Exhibit 10c


 


CONTINENTAL MATERIALS
CORPORATION


EMPLOYEES PROFIT SHARING
RETIREMENT PLAN


 


2009 Amendment and Restatement


 

















 


CONTINENTAL
MATERIALS CORPORATION


EMPLOYEES
PROFIT SHARING RETIREMENT  PLAN


 


WHEREAS, Continental Materials Corporation
(hereinafter referred to as the “Employer”) heretofore adopted the Continental
Materials Corporation Employees Profit Sharing Retirement Plan (hereinafter
referred to as the “Plan”) for the benefit of its eligible Employees, effective
as of January 1, 1965; and


 


WHEREAS, the Employer reserved the right to amend
the Plan; and


 


WHEREAS, the Employer wishes to amend the Plan in
order to comply with changes permitted or required by the Economic Growth and
Tax Relief Reconciliation Act of 2001 (“EGTRRA”), technical corrections made by
the Job Creation and Worker Assistance Act of 2002 (“JCWAA”), and other
regulations and guidance published by the Internal Revenue Service that are
effective after December 31, 2001, including final regulations issued
under Section 415 of the Internal Revenue Code of 1986, as amended (the
“Code”); and


 


WHEREAS, it is intended that the Plan is to
continue to be a qualified profit sharing plan under
Section 401(a) and 501(a) of the Code for the exclusive benefit
of the Participants and their Beneficiaries; and


 


WHEREAS, it is intended that the cash or deferral
arrangement forming part of the Plan is to continue to qualify under
Section 401(k) of the Code;


 


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


 

















 


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                                 Company
Stock


1.7                                 Compensation


1.8                                 Disability


1.9                                 Effective Date


1.10                           Employee


1.11                           Employer


1.12                           Employment Date


1.13                           Fail-Safe Contribution


1.14                           Highly-Compensated Employee


1.15                           Hour of Service


1.16                           Leased Employee


1.17                           Nonhighly-Compensated Employee


1.18                           Normal Retirement Date


1.19                           Participant


1.20                           Plan


1.21                           Plan Year


1.22                           Trust


1.23                           Trustee


1.24                           Valuation Date


1.25                           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


 

















 


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


8.4                                 Withdrawals of After-Tax Contributions


8.5                                 Withdrawals of Rollover Contributions


8.6                                 Withdrawals of Employer Contributions for
other Financial Needs: For Former Williams Furnace Plan Participants


 


ARTICLE NINE—ADMINISTRATION OF THE
PLAN


9.1                                 Plan Administration


9.2                                 Claims Procedure


9.3                                 Trust Agreement


 

















 


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 and After Tax 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


 
















 


ARTICLE
ONE—DEFINITIONS


 


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


 


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


 


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


 


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


 


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


 


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


 


1.6                               “COMPANY STOCK” shall mean shares of common stock of
Continental Materials Corporation.


 


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


 


Notwithstanding
the foregoing, Compensation shall exclude nonqualified moving expense
reimbursements, taxable fringe benefits, excess group term life insurance, and
taxable medical or disability benefits.


 


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


 


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In addition to
other applicable limitations set forth in the Plan, and notwithstanding any
other provision of the Plan to the contrary, the annual Compensation of each
Participant taken into account under the Plan shall not exceed $245,000 for the
2009 calendar year, and shall be adjusted annually by the Secretary of the
Treasury or his delegate for increases in the cost of living in accordance with
Section 401(a)(17)(B) of the Code. 
The cost-of-living adjustment in effect for a calendar year applies to
any period, not exceeding twelve (12) months, over which Compensation is
determined (determination period) beginning in such calendar year.  If a determination period consists of fewer
than twelve (12) months, the annual compensation limit shall be multiplied by a
fraction, the numerator of which is the number of months in the determination
period, and the denominator of which is twelve (12).


 


For purposes of determining who is a
Highly-Compensated Employee, Compensation shall mean “Compensation” as defined
above.  However, in the event, the
definition of Compensation excludes commission paid salesmen, compensation for
services on the basis of a percentage for profits, commissions on insurance
premiums, tips, bonuses, fringe benefits, and/or reimbursements or expense
allowances 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 1.14 and Article Thirteen of the
Plan, compensation paid or made available during such limitations years (or
Plan Years) shall include elective amounts that are not includible in the gross
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.


 


1.8                               “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 advice
and examination, he is unable to perform his normal work for the Employer or
any other work for which he is qualified by reason of education, training, or
experience by reason of a medically determinable physical or mental impairment.


 


1.9                               “EFFECTIVE DATE.”  The Plan’s initial Effective Date was January 1, 1965.  The Effective Date of this restated Plan, on
and after which it supersedes the terms of the existing Plan document, is
January 1, 2009, except where the provisions of the Plan (or the
requirements of applicable law) shall otherwise specifically provide.  The rights of any Participant who terminated
employment with the Employer prior to the applicable date shall be established
under the terms of the Plan and Trust as in effect at the time of the
Participant’s termination from employment, unless the Participant subsequently
returns to employment with the Employer, or unless otherwise provided under the
terms of the Plan.  Rights of spouses and
Beneficiaries of such Participants shall also be governed by those documents.


 


1.10                        “EMPLOYEE” shall mean a common law employee of the
Employer.  The term “Employee” shall also
include any Leased Employee deemed to be an Employee of the Employer.


 


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1.11                        “EMPLOYER” shall mean Continental Materials Corporation
and any subsidiary or affiliate which is a member of its “related group” (as
defined in Section 2.5) which has adopted the Plan (a “Participating
Affiliate”), and shall include any successor(s) thereto which adopt this
Plan.  Any such subsidiary or affiliate
of Continental Materials Corporation may adopt the Plan with the approval of
its board of directors (or noncorporate counterpart) subject to the approval of
Continental Materials Corporation.  The
provisions of this Plan shall apply equally to each Participating Affiliate and
its Employees except as specifically set forth in the Plan; provided, however,
notwithstanding any other provision of this Plan, the amount and timing of
contributions under Article 4 to be made by any Employer which is a
Participating Affiliate shall be made subject to the approval of Continental
Materials Corporation.  For purposes
hereof, each Participating Affiliate shall be deemed to have appointed
Continental Materials Corporation as its agent to act on its behalf in all
matters relating to the administration, amendment, termination of the Plan and
the investment of the assets of the Plan. 
For purposes of the Code and ERISA, the Plan as maintained by
Continental Materials Corporation and the Participating Affiliates shall
constitute a single plan rather than a separate plan of each Participating
Affiliate.  All assets in the Trust shall
be available to pay benefits to all Participants and their Beneficiaries.


 


1.12                        “EMPLOYMENT DATE” shall mean the first date as of which an
Employee is credited with an Hour of Service, provided that, in the case of a
Break in Service, the Employment Date shall be the first date thereafter as of
which an Employee is credited with an Hour of Service.


 


1.13                        “FAIL-SAFE CONTRIBUTION” shall mean a qualified nonelective contribution
which is a contribution (other than matching contributions or Qualified
Matching Contributions (within the meaning of Section 10.2)) made by the
Employer and allocated to Participants’ accounts that the Participants may not
elect to receive in cash until distribution from the Plan; that are
nonforfeitable when made; and that are distributable only in accordance with
the distribution provisions under Section 401(k) of the Code and the
regulations promulgated thereunder.


 


1.14                        “HIGHLY-COMPENSATED EMPLOYEE” shall mean any Employee of the Employer who:


 


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


 


(b)                                 earned more than $105,000 of Compensation from
the Employer during the “look-back year” and was in the top twenty percent
(20%) of Employees by Compensation for such year.  The $105,000 amount shall be adjusted at the
same 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 when
such Employee terminated employment, or was a Highly-Compensated Employee at
any time after attaining age fifty-five (55).


 


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


 


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The “look-back
year” shall be the twelve (12) month period immediately preceding the
“determination year”.


 


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


 


(a)                                  An Hour of Service is each hour for which
an Employee is paid, or entitled to payment, for the performance of duties for
the Employer, during the applicable computation period.


 


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


 


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


 


(ii)                                  An hour for which an Employee is directly
or indirectly paid, or entitled to payment, on account of a period during which
no duties are performed shall not be credited to the Employee if such payment
is made or due under a plan maintained solely for the purpose of complying with
applicable workmen’s compensation, or unemployment compensation or disability
insurance laws; and


 


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


 


For purposes of
this paragraph (b), a payment shall be deemed to be made by or due from the
Employer regardless of whether such payment is made by or due from the Employer
directly, or indirectly through, among others, a trust fund, or insurer, to
which the Employer contributes or pays premiums and regardless of whether
contributions made or due to the trust fund, insurer or other entity are for
the benefit of particular Employees or are on behalf of a group of Employees in
the aggregate.


 


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


 


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


 


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


 


Hours of Service
shall be credited for employment with other members of an affiliated service
group (under Section 414(m) of the Code), a controlled group of
corporations (under Section 414(b) of the Code), or a group of trades
or businesses under common control (under Section 414(c) of the Code)
of which the Employer is a member, and any other entity required to be
aggregated under Section 414(o) of the Code.


 


Hours of Service
shall be credited for any individual considered an Employee for purposes of
this Plan under Section 414(n) or Section 414(o) of the
Code.


 


1.16                        “LEASED EMPLOYEE” shall mean any person (other than an employee
of the recipient) who, pursuant to an agreement between the recipient Employer
and any other person or organization, has performed services for the recipient
Employer (determined in accordance with Section 414(n)(6) of the
Code) on a substantially full-time basis for a period of at least one
(1) year and where such services are performed under the primary direction
and control of the recipient Employer.  A
person shall not be considered a Leased Employee if the total number of Leased
Employees does not exceed twenty percent (20%) of the Nonhighly-Compensated
Employees employed by the recipient Employer, and if any such person is covered
by a money purchase pension plan providing (a) a nonintegrated employer
contribution rate of at least ten percent (10%) of compensation, as defined in
Section 11.1(b)(2) of the Plan but including amounts contributed
pursuant to a salary reduction agreement which 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 shall also include elective amounts
that are not includible in the gross income of the Employee by reason of
Section 132(f) of the Code, (b) immediate participation, and
(c) full and immediate vesting.


 


1.17                        “NONHIGHLY-COMPENSATED
EMPLOYEE” shall mean an
Employee of the Employer who is not a Highly-Compensated Employee.


 


1.18                        “NORMAL RETIREMENT DATE” shall mean the Participant’s sixtieth (60th) birthday.  The date on which the Participant attains age
sixty (60) shall also be the Participant’s Normal Retirement Age.


 


1.19                        “PARTICIPANT” shall mean any Employee who has satisfied the
eligibility requirements of Article Three and who is participating in the
Plan.


 


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1.20                        “PLAN” shall mean the Continental Materials
Corporation Employees Profit Sharing Retirement Plan, as set forth herein and
as may be amended from time to time.


 


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


 


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


 


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


 


1.24                        “VALUATION DATE” shall mean each day on which the New York Stock
Exchange is open for business.


 


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


 


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ARTICLE TWO—SERVICE DEFINITIONS AND RULES


 


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


 


2.1                               YEAR OF SERVICE.  For purposes of determining an Employee’s eligibility to participate
in the Plan, an Employee shall be credited with a Year of Service if he
completes at least one thousand (1,000) Hours of Service during the twelve
(12)-consecutive month period commencing on his Employment Date.  If an Employee fails to be credited with at
least one thousand (1,000) Hours of Service during that computation period, he
shall be credited with a Year of Service if he is credited with at least one
thousand (1,000) Hours of Service in any Plan Year commencing on or after his
Employment Date.  For purposes of
determining an Employee’s nonforfeitable right to that portion of his Account
attributable to Employer contributions under the schedule set forth in
Section 6.1, an Employee shall be credited with a Year of Service for each
Plan Year in which he is credited with at least one thousand (1,000) Hours of
Service.  For eligibility purposes, an
Employee shall be credited with a Year of Service as of the last day of each
such twelve (12) month period.  For
vesting purposes, an Employee shall be credited with a Year of Service upon
completion of the one thousandth (1,000th) hour in each such twelve (12)-month period.


 


Any Employee who
was a participant in the Phoenix Manufacturing, Inc. Employees Profit
Sharing Retirement Plan (the “Phoenix Plan”) and whose account balance
thereunder was transferred to the Plan in connection with the merger of the
Phoenix Plan as of October 1, 1997, shall be credited with any
“Year(s) of Service” earned under the Phoenix Plan.  In addition, any Employee who was employed by
Rocky Mountain Ready Mix Concrete, Inc., Colorado State Safe and Lock or
ASCI as of the date of such company’s acquisition by the Employer, shall be
credited with any prior service with such company in determining such
Employee’s Year(s) of Service.


 


2.2                               BREAK IN SERVICE.  A Break in Service shall be a twelve (12)-month computation period
(as used for measuring Years of Service for vesting purposes) in which an
Employee or Participant is not credited with at least five hundred and one
(501) Hours of Service.


 


2.3                               LEAVE OF ABSENCE.  A Participant on an unpaid leave of absence pursuant to the
Employer’s normal personnel policies shall be credited with Hours of Service at
his regularly-scheduled weekly rate while on such leave, provided the Employer
acknowledges in writing that the leave is with its approval.  These Hours of Service shall be credited only
for purposes of determining if a Break in Service has occurred and, unless
specified otherwise by the Employer in writing, shall not be credited for
eligibility to participate in the Plan, vesting, or qualification to receive an
allocation of Employer contributions and forfeitures.  Hours of Service during a paid leave of
absence shall be credited as provided in Section 1.15.


 


For any individual
who is absent from work for any period by reason of the individual’s pregnancy,
birth of the individual’s child, placement of a child with the individual in
connection with the individual’s adoption of the child, or by reason of the
individual’s caring for the child for a period beginning immediately following
such birth or adoption, the Plan shall treat as Hours of 


 


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Service, solely
for determining if a Break in Service has occurred, the following Hours of
Service:


 


(a)                                  the Hours of Service which otherwise normally
would have been credited to such individual but for such absence; or


 


(b)                                 in any 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 the
computation 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 the
computation period in which the absence begins if it is necessary to credit the
Hours of Service in that computation period to avoid the occurrence of a Break
in Service.


 


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


 


(a)                                  If a Participant incurs five (5) or
more consecutive Breaks in Service, any Years of Service performed thereafter
shall not be used to increase the nonforfeitable interest in his Account
accrued prior to such five (5) or more consecutive Breaks in Service.


 


(b)                                 If when a Participant incurred a Break in
Service, he was not vested in any portion of his Account derived from Employer
contributions, his pre-Break Years of Service shall be disregarded if his
consecutive Breaks in Service equal or exceed five (5).  Effective for Plan Years beginning on and
after 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 shall
count in determining the vested percentage of the Employee’s Account derived
from all Employer contributions (i.e., Employer contributions attributable to
employment before and after the Employee’s Break in Service).


 


2.5                               SERVICE IN EXCLUDED JOB
CLASSIFICATIONS OR WITH RELATED COMPANIES


 


(a)                                  Service while a Member of an
Ineligible Classification of Employees.  An Employee who is a member of an ineligible
classification of Employees shall not be eligible to participate in the Plan
while a member of such ineligible classification.  However, if any such Employee is transferred
to an eligible classification, such Employee shall be credited with any prior
periods of Service completed while a member of such an ineligible
classification both for purposes of determining his Years of Service under
Section 2.1 and his “Months of Service” under Section 3.1.  For this purpose, an Employee shall be
considered a member of an ineligible classification of Employees for any period
during 


 


8

















 


which he is
employed in a job classification which is excluded from participating in the
Plan under Section 3.1 below.


 


(b)                                 Service with Related Group
Members.  Subject to Section 2.1, for each Plan
Year in which the Employer is a member of a “related group”, as hereinafter
defined, all Service of an Employee or Leased Employee (hereinafter
collectively 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 as employment by the Employer for purposes of determining the
Employee’s Years of Service under Section 2.1 and his Months of Service
under Section 3.1.  The transfer of
employment by any such Employee to another member of the related group shall
not be deemed to constitute a retirement or other termination of employment by
the Employee for purposes of this Section, but the Employee shall be deemed to
have continued in employment with the Employer for purposes of determining the
Employee’s Years of Service and his Months of Service.  For purposes of this subsection (b), “related
group” shall mean the Employer and all corporations, trades or businesses
(whether or not incorporated) which constitute a controlled group of
corporations with the Employer, a group of trades or businesses under common
control with the Employer, or an affiliated service group which includes the
Employer, within the meaning of Section 414(b), Section 414(c), or
Section 414(m), respectively, of the Code or any other entity required to
be aggregated under Code Section 414(o).


 


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


 


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ARTICLE
THREE—PLAN PARTICIPATION


 


3.1                               PARTICIPATION.  All Employees participating in the Plan prior to the
Plan’s restatement shall continue to participate, subject to the terms hereof.


 


Subject to the following provisions of this
Section 3.1, each other Employee shall become a Participant under the
Plan, for all purposes, except for eligibility to share in any additional
Employer matching contributions made under Section 4.2(b), as of the first
day of the calendar month coincident with or next following his completion of
one (1) Month of Service.  Each
other Employee shall become a Participant, for purposes of being eligible to
share in any additional Employer matching contributions made under
Section 4.2(b), effective as of the first day of the calendar month
coincident with or next following the completion of one (1) Year of
Service.


 


For purposes of this Section 3.1, an Employee
shall be credited with a Month of Service for each thirty (30)-day period
commencing on his Employment Date and ending on the date he separates from
Service for any reason.


 


Notwithstanding
the foregoing, an Employee who is not in an otherwise excluded class of
Employees under the Plan as described below and is employed in a job
classification where the customary period of employment is less than one
thousand (1,000) Hours of Service in a calendar year shall become a Participant
for all purposes as of the January 1st or
July 1st coincident with or next following his
completion of a Year of Service.


 


In no event, however, shall any Employee (or other
individual) participate under the Plan while he is:  (i) included in a unit of Employees
covered by a collective bargaining agreement between the Employer and the
Employee representatives under which retirement benefits were the subject of
good faith bargaining, unless the terms of such bargaining agreement expressly
provides for the inclusion in the Plan; (ii) employed as an independent
contractor on the payroll records of the Employer (regardless of any subsequent
reclassification by the Employer, any governmental agency or court); or
(iii) employed as a Leased Employee.


 


3.2                               RE-EMPLOYMENT OF FORMER
PARTICIPANT.  A vested Participant (or a nonvested
Participant whose prior Service cannot be disregarded) whose participation
ceased because of termination of employment with the Employer shall resume
participating 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 possible
following his return to participation in the Plan.


 


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


 


10

















 


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


 


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


 


11

















 


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


 


4.1                               ELECTIVE DEFERRALS


 


(a)                                  Elections.  A Participant may elect to defer a portion of his Compensation for a
Plan Year on a pre-tax basis.  The amount
of a Participant’s Compensation contributed in accordance with the
Participant’s election shall be withheld by the Employer from the Participant’s
Compensation on a ratable basis throughout the Plan Year.  Notwithstanding the foregoing, a Participant
may elect to contribute all or a portion of any bonus payments paid to him
during the Plan Year.  For purposes of
making elective deferrals pursuant to this Section, only Compensation earned
while eligible to make such deferrals shall be considered.  The amount deferred on behalf of each
Participant shall be contributed by the Employer to the Plan and allocated to
the portion of the Participant’s Account consisting of pre-tax contributions.


 


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


 


Notwithstanding
the foregoing, any Employee, upon first becoming eligible to participate in the
Plan pursuant to Section 3.1, who fails to affirmatively make any deferral
election (including an election to contribute zero percent (0%) of his
Compensation to the Plan) within the time prescribed by the Administrator,
shall be deemed to have elected to defer three percent (3%) of his Compensation
as a pre-tax contribution (“deemed elective deferral”).  The Administrator shall provide to each
Employee a notice of his right to receive the amount of the deemed elective
deferral in cash and his right to increase or decrease his rate of elective
deferrals.  The Administrator shall also
provide each such Employee a reasonable period to exercise such right before
the date on which the cash is currently available.


 


(b)                                 Changes in Election.  A Participant may prospectively elect to change or revoke the amount
(or percentage) of his elective deferrals during the Plan Year by filing a
written election with 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 make elective deferrals during any taxable
year in excess of the dollar limitation contained in
Section 402(g) of the Code in effect for such taxable year.


 


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


 


12

















 


(e)                                  Catch-up Contributions.  All Participants who are eligible to make elective deferrals under
Section 4.1(a) and who have attained age fifty (50) before the close
of the taxable year shall be eligible to make catch-up contributions in
accordance with, and subject to the limitations of, Section 414(v) of
the Code.  The dollar limit on Catch-up
Contributions under Section 414(v)(2)(B)(i) of the Code is $1,000 for
taxable years beginning in 2002, increasing by $1,000 for each year thereafter
up to $5,500 for taxable years beginning in 2009 and later years.  After 2009, the $5,500 limit will be adjusted
by the Secretary of the Treasury for cost-of-living increases under
Section 414(v)(2)(C) of the Code. 
Any such adjustments will be in multiples of $500.


 


Such catch-up
contributions shall not be taken into account for purposes of the provisions of
the Plan implementing the required limitations of Section 402(g) and
415 of the Code.  The Plan shall not be
treated as failing to satisfy the requirements of the Plan implementing the
requirements 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-up
contributions.


 


4.2                               EMPLOYER CONTRIBUTIONS


 


(a)                                  Employer Matching
Contributions.  For each payroll period, the Employer may
contribute to the Plan, on behalf of each Participant, a discretionary matching
contribution equal to a percentage (as determined by the Employer’s board of
directors) of the elective deferrals (within the meaning of Section 4.1)
made by each such Participant; provided, however, that the amount of such
Employer matching contribution for any Participant in a Plan Year shall not
exceed three percent (3%) of the Participant’s Compensation for the period
during which elective deferrals are made by the Participant.  The Employer’s board of directors may also
determine to suspend or reduce its contributions under this Section for
any Plan Year or any portion thereof. 
Allocations under this Section shall be subject to the special rules of
Section 13.3 in any Plan Year in which the Plan is a Top-Heavy Plan (as
defined in Section 13.2(b)).


 


Notwithstanding
the foregoing provisions of this Section 4.2(a), if a Participant’s
elective deferrals for a Plan Year reach the maximum amount set out in
Section 4.1(c) (or such other Plan imposed limit) and, as a result,
the Participant is not eligible to make elective deferrals to the Plan for the
balance of such year, or if the Participant varies the rate of his elective
deferrals during a Plan Year and, as a result, fails to receive the full available
matching contribution for the year, such Participant may be entitled to receive
a supplemental Employer matching contribution to the extent required to ensure
that such Participant receives the same rate of matching contribution for the
Plan Year as any other Participant with the same rate of elective deferrals for
such Plan Year.  Any such supplemental
matching contributions shall be made at the sole discretion of the Employer’s
board of directors.  The supplemental
Employer matching contributions received by any such Participant for the Plan
Year shall, however, be limited to the extent required to comply with the
requirements of applicable Federal law. 
To be eligible for any supplemental Employer matching contribution made
for a Plan Year, the Participant must be employed by the Employer on the last
day of the Plan Year; provided, however, that if the Participant’s failure to
be employed on the last day the Plan Year is due to the 


 


13

















 


Participant’s
being on Disability, death or retirement on or after his Normal Retirement Date
during the Plan Year, such Participant shall nevertheless be entitled to share
in the allocation of any such supplemental matching contributions made for the
Plan Year.


 


(b)                                 Additional Employer
Matching Contributions. 
For each
Plan Year, the Employer may contribute to the Plan, on behalf of the
Participants under each participating Employer eligible under
Section 4.2(c), such amount, if any, as may be determined by the board of
directors of each participating Employer. 
Such contribution shall be allocated among the Accounts of such eligible
Participants employed by the applicable Employer in accordance with the ratio
that each such eligible Participant’s Compensation bears to the total
Compensation of all such eligible Participants employed by such Employer for
the Plan Year.  Provided, however, that
for such purposes, a Participant’s Compensation shall be taken into account
only for the period during which the Participant made elective deferrals for
the Plan Year.  In this regard, the rate
of Employer contribution, if any, may vary among the participating Employers.


 


(c)                                  Eligibility for Additional
Employer Matching Contributions.  To be eligible for a share of additional Employer
matching contributions made for a Plan Year under Section 4.2(b), a
Participant must (1) have been credited with at least one thousand (1,000)
Hours of Service in the Plan Year, and (2) be employed by the Employer on
the last day of the Plan Year; provided, however, that if the Participant’s
failure to be credited with at least one thousand (1,000) Hours of Service
and/or to be employed by the Employer on the last day of the Plan Year is due
to the Participant’s being on Disability, death or retirement on or after his
Normal Retirement Date during the Plan Year, such Participant shall
nevertheless be entitled to share in the allocation of any additional matching
contributions made for such Plan Year.


 


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


 


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


 


(2)                                  an annuity contract described in
Section 403(b) of the Code, excluding after-tax employee
contributions and excluding designated Roth contributions under
Section 402A of the Code;


 


(3)                                  an eligible plan under
Section 457(b) of the Code which is maintained by a state, political
subdivision of a state, or any agency or instrumentality of a state or
political subdivision of a state, excluding after-tax employee contributions;
and


 


(4)                                  an individual retirement account which
was used solely as a conduit from a qualified plan described in
Section 401(a) of the Code.


 


14

















 


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


 


An Employee who would otherwise be eligible to
participate in the Plan but for the failure to satisfy the service requirement
for participation as set forth under Section 3.1, shall be eligible to
complete a rollover to the Plan.  Such an
Employee shall also be eligible to obtain a loan or withdrawal in accordance
with the provisions of Article Eight prior to satisfying such service
requirement.


 


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


 


4.5                               EMPLOYEE AFTER-TAX
CONTRIBUTIONS.  No Employee after-tax contributions shall be
permitted after August 1, 2005.  A
Participant shall, at all times, have a nonforfeitable interest in the value of
that portion of his Account attributable to any Employee after-tax
contributions previously made to the Plan. Such portion of a Participant’s
Account, if any, shall be distributed at the same time and in the same manner
as other vested benefits are distributed under this Plan.


 


15

















 


ARTICLE FIVE—ACCOUNTING RULES


 


5.1                               INVESTMENT OF ACCOUNTS AND
ACCOUNTING RULES


 


(a)                                  Investment Funds.  The investment of Participants’ Accounts shall be made in a manner
consistent with the provisions of the Trust. 
The Administrator, in its discretion, may allow the Trust to provide for
separate funds for the directed investment of each Participant’s Account,
including a Company Stock fund.  In
connection therewith, it is hereby provided that more than ten percent (10%) of
the fair market value of the Plan’s assets may be invested in the Company Stock
fund.  It is also hereby provided that a
portion of the Company Stock fund shall be invested in cash and cash
equivalents for liquidity purposes.


 


(b)                                 Participant Direction 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) may direct how his Account
(or such portion thereof which is subject to his investment direction) is to be
invested among the available investment funds in the percentage multiples
established by the Administrator.  In the
event a Participant fails to make an investment election, with respect to all
or any portion of his Account subject to his investment direction, the Trustee
shall invest all or such portion of his Account in the investment fund to be
designated by the Administrator.  A
Participant may change his investment election, with respect to future
contributions and, if applicable, forfeitures, and/or amounts previously
accumulated in the Participant’s Account in accordance with procedures
established by the Administrator.  Any
such change in a Participant’s investment election shall be effective at such
time as may be prescribed by the Administrator. 
However, where it deems appropriate, and subject to the requirements of
applicable law, the Administrator may decline to implement, or otherwise limit
the frequency by which a Participant may direct the investment of his
Account.  If the Plan’s recordkeeper or
investments are changed, the Administrator may apply such administrative
rules and procedures as are necessary to provide for the transfer of
records and/or assets, including without limitation, the suspension of
Participant’s investment directions, withdrawals and distributions for such
period of time as is necessary, and the transfer of Participants’ Accounts to
designated funds or an interest bearing account until such change has been
completed.


 


Notwithstanding the foregoing, if, pursuant to
Section 4.02 of the Trust, an investment manager (within the meaning of
Section 3(38) of the Employee Retirement Income Security Act of 1974, as
amended (“ERISA”)) is appointed by a named fiduciary pursuant to
Section 402(c)(3) of ERISA, a Participant may elect to have such
investment manager direct the investment of his Account in accordance with the
provisions of the preceding paragraph.


 


(c)                                  Allocation of Investment
Experience.  As of each Valuation Date, the investment
fund(s) of the Trust shall be valued at fair market value, and the income,
loss, appreciation and depreciation (realized and unrealized), and any paid
expenses of the Trust attributable to 


 


16

















 


such fund shall be
apportioned among Participants’ Accounts within the fund based upon the value
of each Account within the fund as of the preceding Valuation Date.


 


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


 


(e)                                  Manner and Time of Debiting
Distributions.  For any Participant who is entitled to receive
a distribution from his Account, such distribution shall be made in accordance
with the provisions of Section 7.1 and Section 7.2.  The amount distributed shall be based upon
the fair market value of the Participant’s vested Account as of the Valuation Date
preceding the distribution.


 


17

















 


ARTICLE SIX—VESTING AND RETIREMENT BENEFITS


 


6.1                               VESTING.  A Participant shall at all times have a nonforfeitable (vested)
right to his Account derived from elective deferrals (within the meaning of
Section 4.1), after-tax contributions previously made to the Plan,
Employer Fail-Safe Contributions, “Qualified Matching Contributions” (within
the meaning of Section 10.2 below), and rollovers or transfers from other
plans, as adjusted for investment experience. 
Except as otherwise provided with respect to Normal Retirement,
Disability, or death, a Participant shall have a nonforfeitable (vested) right
to a percentage of the value of his Account derived from Employer matching
contributions under Section 4.2 as follows:


 


	
  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 nonvested portion 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 administratively practical following the date on which the
Participant receives distribution of his vested Account or (ii) as soon as
administratively practical after the last day of the Plan Year in which the
Participant incurs five (5) consecutive Breaks in Service.  However, no forfeiture shall occur solely as
a result of a Participant’s withdrawal of Employee after-tax
contributions.  The amount forfeited
shall be used to pay Plan administrative expenses, used to reduce Employer
contributions under Section 4.2, or used to restore previously forfeited
amounts under this Section 6.2.


 


If the Participant
returns to the employment of the Employer prior to incurring five
(5) consecutive Breaks in Service, and prior to receiving distribution of
his vested Account, the nonvested portion shall remain in the Participant’s
Account.  However, if the nonvested
portion of the Participant’s Account was allocated as a forfeiture as the
result of the Participant receiving distribution of his vested Account balance
(including a “deemed” distribution under Section 7.2), the nonvested
portion shall be restored if:


 


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


 


(b)                                 the Participant repays to the Plan, as of
the earlier of (i) the date which is five (5) years after his
reemployment date or (ii) the date which is the last day of the period in
which the Participant incurs five (5) consecutive Breaks in Service, an
amount equal to the total distribution derived from Employer contributions
under Section 4.2 and, if applicable, Section 13.3.


 


18

















 


Upon repayment, the Employer-derived benefit required
to be restored by this Section shall not be less than in the account
balance of the Employee, both the amount distributed and the amount forfeited,
unadjusted by any subsequent gains or losses. 
The amount required to be restored shall be made by a special Employer
contribution or from the next succeeding Employer contribution and forfeitures,
as appropriate.


 


Any Years of
Service for which a Participant received a cash-out shall be recognized for
purposes of vesting and eligibility under the Plan.


 


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


 


6.4                               NORMAL RETIREMENT.  A Participant who is in the employment of the Employer at his Normal
Retirement Age shall have a nonforfeitable interest in one hundred percent
(100%) of his Account, if not otherwise one hundred percent (100%) vested under
the vesting schedule in Section 6.1. 
A Participant who continues employment with the Employer after his
Normal Retirement Age shall continue to participate under the Plan.


 


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


 


19
















 


ARTICLE
SEVEN—MANNER AND TIME OF DISTRIBUTING BENEFITS


 


7.1                               MANNER OF PAYMENT.  The Participant’s vested Account shall be distributed
to the Participant (or to the Participant’s Beneficiary in the event of the
Participant’s death) in a single lump-sum payment.  However, any portion of the Participant’s
Account invested in the Company Stock fund (as described in
Section 5.1(a)) may, at the election of the Participant or, as the case
may be, the Participant’s Beneficiary, be distributed in the form of Company
Stock, provided, however, that any fractional shares, and the cash and cash
equivalent portions of such fund, shall be distributed in cash.


 


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


 


Notwithstanding the foregoing, upon the
Administrator’s actual knowledge of a pending divorce or divorce proceeding, or
the issuance (or possible issuance) of a domestic relations order regarding a
Participant’s Account, such Account shall be frozen to prevent the Participant
from taking withdrawals, loans or distributions against the portion of the
Account, subject to, or potentially subject to, the domestic relations
order.  This freeze shall be removed
promptly following the qualification of the domestic relations order in
accordance with the Plan’s procedures or at such earlier time as the
Administrator may reasonably determine.


 


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


 


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


 


In no event shall distribution of the Participant’s
vested Account be made or commence later than the April 1st following the
end of the calendar year in which the Participant attains age seventy 


 


20

















 


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


 


Notwithstanding
the foregoing, the provisions of this paragraph shall be subject to any prior
election complying with the provisions of Section 242(b) of TEFRA.


 


Notwithstanding the provisions of Section 7.1, in
the event distribution is required to be made while the Participant is employed
by the Employer, the Participant may elect to receive the minimum amount
required to be distributed pursuant to the provisions of
Section 401(a)(9) of the Code and the regulations thereunder.


 


7.3                               FURNISHING INFORMATION.  Prior to the payment of any benefit under the Plan, each Participant
or Beneficiary may be required to complete such administrative forms and
furnish such proof as may be deemed 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 will apply for purposes of determining required
minimum distributions.  Unless otherwise
specified, the provisions of this Article will apply to calendar years
beginning after December 31, 2002.


 


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


 


(3)                                  Requirements of Treasury Regulations
Incorporated.  All distributions required
under this Article will be determined and made in accordance with the
Treasury regulations under Section 401(a)(9) of the Code and the
minimum distribution incidental benefit requirement of
Section 401(a)(9)(G) of the Code.


 


(b)                                 Time and
Manner of Distribution


 


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


 


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


 


21

















 


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


 


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


 


(C)                                If there is no designated Beneficiary as of
September 30 of the year following the year of the Participant’s death, or
if the provisions of subsection (A) and (B) do not otherwise apply,
the Participant’s entire interest will be distributed by December 31 of
the calendar year containing the fifth anniversary of the Participant’s death.


 


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


 


For purposes 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 beginning
date.  If
Section 7.4(b)(2)(D) applies, distributions are considered to begin
on the date distributions are required to begin to the surviving spouse under
Section 7.4(b)(2)(A).  If
distributions under an annuity purchased from an insurance company irrevocably
commence to the Participant before the Participant’s required beginning date
(or to the Participant’s surviving spouse before the date distributions are
required to begin to the surviving spouse under Section 7.4(b)(2)(A)), the
date distributions are considered to begin is the date distributions actually
commence.


 


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


 


22

















 


(c)                                  Required
Minimum Distributions During Participant’s Lifetime.


 


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


 


(A)                              the quotient obtained by dividing the
Participant’s vested Account balance by the distribution period in the 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’s
birthday in the distribution calendar year; or


 


(B)                                if the Participant’s sole designated
Beneficiary for the distribution calendar year is the Participant’s spouse, the
quotient obtained by dividing the Participant’s vested Account balance 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’s attained ages as of the Participant’s and spouse’s
birthdays in the distribution calendar year.


 


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


 


(d)                                 Required
Minimum Distributions After Participant’s Death.


 


(1)                                  Death On or After Date Distributions Begin.


 


(A)                              Participant Survived by
Designated Beneficiary.  Subject to the provisions of this Article, if
the Participant dies on or after the date distributions begin and there is a
designated Beneficiary, the minimum amount that will be distributed for each
distribution calendar year after the year of the Participant’s death is the
quotient obtained by dividing the Participant’s vested Account balance by the
longer of the remaining life expectancy of the Participant or the remaining
life expectancy of the Participant’s designated Beneficiary, determined as
follows:


 


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


 


(ii)                                  If the Participant’s surviving spouse is the
Participant’s sole designated Beneficiary, the remaining life expectancy of the
surviving spouse is calculated for each distribution calendar year after the
year of the Participant’s death using the surviving spouse’s age as of the spouse’s
birthday in that year.  For distribution
calendar years after the year of the surviving spouse’s 


 


23

















 


death, the
remaining life expectancy of the surviving spouse is calculated using the age
of the surviving spouse as of the spouse’s birthday in the calendar year of the
spouse’s death, reduced by one for each subsequent calendar year.


 


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


 


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


 


(2)                                  Death Before Date Distributions Begin.


 


(A)                              Participant Survived by
Designated Beneficiary.  If the Participant dies before the date
distributions begin and there is a designated Beneficiary, the minimum amount
that will be distributed for each distribution calendar year after the year of
the Participant’s death is the quotient obtained by dividing the Participant’s
vested Account balance by the remaining life expectancy of the Participant’s
designated Beneficiary, determined as provided in Section 7.4(d)(1).


 


(B)                                No Designated
Beneficiary.  If the Participant dies before the date
distributions begin and there is no designated Beneficiary as of
September 30 of the year following the year of the Participant’s death,
distribution of the Participant’s entire interest will be completed by
December 31 of the calendar year containing the fifth anniversary of the
Participant’s death.


 


(C)                                Death of Surviving Spouse
Before Distributions to Surviving Spouse Are Required to Begin.  If the
Participant dies before the date distributions begin, the Participant’s
surviving spouse is the Participant’s sole designated Beneficiary, and the
surviving spouse dies before distributions are required to begin to the
surviving spouse under Section 7.4(b)(2)(A), this
Section 7.4(d) will apply as if the surviving spouse were the
Participant.


 


24

















 


(e)                                  Definitions.


 


(1)                                  Designated Beneficiary.  The
individual who is designated as the Beneficiary under Section 7.6 of the
Plan and is the designated Beneficiary under Section 401(a)(9) of the
Code and Section 1.401(a)(9)-4, of the Treasury regulations.


 


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


 


(3)                                  Life Expectancy. 
Life expectancy as computed by use of the Single Life Table in
Section 1.401(a)(9)-9, Q&A-1, of the Treasury regulations.


 


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


 


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


 


(f)                                    TEFRA
Section 242(b)(2) Elections.


 


(1)                                  Notwithstanding the other requirements of this
Article, distribution on behalf of any Employee, including a 5-percent owner,
who has made a designation under Section 242(b) of the Tax Equity and
Fiscal Responsibility Act (a “Section 242(b)(2) Election”) may be
made in accordance with all of the following requirements (regardless of when
such distribution commences):


 


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


 


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


 


25

















 


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


 


(D)                               The Employee had accrued a benefit under the
Plan as of December 31, 1983.


 


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


 


(2)                                  A distribution upon death will not be covered
by this transitional rule unless the information in the designation
contains the required information described above with respect to distributions
to be made upon the death of the Employee.


(3)                                  For any distribution which commences before
January 1, 1984, but continues after December 31, 1983, the Employee,
or the Beneficiary, to whom such distribution is being made, will be presumed
to have designated the method of distribution under which the distribution is
being made if the method of distribution was specified in writing and the
distribution satisfied the requirements in subsections (A) and
(E) above.


 


(4)                                  If a designation is revoked, any subsequent distribution
must satisfy the requirements of Section 401(a)(9) of the Code and
the regulations thereunder.  If a
designation is revoked subsequent to the date distributions are required to
begin, the Plan must distribute by the end of the calendar year following the
calendar year in which the revocation occurs the total amount not yet
distributed which would have been required to have been distributed to satisfy
Section 401(a)(9) of the Code and the regulations thereunder, but for
the Section 242(b)(2) Election. 
For calendar years beginning after December 31, 1988, such
distributions must meet the minimum distribution incidental benefit
requirements.  Any changes in the designation
will be considered to be a revocation of the designation.  However, the mere substitution or addition of
another Beneficiary (one not named in the designation) under the designation
will not be considered to be a revocation of the designation, so long as such
substitution or addition does not alter the period over which distributions are
to be made under the designation, directly or indirectly (for example, by
altering the relevant measuring life).


 


(5)                                  In the case in which an amount is transferred
or rolled over from one plan to another plan, the rules in
Section 1.401(a)(9)-8, Q&A-14 and 15, of the Treasury regulations
shall apply.


 


7.5                               AMOUNT OF DEATH BENEFIT


 


(a)                                  Death Before Termination of
Employment.  In the event of the death of a Participant
while in the employ of the Employer, vesting in the Participant’s Account shall
be one 


 


26

















 


hundred percent
(100%), if not otherwise one hundred percent (100%) vested under
Section 6.1, with the credit balance of the Participant’s Account being
payable to his Beneficiary.


 


(b)                                 Death After Termination of
Employment.  In the event of the death of a former
Participant after termination of employment, but prior to the complete
distribution of his vested Account balance under the Plan, the undistributed
vested balance of the Participant’s Account shall be paid to the Participant’s
Beneficiary.


 


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


 


Subject to the above, Beneficiary designations may
include primary and contingent Beneficiaries, and may be revoked or amended at
any time in similar manner or form, and the most recent designation shall
govern.  A designation of a Beneficiary
made by a Participant shall cease to be effective upon his marriage or
remarriage.  In addition, a spousal
Beneficiary designation shall cease to be effective upon written notification
to the Administrator of  the divorce of the Participant and such
spouse.  In the absence of an effective
designation of Beneficiary, or if no designated Beneficiary is surviving as of
the date of the Participant’s death, any death benefit shall be paid to the
surviving spouse of the Participant, or, if no surviving spouse, to the
Participant’s surviving issue, by right of representation or, if none, to the
Participant’s estate.  Notification to
Participants of the death benefits under the Plan and the method of designating
a Beneficiary shall be given at the time and in the manner provided by
regulations and rulings under the Code.


 


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


 


7.7                               DISTRIBUTION OF DEATH
BENEFITS.  Subject to the provisions of Section 7.2,
the Beneficiary shall be allowed to designate the mode of receiving benefits in
accordance with Section 7.1, unless the Participant had designated a
method in writing and indicated that the method was not revocable by the
Beneficiary.


 


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


 


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


 


27

















 


(i)                                     if any portion of the Participant’s
vested Account is payable to a designated Beneficiary, and if distribution is
to be made over the life or over a period certain not greater than the life
expectancy of the designated Beneficiary (if permitted under Section 7.1
above) such payments shall commence on or before December 31 of the calendar
year immediately following the calendar year in which the Participant died;


 


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


 


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


 


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


 


Nothing within this Section shall, however,
invalidate any Participant’s previous designation of a mode of paying death
benefits, provided such designation was made prior to January 1, 1984 and
was in accordance with all requirements announced by the Internal Revenue
Service with respect to the transitional rule established under
Section 242(b) of TEFRA.  No
modification of the mode set out in any such election shall be allowed,
however, unless it is in compliance with this Section 7.7.


 


7.8                               ELIGIBLE ROLLOVER
DISTRIBUTIONS.  Notwithstanding the foregoing provisions of
this Article Seven, the provisions of this Section 7.8 shall apply to
distributions made under the Plan after December 31, 2001.


 


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


 


(b)                                 Definitions:


 


(i)                                     Eligible Rollover
Distribution.  An eligible rollover distribution is any
distribution of all or any portion of the balance to the credit of the
distributee, except that an eligible rollover distribution does not
include:  any distribution that is one of
a series of substantially equal periodic payments (not less frequently than
annually) made for the life (or life expectancy) of the distributee or the
joint lives (or joint 


 


28

















 


life expectancies) of the distributee and the
distributee’s designated Beneficiary, or for a specified period of ten
(10) years or more; any distribution to the extent such distribution is
required under Section 401(a)(9) of the Code; and any hardship
distribution described in Section 8.2. 
A portion of a distribution shall not fail to be an eligible rollover distribution
merely because the portion consists of after-tax employee contributions which
are not includible in gross income. 
However, such portion may be transferred only to an individual
retirement account or annuity described in Section 408(a) or
(b) of the Code (or described in Section 408A of the Code for
“designated Roth contributions” (within the meaning of Section 402A of the
Code)), or to a qualified defined contribution plan described in
Section 401(a) or 403(a) of the Code that agrees to separately
account for amounts so transferred, including separately accounting for the
portion of such distribution which is includible in gross income and the
portion of such distribution which is not so includible and, if applicable, as
required under Section 402A of the Code.


 


(ii)                                  Eligible Retirement
Plan.  An eligible retirement plan is an individual
retirement account described in Section 408(a) of the Code, an
individual retirement annuity described in Section 408(b) of the
Code, an annuity plan described in Section 403(a) of the Code, a
qualified trust described in Section 401(a) of the Code, an annuity
contract described in Section 403(b) of the Code and an eligible plan
under Section 457(b) of the Code which is maintained by a state,
political subdivision of a state, or any agency or instrumentality of a state
or political subdivision of a state and which agrees to separately account for
amounts transferred into such plan from this Plan, that accepts the
distributee’s eligible rollover distribution. 
The definition of eligible retirement plan shall also apply in the case
of a distribution to a surviving spouse, or to a spouse or former spouse who is
the alternate payee under a qualified domestic relations order, as defined in
Section 414(p) of the Code.


 


If any portion of an eligible rollover distribution is
attributable to payments or distributions from a designated Roth account, an
eligible retirement plan with respect to such portion shall include only
another designated Roth account of the individual from whose account the
payments or distributions were made, or a Roth IRA of such individual.


 


(iii)                               Distributee.  A
distributee includes an Employee or former Employee.  In addition, the Employee’s or former
Employee’s surviving spouse, and the Employee’s or former Employee’s spouse or
former spouse who is an alternate payee under a qualified domestic relations
order, as defined in Section 414(p) of the Code, are distributees
with regard to the interest of the spouse or former spouse.


 


(iv)                              Direct Rollover.  A
direct rollover is a payment by the Plan to the eligible retirement plan
specified by the distributee.


 


29

















 


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


 


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


 


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


 


30
















 


ARTICLE EIGHT—LOANS AND IN-SERVICE WITHDRAWALS


 


8.1          LOANS


 


(a)           Permissible Amount and Procedures.  Upon the application of a Participant, the
Administrator may, in accordance with a uniform and nondiscriminatory policy,
direct the Trustee to grant a loan to the Participant, which loan shall be
secured by the Participant’s vested Account balance.  The Participant’s signature shall 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 as segregated investments, and
interest repayments shall be credited only to the Participant’s Account.


 


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


 


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


 


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


 


Any loan must be repaid
within five (5) years (or such longer period permitted by law), unless
made for the purpose of acquiring the primary residence of the Participant, in
which case such loan may be repaid over a longer period of time not to exceed
fifteen (15) years.  The repayment of any
loan must be made in at least quarterly installments of principal and interest;
provided, however, that this requirement shall not apply for a period, not
longer than one year, or such longer period as may apply under
Section 414(u) of the Code, that a Participant is on a leave of
absence (“Leave”), either without pay from the Employer or at a rate of pay
(after income and employment tax withholding) that is less than the amount of
the installment payments required under the terms of the loan.  However, the loan must be repaid by the
latest date permitted under Sections 72(p)(2)(B) and 414(u) of the
Code and the installments due after the Leave ends (or, unless
Section 414(u) of the Code 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 defaults on any outstanding loan, the unpaid balance, and any
interest due thereon, shall become due and payable in accordance with the terms
of the underlying promissory note; provided, however, that such foreclosure on
the promissory note and attachment of security shall not occur until a distributable
event occurs in accordance with the provisions of Article Seven.


 


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


 


31

















 


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


 


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


 


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


 


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


 


32

















 


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


 


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


 


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


 


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


 


For purposes of the
foregoing paragraph, a need cannot reasonably be relieved by one of the actions
listed above if the effect would be to increase the amount of the need.  In making such determination, the
Administrator may rely upon the Participant’s written representation to such
effect, unless the Administrator has actual knowledge to the contrary.


 


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


 


8.4          WITHDRAWALS OF AFTER-TAX CONTRIBUTIONS.  A Participant may withdraw from the Plan a sum (a) not in
excess of the credit balance of the Participant’s Account attributable to any
after-tax contributions previously made to the Plan and (b) not less than
such minimum amount as the Administrator may establish from time to time to
facilitate administration of the Plan. 
Any such withdrawals shall be made in accordance with nondiscriminatory
and objective standards and procedures consistently applied by the
Administrator.


 


8.5          WITHDRAWALS OF ROLLOVER CONTRIBUTIONS.  A Participant may withdraw from the Plan a sum (a) not in
excess of the credit balance of the Participant’s Account attributable to any
rollover contributions made to the Plan and (b) not less than such minimum
amount as the Administrator may establish from time to time to facilitate
administration of the Plan.  Any such
withdrawals shall be made in accordance with nondiscriminatory and objective
standards and procedures consistently applied by the Administrator.


 


8.6          WITHDRAWALS OF EMPLOYER CONTRIBUTIONS FOR OTHER
FINANCIAL NEEDS: FOR FORMER WILLIAMS FURNACE PLAN PARTICIPANTS.  The
provisions of this Section 8.6 shall apply only to a Participant who has a
portion of his Account transferred from the Williams Furnace Co. Employees
Profit Sharing Retirement Plan (the “Williams Furnace Plan”).  Where funds are needed to complete a major
renovation to such Participant’s principal residence, or in the event of any
other bona fide financial emergency from time to time established by the Administrator,
the Participant may receive a distribution not to exceed the 


 


33

















 


lesser
of (i) the vested value of the Participant’s Account derived from any
Employer contributions transferred from the Williams Furnace Plan and any
Employer contributions made under Section 4.2, determined as of the
Valuation Date immediately preceding such withdrawal request, or (ii) the
amount necessary to satisfy such financial need.  The amount of such financial need may, however,
include any amounts necessary to pay Federal, state or local income taxes or
penalties reasonably anticipated to result form  the distribution.  Such distribution shall be made in accordance
with non-discretionary and objective standards consistently applied by the
Administrator.


 


34

















 


ARTICLE
NINE —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 Income Security 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 a person or committee of
persons to be the Administrator.  The
Employer, by action of its board or directors, may also designate a person, a
committee of persons, and/or other entity as a named fiduciary or named
fiduciaries.  The administration of the
Plan, as provided herein, including a determination of the payment of benefits
to Participants and their Beneficiaries, shall be the responsibility of the
Administrator; provided, however, that the Administrator may delegate any of
its powers, authority, duties or responsibilities to any person or committee of
persons, such delegation to be in accordance with ERISA Section 405.  The Administrator shall have full discretion
to interpret the terms of the Plan, to determine factual questions that arise
in the course of administering the Plan, to adopt rules and regulations
regarding the administration of the Plan, to determine the conditions under
which benefits become payable under the Plan, and to make any other
determinations that the Administrator believes are necessary and advisable for
the administration of the Plan.  Any
determination made by the Administrator shall be final and binding on all
parties, and shall be given the maximum deference allowed by law.


 


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


 


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


 


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


 


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


 


The Administrator shall
administer the Plan and adopt such rules and regulations as, in the
opinion of the Administrator, are necessary or advisable to implement and
administer the Plan and to transact its business.  As a named fiduciary, the Administrator is
required to discharge its duties with respect to the Plan solely in the
interest of the Participants and Beneficiaries and with the care, skill,
prudence, and diligence under the circumstances then prevailing that a prudent 


 


35

















 


man acting in a like
capacity and familiar with such matters would use in the conduct of an
enterprise of a like character and with like aims.


 


9.2          CLAIMS PROCEDURE


 


The provisions of
paragraph (a) below shall apply to all benefit claims under the Plan,
except as provided in paragraph (b) below.


 


(a)           Pursuant to procedures established by the
Administrator, claims for benefits under the Plan made by a Participant or
Beneficiary (the “claimant”) must be submitted in writing to the Administrator.  Approved claims shall be processed and
instructions issued to the Trustee or custodian authorizing payment as claimed.


 


If
a claim is denied in whole 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 date by which a final decision is expected to be
rendered is given to the claimant within the initial ninety (90) day period).


 


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


 


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


 


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


 


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


 


(iv)          a statement that any appeal of the denial must be made
by giving to the Administrator, 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 the pertinent issues and basis of the claim; and


 


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


 


Upon denial of a claim in
whole or part, the claimant (or his duly authorized representative) shall have
the right to submit a written request to the Administrator for a full and fair
review of the denied claim, to be permitted to review documents (free of
charge) pertinent to the denial, and to submit issues and comments in
writing.  Any appeal of the denial must
be given to the Administrator within the period of time prescribed under
(a)(iv) above.  If the claimant (or
his duly authorized representative) fails to appeal the denial to the
Administrator within the prescribed time, the Administrator’s adverse
determination shall be final, binding and conclusive.


 


36

















 


The
Administrator may hold a hearing or otherwise ascertain such facts as it deems
necessary and shall render a decision which shall be binding upon both
parties.  The Administrator shall advise
the claimant of the results of the review within sixty (60) days after receipt
of the written request for the review, unless special circumstances require an
extension of time for processing, in which case a decision shall be rendered as
soon as possible but not later than one hundred twenty (120) days after receipt
of the request for review.  If such
extension of time is required, written notice of the extension shall be furnished
to the claimant prior to the commencement of the extension.  The decision of the review shall be written
in a manner calculated to be understood by the claimant and shall include
specific reasons for the decision, specific references to the pertinent Plan
provisions on which the decision is based, the claimant’s right to receive free
of charge upon written request, reasonable access to and copies of, all Plan
documents, records, and other information relevant to the claim, and a
statement about the claimant’s right to bring a civil action under
Section 502(a) of ERISA.  The
decision of the Administrator shall be final, binding and conclusive.


 


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


 


Such a claim for
Disability benefits must be submitted in writing to the Director of Human
Resources.  Approved claims shall be
processed and instructions issued to the Trustee or custodian authorizing
payment as claimed.


 


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


 


If, prior to the
end of the seventy five (75) day extended period, the Director of Human
Resources determines that a decision cannot be rendered within the initial
extension period due to special circumstances, the period for making a
determination may be extended for up to an additional thirty (30) days,
provided written notice indicating the special circumstances and the date by
which a final decision is expected to be rendered is given to the claimant
within the originally extended seventy-five (75) day period.


 


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


 


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


 


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


 


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


 


37

















 


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


 


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


 


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


 


Upon denial of a
claim in whole or in part, the claimant (or his duly authorized representative)
shall have the right to submit a written request to the Administrator for a
full and fair review of the denied claim, to be permitted to review documents
(free of charge) pertinent to the denial, and to submit issues and comments in
writing.  Any appeal of the denial must
be given to the Administrator within the period of time prescribed under
(b)(iv) above.  If the claimant (or
his duly authorized representative) fails to appeal the denial to the
Administrator within the prescribed time, the Director of Human Resource’s
initial adverse determination shall be final, binding and conclusive.


 


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


 


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


 


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


 


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


 


38

















 


(C)           the claimant’s right to receive free of charge,
upon written 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
a civil 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, the
notification shall set forth the specific rule, guideline, protocol, or
criterion or indicate that such was relied upon and that a copy will be
provided free of charge to the claimant upon request.


 


The
decision of the Administrator shall be final, binding and conclusive.


 


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


 


39
















 


ARTICLE TEN—SPECIAL COMPLIANCE PROVISIONS


 


10.1        DISTRIBUTION OF EXCESS ELECTIVE
DEFERRALS.  Notwithstanding any other provision of the
Plan, “Excess Elective Deferrals” (as defined below) (and income or loss
allocable thereto, including all earnings, expenses and appreciation or
depreciation in value, whether or not realized) shall be distributed no later
than each April 15 to Participants who claim Excess Elective Deferrals for
the preceding calendar year.


 


“Excess Elective
Deferrals” shall mean the amount of Elective Deferrals (as defined below) for a
calendar year that the Participant designates to the Plan pursuant to the
following procedure.  The Participant’s
designation:  shall be submitted to the
Administrator in writing no later than March 1; shall specify the
Participant’s Excess Elective Deferrals for the preceding calendar year; and
shall be accompanied by the Participant’s written statement that if the Excess
Elective Deferrals is not distributed, it will, when added to amounts deferred
under other plans or arrangements described in Section 401(k),
408(k) or 403(b) of the Code, exceed the limit imposed on the
Participant by Section 402(g) of the Code for the year in which the
deferral occurred.  Excess Elective
Deferrals shall mean those Elective Deferrals that are includible in a
Participant’s gross income under Section 402(g) of the Code to the
extent such Participant’s Elective Deferrals for a taxable year exceed the
dollar limitation under such Code section.


 


An Excess Elective
Deferral, and the income or loss allocable thereto, may be distributed before
the end of the calendar year in which 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 other plans 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 the entire amount of such Excess Elective Deferral.


 


Excess Elective Deferrals
shall be adjusted for any income or loss up to the date of distribution.  For purposes of this Section 10.1,
whenever reference is made to the income or loss allocable to an Excess
Elective Deferral, such income or loss shall be determined as follows.  The income or loss allocable to Excess
Elective Deferrals allocated to each Participant is the sum of: (i) income
or loss allocable to the Participant’s deferred amounts for the Plan Year
multiplied by a fraction, the numerator of which is the Excess Elective
Deferrals made on behalf of the Participant for the Plan Year, and the
denominator of which is the sum of the Participant’s Account balances
attributable to the Participant’s Elective Deferrals on the last day of the
Plan Year; and (ii) ten percent (10%) of the amount determined under
(i) multiplied by the number of 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.


 


For purposes of this
Article Ten, “Elective Deferrals” shall mean any Employer contributions
made to the Plan at the election of the Participant, in lieu of cash
compensation, and shall include contributions made pursuant to a salary
deferral reduction agreement or other deferral mechanism.  With respect to any taxable year, a
Participant’s Elective Deferrals is the sum of all Employer contributions made
on behalf of such Participant pursuant to an election to defer under any
qualified cash or deferred arrangement described in Section 401(k) of
the Code, any salary reduction simplified employee pension described in
Section 408(k)(6) of the Code, and SIMPLE IRA Plan described in
Section 408(p) of the Code, any eligible deferred compensation plan
under 


 


40

















 


Section 457 of the
Code, any plan described under Section 501(c)(18) of the Code, and any
Employer contributions made on behalf of a Participant for the purchase of an
annuity contract under Section 403(b) of the Code pursuant to a
salary reduction agreement.  Elective
Deferrals shall not include any deferrals properly distributed as excess annual
additions.


 


10.2        LIMITATIONS ON 401(k) CONTRIBUTIONS


 


(a)           Actual Deferral Percentage Test (“ADP Test”).  Amounts contributed as elective deferrals under
Section 4.1(a) and, if so elected by the Employer, “Qualified
Matching Contributions” (as defined below) and any Fail-Safe Contributions made
under this Section, are considered to be amounts deferred pursuant to
Section 401(k) of the Code. 
For purposes of this Section, these amounts are referred to as the
“deferred amounts.”  For purposes of the
“actual deferral percentage test” described below, (i) such deferred
amounts must be made before the last day of the twelve (12)-month period
immediately following the Plan Year to which the contributions relate, and
(ii) the deferred amounts relate to Compensation that either
(A) would have been received by the Participant in the Plan Year but for
the Participant’s election to make deferrals, or (B) is attributable to
services performed by the Participant in 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) months after the close of the Plan
Year.  The Employer shall maintain
records sufficient to demonstrate satisfaction of the actual deferral
percentage test and the deferred amounts used in such test.


 


For
purposes of this Section, “Qualified Matching Contributions” shall mean
matching contributions which are subject to the distribution and
nonforfeitability requirements under Section 401(k) of the Code and
satisfy Section 1.401(k)-2(a)(6) of the IRS Treasury regulations.


 


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


 


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


 


(2)            The actual deferral percentage for eligible
Participants who are Highly-Compensated Employees for the Plan Year shall not
exceed the actual deferral percentage of eligible Participants who are
Nonhighly-Compensated Employees for the Plan Year multiplied by two (2),
provided that the actual deferral percentage for eligible Participants who are
Highly-Compensated Employees for the Plan Year does not exceed the actual
deferral percentage for eligible Participants who are Nonhighly-Compensated
Employees by more than two (2) percentage points.


 


41

















 


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


 


In
the event the Plan changes 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 the prior year shall be determined by taking into account only
elective deferrals (within the meaning of Section 4.1) for those
Nonhighly-Compensated Employees that were taken into account for purposes of
the actual deferral percentage test (and not the actual contribution percentage
test) under the current year testing method for the prior year.


 


For
purposes of the above tests, the “actual deferral percentage” shall mean for a
specified group of Participants for a Plan Year, the average of the ratios
(calculated separately for each Participant in such group) of (1) deferred
amounts actually paid over to the Trust on behalf of such Participant for the
Plan Year to (2) the Participant’s compensation (within the meaning of
Section 1.7 of the Plan) or, if the Employer chooses, Participant’s
compensation determined by using any other definition of compensation that
satisfies the nondiscrimination requirements of Section 414(s) of the
Code and the regulations thereunder.  For
purposes hereof, the Participant’s compensation shall be referred to as
“414(s) Compensation.” An Employer may limit the period taken into account
for determining 414(s) Compensation to that part of the Plan Year or
calendar year in which an Employee was a Participant in the component of the
Plan being tested.  The period used to
determine 414(s) Compensation must be applied uniformly to all
Participants for the Plan Year.  Deferred
amounts on behalf of any Participant shall include (1) any Elective
Deferrals made pursuant to the Participant’s deferral election (including
Excess Elective Deferrals of Highly Compensated Employees), but excluding
(a) Excess Elective Deferrals of Nonhighly-Compensated Employees that
arise solely from Elective Deferrals made under the Plan or plans of this
Employer and (b) Elective Deferrals that are taken into account in the
actual contribution percentage test (provided the actual deferral percentage
test is satisfied both with and without exclusion of these Elective Deferrals);
and (2) Qualified Matching Contributions and Fail-Safe Contributions.  For purposes of computing Actual Deferral
Percentages, an Employee who would be a Participant but for failure to make
Elective Deferrals shall be treated as a Participant on whose behalf no
Elective Deferrals are made.


 


For
purposes of this Section 10.2, the actual deferral percentage for any
eligible Participant who is a Highly-Compensated Employee for the Plan Year and
who is eligible to have Elective Deferrals allocated to his account under two
(2) or more plans or arrangements described in Code
Section 401(k) that are maintained by the Employer or any employer
who is a related group member (within the meaning of Section 2.5(b)) shall
be determined as if all such deferrals were made under a single
arrangement.  In the event that this Plan
satisfies the requirements of Code Section 401(k), 401(a)(4) or
410(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 the
Code only if aggregated with this Plan, then the provisions of this
Section 10.2 shall be applied by determining the actual deferral 


 


42

















 


percentage
of eligible Participants as if all such plans were a single plan.  If the Employer elects by Plan amendment to
use the prior year testing method, any adjustments to the Nonhighly-Compensated
Employee actual deferral percentage for the prior year shall be made in
accordance with the Final 401(k) and 401(m) Regulations.  Plans may be aggregated in order to satisfy
Section 401(k) of the Code only if they have the same Plan Year and
use the same average actual deferral percentage testing method.


 


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


 


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


 


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


 


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


 


(A)        the lowest applicable contribution rate
(defined below) of any eligible Nonhighly-Compensated Employee among a group of
eligible Nonhighly-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 any
eligible Nonhighly-Compensated in the group of all eligible
Nonhighly-Compensated Employees for the Plan Year and who is employed by the Employer
on the last day of the Plan Year.


 


The
applicable contribution rate for an eligible Nonhighly-Compensated Employee is
the sum of the qualified matching contribution taken into account for the
eligible Nonhighly-Compensated Employee for the Plan Year and the Fail-Safe
Contribution made for the eligible Nonhighly-Compensated Employee for the Plan
Year, divided by the eligible Nonhighly-Compensated Employee’s compensation for
the same period.


 


(b)           Distributions of Excess Contributions.


 


(1)            In General.  If the actual deferral
percentage test of Section 10.2(a) is not satisfied for a Plan Year,
then the “excess contributions”, and income allocable thereto, shall be
distributed, to the extent required under Treasury regulations, no later than
the last day of the Plan Year following the Plan Year for which the excess
contributions were made.  However, if
such excess contributions are distributed later than two and one-half (21⁄2)
months following the last day of the Plan Year in 


 


43

















 


which
such excess contributions were made, a ten percent (10%) excise tax shall be
imposed upon the Employer with respect to such excess contributions.


 


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


 


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


 


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


 


Excess
contributions shall be allocated to the Highly-Compensated Employees with the
highest dollar amounts of contributions taken into account in calculating the
actual deferral percentage test for the year in which the excess arose,
beginning with the Highly-Compensated Employee with the highest dollar amount
of such contributions and continuing in descending order until all the excess
contributions have been allocated.  For
purposes of the preceding sentence, the “highest dollar amount” is determined
after distribution of any excess contributions. 
To the extent a Highly-Compensated Employee has not reached his catch-up
contribution limit (set forth in Section 4.1(e) of the Plan), excess
contributions allocated to such Highly-Compensated Employee are catch-up
contributions and will not be treated as excess contributions.


 


(3)            Determination of Income.  Excess
contributions shall be adjusted for any income or loss up to the date of
distribution.  The income or loss allocable
to excess contributions allocated to each Participant is the sum of:
(i) income or loss allocable to the Participant’s deferred amounts for the
Plan Year multiplied by a fraction, the numerator of which is the excess
contributions made on behalf of the Participant for the Plan Year, and the
denominator of which is the sum of the Participant’s Account balances
attributable to the Participant’s deferred amounts on the last day of the Plan
Year; and (ii) ten percent (10%) of the amount determined under (i) multiplied
by the number of 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 distributed from that portion of the Participant’s
Account attributable to such deferred amounts to the extent allowable under
Treasury regulations.


 


44

















 


10.3        NONDISCRIMINATION TEST FOR EMPLOYER 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 if Employer matching contributions are made in any
Plan Year under Section 4.2(a) and such matching contributions are
not used to satisfy the actual deferral percentage test of Section 10.2
and/or in the event Employee after-tax contributions are made to the Plan under
Section 4.5.  Any Employee after-tax
contributions that are used to satisfy the average contribution percentage test
shall satisfy the requirements of Section 1.401(m)-2(a)(6) of the IRS
Treasury Regulations.


 


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


 


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


 


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


 


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


 


In
the event the Plan changes 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 the prior year shall be determined by
taking into account only (a) after-tax contributions for those
Nonhighly-Compensated Employees for the prior year,  and (b) matching contributions for those
Nonhighly-Compensated Employees that were taken into account for purposes of
the average contribution percentage test (and not the average actual deferral
percentage test) under the current year testing method for the prior year.


 


For
purposes of the above tests, the “average contribution percentage” shall mean
the average (expressed as a percentage) of the contribution percentages of the
“eligible Participants” in each group. 
The “contribution percentage” shall mean the ratio (expressed as a
percentage) that the sum of Employer matching contributions, and, if
applicable, Employee after-tax contributions, and elective deferrals under
Section 4.1 (to the extent such elective deferrals 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 


 


45

















 


bears
to the eligible Participant’s compensation (within the meaning of
Section 1.7 of the Plan) or, if the Employer chooses, Participant’s
compensation determined by using any other definition of compensation that
satisfies the nondiscrimination requirements of Section 414(s) of the
Code and the regulations thereunder.  For
purposes hereof, the Participant’s compensation shall be referred to as
“414(s) Compensation.”  An Employer
may limit the period taken into account for determining
414(s) Compensation to that part of the Plan Year or calendar year in
which an Employee was a Participant in the component of the Plan being
tested.  The period used to determine
414(s) Compensation must be applied uniformly to all Participants for the
Plan Year.  Such average contribution
percentage shall be determined without regard to matching contributions that
are used either to correct excess contributions hereunder or because
contributions to which they relate are excess deferrals under Section 10.1
or excess contributions under Section 10.2.  “Eligible Participant” shall mean each Employee
who is eligible to receive Employer matching contributions or make after-tax
contributions.


 


For
purposes of this Section 10.3, the contribution percentage for any
eligible Participant who is a Highly-Compensated Employee for the Plan Year and
who is eligible to have Employer matching contributions, elective deferrals
and/or after-tax contributions allocated to his account under two (2) or
more plans described in Section 401(a) of the Code or under
arrangements described in Section 401(k) of the Code that are
maintained by the Employer or 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 this Plan satisfies the requirements of Section 401(m),
401(a)(4) or 410(b) of the Code 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 the Code only if aggregated with this
Plan, then the provisions of this Section 10.3 shall be applied by
determining the contribution percentages of eligible Participants as if all
such plans were a single plan.  If the
Employer elects by Plan amendment to use the prior year testing method, any
adjustments to the Nonhighly-Compensated Employee actual contribution percentage
for the prior year shall be made in accordance with the Final 401(k) and
401(m) Regulations.  Plans may be
aggregated in order to satisfy Section 401(m) of the Code only if
they have the same Plan Year and use the same average contribution percentage
testing method.


 


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


 


(b)           Distribution of Excess Employer Matching Contributions.


 


(1)            In General.  If the nondiscrimination
tests of Section 10.3(a) are not satisfied for a Plan Year, then the
“excess aggregate contributions”, and any income allocable thereto, shall be
forfeited, if otherwise forfeitable, no later than the last day of the Plan
Year following the Plan Year for which the nondiscrimination tests are not
satisfied, and shall be used to reduce Employer matching contributions under
Section 4.2.  To the extent that
such “excess aggregate contributions” are nonforfeitable, such excess
contributions shall be distributed to the Participant on whose behalf the
excess contributions were made no later than the last day of the 


 


46

















 


Plan Year following the
Plan Year for which such “excess aggregate contributions” were made.  However, if such excess aggregate
contributions are distributed later than two and one-half (21⁄2) months following
the last day of the Plan Year in which such excess aggregate contributions were
made, a ten percent (10%) excise tax shall be imposed upon the Employer with
respect to such excess aggregate contributions. 
For purposes of the limitations of Section 11.1(b)(1) of the
Plan, excess aggregate contributions shall be considered annual additions.


 


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


 


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


 


(B)           The
maximum amount of such contributions permitted by the ACP Test under
Section 10.3(a) (determined by hypothetically reducing contributions
made on behalf of Highly-Compensated Employees in order of the actual
contribution percentages, beginning with the highest of such percentages).


 


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


 


For purposes of the
preceding paragraph, “contribution percentage amounts” shall mean the sum of
Employer matching contributions and, if applicable, Employee after-tax
contributions, and elective deferrals (to the extent not used to satisfy the
actual deferral percentage test of Section 10.2) made under the Plan on
behalf of the Participant for the Plan Year.


 


(3)            Determination of Income.  Excess
aggregate contributions shall be adjusted for an income or loss up to the date
of distribution.  The income or loss
allocable to excess contributions allocated to each Participant is the sum
of:  (i) income or loss allocable to
the Employer matching contributions and, if applicable, Employee after-tax
contributions, and such elective deferrals for the Plan Year multiplied by a
fraction, the numerator of which is the excess aggregate contributions on
behalf of the Participant for the Plan Year, and the denominator of which is
the sum of the Participant’s Account balances attributable to Employer matching
contributions and, if applicable, Employee after-tax contributions, and such 


 


47

















 


elective
deferrals (to the extent not used to satisfy the average actual percentage test
of Section 10.2) on the last day of the Plan Year; and (ii) ten
percent (10%) of the amount determined under (i) multiplied by the number
of 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.


 


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


 


To
the extent permitted by applicable law, the Plan may be disaggregated under
Section 1.410(b)-7(c) of the Income Tax Regulations, in which case
the testing provisions of Sections 10.2 and 10.3 above may separately apply to
the disaggregated plans.


 


48
















 


ARTICLE
ELEVEN—LIMITATION ON ANNUAL ADDITIONS


 


11.1        RULES AND DEFINITIONS


 


(a)           Rules.  The following rules shall limit additions to
Participants’ Accounts for limitation years and Plan Years beginning on or
after July 1, 2007:


 


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


 


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


 


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


 


(4)           If the limitations of Section 415 of
the Code are exceeded, such excess amount shall be corrected in accordance with
the requirements of applicable law, including pursuant to the Employee Plans
Compliance Resolution System.


 


(5)           If, in addition to this Plan, the
Participant is covered under another defined contribution plan maintained by
the Employer, or a welfare benefit fund, as defined in Code
Section 419(e), maintained by the Employer, or an individual medical
account, as defined in Code Section 415(1)(2), maintained by the Employer
which provides an annual addition, the annual additions which may be credited
to a Participant’s account under all such plans for any such limitation year
shall not exceed the maximum permissible amount.  Benefits shall be reduced under any
discretionary defined contribution plan before they are reduced under any
defined contribution pension plan.  If
both plans are discretionary contribution plans, they shall first be reduced
under this Plan.  Any excess amount
attributable to this Plan 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 the
limitation year shall be treated as annual additions:


 


49

















 


(A)          Employer contributions;


 


(B)           Elective deferrals (within the meaning of
Section 4.1);


 


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


 


(D)          Forfeitures, if any; and


 


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


 


Employer and employee contributions taken into account
as annual additions shall include “excess contributions” as defined in
Section 401(k)(8)(B) of the Code, “excess aggregate contributions” as
defined in Section 401(m)(6)(B) of the Code, and “excess deferrals”
as defined in Section 402(g) of the Code, regardless of whether such
amounts are distributed, recharacterized or forfeited, unless such amounts
constitute excess deferrals that were distributed to the Participant no later
than April 15 of the taxable year following the taxable year of the
Participant in which such deferrals were made.


 


For this purpose, any excess amount applied under
Section 11.1(a)(4) in the limitation year to reduce Employer
contributions shall be considered annual additions for such limitation year.


 


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


 


(A)          Except as provided in the preceding
paragraph of this Section 11.1(b)(2), Employer contributions to a plan of
deferred compensation which are not included in the Employee’s gross income for
the taxable year in which 


 


50

















 


contributed, or Employer contributions under a
simplified employee pension plan (funded with individual retirement accounts or
annuities) to the extent such contributions are deductible by the Employee, or
any distributions from a plan of deferred compensation;


 


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


 


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


 


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


 


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


 


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


 


Any compensation described in this
Section 11.1(b)(2) does not fail to be Compensation merely because it
is paid after the Participant’s severance from employment with the Employer,
provided the Compensation is paid by the later of 21⁄2 months after severance from
employment with the Employer or the end of the limitation year that includes
the date of severance from employment. 
In addition, payment for unused bona fide sick, vacation or other leave
shall be included as Compensation if (i) the Participant would have been
able to use the leave if employment had continued, (ii) such amounts are
paid by the later of 21⁄2 months after severance from employment with the
Employer or the end of the Plan Year that includes the date of severance from
employment and (iii) such amounts would have been included as Compensation
if they were paid prior to the Participant’s severance from employment with the
Employer.


 


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


 


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


 


(5)           Limitation year:  This shall mean the Plan Year, unless the
Employer elects a different twelve (12) consecutive month period.  The election shall be made by the 


 


51

















 


adoption of a Plan amendment by the Employer.  If the limitation year is amended to a
different twelve (12) consecutive month period, the new limitation year must
begin on a date within the limitation year in which the amendment is made.


 


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


 


Number of months in the
short limitation year


12


 


52

















 


ARTICLE
TWELVE—AMENDMENT AND TERMINATION


 


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


 


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


 


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


 


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


 


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


 


If any corrective amendment (within the meaning of
Section 1.401(a)(4)-11(g) of the IRS Treasury Regulations) is made
after the end of a Plan Year, such amendment shall satisfy the requirements of
Section 1.401(a)(4)-11(g)(3) and (4) of the 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 discontinue
payments under the Plan and to terminate the Plan.  In the event the Plan is terminated, or upon
complete discontinuance of contributions under the Plan by the Employer, the
rights of each Participant to his Account on the date of such termination or
discontinuance of contributions, to the extent of the fair market value under
the Trust Fund, shall become fully vested and nonforfeitable.  The Employer shall direct the Trustee to
distribute the Trust Fund in accordance with the Plan’s distribution provisions
to the Participants and their Beneficiaries, each Participant or Beneficiary
receiving a portion of the Trust Fund equal to the value of his Account as of
the date of distribution.  These
distributions may be implemented by the continuance of the Trust and the
distribution of the 


 


53

















 


Participants’ Account shall be made at such time and
in such manner as though the Plan had not terminated, or by any other
appropriate method, including rollover into Individual Retirement
Accounts.  Upon distribution of the Trust
Fund, the Trustee shall be discharged from all obligations under the Trust and
no Participant or Beneficiary shall have any further right or claim
therein.  In the event of the partial
termination of the Plan, the Accounts of all affected Participants shall become
fully vested and nonforfeitable.


 


In the event of the termination of the Plan, any
amounts to be distributed to Participants or Beneficiaries who cannot be
located shall be handled in accordance with the provisions of applicable law
(which may include the establishment of an account for such Participant or
Beneficiary).


 


54

















 


ARTICLE
THIRTEEN—TOP-HEAVY PROVISIONS


 


13.1        APPLICABILITY.  The provisions of this Article shall
become applicable only for any Plan Year in which the Plan is a Top-Heavy Plan
(as defined in Section 13.2(b)) and only if, and to the extent, required
under Section 416 of the Code and the regulations issued thereunder.


 


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


 


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


 


(b)           “Top-Heavy Plan”:


 


(1)           The Plan shall constitute a “Top-Heavy
Plan” if any of the following conditions exist:


 


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


 


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


 


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


 


(2)           If the Employer maintains one (1) or
more defined contribution plans (including any simplified employee pension plan
funded with individual retirement accounts or annuities) and the Employer
maintains or has maintained one (1) or more defined benefit plans which have
covered or could cover a Participant in this Plan, the top-heavy ratio is a
fraction, the numerator of which is the sum of account balances under the
defined contribution plans for all Key Employees and the actuarial equivalents
of accrued benefits under the defined benefit plans for all Key Employees, and
the denominator of which is the sum of the account balances under the defined
contribution plans for all Participants and the actuarial 


 


55

















 


equivalents of accrued benefits under the defined
benefit plans for all Participants.  Both
the numerator and denominator of the top-heavy ratio shall include any
distribution of an account balance or an accrued benefit made in the one (1)-year
period ending on the determination date and any contribution due to a defined
contribution pension plan but unpaid as of the determination date.  However, in the case of any distribution made
for a reason other than severance from employment, death, or disability, this
provision shall be applied by substituting a five (5)-year period for a one
(1)-year period.  In determining the
accrued benefit of a non-Key Employee who is participating in a plan that is
part of a required aggregation group, the method of determining such benefit
shall be either (i) in accordance with the method, if any, that uniformly
applies for accrual purposes under all plans maintained by the Employer or any
member of the Employer’s related group (within the meaning of
Section 2.5(b)), or (ii) if there is no such method, as if such
benefit accrued not more rapidly than the slowest accrual rate permitted under
the fractional accrual rate of Code Section 411(b)(1)(C).


 


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


 


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


 


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


 


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


 


56

















 


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


 


(C)           “Required aggregation
group” shall mean
(i) each qualified plan of the Employer (including any terminated plan) in
which at least one Key Employee participates, and (ii) any other qualified
plan of the Employer which enables a plan described in (i) to meet the
requirements of Section 401(a)(4) or 410 of the Code.


 


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


 


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


 


(F)           “Actuarial equivalence” shall be based on the interest and
mortality rates utilized to determine actuarial equivalence when benefits are
paid from any defined benefit plan.  If
no rates are specified in said plan, the following shall be utilized: pre- and
post-retirement interest — five percent (5%); post-retirement mortality based
on the Unisex Pension (1984) Table as used by the Pension Benefit Guaranty
Corporation on the date of execution hereof.


 


13.3        ALLOCATION OF EMPLOYER CONTRIBUTIONS AND FORFEITURES
FOR A TOP-HEAVY PLAN YEAR.


 


(a)           Except as otherwise provided below, in
any Plan Year in which the Plan is a Top-Heavy Plan, the Employer contributions
and forfeitures allocated on behalf of any Participant who is a non-Key
Employee shall not be less than the lesser of three percent (3%) of such
Participant’s compensation (as defined in Section 11.1(b)(2) and as
limited by Section 401(a)(17) of the Code) or the largest percentage of
Employer contributions and, elective deferrals (within the meaning of
Section 4.1), and forfeitures as a percentage of the Key Employee’s
compensation (as defined in Section 11.1(b)(2) and as limited by
Section 401(a)(17) of the Code), allocated on behalf of any Key Employee
for that Plan Year.  This minimum
allocation shall be made even though, under other Plan provisions, the
Participant would not otherwise be entitled to receive an allocation or would
have received a lesser allocation for the Plan Year because of insufficient
Employer contributions under Section 4.2, the Participant’s failure to
complete one thousand (1,000) Hours of Service, the Participant’s failure to
make elective deferrals under Section 4.1 or compensation is less than a
stated amount.


 


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


 


57

















 


(c)           Elective deferrals may not be taken into
account for the purpose of satisfying the minimum allocation.  However, Employer matching contributions may
be taken into account for the purpose of satisfying the minimum allocation.


 


(d)           For purposes of the Plan, a non-Key
Employee shall be any Employee or Beneficiary of 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 the determination date.


 


(e)           If no defined benefit plan has ever been
part of a permissive or required aggregation group of plans of the Employer,
the contributions and forfeitures under this step shall be offset by any
allocation of contributions and forfeitures under any other defined
contribution plan of the Employer with a Plan Year ending in the same calendar
year as this Plan’s Valuation Date.


 


(f)            There shall be no duplication of the
minimum benefits required under Code Section 416.  Benefits shall be provided under defined
contribution plans before under defined benefit plans.  If a defined benefit plan (active or
terminated) 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.  The provisions contained in
Section 6.1 relating to vesting shall continue to apply in any Plan Year
in which the Plan is a Top-Heavy Plan, and apply to all benefits within the
meaning of Section 411(a)(7) of the Code except those attributable to
Employee contributions and elective deferrals under Section 4.1, including
benefits accrued before the effective date of Section 416 and benefits
accrued before the Plan became a Top-Heavy Plan.


 


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


 


58
















 


ARTICLE FOURTEEN—MISCELLANEOUS PROVISIONS


 


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


 


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


 


14.3        REPAYMENTS TO THE EMPLOYER.  Notwithstanding
any provisions of this Plan to the contrary:


 


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


 


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


 


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


 


With respect to any
“qualified domestic relations order” relating to the Plan, the Plan shall
permit distribution to an alternate payee under such order at any time,
irrespective of whether the 


 


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Participant has attained his
“earliest retirement age” (within the meaning of Section 414(p)(4)(B) of
the Code) under the Plan.  A distribution
to an alternate payee prior to the Participant’s attainment of his earliest
retirement age shall, however, be available only if the order specifies
distribution at that time or permits an agreement between the Plan and the
alternate payee to authorize an earlier distribution.  Nothing in this paragraph shall, however,
give a Participant a right to receive distribution at a time otherwise not
permitted under the Plan nor does it permit the alternate payee to receive a
form of payment not otherwise permitted under the Plan or under said Section 414(p) of
the Code.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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14.12      LOCATION OF PARTICIPANT OR BENEFICIARY UNKNOWN.  In the event that all or any
portion of the distribution payable to a Participant or to a Participant’s
Beneficiary hereunder shall, at the expiration of five (5) years after it
shall become payable, remain unpaid solely by reason of the inability of the
Administrator to ascertain the whereabouts of such Participant or Beneficiary,
after sending a registered letter, return receipt requested, to the last known
address, and after further diligent effort, the amount so distributable shall
be forfeited and reallocated in the same manner as a forfeiture under Section 6.2
pursuant to this Plan.  In the event a Participant
or Beneficiary is located subsequent to the forfeiture of his Account balance,
such Account balance shall be restored.


 


14.13      DISTRIBUTION TO MINOR OR LEGALLY INCAPACITATED.  In the event any benefit is
payable to a minor or to a person deemed to be incompetent or to a person
otherwise under legal disability, or who is by sole reason of advanced age,
illness, or other physical or mental incapacity incapable of handling the
disposition of his property, the Administrator, may direct the Trustee to make
payment of such benefit to the minor’s or legally incapacitated person’s court
appointed guardian, person designated in a valid power of attorney, or any
other person authorized under state law. 
The receipt of any such payment or distribution shall be a complete
discharge of liability for Plan obligations.


 






 


IN WITNESS
WHEREOF, the Employer, by its duly authorized officer, has
caused this Plan to be executed on the 18th day of December, 2009.


 


 


	
   

  	
  CONTINENTAL
  MATERIALS CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Joseph J. Sum

  
	
   

  	
   

  	
  Authorized
  Officer

  



 


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