Exhibit 10d


 


WILLIAMS FURNACE CO.


 


EMPLOYEES PROFIT SHARING RETIREMENT PLAN


 


2009 Amendment and Restatement


 

















 


WILLIAMS FURNACE CO.


EMPLOYEES PROFIT SHARING
RETIREMENT PLAN


 


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


 


WHEREAS, the Employer reserved the right to 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 to add or modify certain administrative
provisions to add a qualified cash or deferred arrangement under Section 401(k) of
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 Internal Revenue 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 Internal Revenue 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

  	
  Compensation

  
	
  1.7

  	
  Disability

  
	
  1.8

  	
  Effective Date

  
	
  1.9

  	
  Employee

  
	
  1.10

  	
  Employer

  
	
  1.11

  	
  Employment Date

  
	
  1.12

  	
  Fail-Safe Contribution

  
	
  1.13

  	
  Highly-Compensated
  Employee

  
	
  1.14

  	
  Hour of Service

  
	
  1.15

  	
  Leased Employee

  
	
  1.16

  	
  Nonhighly-Compensated
  Employee

  
	
  1.17

  	
  Normal Retirement Date

  
	
  1.18

  	
  Participant

  
	
  1.19

  	
  Plan

  
	
  1.20

  	
  Plan Year

  
	
  1.21

  	
  Trust

  
	
  1.22

  	
  Trustee

  
	
  1.23

  	
  Valuation Date

  
	
  1.24

  	
  Year of Service

  
	
   

  	
   

  
	
  ARTICLE TWO—SERVICE DEFINITIONS AND RULES

  
	
  2.1

  	
  Year of Service

  
	
  2.2

  	
  Break in Service

  
	
  2.3

  	
  Leave of Absence

  
	
  2.4

  	
  Rule of Parity on
  Return to Employment

  
	
  2.5

  	
  Service in Excluded Job
  Classifications or with Related Companies

  
	
   

  	
   

  
	
  ARTICLE THREE—PLAN
  PARTICIPATION

  
	
  3.1

  	
  Participation

  
	
  3.2

  	
  Re-employment of Former
  Participant

  
	
  3.3

  	
  Termination of
  Eligibility

  
	
  3.4

  	
  Compliance with USERRA

  



 

















 


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

  
	
  4.1

  	
  Elective Deferrals

  
	
  4.2

  	
  Employer Contributions

  
	
  4.3

  	
  Rollovers and Transfers
  of Funds from Other Plans

  
	
  4.4

  	
  Timing of Contributions

  
	
  4.5

  	
  Employee After-Tax
  Contributions

  
	
  4.6

  	
  Allocation of Service
  Credit

  
	
   

  	
   

  
	
  ARTICLE FIVE—ACCOUNTING RULES

  
	
  5.1

  	
  Investment of Accounts
  and Accounting Rules

  
	
   

  	
   

  
	
  ARTICLE SIX—VESTING AND RETIREMENT BENEFITS

  
	
  6.1

  	
  Vesting

  
	
  6.2

  	
  Forfeiture of Nonvested
  Balance

  
	
  6.3

  	
  Distribution of Less
  than Entire Vested Account Balance

  
	
  6.4

  	
  Normal Retirement

  
	
  6.5

  	
  Disability

  
	
   

  	
   

  
	
  ARTICLE SEVEN—MANNER AND TIME OF DISTRIBUTING
  BENEFITS

  
	
  7.1

  	
  Manner of Payment

  
	
  7.2

  	
  Time of Commencement of
  Benefit Payments

  
	
  7.3

  	
  Furnishing Information

  
	
  7.4

  	
  Minimum Distribution
  Requirements

  
	
  7.5

  	
  Amount of Death Benefit

  
	
  7.6

  	
  Designation of
  Beneficiary

  
	
  7.7

  	
  Distribution of Death
  Benefits

  
	
  7.8

  	
  Eligible Rollover
  Distributions

  
	
   

  	
   

  
	
  ARTICLE EIGHT—LOANS AND IN-SERVICE WITHDRAWALS

  
	
  8.1

  	
  Loans

  
	
  8.2

  	
  Hardship Distributions

  
	
  8.3

  	
  Withdrawals After Age
  591⁄2 65

  
	
  8.4

  	
  Withdrawals of
  After-Tax Contributions

  
	
  8.5

  	
  Withdrawals of Rollover
  Contributions

  
	
  8.6

  	
  Withdrawals of Employer
  Contributions for Other Financial Needs

  
	
   

  	
   

  
	
  ARTICLE NINE—ADMINISTRATION OF THE PLAN

  
	
  9.1

  	
  Plan Administration

  
	
  9.2

  	
  Claims Procedure

  
	
  9.3

  	
  Trust Agreement

  



 

















 


	
  ARTICLE TEN—SPECIAL COMPLIANCE PROVISIONS

  
	
  10.1

  	
  Distribution of Excess
  Elective Deferrals

  
	
  10.2

  	
  Limitations on
  401(k) Contributions

  
	
  10.3

  	
  Nondiscrimination Test
  for Employer Matching Contributions

  
	
   

  	
   

  
	
  ARTICLE ELEVEN—LIMITATION ON ANNUAL ADDITIONS

  
	
  11.1

  	
  Rules and
  Definitions

  
	
   

  	
   

  
	
  ARTICLE TWELVE—AMENDMENT AND TERMINATION

  
	
  12.1

  	
  Amendment

  
	
  12.2

  	
  Termination of the Plan

  
	
   

  	
   

  
	
  ARTICLE THIRTEEN—TOP-HEAVY PROVISIONS

  
	
  13.1

  	
  Applicability

  
	
  13.2

  	
  Definitions

  
	
  13.3

  	
  Allocation of Employer
  Contributions and Forfeitures for a Top-Heavy Plan Year

  
	
  13.4

  	
  Vesting

  
	
   

  	
   

  
	
  ARTICLE FOURTEEN—MISCELLANEOUS PROVISIONS

  
	
  14.1

  	
  Plan Does Not Affect
  Employment

  
	
  14.2

  	
  Successor to the
  Employer

  
	
  14.3

  	
  Repayments to the
  Employer

  
	
  14.4

  	
  Benefits not Assignable

  
	
  14.5

  	
  Merger of Plans

  
	
  14.6

  	
  Investment Experience
  not a Forfeiture

  
	
  14.7

  	
  Construction

  
	
  14.8

  	
  Governing Documents

  
	
  14.9

  	
  Governing Law

  
	
  14.10

  	
  Headings

  
	
  14.11

  	
  Counterparts

  
	
  14.12

  	
  Location of Participant
  or Beneficiary Unknown

  
	
  14.13

  	
  Distribution to Minor
  or Legally Incapacitated

  



 
















 


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 made to the Plan under Section 4.5,
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                               “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 under 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.


 


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


 


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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 1.13 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.


 


1.7                               “DISABILITY” shall mean a “permanent and total”
disability incurred by a Participant while in the employ of the Employer.  A Participant shall be deemed “disabled” if,
in the opinion of the Administrator and based upon appropriate medical 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.


 


1.8                               “EFFECTIVE DATE.”  The Plan’s initial Effective Date was January 1,
1982.  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.


 


1.9                               “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
provided in Section 414(n) or 414(o) of the Code.


 


2

















 


1.10                        “EMPLOYER” shall mean Williams Furnace Co. 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 Williams
Furnace Co. may adopt the Plan with the approval of its board of directors (or
noncorporate counterpart) subject to the approval of Williams Furnace Co.  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 Williams Furnace Co. 
For purposes hereof, each Participating Affiliate shall be deemed to
have appointed Williams Furnace Co. 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 Williams
Furnace Co. 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.


 


1.11                        “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.


 


1.12                        “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.


 


1.13                        “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 $80,000 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.


 


3

















 


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


 


1.14                        “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.


 


4

















 


(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.


 


1.15                        “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.


 


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


 


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


 


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


 


5

















 


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


 


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


 


1.21                        “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.


 


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


 


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


 


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


 


ARTICLE TWO—SERVICE DEFINITIONS AND RULES


 


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


 


2.1                               YEAR OF SERVICE.  For purposes of determining an Employee’s 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.


 


6

















 


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 1.14.


 


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 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 


 


7

















 


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 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.


 


8

















 


ARTICLE THREE—PLAN PARTICIPATION


 


3.1                               PARTICIPATION.  Subject to the following provisions of this Section 3.1, all Employees participating in the Plan prior to the Plan’s
restatement shall continue to participate, subject to the terms hereof.


 


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


 


In no event, however, shall any Employee (or other
individual) participate under the Plan unless he is included in a unit of
Employees covered by a collective bargaining agreement between the Employer and
the Employee representatives which bargaining agreement expressly provides for
inclusion in the Plan.  Provided,
however, that no otherwise eligible Employee participate under the Plan while
he is (i) 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 (ii) 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.


 


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.


 


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


 


9

















 


Participant in the
Continental Materials Plan becomes covered by a collective bargaining agreement
and, as a result, becomes eligible to participate in the Plan, his account
under the Continental Materials Plan shall be transferred to the Plan and his “years
of service” under the Continental Materials Plan shall be credited to the Plan.


 


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.


 


ARTICLE FOUR—ELECTIVE DEFERRALS, EMPLOYER
CONTRIBUTIONS, AND 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 portions 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 one percent (1%)
to fifteen percent (15%) of such Participant’s Compensation as a pre-tax
contribution.


 


(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.


 


10
















 


(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 $5,000
for taxable years beginning in 2006 and later years.  After 2006, the $5,000 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.  Any intended catch-up
contribution shall not be subject to an Employer match.


 


4.2                               EMPLOYER CONTRIBUTIONS


 


(a)                                  Employer
Matching Contributions.  For each Plan Year, the
Employer may contribute to the Plan, on behalf of each Participant eligible
under Section 4.2(b), such amount, if any, as may be determined by the
Employer’s board of directors of the Employer, as the case may be.  Any 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 the applicable 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 Affiliates.


 


(b)                                 Eligibility
for Employer Matching Contributions.  To be eligible for a share
of Employer matching contributions under Section 4.2(a), 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 for which such matching contribution is made to the Plan ;
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 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 matching contributions for such Plan Year.


 


11

















 


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,
including 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, including 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, including 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.


 


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 age and/or 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.  A Participant
shall be permitted to make after-tax contributions to the Plan in accordance
with procedures established by the Administrator which shall be consistently
applied and which may be changed from time to time.  A Participant may prospectively elect to
change or revoke the amount (or percentage) of his after-tax contributions
during the Plan Year in accordance with procedures established by the
Administrator.


 


12

















 


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


 


Any
after-tax contributions made by a Participant shall be contributed by the
Employer to the Plan and allocated to the portion of the Participant’s Account
consisting of after-tax contributions.  A
Participant shall have a nonforfeitable interest at all times in that portion
of his Account attributable to any after-tax contributions made to the Plan
pursuant to this Section 4.5.  Any
such after-tax contributions shall be distributed at the same time as other
vested benefits would be distributed under the Plan.


 


ARTICLE FIVE—ACCOUNTING RULES


 


5.1                               INVESTMENT OF ACCOUNTS AND ACCOUNTING RULES


 


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


 


(b)                                 Participant
Direction of Investments.  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


 


13

















 


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 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.


 


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 (under Section 4.5), 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


 


14

















 


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(a), 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 one (1)-year 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.


 


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


 


15

















 


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.


 


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.


 


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, 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


 


16

















 


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 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 or Section 7.2.


 


(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:


 


17

















 


(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.


 


18

















 


(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


 


19

















 


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


 


(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.


 


20
















 


(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.


 


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 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


 


21

















 


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, 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.  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:


 


(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


 


22

















 


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.


 


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 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


 


23

















 


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.


 


(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.


 


24

















 


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, 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.


 


25

















 


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 finally from any 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:


 


26

















 


(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 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. 
Where funds are needed to complete a major renovation to a Participant’s
principal residence, or in the event of any other bona fide financial emergency
as determined by the Administrator, the Participant may receive a distribution
not to exceed the lesser of (i) the vested value of the Participant’s
Account derived from Employer contributions under Section 4.2,


 


27

















 


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 from  the
distribution.  Such distribution shall be
made in accordance with non-discretionary and objective standards consistently
applied by the Administrator.


 


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.


 


28

















 


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 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


 


29
















 


(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.


 


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


 


30

















 


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;


 


(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.


 


31

















 


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;


 


(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.


 


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


 


32

















 


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 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


 


33

















 


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.


 


A 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.


 


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


 


34

















 


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 1.6 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 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.


 


35

















 


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 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:


 


36

















 


(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.


 


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


 


37

















 


Section 10.2and/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 bears to
the eligible Participant’s compensation (within the meaning of Section 1.6
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


 


38
















 


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 Plan Year
following the Plan Year for which such “excess aggregate contributions” were
made.  However, if such excess aggregate
contributions are


 


39

















 


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 elective deferrals (to the extent not used to
satisfy the average actual percentage


 


40

















 


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.


 


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


 


41

















 


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:


 


(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.


 


42

















 


(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
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


 


43

















 


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 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


 


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:


 


44

















 


(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 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).


 


45

















 


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.  Notwithstanding the foregoing, this Article shall
not apply in any Plan Year in which the Plan consists solely of a cash or
deferred arrangement which meets the requirements of Section 401(k)(12) of
the Code and matching contributions with respect to which the requirements of Section 401(m)(11)
of the Code are met.


 


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


 


46

















 


defined
benefit plans which have covered or could cover a Participant in this Plan, the
top-heavy ratio is a fraction, the numerator of which is the sum of account
balances under the defined contribution plans for all Key Employees and the
actuarial equivalents of accrued benefits under the defined benefit plans for
all Key Employees, and the denominator of which is the sum of the account
balances under the defined contribution plans for all Participants and the
actuarial equivalents of accrued benefits under the defined benefit plans for
all Participants.  Both the numerator and
denominator of the top-heavy ratio shall include any distribution of an account
balance or an accrued benefit made in the 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


 


47

















 


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.


 


(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


 


48
















 


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.


 


(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.


 


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


 


49

















 


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 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


 


50

















 


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.


 


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


 


51

















 


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.


 


 


	
   

  	
  WILLIAMS
  FURNACE CO.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Joseph J. Sum

  
	
   

  	
   

  	
  Authorized Officer

  



 


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