benefit, or any option, not otherwise provided under Section 7.1 or Section 7.2.

 

(3)                                  Requirements of TreasuryRegulations Incorporated***.***  Alldistributions required under this Article will be determined and made inaccordance with the Treasury regulations under Section 401(a)(9) ofthe Code and the minimum distribution incidental benefit requirement of Section 401(a)(9)(G) ofthe Code.

 

(b)**                                *****Time and Manner of Distribution***

 

(1)                                  Required Beginning Date***.***  The Participant’s entire interest will bedistributed, or begin to be distributed, to the Participant no later than theParticipant’s required beginning date.

 

(2)                                  Death ofParticipant Before Distributions Begin***.***  If theParticipant dies before distributions begin, the Participant’s entire interestwill be distributed, or begin to be distributed, no later than as follows:

 

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(A)                              If the Participant’ssurviving spouse is the Participant’s sole designated Beneficiary,distributions to the surviving spouse will begin by December 31 of thecalendar year immediately following the calendar year in which the Participantdied, or by December 31 of the calendar year in which the Participantwould have attained age 701⁄2, if later.

 

(B)                                If the Participant’ssurviving spouse is not the Participant’s sole designated Beneficiary, and ifdistribution is to be made over the life or over a period certain not exceedingthe life expectancy of the designated Beneficiary (if permitted under Section 7.1of the Plan), distribution to the designated Beneficiary will begin by December 31of the calendar year immediately following the calendar year in which theParticipant died.

 

(C)                                If there is no designatedBeneficiary as of September 30 of the year following the year of theParticipant’s death, or if the provisions of subsection (A) and (B) donot otherwise apply, the Participant’s entire interest will be distributed by December 31of the calendar year containing the fifth anniversary of the Participant’s death.

 

(D)                               If the Participant’ssurviving spouse is the Participant’s sole designated Beneficiary and thesurviving spouse dies after the Participant but before distributions to thesurviving spouse begin, this Section 7.4(b), other than Section 7.4(b)(2)(A),will apply as if the surviving spouse were the Participant.

 

Forpurposes of Sections 7.4(b) and 7.4(d), unless Section 7.4(b)(2)(D) applies,distributions are considered to begin on the Participant’s required beginningdate.  If Section 7.4(b)(2)(D) applies,distributions are considered to begin on the date distributions are required tobegin to the surviving spouse under Section 7.4(b)(2)(A).  If distributions under an annuity purchasedfrom an insurance company irrevocably commence to the Participant before theParticipant’s required beginning date (or to the Participant’s surviving spousebefore the date distributions are required to begin to the surviving spouseunder Section 7.4(b)(2)(A)), the date distributions are considered tobegin is the date distributions actually commence.

 

(3)                                  Forms of Distribution.  Unless the Participant’s interest isdistributed in the form of an annuity purchased from an insurance company or ina single sum on or before the required beginning date, as of the first distributioncalendar year, distributions will be made in accordance with Sections 7.4(c) and(d).  If the Participant’s interest isdistributed in the form of an annuity purchased from an insurance company,distributions thereunder will be made in accordance with the requirements of Section 401(a)(9) ofthe Code and the Treasury regulations.

 

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(c)**                                 *****Required Minimum Distributions During Participant’sLifetime.***

 

(1)                                  Amount of Required MinimumDistribution for Each Distribution Calendar Year.  During the Participant’s lifetime, theminimum amount that will be distributed for each distribution calendar year isthe lesser of:

 

(A)                              the quotient obtained bydividing the Participant’s vested Account balance by the distribution period inthe Uniform Lifetime Table set forth in Section 1.401(a)(9)-9, Q&A-2,of the Treasury regulations, using the Participant’s age as of the Participant’sbirthday in the distribution calendar year; or

 

(B)                                if the Participant’s soledesignated Beneficiary for the distribution calendar year is the Participant’sspouse, the quotient obtained by dividing the Participant’s vested Accountbalance by the number in the Joint and Last Survivor Table set forth in Section 1.401(a)(9)-9,Q&A-3, of the Treasury regulations, using the Participant’s and spouse’sattained ages as of the Participant’s and spouse’s birthdays in thedistribution calendar year.

 

(2)                                  Lifetime Required MinimumDistributions Continue Through Year of Participant’s Death.  Required minimum distributions will bedetermined under this Section 7.4(c) beginning with the firstdistribution calendar year and up to and including the distribution calendaryear that includes the Participant’s date of death.

 

(d)**                                *****Required Minimum Distributions After Participant’sDeath.***

 

(1)                                  Death On or After DateDistributions Begin.

 

(A)                              *ParticipantSurvived by Designated Beneficiary*.  Subject to the provisions of this Article, ifthe Participant dies on or after the date distributions begin and there is adesignated Beneficiary, the minimum amount that will be distributed for eachdistribution calendar year after the year of the Participant’s death is thequotient obtained by dividing the Participant’s vested Account balance by thelonger of the remaining life expectancy of the Participant or the remaininglife expectancy of the Participant’s designated Beneficiary, determined asfollows:

 

(i)                                   The Participant’sremaining life expectancy is calculated using the age of the Participant in theyear of death, reduced by one for each subsequent year.

 

(ii)                                If theParticipant’s surviving spouse is the Participant’s sole designatedBeneficiary, the remaining life expectancy of the surviving spouse iscalculated for each distribution calendar year after the year of the Participant’sdeath using the surviving spouse’s age as of the spouse’s birthday in thatyear.  For

 

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distributioncalendar years after the year of the surviving spouse’s death, the remaininglife expectancy of the surviving spouse is calculated using the age of thesurviving spouse as of the spouse’s birthday in the calendar year of the spouse’sdeath, reduced by one for each subsequent calendar year.

 

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

 

(B)                                *NoDesignated Beneficiary*.  Ifthe Participant dies on or after the date distributions begin and there is nodesignated Beneficiary as of September 30 of the year after the year ofthe Participant’s death, the minimum amount that will be distributed for eachdistribution calendar year after the year of the Participant’s death is thequotient obtained by dividing the Participant’s vested Account balance by theParticipant’s remaining life expectancy calculated using the age of theParticipant in the year of death, reduced by one for each subsequent year.

 

(2)                                  Death Before DateDistributions Begin.

 

(A)                              *ParticipantSurvived by Designated Beneficiary*.  If the Participant dies before the datedistributions begin and there is a designated Beneficiary, the minimum amountthat will be distributed for each distribution calendar year after the year ofthe Participant’s death is the quotient obtained by dividing the Participant’svested Account balance by the remaining life expectancy of the Participant’sdesignated Beneficiary, determined as provided in Section 7.4(d)(1).

 

(B)                                *NoDesignated Beneficiary*.  Ifthe Participant dies before the date distributions begin and there is nodesignated Beneficiary as of September 30 of the year following the yearof the Participant’s death, distribution of the Participant’s entire interestwill be completed by December 31 of the calendar year containing the fifthanniversary of the Participant’s death.

 

(C)                                *Death ofSurviving Spouse Before Distributions to Surviving Spouse Are Required to Begin*.  If the Participant dies before the datedistributions begin, the Participant’s surviving spouse is the Participant’ssole designated Beneficiary, and the surviving spouse dies before distributionsare required to begin to the surviving spouse under Section 7.4(b)(2)(A),this Section 7.4(d) will apply as if the surviving spouse were theParticipant.

 

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(e)**                                 *****Definitions.***

 

(1)           Designated Beneficiary.  Theindividual who is designated as the Beneficiary under Section 7.6 of thePlan and is the designated Beneficiary under Section 401(a)(9) of theCode and Section 1.401(a)(9)-4, of the Treasury regulations.

 

(2)           Distribution Calendar Year.  A calendar year for which a minimumdistribution is required.  Fordistributions beginning before the Participant’s death, the first distributioncalendar year is the calendar year immediately preceding the calendar year whichcontains the Participant’s required beginning date.  For distributions beginning after theParticipant’s death, the first distribution calendar year is the calendar yearin which distributions are required to begin under Section 7.4(b)(2).  The required minimum distribution for theParticipant’s first distribution calendar year will be made on or before theParticipant’s required beginning date. The required minimum distribution for other distribution calendar years,including the required minimum distribution for the distribution calendar yearin which the Participant’s required beginning date occurs, will be made on orbefore December 31 of that distribution calendar year.

 

(3)           LifeExpectancy.  Life expectancy as computed by use of theSingle Life Table in Section 1.401(a)(9)-9, Q&A-1, of the Treasuryregulations.

 

(4)           Participant’s Vested AccountBalance.  The vested Account balance as ofthe last valuation date in the calendar year immediately preceding thedistribution calendar year (valuation calendar year) increased by the amount ofany contributions made and allocated or forfeitures allocated to the vestedAccount balance as of dates in the valuation calendar year after the valuationdate and decreased by distributions made in the valuation calendar year afterthe valuation date.  The vested Accountbalance for the valuation calendar year includes any amounts rolled over ortransferred to the Plan either in the valuation calendar year or in thedistribution calendar year if distributed or transferred in the valuationcalendar year.

 

(5)           Required Beginning Date.  The date specified in Section 7.2 of thePlan.

 

**7.5****                              ****AMOUNT OF DEATH BENEFIT**

 

(a)           *Death Before Termination of Employment**. *In theevent of the death of a Participant while in the employ of the Employer,vesting in the Participant’s Account shall be one hundred percent (100%), ifnot otherwise one hundred percent (100%) vested under Section 6.1, withthe credit balance of the Participant’s Account being payable to hisBeneficiary.

 

(b)           *Death After Termination of Employment**. *In theevent of the death of a former Participant after termination of employment, butprior to the complete distribution of his vested

 

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Account balance under thePlan, the undistributed vested balance of the Participant’s Account shall bepaid to the Participant’s Beneficiary.

 

**7.6****                              ****DESIGNATION OF BENEFICIARY. **Each Participant shall designate a Beneficiary in amanner acceptable to the Administrator to receive payment of any death benefitpayable hereunder if such Beneficiary should survive the Participant.  However, no Participant who is married shallbe permitted to designate a Beneficiary other than his spouse unless the Participant’sspouse has signed a written consent witnessed by a Plan representative or anotary public, which provides for the designation of an alternate Beneficiary.

 

Subject to the above, Beneficiary designations mayinclude primary and contingent Beneficiaries, and may be revoked or amended atany time in similar manner or form, and the most recent designation shallgovern.  A designation of a Beneficiarymade by a Participant shall cease to be effective upon his marriage orremarriage.  In addition, a spousalBeneficiary designation shall cease to be effective upon written notificationto the Administrator of the divorce of the Participant and such spouse.  In the absence of an effective designation ofBeneficiary, or if no designated Beneficiary is surviving as of the date of theParticipant’s death, any death benefit shall be paid to the surviving spouse ofthe Participant, or, if no surviving spouse, to the Participant’s survivingissue, by right of representation, or, to the Participant’s estate.  Notification to Participants of the deathbenefits under the Plan and the method of designating a Beneficiary shall begiven at the time and in the manner provided by regulations and rulings underthe Code.

 

In the event a Beneficiary survives the Participant,but dies before receipt of all payments due that Beneficiary hereunder, anybenefits remaining to be paid to the Beneficiary shall be paid to theBeneficiary’s estate.

 

**7.7****                              ****DISTRIBUTION OF DEATHBENEFITS. **The Beneficiary shall be allowed todesignate the mode of receiving benefits in accordance with Section 7.1,unless the Participant had designated a method in writing and indicated thatthe method was not revocable by the Beneficiary.

 

(a)           *Distribution Beginning Before Death* - If the Participant dies afterdistribution of his vested Account has commenced, any survivor’s benefit mustbe paid at least as rapidly as under the method of payment in effect at thetime of the Participant’s death.

 

(b)           *Distribution Beginning After Death**-*If the Participant dies beforedistribution of his vested Account has commenced, distribution of theParticipant’s vested Account shall be completed by December 31 of thecalendar year containing the fifth anniversary of the Participant’s death,except as provided below:

 

(i)            ifany portion of the Participant’s vested Account is payable to a designatedBeneficiary, and if distribution is to be made over the life or over a periodcertain not greater than the life expectancy of the designated Beneficiary (ifpermitted under Section 7.1 above) such payments shall commence on orbefore December

 

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31of the calendar year immediately following the calendar year in which theParticipant died;

 

(ii)           ifthe designated Beneficiary is the Participant’s surviving spouse, the date distributionis required to begin shall not be earlier than the later of (A) December 31of the calendar year immediately following the calendar year in which theParticipant died and (B) December 31 of the calendar year in whichthe Participant would have attained age seventy and one-half (701⁄2).

 

For purposes of thisparagraph (b), if the surviving spouse dies after the Participant, but beforepayments to such spouse begin, the provisions of this paragraph, with theexception of paragraph (ii) herein, shall be applied as if the survivingspouse were the Participant.

 

Notwithstanding theforegoing, if the Participant has no designated Beneficiary (within the meaningof Section 401(a)(9) of the Code and the regulations thereunder),distribution of the Participant’s vested Account must be completed by December 31of the calendar year containing the fifth anniversary of the Participant’sdeath.

 

**7.8****                              ****ELIGIBLE ROLLOVERDISTRIBUTIONS. **Notwithstanding the foregoing provisionsof this Article Seven, the provisions of this Section 7.8 shall applyto distributions made under the Plan after December 31, 2001.

 

(a)           A“distributee” (as hereinafter defined) may elect, at the time and in the mannerprescribed by the Administrator, to have any portion of an “eligible rolloverdistribution” (as hereinafter defined) paid directly to an eligible retirementplan specified by the distributee in a direct rollover.

 

(b)           Definitions:

 

(i)            *Eligible Rollover Distribution*.  An eligible rollover distribution is anydistribution of all or any portion of the balance to the credit of thedistributee, except that an eligible rollover distribution does notinclude:  any distribution that is one ofa series of substantially equal periodic payments (not less frequently thanannually) made for the life (or life expectancy) of the distributee or thejoint lives (or joint life expectancies) of the distributee and the distributee’sdesignated Beneficiary, or for a specified period of ten (10) years ormore; any distribution to the extent such distribution is required under Section 401(a)(9) ofthe Code; and any hardship distribution described in Section 8.2.  A portion of a distribution shall not fail tobe an eligible rollover distribution merely because the portion consists ofafter-tax employee contributions which are not includible in gross income.  However, such portion may be transferred onlyto an individual retirement account or annuity described in Section 408(a) or(b) of the Code (or described in Section 408A of the Code for “designatedRoth contributions” (within the meaning of Section 402A of the Code)), orto a qualified defined contribution plan described in Section 401(a) or403(a) of the Code that agrees to separately account

 

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foramounts so transferred, including separately accounting for the portion of suchdistribution which is includible in gross income and the portion of suchdistribution which is not so includible and, if applicable, as required under Section 402Aof the Code.

 

(ii)           *Eligible Retirement Plan*.  An eligible retirement plan is an individualretirement account described in Section 408(a) of the Code, anindividual retirement annuity described in Section 408(b) of theCode, an annuity plan described in Section 403(a) of the Code, aqualified trust described in Section 401(a) of the Code, an annuitycontract described in Section 403(b) of the Code and an eligible planunder Section 457(b) of the Code which is maintained by a state,political subdivision of a state, or any agency or instrumentality of a stateor political subdivision of a state and which agrees to separately account foramounts transferred into such plan from this Plan, that accepts the distributee’seligible rollover distribution.  Thedefinition of eligible retirement plan shall also apply in the case of adistribution to a surviving spouse, or to a spouse or former spouse who is thealternate payee under a qualified domestic relations order, as defined in Section 414(p) ofthe Code.

 

Ifany portion of an eligible rollover distribution is attributable to payments ordistributions from a designated Roth account, an eligible retirement plan withrespect to such portion shall include only another designated Roth account ofthe individual from whose account the payments or distributions were made, or aRoth IRA of such individual.

 

(iii)          *Distributee*.  A distributeeincludes an Employee or former Employee. In addition, the Employee’s or former Employee’s surviving spouse, andthe Employee’s or former Employee’s spouse or former spouse who is an alternatepayee under a qualified domestic relations order, as defined in Section 414(p) ofthe Code, are distributees with regard to the interest of the spouse or formerspouse.

 

(iv)          *Direct Rollover*.  A directrollover is a payment by the Plan to the eligible retirement plan specified bythe distributee.

 

(c)           Ifa distribution is one to which Sections 401(a)(11) and 417 of the Code do notapply, such distribution may commence less than thirty (30) days after thenotice required under Section 1.411(a)-11(c) of the Income TaxRegulations is given, provided that:

 

(i)            theAdministrator clearly informs the Participant that the Participant has a rightto a period of at least thirty (30) days after receiving the notice to considerthe decision of whether or not to elect a distribution (and, if applicable, aparticular distribution option), and

 

(ii)           theParticipant, after receiving the notice, affirmatively elects a distribution.

 

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**ARTICLEEIGHT—LOANS AND IN-SERVICE WITHDRAWALS**

 

**8.1****                              ****LOANS**

 

(a)           *Permissible Amount and Procedures**. *Upon theapplication of a Participant, the Administrator may, in accordance with auniform and nondiscriminatory policy, direct the Trustee to grant a loan to theParticipant, which loan shall be secured by the Participant’s vested Accountbalance.  The Participant’s signatureshall be required on a promissory note. The rate of interest on any such loan shall be equal to the “Prime Rate”(as reported in *The Wall Street Journal*on the date the loan is initiated) plus one percent 1%.  Participant loans shall be treated assegregated investments, and interest repayments shall be credited only to theParticipant’s Account.

 

(b)           *Limitation on Amount of Loans**. *A Participant’sloan shall not exceed the lesser of:

 

(1)           $50,000,which amount shall be reduced by the highest outstanding loan balance duringthe preceding twelve (12)-month period; or

 

(2)           one-half(1⁄2) of the vested value of the Participant’s Account, determined as of theValuation Date preceding the date of the Participant’s loan.

 

Any loan must be repaidwithin five (5) years, unless made for the purpose of acquiring the primaryresidence of the Participant, in which case such loan may be repaid over alonger period of time not to exceed fifteen (15) years.  The repayment of any loan must be made in atleast quarterly installments of principal and interest; provided, however, thatthis requirement shall not apply for a period, not longer than one year, or suchlonger period as may apply under Section 414(u) of the Code, that a Participantis on a leave of absence (“Leave”), either without pay from the Employer or ata rate of pay (after income and employment tax withholding) that is less thanthe amount of the installment payments required under the terms of theloan.  However, the loan must be repaidby the latest date permitted under Sections 72(p)(2)(B) and 414(u) of the Codeand the installments due after the Leave ends (or, unless Section 414(u) of theCode applies, if earlier, upon the expiration of the first year of the Leave)must not be less than those required under the terms of the original loan.

 

If a Participant defaultson any outstanding loan, the unpaid balance, and any interest due thereon, shallbecome due and payable in accordance with the terms of the underlyingpromissory note; provided, however, that such foreclosure on the promissorynote and attachment of security shall not occur until a distributable eventoccurs in accordance with the provisions of Article Seven.

 

If a Participantterminates employment while any loan balance is outstanding, the unpaidbalance, and any interest due thereon, shall become due and payable inaccordance with the terms of the underlying promissory note.  If such amount is not paid to the Plan, itshall be charged against the amounts that are otherwise payable to theParticipant or the Participant’s Beneficiary under the provisions of the Plan.

 

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In the case of aParticipant who has loans outstanding from other plans of the Employer (or amember of the Employer’s related group (within the meaning of Section 2.5(b)),the Administrator shall be responsible for reporting to the Trustee theexistence of said loans in order to aggregate all such loans within the limitsof Section 72(p) of the Code.

 

**8.2****                              ****HARDSHIP DISTRIBUTIONS. **In the case of a financial hardship resulting from aproven immediate and heavy financial need, a Participant may receive adistribution not to exceed the lesser of (i) the vested value of theParticipant’s Account, without regard to earnings received on electivedeferrals (within the meaning of Section 4.1), and without regard to anyFail-Safe Contributions or Qualified Matching Contributions (within the meaningof Section 10.2 below), or (ii) the amount necessary to satisfy thefinancial hardship.  The amount of anysuch immediate and heavy financial need may include any amounts necessary topay Federal, state or local income taxes reasonably anticipated to result fromthe distribution.  Such distributionshall be made in accordance with nondiscriminatory and objective standards andprocedures consistently applied by the Administrator.  In this regard, any such withdrawal shallfirst be made from any after-tax contributions, then from any rollovercontributions, then from any Employer contributions made pursuant to Section 4.2and finally from any elective deferrals.

 

Hardship distributions under this Section shall bedeemed to be the result of an immediate and heavy financial need if suchdistribution is to: (a) pay expenses for (or to obtain) medical care that wouldbe deductible under Section 213(d) of the Code determined without regard towhether the expenses exceed seven and one-half percent (7.5%) of adjusted grossincome; (b) purchase the principal residence of the Participant (excludingmortgage payments); (c) pay tuition and related educational fees for the nexttwelve (12) months of post-secondary education for the Participant, Participant’sspouse, or any of the Participant’s dependents (as defined in Section 152 ofthe Code, and without regard to Section 152(b)(1), (b)(2) and (d)(1)(B) of theCode); (d) prevent the eviction of the Participant from his principal residenceor foreclosure on the Participant’s principal residence; (e) pay funeral orburial expenses for the Participant’s deceased parent, spouse, children ordependents (as defined in Section 152 of the Code, and without regard toSection 152(d)(1)(B) of the Code); or (f) repair damage to the Participant’sprincipal residence that would qualify for a casualty loss deduction underSection 165 of the Code (determined without regard to whether the loss exceedsten percent (10%) of adjusted gross income). Distributions paid pursuant to this Section shall be deemed to be madeas of the Valuation Date immediately preceding the hardship distribution, andthe Participant’s Account shall be reduced accordingly.

 

A distribution shall notbe treated as necessary to satisfy an immediate and heavy financial need of aParticipant to the extent the amount of the distribution is in excess of theamount required to relieve the financial need or to the extent the need may besatisfied from other resources that are reasonably available to the Participant.  This determination shall generally be made onthe basis of all relevant facts and circumstances.  For purposes of this paragraph, theParticipant’s resources shall be deemed to include those assets of theParticipant’s spouse and minor children that are reasonably available to theParticipant.  A distribution generallyshall be treated as necessary to satisfy a financial need if the Administratorrelies upon the Participant’s written representation, unless the Administratorhas actual knowledge to the contrary, that the need cannot reasonably berelieved:

 

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(1)           Through reimbursement or compensation by insurance orotherwise;

 

(2)           By liquidation of the Participant’s assets;

 

(3)           By cessation of elective deferrals (within the meaningof Section 4.1) and any after-tax contributions under Section 4.5; or

 

(4)           Byother distributions or nontaxable (at the time of the loan) loans from plansmaintained by the Employer or by any other employer, or by borrowing fromcommercial sources on reasonable commercial terms, in an amount sufficient tosatisfy the need.

 

For purposes of the foregoing paragraph, a need cannotreasonably be relieved by one of the actions listed above if the effect wouldbe to increase the amount of the need. In making such determination, the Administrator may rely upon theParticipant’s written representation to such effect, unless the Administratorhas actual knowledge to the contrary.

 

**8.3****                              ****WITHDRAWALS AFTER AGE 591⁄2. **After attaining age fifty-nine andone-half (591⁄2), a Participant may withdraw from the Plan a sum (a) notin excess of the credit balance of his vested Account and (b) not lessthan such minimum amount as the Administrator may establish from time to timeto facilitate administration of the Plan. Any such withdrawals shall be made in accordance with nondiscriminatoryand objective standards and procedures consistently applied by theAdministrator.

 

**8.4****                              ****WITHDRAWALS OF AFTER-TAXCONTRIBUTIONS. **A Participant may withdraw from the Plana sum (a) not in excess of the credit balance of the Participant’s Accountattributable to any after-tax contributions made to the Plan and (b) notless than such minimum amount as the Administrator may establish from time totime to facilitate administration of the Plan. Any such withdrawals shall be made in accordance with nondiscriminatoryand objective standards and procedures consistently applied by theAdministrator.

 

**8.5****                              ****WITHDRAWALS OF ROLLOVERCONTRIBUTIONS. **A Participant may withdraw from the Plana sum (a) not in excess of the credit balance of the Participant’s Accountattributable to any rollover contributions made to the Plan and (b) notless than such minimum amount as the Administrator may establish from time totime to facilitate administration of the Plan. Any such withdrawals shall be made in accordance with nondiscriminatoryand objective standards and procedures consistently applied by theAdministrator.

 

**8.6****                              ****WITHDRAWALS OF EMPLOYERCONTRIBUTIONS FOR OTHER FINANCIAL NEEDS. **Where funds are needed to complete a major renovation to a Participant’sprincipal residence, or in the event of any other bona fide financial emergencyas determined by the Administrator, the Participant may receive a distributionnot to exceed the lesser of (i) the vested value of the Participant’sAccount derived from Employer contributions under Section 4.2,

 

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determinedas of the Valuation Date immediately preceding such withdrawal request, or (ii) theamount necessary to satisfy such financial need.  The amount of such financial need may,however, include any amounts necessary to pay Federal, state or local incometaxes or penalties reasonably anticipated to result fromthedistribution.  Such distribution shall bemade in accordance with non-discretionary and objective standards consistentlyapplied by the Administrator.

 

**ARTICLENINE —ADMINISTRATION OF THE PLAN**

 

**9.1****                              ****PLAN ADMINISTRATION. **The Employer shall be the Plan Administrator,hereinbefore and hereinafter called the Administrator, and a “named fiduciary”(for purposes of Section 402(a)(1) of the Employee Retirement IncomeSecurity Act of 1974, as amended from time to time (“ERISA”)) of the Plan,unless the Employer, by action of its board of directors, shall designate aperson or committee of persons to be the Administrator.  The Employer, by action of its board ordirectors, may also designate a person, a committee of persons, and/or otherentity as a named fiduciary or named fiduciaries.  The administration of the Plan, as providedherein, including a determination of the payment of benefits to Participantsand their Beneficiaries, shall be the responsibility of the Administrator;provided, however, that the Administrator may delegate any of its powers, authority,duties or responsibilities to any person or committee of persons, suchdelegation to be in accordance with ERISA Section 405.  The Administrator shall have full discretionto interpret the terms of the Plan, to determine factual questions that arisein the course of administering the Plan, to adopt rules and regulationsregarding the administration of the Plan, to determine the conditions underwhich benefits become payable under the Plan, and to make any otherdeterminations that the Administrator believes are necessary and advisable forthe administration of the Plan.  Anydetermination made by the Administrator shall be final and binding on allparties, and shall be given the maximum deference allowed by law.

 

In the event more than one party shall act asAdministrator, all actions shall be made by majority decisions.  In the administration of the Plan, theAdministrator may (a) employ agents to carry out nonfiduciary responsibilities(other than Trustee responsibilities), (b) consult with counsel, who may becounsel to the Employer, and (c) provide for the allocation of fiduciaryresponsibilities (other than Trustee responsibilities) among its members.  Actions dealing with fiduciaryresponsibilities shall be taken in writing and the performance of agents,counsel and fiduciaries to whom fiduciary responsibilities have been delegatedshall be reviewed periodically.

 

The expenses of administering the Plan and thecompensation of all employees, agents, or counsel of the Administrator,including accounting fees, recordkeeper’s fees, and the fees of any benefitconsulting firm, shall be paid by the Plan, or shall be paid by the Employerif, and to the extent, the Employer so elects. To the extent required by applicable law, compensation may not be paidby the Plan to full-time Employees of the Employer.

 

In the event the Employer pays the expenses ofadministering the Plan, the Employer may seek reimbursement from the Plan forthe payment of such expenses. Reimbursement shall be permitted only for Plan expenses paid by theEmployer within the last twelve (12)-month period.

 

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The Administrator shall obtain from the Trustee, notless often than annually, a report with respect to the value of the assets heldin the Trust Fund, in such form as may be required by the Administrator.

 

The Administrator shall administer the Plan and adoptsuch rules and regulations as, in the opinion of the Administrator, arenecessary or advisable to implement and administer the Plan and to transact itsbusiness.  As a named fiduciary, theAdministrator is required to discharge its duties with respect to the Plansolely in the interest of the Participants and Beneficiaries and with the care,skill, prudence, and diligence under the circumstances then prevailing that aprudent man acting in a like capacity and familiar with such matters would usein the conduct of an enterprise of a like character and with like aims.

 

**9.2****                              ****CLAIMS PROCEDURE**

 

Theprovisions of paragraph (a) below shall apply to all benefit claims underthe Plan, except as provided in paragraph (b) below.

 

(a)           Pursuantto procedures established by the Administrator, claims for benefits under thePlan made by a Participant or Beneficiary (the “claimant”) must be submitted inwriting to the Administrator.  Approvedclaims shall be processed and instructions issued to the Trustee or custodianauthorizing payment as claimed.

 

If a claim is denied inwhole or in part, the Administrator shall notify the claimant within ninety(90) days after receipt of the claim (or within one hundred eighty (180) days,if special circumstances require an extension of time for processing the claim,and provided written notice indicating the special circumstances and the dateby which a final decision is expected to be rendered is given to the claimantwithin the initial ninety (90) day period).

 

The notice of the denialof the claim shall be written in a manner calculated to be understood by theclaimant and shall set forth the following:

 

(i)            the specific reason or reasons for the denial of theclaim;

 

(ii)           the specific references to the pertinent Planprovisions on which the denial is based;

 

(iii)          adescription of any additional material or information necessary to perfect theclaim, and an explanation of why such material or information is necessary;

 

(iv)          astatement that any appeal of the denial must be made by giving to theAdministrator, within sixty (60) days after receipt of the denial of the claim,written notice of such appeal, such notice to include a full description of thepertinent issues and basis of the claim; and

 

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(v)           astatement about the claimant’s right to bring civil action under Section 502(a) underERISA if the claim is denied on review.

 

Upondenial of a claim in whole or part, the claimant (or his duly authorizedrepresentative) shall have the right to submit a written request to theAdministrator for a full and fair review of the denied claim, to be permittedto review documents (free of charge) pertinent to the denial, and to submitissues and comments in writing.  Anyappeal of the denial must be given to the Administrator within the period oftime prescribed under (a)(iv) above. If the claimant (or his duly authorized representative) fails to appealthe denial to the Administrator within the prescribed time, the Administrator’sadverse determination shall be final, binding and conclusive.

 

The Administrator mayhold a hearing or otherwise ascertain such facts as it deems necessary andshall render a decision which shall be binding upon both parties.  The Administrator shall advise the claimantof the results of the review within sixty (60) days after receipt of thewritten request for the review, unless special circumstances require anextension of time for processing, in which case a decision shall be rendered assoon as possible but not later than one hundred twenty (120) days after receiptof the request for review.  If suchextension of time is required, written notice of the extension shall befurnished to the claimant prior to the commencement of the extension.  The decision of the review shall be writtenin a manner calculated to be understood by the claimant and shall includespecific reasons for the decision, specific references to the pertinent Planprovisions on which the decision is based, the claimant’s right to receive freeof charge upon written request, reasonable access to and copies of, all Plandocuments, records, and other information relevant to the claim, and astatement about the claimant’s right to bring a civil action under Section 502(a) ofERISA.  The decision of the Administratorshall be final, binding and conclusive.

 

(b)           Theprovisions of this subsection (b) shall apply to a claim involving adetermination by the Administrator of a Participant’s Disability.

 

Such a claim forDisability benefits must be submitted in writing to the Director of HumanResources.  Approved claims shall beprocessed and instructions issued to the Trustee or custodian authorizingpayment as claimed.

 

If such a claim is deniedin whole or in part, the Director of Human Resources shall notify the claimant withinforty-five (45) days after receipt of the claim (or within seventy-five (75)days, if special circumstances require an extension of time for processing theclaim, and provided written notice indicating the special circumstances and thedate by which a final decision is expected to be rendered is given to theclaimant within the initial forty-five (45) day period).

 

If, prior to the end ofthe seventy five (75) day extended period, the Director of Human Resourcesdetermines that a decision cannot be rendered within the initial extensionperiod due to special circumstances, the period for making a determination maybe extended for up to an additional thirty (30) days, provided written noticeindicating the

 

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special circumstances andthe date by which a final decision is expected to be rendered is given to theclaimant within the originally extended seventy-five (75) day period.

 

The notice of the denialof the claim shall be written in a manner calculated to be understood by theclaimant and shall set forth the following:

 

(i)            the specific reason or reasons for the denial of theclaim;

 

(ii)           the specific references to the pertinent Planprovisions on which the denial is based;

 

(iii)          a description of any additional materials orinformation necessary to perfect the claim, and an explanation of why suchmaterial or information is necessary;

 

(iv)          a statement that any appeal of the denial must be madeby giving to the Administrator, within one hundred eighty (180) days afterreceipt of the denial of the claim, written notice of such appeal, such noticeto include a full description of the pertinent issues and basis of the claim;

 

(v)           a statement about the claimant’s right to bring acivil action under Section 502(a) of ERISA if the claim is denied onreview; and

 

(vi)          to the extent that an internal rule, guideline,protocol, or other similar criterion was relied upon in the denial, thenotification shall set forth the specific rule, guideline, protocol, orcriterion or indicate that such was relied upon and that a copy will beprovided free of charge to the claimant upon request.

 

Upon denial of a claim inwhole or in part, the claimant (or his duly authorized representative) shallhave the right to submit a written request to the Administrator for a full andfair review of the denied claim, to be permitted to review documents (free ofcharge) pertinent to the denial, and to submit issues and comments inwriting.  Any appeal of the denial mustbe given to the Administrator within the period of time prescribed under (b)(iv) above.  If the claimant (or his duly authorizedrepresentative) fails to appeal the denial to the Administrator within theprescribed time, the Director of Human Resource’s initial adverse determinationshall be final, binding and conclusive.

 

The Administrator shallconsider the full record of the claimant’s appeal without deference to theinitial determination and, if the determination is based in whole or in part ona medical judgment, shall consult with a health care professional experiencedin the field of medicine involved in the medical judgment.  The health care professional consulted on theappeal shall be an individual who was not consulted in connection with theinitial denied claim (nor a subordinate of any individual consulted inconnection with the initial denied claim) and whose identity shall be disclosedto the claimant upon written request of the claimant, regardless of whether thehealth care professional’s advice was relied upon in making the subsequentclaim determination.

 

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The Administrator shallrender a decision that shall be binding upon both parties.  The Administrator shall advise the claimantof the results of their review within forty-five (45) days after receipt of thewritten request for the review, unless special circumstances require anextension of time for processing, in which case a decision shall be rendered assoon as possible but not later than ninety (90) days after receipt of therequest for review.  If such extension oftime is required, written notice of the extension shall be furnished to theclaimant prior to the commencement of the extension. The decision of the reviewshall be written in a manner calculated to be understood by the claimant andshall set forth the following:

 

(A)          the specific reason or reasons for the denial of theclaim;

 

(B)           the specific references to the pertinent Planprovisions on which the denial is based;

 

(C)           the claimant’s right to receive free of charge, uponwritten request, reasonable access to and copies of, all Plan documents,records, and other information relevant to the claim;

 

(D)          a statement about the claimant’s right to bring acivil action under Section 502(a) of ERISA; and

 

(E)           to the extent that an internal rule, guideline,protocol, or other similar criterion was relied upon in the denial, thenotification shall set forth the specific rule, guideline, protocol, orcriterion or indicate that such was relied upon and that a copy will beprovided free of charge to the claimant upon request.

 

The decision of theAdministrator shall be final, binding and conclusive.

 

**9.3****         ****TRUST AGREEMENT. **The Trust Agreement entered into by and between theEmployer and the Trustee, including any supplements or amendments thereto, orany successor Trust Agreement, is incorporated by reference herein.

 

**ARTICLETEN—SPECIAL COMPLIANCE PROVISIONS**

 

**10.1****       ****DISTRIBUTION OF EXCESS ELECTIVEDEFERRALS.**  Notwithstanding any other provision of thePlan, “Excess Elective Deferrals” (as defined below) (and income or lossallocable thereto, including all earnings, expenses and appreciation ordepreciation in value, whether or not realized) shall be distributed no laterthan each April 15 to Participants who claim Excess Elective Deferrals forthe preceding calendar year.

 

“Excess Elective Deferrals” shall mean the amount ofElective Deferrals (as defined below) for a calendar year that the Participantdesignates to the Plan pursuant to the following procedure.  The Participant’s designation:  shall be submitted to the Administrator inwriting no later than March

 

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1; shall specify the Participant’s Excess ElectiveDeferrals for the preceding calendar year; and shall be accompanied by theParticipant’s written statement that if the Excess Elective Deferrals is notdistributed, it will, when added to amounts deferred under other plans orarrangements described in Section 401(k), 408(k) or 403(b) of the Code, exceedthe limit imposed on the Participant by Section 402(g) of the Code for the yearin which the deferral occurred.  ExcessElective Deferrals shall mean those Elective Deferrals that are includible in aParticipant’s gross income under Section 402(g) of the Code to the extent suchParticipant’s Elective Deferrals for a taxable year exceed the dollarlimitation under such Code section.

 

An Excess Elective Deferral, and the income or lossallocable thereto, may be distributed before the end of the calendar year inwhich the Elective Deferrals were made. A Participant who has an Excess Elective Deferral for a taxable year,taking into account only his Elective Deferrals under the Plan or any otherplans of the Employer (including any member of the Employer’s related group(within the meaning of Section 2.5(b)), shall be deemed to have designated theentire amount of such Excess Elective Deferral.

 

ExcessElective Deferrals shall be adjusted for any income or loss up to the date ofdistribution.  For purposes of this Section 10.1,whenever reference is made to the income or loss allocable to an ExcessElective Deferral, such income or loss shall be determined as follows.  The income or loss allocable to ExcessElective Deferrals allocated to each Participant is the sum of: (i) incomeor loss allocable to the Participant’s deferred amounts for the Plan Yearmultiplied by a fraction, the numerator of which is the Excess ElectiveDeferrals made on behalf of the Participant for the Plan Year, and thedenominator of which is the sum of the Participant’s Account balancesattributable to the Participant’s Elective Deferrals on the last day of thePlan Year; and (ii) ten percent (10%) of the amount determined under (i) multipliedby the number of whole calendar months between the end of the Plan Year and thedate of distribution, counting the month of distribution if distribution occursafter the fifteenth (15th)of such month.

 

For purposes of this Article Ten, “Elective Deferrals”shall mean any Employer contributions made to the Plan at the election of theParticipant, in lieu of cash compensation, and shall include contributions madepursuant to a salary deferral reduction agreement or other deferralmechanism.  With respect to any taxableyear, a Participant’s Elective Deferrals is the sum of all Employercontributions made on behalf of such Participant pursuant to an election todefer under any qualified cash or deferred arrangement described in Section401(k) of the Code, any salary reduction simplified employee pension describedin Section 408(k)(6) of the Code, and SIMPLE IRA Plan described in Section408(p) of the Code, any eligible deferred compensation plan under Section 457of the Code, any plan described under Section 501(c)(18) of the Code, and anyEmployer contributions made on behalf of a Participant for the purchase of anannuity contract under Section 403(b) of the Code pursuant to a salaryreduction agreement.  Elective Deferralsshall not include any deferrals properly distributed as excess annual additions.

 

**10.2****       ****LIMITATIONS ON 401(k) CONTRIBUTIONS**

 

(a)           *Actual Deferral Percentage Test (“ADP Test”)**. *Amountscontributed as elective deferrals under Section 4.1(a) and, if soelected by the Employer, “Qualified Matching

 

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Contributions” (asdefined below) and any Fail-Safe Contributions made under this Section, areconsidered to be amounts deferred pursuant to Section 401(k) of theCode.  For purposes of this Section,these amounts are referred to as the “deferred amounts.”  For purposes of the “actual deferralpercentage test” described below, (i) such deferred amounts must be madebefore the last day of the twelve (12)-month period immediately following thePlan Year to which the contributions relate, and (ii) the deferred amountsrelate to Compensation that either (A) would have been received by theParticipant in the Plan Year but for the Participant’s election to makedeferrals, or (B) is attributable to services performed by the Participantin the Plan Year,and, but for the Participant’s election to make deferrals,would have been received by the Participant within two and one-half (21⁄2) monthsafter the close of the Plan Year.  TheEmployer shall maintain records sufficient to demonstrate satisfaction of theactual deferral percentage test and the deferred amounts used in such test.

 

For purposes of thisSection, “Qualified Matching Contributions” shall mean matching contributionswhich are subject to the distribution and nonforfeitability requirements under Section 401(k) ofthe Code and satisfy Section 1.401(k)-2(a)(6) of the IRS Treasuryregulations.

 

A of the last day of eachPlan Year, the deferred amounts for the Participants who are Highly-CompensatedEmployees for the Plan Year shall satisfy either of the following tests:

 

(1)           Theactual deferral percentage for the eligible Participants who areHighly-Compensated Employees for the Plan Year shall not exceed the actualdeferral percentage for eligible Participants who are Nonhighly-CompensatedEmployees for the Plan Year multiplied by 1.25; or

 

(2)           Theactual deferral percentage for eligible Participants who are Highly-CompensatedEmployees for the Plan Year shall not exceed the actual deferral percentage ofeligible Participants who are Nonhighly-Compensated Employees for the Plan Yearmultiplied by two (2), provided that the actual deferral percentage foreligible Participants who are Highly-Compensated Employees for the Plan Yeardoes not exceed the actual deferral percentage for eligible Participants whoare Nonhighly-Compensated Employees by more than two (2) percentagepoints.

 

Notwithstanding theforegoing, if elected by the Employer by Plan amendment, the foregoingpercentage tests shall be applied based on the actual deferral percentage ofthe Nonhighly-Compensated Employees for the prior Plan Year; provided, however,the change in testing methods complies with the requirements set forth in theFinal 401(k) and 401(m) Regulations and any other supersedingguidance.

 

In the event the Planchanges from the current year testing method to the prior year testing method,then, for purposes of the first testing year for which the change is effective,the actual deferral percentage for Nonhighly-Compensated Employees for theprior year shall be determined by taking into account only elective deferrals(within the meaning of

 

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Section 4.1) forthose Nonhighly-Compensated Employees that were taken into account for purposesof the actual deferral percentage test (and not the actual contributionpercentage test) under the current year testing method for the prior year.

 

For purposes of the abovetests, the “actual deferral percentage” shall mean for a specified group ofParticipants for a Plan Year, the average of the ratios (calculated separatelyfor each Participant in such group) of (1) deferred amounts actually paidover to the Trust on behalf of such Participant for the Plan Year to (2) theParticipant’s compensation (within the meaning of Section 1.6 of the Plan)or, if the Employer chooses, Participant’s compensation determined by using anyother definition of compensation that satisfies the nondiscriminationrequirements of Section 414(s) of the Code and the regulationsthereunder.  For purposes hereof, theParticipant’s compensation shall be referred to as “414(s) Compensation.”An Employer may limit the period taken into account for determining 414(s) Compensationto that part of the Plan Year or calendar year in which an Employee was aParticipant in the component of the Plan being tested.  The period used to determine 414(s) Compensationmust be applied uniformly to all Participants for the Plan Year.  Deferred amounts on behalf of any Participantshall include (1) any Elective Deferrals made pursuant to the Participant’sdeferral election (including Excess Elective Deferrals of Highly CompensatedEmployees), but excluding (a) Excess Elective Deferrals ofNonhighly-Compensated Employees that arise solely from Elective Deferrals madeunder the Plan or plans of this Employer and (b) Elective Deferrals thatare taken into account in the actual contribution percentage test (provided theactual deferral percentage test is satisfied both with and without exclusion ofthese Elective Deferrals); and (2) Qualified Matching Contributions andFail-Safe Contributions.  For purposes ofcomputing Actual Deferral Percentages, an Employee who would be a Participantbut for failure to make Elective Deferrals shall be treated as a Participant onwhose behalf no Elective Deferrals are made.

 

For purposes of this Section 10.2,the actual deferral percentage for any eligible Participant who is aHighly-Compensated Employee for the Plan Year and who is eligible to haveElective Deferrals allocated to his account under two (2) or more plans orarrangements described in Code Section 401(k) that are maintained bythe Employer or any employer who is a related group member (within the meaningof Section 2.5(b)) shall be determined as if all such deferrals were madeunder a single arrangement.  In the eventthat this Plan satisfies the requirements of Code Section 401(k), 401(a)(4) or410(b) only if aggregated with one (1) or more other plans, or if one(1) or more other plans satisfy the requirements of such Sections of theCode only if aggregated with this Plan, then the provisions of this Section 10.2shall be applied by determining the actual deferral percentage of eligibleParticipants as if all such plans were a single plan.  If the Employer elects by Plan amendment touse the prior year testing method, any adjustments to the Nonhighly-CompensatedEmployee actual deferral percentage for the prior year shall be made inaccordance with the Final 401(k) and 401(m) Regulations.  Plans may be aggregated in order to satisfy Section 401(k) ofthe Code only if they have the same Plan Year and use the same average actualdeferral percentage testing method.

 

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The determination andtreatment of deferred amounts and the actual deferral percentage of anyParticipant shall be subject to the prescribed requirements of the Secretary ofthe Treasury.

 

In the event the actualdeferral percentage test is not satisfied for a Plan Year, the Employer, in itsdiscretion, may make a Fail-Safe Contribution for eligible Participants who areNonhighly-Compensated Employees, equal to a specified percentage ofcompensation; provided, however such percentage does not exceed the greater offive percent (5%) or two times the Plan’s “representative contribution rate.”  For purposes of this paragraph:

 

(1)       “compensation” - shall mean compensation used for theactual deferral percentage test.

 

(2)       “representative contribution rate” — shall mean thegreater of:

 

(A)        the lowest applicable contribution rate (definedbelow) of any eligible Nonhighly-Compensated Employee among a group of eligibleNonhighly-Compensated Employees that consists of at least fifty percent (50%)of the total eligible Nonhighly-Compensated Employees for the Plan Year, or

 

(B)         the lowest applicable contribution rate of anyeligible Nonhighly-Compensated in the group of all eligibleNonhighly-Compensated Employees for the Plan Year and who is employed by theEmployer on the last day of the Plan Year.

 

The applicablecontribution rate for an eligible Nonhighly-Compensated Employee is the sum ofthe qualified matching contribution taken into account for the eligibleNonhighly-Compensated Employee for the Plan Year and the Fail-Safe Contributionmade for the eligible Nonhighly-Compensated Employee for the Plan Year, dividedby the eligible Nonhighly-Compensated Employee’s compensation for the sameperiod.

 

(b)           *Distributions of Excess Contributions**.*

 

(1)           In General.  If the actualdeferral percentage test of Section 10.2(a) is not satisfied for aPlan Year, then the “excess contributions”, and income allocable thereto, shallbe distributed, to the extent required under Treasury regulations, no laterthan the last day of the Plan Year following the Plan Year for which the excesscontributions were made.  However, ifsuch excess contributions are distributed later than two and one-half (21⁄2)months following the last day of the Plan Year in which such excesscontributions were made, a ten percent (10%) excise tax shall be imposed uponthe Employer with respect to such excess contributions.

 

(2)           Excess Contributions.  For purposesof this Section, “excess contributions” shall mean, with respect to any PlanYear, the excess of:

 

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(A)          The aggregate amount of Employer contributionsactually taken into account in computing the numerator of the actual deferralpercentage of Highly-Compensated Employees for such Plan Year, over

 

(B)           The maximum amount of such contributions permitted bythe ADP Test under Section 10.2(a) (determined by hypotheticallyreducing contributions made on behalf of Highly-Compensated Employees in orderof the actual deferral percentages, beginning with the highest of suchpercentages).

 

Excess contributionsshall be allocated to the Highly-Compensated Employees with the highest dollaramounts of contributions taken into account in calculating the actual deferralpercentage test for the year in which the excess arose, beginning with theHighly-Compensated Employee with the highest dollar amount of suchcontributions and continuing in descending order until all the excesscontributions have been allocated.  Forpurposes of the preceding sentence, the “highest dollar amount” is determinedafter distribution of any excess contributions. To the extent a Highly-Compensated Employee has not reached his catch-upcontribution limit (set forth in Section 4.1(e) of the Plan), excesscontributions allocated to such Highly-Compensated Employee are catch-upcontributions and will not be treated as excess contributions.

 

(3)           Determination of Income.  Excesscontributions shall be adjusted for any income or loss up to the date ofdistribution.  The income or lossallocable to excess contributions allocated to each Participant is the sum of: (i) incomeor loss allocable to the Participant’s deferred amounts for the Plan Yearmultiplied by a fraction, the numerator of which is the excess contributionsmade on behalf of the Participant for the Plan Year, and the denominator ofwhich is the sum of the Participant’s Account balances attributable to theParticipant’s deferred amounts on the last day of the Plan Year; and (ii) tenpercent (10%) of the amount determined under (i) multiplied by the numberof whole calendar months between the end of the Plan Year and the date of distribution,counting the month of distribution if distribution occurs after the fifteenth(15th) of such month.

 

(4)           Accounting for Excess Contributions.  Excess contributions shall be distributedfrom that portion of the Participant’s Account attributable to such deferredamounts to the extent allowable under Treasury regulations.

 

**10.3****       ****NONDISCRIMINATION TEST FOREMPLOYER MATCHING CONTRIBUTIONS AND AFTER-TAX CONTRIBUTIONS**

 

(a)           *Average Contribution Percentage Test (“ACP Test”)**. *To the extent required by applicable law, the provisions of this Section shall apply ifEmployer matching contributions are made in any Plan Year under Section 4.2(a) andsuch matching contributions are not used to satisfy the actual deferralpercentage test of

 

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Section 10.2and/orin the event Employee after-tax contributions are made to the Plan under Section 4.5.  Any Employee after-tax contributions that areused to satisfy the average contribution percentage test shall satisfy therequirements of Section 1.401(m)-2(a)(6) of the IRS TreasuryRegulations.

 

As of the last day ofeach Plan Year, the average contribution percentage for Highly-CompensatedEmployees for the Plan Year shall satisfy either of the following tests:

 

(1)           Theaverage contribution percentage for eligible Participants who areHighly-Compensated Employees for the Plan Year shall not exceed the averagecontribution percentage for eligible Participants who are Nonhighly-CompensatedEmployees for the Plan Year multiplied by 1.25; or

 

(2)           Theaverage contribution percentage for eligible Participants who areHighly-Compensated Employees for the Plan Year shall not exceed the averagecontribution percentage for eligible Participants who are Nonhighly-CompensatedEmployees for the Plan Year multiplied by two (2), provided that the averagecontribution percentage for eligible Participants who are Highly-CompensatedEmployees for the Plan Year does not exceed the average contribution percentagefor eligible Participants who are Nonhighly-Compensated Employees by more thantwo (2) percentage points.

 

Notwithstanding theforegoing, if elected by the Employer by Plan amendment, the foregoingpercentage tests shall be applied based on the average contribution percentageof the Nonhighly-Compensated Employees for the prior Plan Year; provided,however, the change in testing methods complies with the requirements set forthin the Final 401(k) and 401(m) Regulations and any other supersedingguidance.

 

In the event the Planchanges from the current year testing method to the prior year testing method,then, for purposes of the first testing year for which the change is effective,the average contribution percentage for Nonhighly-Compensated Employees for theprior year shall be determined by taking into account only (a) after-taxcontributions for those Nonhighly-Compensated Employees for the prioryear,  and (b) matchingcontributions for those Nonhighly-Compensated Employees that were taken intoaccount for purposes of the average contribution percentage test (and not theaverage actual deferral percentage test) under the current year testing methodfor the prior year.

 

For purposes of the abovetests, the “average contribution percentage” shall mean the average (expressedas a percentage) of the contribution percentages of the “eligible Participants”in each group.  The “contributionpercentage” shall mean the ratio (expressed as a percentage) that the sum ofEmployer matching contributions, and, if applicable, Employee after-tax contributions,and elective deferrals under Section 4.1 (to the extent such electivedeferrals are not used to satisfy the actual deferral percentage test of Section 10.2)under the Plan on behalf of the eligible Participant for the Plan Year bears tothe eligible Participant’s compensation (within the meaning of Section 1.6of the Plan) or, if the Employer chooses, Participant’s compensation determinedby using any other definition of compensation that satisfies thenondiscrimination requirements of

 

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Section 414(s) ofthe Code and the regulations thereunder. For purposes hereof, the Participant’s compensation shall be referred toas “414(s) Compensation.”  AnEmployer may limit the period taken into account for determining 414(s) Compensationto that part of the Plan Year or calendar year in which an Employee was aParticipant in the component of the Plan being tested.  The period used to determine 414(s) Compensationmust be applied uniformly to all Participants for the Plan Year.  Such average contribution percentage shall bedetermined without regard to matching contributions that are used either tocorrect excess contributions hereunder or because contributions to which theyrelate are excess deferrals under Section 10.1 or excess contributions underSection 10.2.  “Eligible Participant”shall mean each Employee who is eligible to receive Employer matchingcontributions or make after-tax contributions.

 

For purposes of this Section 10.3,the contribution percentage for any eligible Participant who is aHighly-Compensated Employee for the Plan Year and who is eligible to haveEmployer matching contributions, elective deferrals and/or after-taxcontributions allocated to his account under two (2) or more plansdescribed in Section 401(a) of the Code or under arrangementsdescribed in Section 401(k) of the Code that are maintained by theEmployer or any member of the Employer’s related group (within the meaning of Section 2.5(b)),shall be determined as if all such contributions were made under a single plan.

 

In the event that thisPlan satisfies the requirements of Section 401(m), 401(a)(4) or 410(b) ofthe Code only if aggregated with one (1) or more other plans, or if one (1) ormore other plans satisfy the requirements of such Sections of the Code only ifaggregated with this Plan, then the provisions of this Section 10.3 shallbe applied by determining the contribution percentages of eligible Participantsas if all such plans were a single plan. If the Employer elects by Plan amendment to use the prior year testingmethod, any adjustments to the Nonhighly-Compensated Employee actualcontribution percentage for the prior year shall be made in accordance with theFinal 401(k) and 401(m) Regulations. Plans may be aggregated in order to satisfy Section 401(m) ofthe Code only if they have the same Plan Year and use the same averagecontribution percentage testing method.

 

Thedetermination and treatment of the contribution percentage of any Participantshall satisfy such other requirements as may be prescribed by the Secretary ofthe Treasury.

 

(b)                                 *Distribution of Excess EmployerMatching Contributions**.*

 

(1)                                  In General.  If thenondiscrimination tests of Section 10.3(a) are not satisfied for aPlan Year, then the “excess aggregate contributions”, and any income allocablethereto, shall be forfeited, if otherwise forfeitable, no later than the lastday of the Plan Year following the Plan Year for which the nondiscriminationtests are not satisfied, and shall be used to reduce Employer matchingcontributions under Section 4.2.  Tothe extent that such “excess aggregate contributions” are nonforfeitable, suchexcess contributions shall be distributed to the Participant on whose behalfthe excess contributions were made no later than the last day of the Plan Yearfollowing the Plan Year for which such “excess aggregate contributions” weremade.  However, if such excess aggregatecontributions are

 

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distributedlater than two and one-half (21⁄2) months following the last day of the Plan Yearin which such excess aggregate contributions were made, a ten percent (10%)excise tax shall be imposed upon the Employer with respect to such excessaggregate contributions.  For purposes ofthe limitations of Section 11.1(b)(1) of the Plan, excess aggregatecontributions shall be considered annual additions.

 

(2)                                  Excess Aggregate Contributions. For purposes of this Section, “excess aggregate contributions” shallmean, with respect to any Plan Year, the excess of:

 

(A)                              The aggregate amount of Employer matchingcontributions and, if applicable, Employee after-tax contributions, andelective deferrals under Section 4.1 (to the extent not used to satisfythe actual deferral percentage test of Section 10.2) actually taken into accountin computing the numerator of the actual contribution percentage ofHighly-Compensated Employees for such Plan Year, over

 

(B)                                The maximum amount of such contributionspermitted by the ACP Test under Section 10.3(a) (determined byhypothetically reducing contributions made on behalf of Highly-CompensatedEmployees in order of the actual contribution percentages, beginning with thehighest of such percentages).

 

Excess contributionsshall be allocated to the Highly-Compensated Employee with the largest “contributionpercentage amounts” (as defined below) taken into account in calculating theaverage contribution percentage test for the year in which the excess arose,beginning with the Highly-Compensated Employee with the largest amount of suchcontribution percentage amounts and continuing in descending order until allthe excess aggregate contributions have been allocated.  For purposes of the preceding sentence, the “largestamount” is determined after distribution of any excess aggregate contributions.

 

Forpurposes of the preceding paragraph, “contribution percentage amounts” shallmean the sum of Employer matching contributions and, if applicable, Employeeafter-tax contributions, and elective deferrals (to the extent not used tosatisfy the actual deferral percentage test of Section 10.2) made underthe Plan on behalf of the Participant for the Plan Year.

 

(3)                                  Determination of Income. Excess aggregate contributions shall be adjusted for an income or lossup to the date of distribution.  Theincome or loss allocable to excess contributions allocated to each Participantis the sum of:  (i) income or lossallocable to the Employer matching contributions and, if applicable, Employeeafter-tax contributions, and such elective deferrals for the Plan Yearmultiplied by a fraction, the numerator of which is the excess aggregatecontributions on behalf of the Participant for the Plan Year, and thedenominator of which is the sum of the Participant’s Account balancesattributable to Employer matching contributions and, if applicable, Employeeafter-tax contributions, and such elective deferrals (to the extent not used tosatisfy the average actual percentage

 

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test of Section 10.2)on the last day of the Plan Year; and (ii) ten percent (10%) of the amountdetermined under (i) multiplied by the number of whole calendar monthsbetween the end of the Plan Year and the date of distribution, counting themonth of distribution if distribution occurs after the fifteenth (15th) of such month.

 

Notwithstanding theforegoing, to the extent otherwise required to comply with the requirements of Section 401(a)(4) ofthe Code and the regulations thereunder, vested matching contributions may beforfeited.

 

To the extent permittedby applicable law, the Plan may be disaggregated under Section 1.410(b)-7(c) ofthe Income Tax Regulations, in which case the testing provisions of Sections10.2 and 10.3 above may separately apply to the disaggregated plans.

 

**ARTICLEELEVEN—LIMITATION ON ANNUAL ADDITIONS**

 

**11.1****                       ****RULES AND DEFINITIONS**

 

(a)                                  *Rules**. *Thefollowing rules shall limit additions to Participants’ Accountsforlimitation years and Plan Years beginning on or after July 1, 2007:

 

(1)                                  Ifthe Participant does not participate, and has never participated, in anotherqualified plan maintained by the Employer, the amount of annual additions whichmay be credited to the Participant’s Account for any limitation year shall notexceed the lesser of the “maximum permissible” amount (as hereafter defined) orany other limitation contained in this Plan. If the Employer contribution that would otherwise be allocated to theParticipant’s Account would cause the annual additions for the limitation yearto exceed the maximum permissible amount, the amount allocated shall be reducedso that the annual additions for the limitation year shall equal the maximumpermissible amount.

 

(2)                                  Priorto determining the Participant’s actual compensation for the limitation year,the Employer may determine the maximum permissible amount for a Participant onthe basis of a reasonable estimation of the Participant’s compensation for thelimitation year, uniformly determined for all Participants similarly situated.

 

(3)                                  Assoon as is administratively feasible after the end of the limitation year, themaximum permissible amount for the limitation year shall be determined on thebasis of the Participant’s actual compensation for the limitation year.

 

(4)                                  Ifthe limitations of Section 415 of the Code are exceeded, such excessamount shall be corrected in accordance with the requirements of applicablelaw, including pursuant to the Employee Plans Compliance Resolution System.

 

(5)                                  If,in addition to this Plan, the Participant is covered under another definedcontribution plan maintained by the Employer, or a welfare benefit fund, as

 

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definedin Code Section 419(e), maintained by the Employer, or an individualmedical account, as defined in Code Section 415(1)(2), maintained by theEmployer which provides an annual addition, the annual additions which may becredited to a Participant’s account under all such plans for any suchlimitation year shall not exceed the maximum permissible amount.  Benefits shall be reduced under any discretionarydefined contribution plan before they are reduced under any definedcontribution pension plan.  If both plansare discretionary contribution plans, they shall first be reduced under thisPlan.  Any excess amount attributable tothis Plan shall be disposed of in the manner described in Section 11.1(a)(4).

 

(b)                                 *Definitions**.*

 

(1)                                  Annual additions: The following amounts credited to a Participant’s Account for thelimitation year shall be treated as annual additions:

 

(A)                              Employer contributions;

 

(B)                                Elective deferrals (within the meaning ofSection 4.1);

 

(C)                                Employee after-tax contributions, if any;

 

(D)                               Forfeitures, if any; and

 

(E)                                 Amountsallocated after March 31, 1984 to an individual medical account, asdefined in Section 415(l)(2) of the Code, which is part of a pensionor annuity plan maintained by the Employer. Also, amounts derived from contributions paid or accrued after December 31,1985 in taxable years ending after such date which are attributable topost-retirement medical benefits allocated to the separate account of a KeyEmployee, as defined in Section 419A(d)(3), and amounts under a welfarebenefit fund, as defined in Section 419(e), maintained by the Employer,shall be treated as annual additions to a defined contribution plan.

 

Employer and employeecontributions taken into account as annual additions shall include “excesscontributions” as defined in Section 401(k)(8)(B) of the Code, “excessaggregate contributions” as defined in Section 401(m)(6)(B) of theCode, and “excess deferrals” as defined in Section 402(g) of theCode, regardless of whether such amounts are distributed, recharacterized orforfeited, unless such amounts constitute excess deferrals that weredistributed to the Participant no later than April 15 of the taxable yearfollowing the taxable year of the Participant in which such deferrals weremade.

 

For this purpose, anyexcess amount applied under Section 11.1(a)(4) in the limitation yearto reduce Employer contributions shall be considered annual additions for suchlimitation year.

 

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(2)                                  Compensation: For purposes of determining maximum permitted benefits under thisSection, compensation shall include all of a Participant’s earned income,wages, salaries, and fees for professional services, and other amounts receivedfor personal services actually rendered in the course of employment with theEmployer, including, but not limited to, commissions paid to salesmen,compensation for services on the basis of a percentage of profits, commissionson insurance premiums, tips and bonuses, elective deferrals (as defined in Section 402(g)(3) ofthe Code) made by an Employee to the Plan and any amount contributed ordeferred by an Employee on an elective basis and not includable in the grossincome of the Employee under Section 125, 132(f), or 457 of the Code.   Notwithstanding the foregoing, Compensationfor purposes of this Section shall exclude the following:

 

(A)                              Exceptas provided in the preceding paragraph of this Section 11.1(b)(2),Employer contributions to a plan of deferred compensation which are notincluded in the Employee’s gross income for the taxable year in whichcontributed, or Employer contributions under a simplified employee pension plan(funded with individual retirement accounts or annuities) to the extent suchcontributions are deductible by the Employee, or any distributions from a planof deferred compensation;

 

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

 

(C)                                Amountsrealized from the sale, exchange, or other disposition of stock acquired undera qualified stock option;

 

(D)                               Otheramounts which received special tax benefits, or contributions made by theEmployer (whether or not under a salary reduction agreement) toward thepurchase of an annuity described in Section 403(b) of the Code(whether or not the amounts are actually excludable from the gross income ofthe Employee); and

 

(E)                                 Amountsin excess of the applicable Code Section 401(a)(17) limit.

 

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

 

Any compensationdescribed in this Section 11.1(b)(2) does not fail to be Compensationmerely because it is paid after the Participant’s severance from employmentwith the Employer, provided the Compensation is paid by the later of 21⁄2 monthsafter severance from employment with the Employer or the end of the limitationyear that includes the date of severance from employment.  In addition, payment for unused bona fidesick, vacation or other leave shall be included as Compensation if (i) theParticipant would have been able to use the leave if employment had continued, (ii) suchamounts are paid by the later of 21⁄2 months

 

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after severance fromemployment with the Employer or the end of the Plan Year that includes the dateof severance from employment and (iii) such amounts would have beenincluded as Compensation if they were paid prior to the Participant’s severancefrom employment with the Employer.

 

(3)                                  Defined contribution dollar limitation: This shall mean $40,000, as adjusted under Section 415(d) ofthe Code.

 

(4)                                  Employer:  This termrefers to the Employer that adopts this Plan, and all members of a controlledgroup of corporations (as defined in Section 414(b) of the Code, asmodified by Section 415(h)), commonly-controlled trades or businesses (asdefined in Section 414(c), as modified by Section 415(h)), oraffiliated service groups (as defined in Section 414(m)) of which theEmployer is a part, or any other entity required to be aggregated with theEmployer under Code Section 414(o).

 

(5)                                  Limitation year: This shall mean the Plan Year, unless the Employer elects a differenttwelve (12) consecutive month period. The election shall be made by the adoption of a Plan amendment by theEmployer.  If the limitation year isamended to a different twelve (12) consecutive month period, the new limitationyear must begin on a date within the limitation year in which the amendment ismade.

 

(6)                                  Maximum permissible amount: Except to the extent permitted under Section 4.1(e) and Section 414(v) ofthe Code, if applicable, this shall mean an amount equal to the lesser of thedefined contribution dollar limitation or one hundred percent (100%) of theParticipant’s compensation for the limitation year.  If a short limitation year is created becauseof an amendment changing the limitation year to a different twelve(12)-consecutive month period, the maximum permissible amount shall not exceedthe defined contribution dollar limitation multiplied by the followingfraction:

 

Number of monthsin the short limitation year

12

 

**ARTICLETWELVE—AMENDMENT AND TERMINATION**

 

**12.1****                       ****AMENDMENT. **The Employer reserves the right to amend, or modifythe Plan at any time, or from time to time, in whole or in part.  To the extent permitted by board resolutionsof the Employer, any amendment may be adopted by action of a named fiduciaryappointed pursuant to Section 9.1 to which the Employer as Administratorhas delegated the authority to amend the Plan. If any such amendment, however, has a material financial impact on thecost of the Plan, such amendment shall be adopted by resolution of the Employer’sboard of directors.  Any such amendmentshall become effective under its terms upon adoption by the Employer, or namedfiduciary, as the case may be.  However,no amendment affecting the duties, powers or responsibilities of the Trusteemay be made without the written consent of the Trustee.  No amendment shall be made to the Plan whichshall:

 

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(a)                                  makeit possible (other than as provided in Section 14.3) for any part of thecorpus or income of the Trust Fund (other than such part as may be required topay taxes and administrative expenses) to be used for or diverted to purposesother than the exclusive benefit of the Participants or their Beneficiaries;

 

(b)                                 decreasea Participant’s account balance or eliminate an optional form of payment(unless permitted by applicable law) with respect to benefits accrued as of thelater of (i) the date such amendment is adopted, or (ii) the date theamendment becomes effective; or

 

(c)                                  alterthe schedule for vesting in a Participant’s Account with respect to anyParticipant with three (3) or more Years of Service for vesting purposeswithout his consent or deprive any Participant of any nonforfeitable portion ofhis Account.

 

Notwithstanding the otherprovisions of this Section or any other provisions of the Plan, anyamendment or modification of the Plan may be made retroactively if necessary orappropriate within the remedial amendment period to conform to or to satisfythe conditions of any law, governmental regulation, or ruling, and to meet therequirements of the Employee Retirement Income Security Act of 1974, as it maybe amended.

 

If any correctiveamendment (within the meaning of Section 1.401(a)(4)-11(g) of the IRSTreasury Regulations) is made after the end of a Plan Year, such amendmentshall satisfy the requirements of Section 1.401(a)(4)-11(g)(3) and (4) ofthe IRS Treasury Regulations.

 

**12.2****                       ****TERMINATION OF THE PLAN. **The Employer, by resolution of its board of directors,reserves the right at any time and in its sole discretion to discontinuepayments under the Plan and to terminate the Plan.  In the event the Plan is terminated, or uponcomplete discontinuance of contributions under the Plan by the Employer, therights of each Participant to his Account on the date of such termination ordiscontinuance of contributions, to the extent of the fair market value underthe Trust Fund, shall become fully vested and nonforfeitable.  The Employer shall direct the Trustee todistribute the Trust Fund in accordance with the Plan’s distribution provisionsto the Participants and their Beneficiaries, each Participant or Beneficiaryreceiving a portion of the Trust Fund equal to the value of his Account as ofthe date of distribution.  Thesedistributions may be implemented by the continuance of the Trust and thedistribution of the Participants’ Account shall be made at such time and insuch manner as though the Plan had not terminated, or by any other appropriatemethod, including rollover into Individual Retirement Accounts.  Upon distribution of the Trust Fund, theTrustee shall be discharged from all obligations under the Trust and noParticipant or Beneficiary shall have any further right or claim therein.  In the event of the partial termination ofthe Plan, the Accounts of all affected Participants shall become fully vestedand nonforfeitable.

 

In the event of thetermination of the Plan, any amounts to be distributed to Participants or Beneficiarieswho cannot be located shall be handled in accordance with the provisions ofapplicable law (which may include the establishment of an account for suchParticipant or Beneficiary).

 

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**ARTICLETHIRTEEN—TOP-HEAVY PROVISIONS**

 

**13.1****                       ****APPLICABILITY. **The provisions of this Article shall becomeapplicable only for any Plan Year in which the Plan is a Top-Heavy Plan (asdefined in Section 13.2(b)) and only if, and to the extent, required underSection 416 of the Code and the regulations issued thereunder.  Notwithstanding the foregoing, this Article shallnot apply in any Plan Year in which the Plan consists solely of a cash ordeferred arrangement which meets the requirements of Section 401(k)(12) ofthe Code and matching contributions with respect to which the requirements of Section 401(m)(11)of the Code are met.

 

**13.2****                       ****DEFINITIONS. **For purposes of this Article, the followingdefinitions shall apply:

 

(a)                                  **“Key Employee”**:  “KeyEmployee” shall mean any Employee or former Employee (including any deceasedEmployee) who, at any time during the Plan Year that includes the determinationdate, was an officer of the Employer having annual compensation greater than$130,000 (as adjusted under Section 416(i)(1) of the Code for PlanYears beginning after December 31, 2002), a five percent (5%) owner of theEmployer, or a one percent (1%) owner of the Employer having annualcompensation of more than $150,000.  Forthis purpose, annual compensation shall mean compensation as defined in Section 11.1(b)(2) ofthe Plan.  The determination of who is aKey Employee (including the terms “5% owner” and “1% owner”) shall be made inaccordance with Section 416(i)(1) of the Code and the applicableregulations and other guidance of general applicability issued thereunder.

 

(b)                                 **“Top-Heavy Plan”:**

 

(1)                                  ThePlan shall constitute a “Top-Heavy Plan” if any of the following conditionsexist:

 

(A)                              Thetop-heavy ratio for the Plan exceeds sixty percent (60%) and the Plan is notpart of any required aggregation group or permissive aggregation group ofplans; or

 

(B)                                ThePlan is part of a required aggregation group of plans (but is not part of apermissive aggregation group) and the top-heavy ratio for the group of plansexceeds sixty percent (60%); or

 

(C)                                ThePlan is a part of a required aggregation group of plans and part of apermissive aggregation group and the top-heavy ratio for the permissiveaggregation group exceeds sixty percent (60%).

 

(2)                                  Ifthe Employer maintains one (1) or more defined contribution plans(including any simplified employee pension plan funded with individualretirement accounts or annuities) and the Employer maintains or has maintainedone (1) or more

 

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definedbenefit plans which have covered or could cover a Participant in this Plan, thetop-heavy ratio is a fraction, the numerator of which is the sum of accountbalances under the defined contribution plans for all Key Employees and theactuarial equivalents of accrued benefits under the defined benefit plans forall Key Employees, and the denominator of which is the sum of the accountbalances under the defined contribution plans for all Participants and theactuarial equivalents of accrued benefits under the defined benefit plans forall Participants.  Both the numerator anddenominator of the top-heavy ratio shall include any distribution of an accountbalance or an accrued benefit made in the one (1)-year period ending on thedetermination date and any contribution due to a defined contribution pensionplan but unpaid as of the determination date. However, in the case of any distribution made for a reason other thanseverance from employment, death, or disability, this provision shall beapplied by substituting a five (5)-year period for a one (1)-year period.  In determining the accrued benefit of anon-Key Employee who is participating in a plan that is part of a requiredaggregation group, the method of determining such benefit shall be either (i) inaccordance with the method, if any, that uniformly applies for accrual purposesunder all plans maintained by the Employer or any member of the Employer’srelated group (within the meaning of Section 2.5(b)), or (ii) ifthere is no such method, as if such benefit accrued not more rapidly than theslowest accrual rate permitted under the fractional accrual rate of Code Section 411(b)(1)(C).

 

(3)                                  Forpurposes of (1) and (2) above, the value of account balances and theactuarial equivalents of accrued benefits shall be determined as of the mostrecent Valuation Date that falls within or ends with the twelve (12)-monthperiod ending on the determination date. The account balances and accrued benefits of a Participant who is not aKey Employee but who was a Key Employee in a prior year shall bedisregarded.  The accrued benefits andaccount balances of Participants who have performed no service with anyEmployer maintaining the plan for the one (1)-year period ending on thedetermination date shall be disregarded. The calculations of the top-heavy ratio, and the extent to whichdistributions, rollovers, and transfers are taken into account shall be madeunder Section 416 of the Code and regulations issued thereunder.  Deductible Employee contributions shall notbe taken into account for purposes of computing the top-heavy ratio.  When aggregating plans, the value of accountbalances and accrued benefits shall be calculated with reference to thedetermination dates that fall within the same calendar year.

 

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

 

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

 

(1)                                  If the Employer maintains one or moredefined contribution plans (including any simplified employee pension planfunded with individual retirement accounts or annuities) and the Employer hasnever maintained any defined benefit plans which have covered or could cover aParticipant in this Plan, the top-heavy ratio is a

 

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fraction, the numeratorof which is the sum of the account balances of all Key Employees as of thedetermination date, and the denominator of which is the sum of the accountbalances of all Participants as of the determination date.  Both the numerator and the denominator shallbe increased by any contributions due but unpaid to a defined contributionpension plan as of the determination date.

 

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

 

(C)                                **“Required aggregation group”** shall mean (i) each qualified planof the Employer (including any terminated plan) in which at least one KeyEmployee participates, and (ii) any other qualified plan of the Employerwhich enables a plan described in (i) to meet the requirements of Section 401(a)(4) or410 of the Code.

 

(D)                               **“Determination date”** shall mean, for any Plan Year subsequentto the first Plan Year, the last day of the preceding Plan Year.  For the first Plan Year of the Plan, “determinationdate” shall mean the last day of that Plan Year.

 

(E)                                 **“Valuation Date”** shall mean the last day of the PlanYear.

 

(F)                                 Actuarialequivalence shall be based on the interest and mortality rates utilized todetermine actuarial equivalence when benefits are paid from any defined benefitplan.  If no rates are specified in saidplan, the following shall be utilized: pre- and post-retirement interest — five percent (5%); post-retirementmortality based on the Unisex Pension (1984) Table as used by the PensionBenefit Guaranty Corporation on the date of execution hereof.

 

**13.3****                       ****ALLOCATION OF EMPLOYERCONTRIBUTIONS AND FORFEITURES FOR A TOP-HEAVY PLAN YEAR.**

 

(a)                                  Exceptas otherwise provided below, in any Plan Year in which the Plan is a Top-HeavyPlan, the Employer contributions and forfeitures allocated on behalf of anyParticipant who is a non-Key Employee shall not be less than the lesser ofthree percent (3%) of such Participant’s compensation (as defined in Section 11.1(b)(2) andas limited by Section 401(a)(17) of the Code) or the largest percentage ofEmployer contributions and, elective deferrals (within the meaning of Section 4.1),and forfeitures as a percentage of the Key Employee’s compensation (as definedin Section 11.1(b)(2) and as limited by Section 401(a)(17) ofthe Code), allocated on behalf of any Key Employee for that Plan Year.  This minimum allocation shall be made eventhough, under other Plan provisions, the

 

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Participantwould not otherwise be entitled to receive an allocation or would have receiveda lesser allocation for the Plan Year because of insufficient Employercontributions under Section 4.2, the Participant’s failure to complete onethousand (1,000) Hours of Service , the Participant’s failure to make electivedeferrals under Section 4.1 or compensation is less than a stated amount.

 

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

 

(c)                                  Electivedeferrals may not be taken into account for the purpose of satisfying theminimum allocation.  However, Employermatching contributions may be taken into account for the purpose of satisfyingthe minimum allocation.

 

(d)                                 Forpurposes of the Plan, a non-Key Employee shall be any Employee or Beneficiaryof such Employee, any former Employee, or Beneficiary of such former Employee,who is not or was not a Key Employee during the Plan Year ending on thedetermination date.

 

(e)                                  Ifno defined benefit plan has ever been part of a permissive or requiredaggregation group of plans of the Employer, the contributions and forfeituresunder this step shall be offset by any allocation of contributions andforfeitures under any other defined contribution plan of the Employer with aPlan Year ending in the same calendar year as this Plan’s Valuation Date.

 

(f)                                    Thereshall be no duplication of the minimum benefits required under Code Section 416.  Benefits shall be provided under definedcontribution plans before under defined benefit plans.  If a defined benefit plan (active orterminated) is part of the permissive or required aggregation group of plans,the allocation method of subparagraph (a) above shall apply, except that “3%”shall be increased to “5%.”

 

**13.4****                       ****VESTING. **Theprovisions contained in Section 6.1 relating to vesting shall continue toapply in any Plan Year in which the Plan is a Top-Heavy Plan, and apply to allbenefits within the meaning of Section 411(a)(7) of the Code exceptthose attributable to Employee contributions and elective deferrals under Section 4.1,including benefits accrued before the effective date of Section 416 andbenefits accrued before the Plan became a Top-Heavy Plan.

 

Payment of a Participant’svested Account balance under this Section shall be made in accordance withthe provisions of Article Seven.

 

**ARTICLEFOURTEEN—MISCELLANEOUS PROVISIONS**

 

**14.1****                       ****PLAN DOES NOT AFFECTEMPLOYMENT. **Neither the creation of this Plan, anyamendment thereto, the creation of any fund nor the payment of benefitshereunder shall be construed as giving any legal or equitable right to anyEmployee or Participant against the Employer, its officers or Employees, oragainst the Trustee.  All liabilitiesunder this Plan shall

 

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be satisfied, if at all,only out of the Trust Fund held by the Trustee. Participation in the Plan shall not give any Participant any right to beretained in the employ of the Employer, and the Employer hereby expresslyretains the right to hire and discharge any Employee at any time with orwithout cause, as if the Plan had not been adopted, and any such dischargedParticipant shall have only such rights or interests in the Trust Fund as may bespecified herein.

 

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

 

**14.3****                       ****REPAYMENTS TO THE EMPLOYER. **Notwithstanding any provisions of this Plan to thecontrary:

 

(a)                                  Anymonies or other Plan assets attributable to any contribution made to this Planby the Employer because of a mistake of fact shall be returned to the Employerwithin one (1) year after the date of contribution.

 

(b)                                 Any monies or other Plan assetsattributable to any contribution made to this Plan by the Employer shall be refundedto the Employer, to the extent such contribution is predicated on thedeductibility thereof under the Code and the income tax deduction for suchcontribution is disallowed.  Such amountshall be refunded within one (1) taxable year after the date of suchdisallowance or within one (1) year of the resolution of any judicial oradministrative process with respect to the disallowance.  All Employer contributions hereunder areexpressly contributed based upon such contributions’ deductibility under the Code.

 

**14.4****                       ****BENEFITS NOT ASSIGNABLE. **Except as provided in Section 414(p) of theCode with respect to “qualified domestic relations orders,” or except asprovided in Section 401(a)(13)(C) of the Code with respect to certainjudgments and settlements, the rights of any Participant or his Beneficiary toany benefit or payment hereunder shall not be subject to voluntary orinvoluntary alienation or assignment.

 

With respect to any “qualifieddomestic relations order” relating to the Plan, the Plan shall permitdistribution to an alternate payee under such order at any time, irrespectiveof whether the Participant has attained his “earliest retirement age” (withinthe meaning of Section 414(p)(4)(B) of the Code) under the Plan.  A distribution to an alternate payee prior tothe Participant’s attainment of his earliest retirement age shall, however, beavailable only if the order specifies distribution at that time or permits anagreement between the Plan and the alternate payee to authorize an earlierdistribution.  Nothing in this paragraphshall, however, give a Participant a right to receive distribution at a timeotherwise not permitted under the Plan nor does it permit

 

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the alternate payee toreceive a form of payment not otherwise permitted under the Plan or under said Section 414(p) ofthe Code.

 

**14.5****                       ****MERGER OF PLANS. **In the case of any merger or consolidation of thisPlan with, or transfer of the assets or liabilities of the Plan to, any otherplan, the terms of such merger, consolidation or transfer shall be such thateach Participant would receive (in the event of termination of this Plan or itssuccessor immediately thereafter) a benefit which is no less than what theParticipant would have received in the event of termination of this Planimmediately before such merger, consolidation or transfer.

 

**14.6****                       ****INVESTMENT EXPERIENCE NOT AFORFEITURE. **The decrease in value of any Account dueto adverse investment experience shall not be considered an impermissible “forfeiture”of any vested balance.

 

**14.7****                       ****CONSTRUCTION. **Wherever appropriate, the use of the masculine gendershall be extended to include the feminine and/or neuter or vice versa; and thesingular form of words shall be extended to include the plural; and the pluralshall be restricted to mean the singular.

 

**14.8****                       ****GOVERNING DOCUMENTS. **A Participant’s rights shall be determined under theterms of the Plan as in effect at the Participant’s date of termination fromemployment, or, if later, and to the extent permitted by applicable law, asdetermined under the terms of the Plan.

 

**14.9****                       ****GOVERNING LAW. **The provisions of this Plan shall be construed underthe laws of the state of the situs of the Trust, except to the extent such lawsare preempted by Federal law.

 

**14.10****                ****HEADINGS. **The Article headings and Section numbers areincluded solely for ease of reference. If there is any conflict between such headings or numbers and the textof the Plan, the text shall control.

 

**14.11****                ****COUNTERPARTS. **This Plan may be executed in any number ofcounterparts, each of which shall be deemed an original; said counterpartsshall constitute but one and the same instrument, which may be sufficientlyevidenced by any one counterpart.

 

**14.12****                ****LOCATION OF PARTICIPANT ORBENEFICIARY UNKNOWN. **In the event that all or any portion ofthe distribution payable to a Participant or to a Participant’s Beneficiaryhereunder shall, at the expiration of five (5) years after it shall becomepayable, remain unpaid solely by reason of the inability of the Administratorto ascertain the whereabouts of such Participant or Beneficiary, after sendinga registered letter, return receipt requested, to the last known address, andafter further diligent effort, the amount so distributable shall be forfeitedand reallocated in

 

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the same manner as aforfeiture under Section 6.2 pursuant to this Plan.  In the event a Participant or Beneficiary islocated subsequent to the forfeiture of his Account balance, such Accountbalance shall be restored.

 

**14.13****                ****DISTRIBUTION TO MINOR OR LEGALLYINCAPACITATED. **In the event any benefit is payable to aminor or to a person deemed to be incompetent or to a person otherwise underlegal disability, or who is by sole reason of advanced age, illness, or otherphysical or mental incapacity incapable of handling the disposition of hisproperty, the Administrator, may direct the Trustee to make payment of suchbenefit to the minor’s or legally incapacitated person’s court appointedguardian, person designated in a valid power of attorney, or any other personauthorized under state law.  The receiptof any such payment or distribution shall be a complete discharge of liabilityfor Plan obligations.

 

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**IN WITNESS WHEREOF,**the Employer, by its duly authorizedofficer, has caused this Plan to be executed on the 18th day ofDecember, 2009.

 

 
| ** ** | **WILLIAMS  FURNACE CO.** |
|------------|---------------------------|
|       |                      |   |
|       |                      |   |
|       | By                        | /s/ Joseph J. Sum |
|       |                      | Authorized Officer |

 

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