Exhibit 10.1


 


LKQ
CORPORATION


EMPLOYEES’
RETIREMENT PLAN


 


401(k) Plan CL2007


 


Restated September 1,
2008


 

















 


TABLE OF
CONTENTS


 


	
  INTRODUCTION

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  I

  	
   

  	
  FORMAT AND DEFINITIONS

  
	
   

  	
   

  	
   

  
	
  Section 1.01

  	
  —

  	
  Format

  
	
  Section 1.02

  	
  —

  	
  Definitions

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  II

  	
   

  	
  PARTICIPATION

  
	
   

  	
   

  	
   

  
	
  Section 2.01

  	
  —

  	
  Active Participant

  
	
  Section 2.02

  	
  —

  	
  Inactive Participant

  
	
  Section 2.03

  	
  —

  	
  Cessation of
  Participation

  
	
  Section 2.04

  	
  —

  	
  Adopting Employers -
  Single Plan

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  III

  	
   

  	
  CONTRIBUTIONS

  
	
   

  	
   

  	
   

  
	
  Section 3.01

  	
  —

  	
  Employer Contributions

  
	
  Section 3.01A

  	
  —

  	
  Rollover Contributions

  
	
  Section 3.02

  	
  —

  	
  Forfeitures

  
	
  Section 3.03

  	
  —

  	
  Allocation

  
	
  Section 3.04

  	
  —

  	
  Contribution
  Limitation

  
	
  Section 3.05

  	
  —

  	
  Excess Amounts

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  IV

  	
   

  	
  INVESTMENT OF
  CONTRIBUTIONS

  
	
   

  	
   

  	
   

  
	
  Section 4.01

  	
  —

  	
  Investment and Timing
  of Contributions

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  V

  	
   

  	
  BENEFITS

  
	
   

  	
   

  	
   

  
	
  Section 5.01

  	
  —

  	
  Retirement Benefits

  
	
  Section 5.02

  	
  —

  	
  Death Benefits

  
	
  Section 5.03

  	
  —

  	
  Vested Benefits

  
	
  Section 5.04

  	
  —

  	
  When Benefits Start

  
	
  Section 5.05

  	
  —

  	
  Withdrawal Benefits

  
	
  Section 5.06

  	
  —

  	
  Loans to Participants

  
	
  Section 5.07

  	
  —

  	
  Distributions Under
  Qualified Domestic Relations Orders

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  VI

  	
   

  	
  DISTRIBUTION OF
  BENEFITS

  
	
   

  	
   

  	
   

  
	
  Section 6.01

  	
  —

  	
  Form of
  Distribution

  
	
  Section 6.02

  	
  —

  	
  Election Procedures

  
	
  Section 6.03

  	
  —

  	
  Notice Requirements

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  VII

  	
   

  	
  REQUIRED MINIMUM
  DISTRIBUTIONS

  
	
   

  	
   

  	
   

  
	
  Section 7.01

  	
  —

  	
  Application

  
	
  Section 7.02

  	
  —

  	
  Definitions

  
	
  Section 7.03

  	
  —

  	
  Required Minimum
  Distributions

  



 


i

















 


	
  Section 7.04

  	
  —

  	
  Transition Rules

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  VIII

  	
   

  	
  TERMINATION OF THE
  PLAN

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  IX

  	
   

  	
  ADMINISTRATION OF THE
  PLAN

  
	
   

  	
   

  	
   

  
	
  Section 9.01

  	
  —

  	
  Administration

  
	
  Section 9.02

  	
  —

  	
  Expenses

  
	
  Section 9.03

  	
  —

  	
  Records

  
	
  Section 9.04

  	
  —

  	
  Information Available

  
	
  Section 9.05

  	
  —

  	
  Claim Procedures

  
	
  Section 9.06

  	
  —

  	
  Delegation of
  Authority

  
	
  Section 9.07

  	
  —

  	
  Exercise of
  Discretionary Authority

  
	
  Section 9.08

  	
  —

  	
  Transaction Processing

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  X

  	
   

  	
  GENERAL PROVISIONS

  
	
   

  	
   

  	
   

  
	
  Section 10.01

  	
  —

  	
  Amendments

  
	
  Section 10.02

  	
  —

  	
  Direct Rollovers

  
	
  Section 10.03

  	
  —

  	
  Mergers and Direct
  Transfers

  
	
  Section 10.04

  	
  —

  	
  Provisions Relating to
  the Insurer and Other Parties

  
	
  Section 10.05

  	
  —

  	
  Employment Status

  
	
  Section 10.06

  	
  —

  	
  Rights to Plan Assets

  
	
  Section 10.07

  	
  —

  	
  Beneficiary

  
	
  Section 10.08

  	
  —

  	
  Nonalienation of
  Benefits

  
	
  Section 10.09

  	
  —

  	
  Construction

  
	
  Section 10.10

  	
  —

  	
  Legal Actions

  
	
  Section 10.11

  	
  —

  	
  Small Amounts

  
	
  Section 10.12

  	
  —

  	
  Word Usage

  
	
  Section 10.13

  	
  —

  	
  Change in Service
  Method

  
	
  Section 10.14

  	
  —

  	
  Military Service

  
	
  Section 10.15

  	
  —

  	
  Missing Participants
  and Beneficiaries

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  XI

  	
   

  	
  TOP-HEAVY PLAN
  REQUIREMENTS

  
	
   

  	
   

  	
   

  
	
  Section 11.01

  	
  —

  	
  Application

  
	
  Section 11.02

  	
  —

  	
  Definitions

  
	
  Section 11.03

  	
  —

  	
  Modification of
  Vesting Requirements

  
	
  Section 11.04

  	
  —

  	
  Modification of
  Contributions

  
	
   

  	
   

  	
   

  
	
  PLAN EXECUTION

  
	
   

  
	
  PROTECTED BENEFIT
  ADDENDUM

  



 


ii

















 


INTRODUCTION


 


The Primary Employer
previously established a 401(k) retirement plan on August 1, 1999.


 


Global Trade
Alliance, Inc. previously established the Global Trade Alliance, Inc.
401(k) Plan on January 1, 1993.


 


Keystone
Automotive Industries, Inc. previously established the Keystone 401(k) Retirement
Plan on January 1, 1996.


 


Bodymaster Auto
Parts, Inc. previously established the Bodymaster Auto Parts, Inc.
401(k) Plan on January 1, 1997.


 


The Primary
Employer is of the opinion that these plans should be merged under this Plan.  It believes that the best means to accomplish
these changes is to completely restate the plan’s terms, provisions and
conditions.  The restatement, effective September 1,
2008, is set forth in this document and is substituted in lieu of the prior
documents with the exception of any good faith compliance amendment and any
model amendment.  Such amendment(s) shall
continue to apply to this restated plan until such provisions are integrated
into the plan or such amendment(s) are superseded by another amendment.  Notwithstanding the foregoing, the merger of
the Bodymaster Auto Parts, Inc. 401(k) Plan with this Plan shall not
be effective until September 3, 2008.


 


The restated plan
continues to be for the exclusive benefit of employees of the Employer.  All persons covered under the plan on August 31,
2008 (September 2, 2008, for employees of Bodymaster Auto Parts, Inc.),
shall continue to be covered under the restated plan with no loss of benefits.


 


It is intended
that the plan, as restated, shall qualify as a profit sharing plan under the
Internal Revenue Code of 1986, including any later amendments to the Code.


 


This plan includes
the statutory, regulatory, and guidance changes specified in the 2007
Cumulative List of Changes in Plan Qualification Requirements (2007 Cumulative
List) contained in Internal Revenue Service Notice 2007-94 and the
qualification requirements and guidance published before the issuance of such
list.  The provisions of this plan apply
as of the effective date of the restatement unless otherwise specified.


 


1

















 


ARTICLE I


 


FORMAT AND
DEFINITIONS


 


SECTION 1.01—FORMAT.


 


Words and phrases
defined in the DEFINITIONS SECTION of Article I shall have that
defined meaning when used in this Plan, unless the context clearly indicates
otherwise.


 


These words and
phrases have an initial capital letter to aid in identifying them as defined
terms.


 


SECTION 1.02—DEFINITIONS.


 


Account
means, for a Participant, his share of the Plan Fund.  Separate accounting records are kept for
those parts of his Account that result from:


 


(a)                          Pre-tax
Elective Deferral Contributions


 


(b)                         Matching
Contributions


 


(c)                          Qualified
Nonelective Contributions


 


(d)                         Other
Employer Contributions


 


(e)                          Rollover
Contributions


 


If the Participant’s
Vesting Percentage is less than 100% as to any of the Employer Contributions, a
separate accounting record will be kept for any part of his Account resulting
from such Employer Contributions and, if there has been a prior Forfeiture
Date, from such Contributions made before a prior Forfeiture Date.


 


A Participant’s
Account shall be reduced by any distribution of his Vested Account and by any
Forfeitures.  A Participant’s Account
shall participate in the earnings credited, expenses charged, and any appreciation
or depreciation of the Investment Fund. 
His Account is subject to any minimum guarantees applicable under the
Annuity Contract or other investment arrangement and to any expenses associated
therewith.


 


Accrual
Computation Period means a consecutive 12-month period ending
on the last day of each Plan Year, including corresponding consecutive 12-month
periods before August 1, 1999.


 


ACP
Test means the nondiscrimination test described in Code Section 401(m)(2) as
provided for in subparagraph (d) of the EXCESS AMOUNTS SECTION of Article III.


 


Active
Participant means an Eligible Employee who is actively
participating in the Plan according to the provisions in the ACTIVE PARTICIPANT
SECTION of Article II.


 


Adopting
Employer means an employer which is a Controlled Group member
and which is listed in the ADOPTING EMPLOYERS - SINGLE PLAN SECTION of Article II
or in the attached participation agreement.


 


ADP
Test means the nondiscrimination test described in Code Section 401(k)(3) as
provided for in subparagraph (c) of the EXCESS AMOUNTS SECTION of Article III.


 


2

















 


Affiliated
Service Group means any group of corporations, partnerships
or other organizations of which the Employer is a part and which is affiliated
within the meaning of Code Section 414(m) and the regulations
thereunder.  Such a group includes at
least two organizations one of which is either a service organization (that is,
an organization the principal business of which is performing services), or an
organization the principal business of which is performing management functions
on a regular and continuing basis.  Such
service is of a type historically performed by employees.  In the case of a management organization, the
Affiliated Service Group shall include organizations related, within the
meaning of Code Section 144(a)(3), to either the management organization
or the organization for which it performs management functions.  The term Controlled Group, as it is used in
this Plan, shall include the term Affiliated Service Group.


 


Alternate
Payee means any spouse, former spouse, child, or other
dependent of a Participant who is recognized by a qualified domestic relations
order as having a right to receive all, or a portion of, the benefits payable
under the Plan with respect to such Participant.


 


Annual
Compensation means, for a Plan Year, the Employee’s
Compensation for the Compensation Year ending with or within the consecutive
12-month period ending on the last day of the Plan Year.


 


Annuity
Contract means the annuity contract or contracts into which
the Trustee or the Primary Employer enters with the Insurer for guaranteed
benefits, for the investment of Contributions in separate accounts, and for the
payment of benefits under this Plan.


 


Annuity
Starting Date means, for a Participant, the first day of the
first period for which an amount is payable as an annuity or any other form.


 


Beneficiary
means the person or persons named by a Participant to receive any benefits
under the Plan when the Participant dies. 
See the BENEFICIARY SECTION of Article X.


 


Catch-up
Contributions means Elective Deferral Contributions made to
the Plan that are in excess of an otherwise applicable Plan limit and that are
made by Participants who are age 50 or older by the end of the taxable
year.  An otherwise applicable Plan limit
is a limit in the Plan that applies to Elective Deferral Contributions without
regard to Catch-up Contributions, such as the limits on the Maximum Annual
Additions, as defined in the CONTRIBUTION LIMITATION SECTION of Article III,
the dollar limitation on Elective Deferral Contributions under Code Section 402(g) (not
counting Catch-up Contributions), and the limit imposed by the ADP Test.


 


Catch-up
Contributions are not subject to the limits on the Maximum Annual Additions, as
defined in the CONTRIBUTION LIMITATION SECTION of Article III, are
not counted in the ADP Test, and are not counted in determining the minimum
allocation under Code Section 416 (but Catch-up Contributions made in
prior years are counted in determining whether the Plan is top-heavy).


 


Claimant
means any person who makes a claim for benefits under this Plan.  See the CLAIM PROCEDURES SECTION of Article IX.


 


Code
means the Internal Revenue Code of 1986, as amended.


 


Compensation
means, except for purposes of the CONTRIBUTION LIMITATION SECTION of Article III
and Article XI, the total earnings, except as modified in this definition,
from the Employer or a Predecessor Employer that did not maintain this Plan
during any specified period.  Earnings
from such Predecessor Employer shall be counted only if service continued with
the Employer without interruption. 
Earnings include earnings while a partner or proprietor of such
Predecessor Employer.


 


3

















 


“Earnings” in this
definition means wages, salaries, and fees for professional services and other
amounts received (without regard to whether or not an amount is paid in cash)
for personal services actually rendered in the course of employment with the
Employer maintaining the Plan to the extent that the amounts are includible in
gross income (including, but not limited to, commissions paid to salespersons,
compensation for services on the basis of a percentage of profits, commissions
on insurance premiums, tips, bonuses, fringe benefits, and reimbursements or
other expense allowances under a nonaccountable plan (as described in section
1.62-2(c) of the regulations)), and excluding the following:


 


(a)                          employer
contributions (other than elective contributions described in Code Section 402(e)(3),
408(k)(6), 408(p)(2)(A)(i), or 457(b)) to a plan of deferred compensation
(including a simplified employee pension described in Code Section 408(k) or
a simple retirement account described in Code Section 408(p), and whether
or not qualified) to the extent such contributions are not includible in the
Employee’s gross income for the taxable year in which contributed, and any
distributions (whether or not includible in gross income when distributed) from
a plan of deferred compensation (whether or not qualified);


 


(b)                         amounts
realized from the exercise of a nonstatutory stock option (that is, an option
other than a statutory stock option as defined in section 1.421-1(b) of
the regulations), 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
statutory stock option;


 


(d)                         other
amounts that receive special tax benefits, such as premiums for group-term life
insurance (but only to the extent that the premiums are not includible in the
gross income of the Employee and are not salary reduction amounts that are
described in Code Section 125); and


 


(e)                          other
items of remuneration that are similar to any of the items listed in (a) through
(d) above.


 


For any
Self-employed Individual, Compensation means Earned Income.


 


Except as provided
herein, Compensation for a specified period is the Compensation actually paid
or made available (or if earlier, includible in gross income) during such
period.


 


For Plan Years
beginning on or after July 1, 2007, Compensation for a Plan Year shall
also include Compensation paid by the later of 2 1/2 months after an
Employee’s Severance from Employment with the Employer maintaining the Plan or
the end of the Plan Year that includes the date of the Employee’s Severance
from Employment with the Employer maintaining the Plan, if the payment is regular
Compensation for services during the Employee’s regular working hours, or
Compensation for services outside the Employee’s regular working hours (such as
overtime or shift differential), commissions, bonuses, or other similar
payments, and, absent a Severance from Employment, the payments would have been
paid to the Employee while the Employee continued in employment with the
Employer.


 


Any payments not
described above shall not be considered Compensation if paid after Severance
from Employment, even if they are paid by the later of 2 1/2 months after the
date of Severance from Employment or the end of the Plan Year that includes the
date of Severance from Employment, except,
payments to an individual who does not currently perform services for the
Employer by reason of qualified military service (within the meaning of Code Section 414(u)(1))
to the extent these payments do not exceed the amounts the individual would
have received if the individual had continued to perform services for the
Employer rather than entering qualified military service.


 


4

















 


Back
pay, within the meaning of section 1.415(c)-2(g)(8) of the
regulations, shall be treated as Compensation for the Plan Year to which the
back pay relates to the extent the back pay represents wages and compensation
that would otherwise be included in this definition.


 


Compensation paid
or made available during a specified period shall include amounts that would
otherwise be included in Compensation but for an election under Code Section 125(a),
132(f)(4), 402(e)(3), 402(h)(1)(B), 402(k), or 457(b).  Compensation shall also include employee
contributions “picked up” by a governmental entity and, pursuant to Code Section 414(h)(2),
treated as Employer contributions.


 


Compensation shall
exclude reimbursements or other expense allowances, fringe benefits (cash and
noncash), moving expenses, deferred compensation (other than elective
contributions), and welfare benefits.


 


Compensation shall
exclude the following:


 


long-term
incentive plan payments


 


For purposes of
the EXCESS AMOUNTS SECTION of Article III, Compensation shall not
exclude those items listed above unless such Compensation is nondiscriminatory
in accordance with the regulations under Code Section 414(s).


 


For purposes of
the EXCESS AMOUNTS SECTION of Article III, the Employer may elect to
use an alternative nondiscriminatory definition of Compensation in accordance
with the regulations under Code Section 414(s).


 


For Plan Years
beginning on or after January 1, 2002, the annual Compensation of each
Participant taken into account in determining contributions and allocations for
any determination period (the period over which Compensation is determined)
shall not exceed $200,000, as adjusted for cost-of-living increases in
accordance with Code Section 401(a)(17)(B).  In modification of the foregoing, a
Participant may elect to have Elective Deferral Contributions made with respect
to Compensation which exceeds the annual compensation limit, provided such
Elective Deferral Contributions otherwise satisfy any applicable
limitations.  The cost-of-living
adjustment in effect for a calendar year applies to any determination period
beginning with or within such calendar year.


 


If a determination
period consists of fewer than 12 months, the annual compensation limit is an
amount equal to the otherwise applicable annual compensation limit multiplied
by a fraction.  The numerator of the
fraction is the number of months in the short determination period, and the
denominator of the fraction is 12.


 


If Compensation
for any prior determination period is taken into account in determining a
Participant’s contributions or allocations for the current Plan Year, the
Compensation for such prior determination period is subject to the applicable
annual compensation limit in effect for that determination period.  For this purpose, in determining
contributions and allocations in Plan Years beginning on or after January 1,
2002, the annual compensation limit in effect for determination periods
beginning before that date is $200,000.


 


Compensation
means, for a Leased Employee, Compensation for the services the Leased Employee
performs for the Employer, determined in the same manner as the Compensation of
Employees who are not Leased Employees, regardless of whether such Compensation
is received directly from the Employer or from the leasing organization.


 


Compensation
Year means the consecutive 12-month period ending on the last
day of each Plan Year, including corresponding periods before August 1,
1999.


 


5

















 


Contributions
means Employer Contributions and Rollover Contributions as set out in Article III,
unless the context clearly indicates only specific contributions are meant.


 


Controlled
Group means any group of corporations, trades, or businesses
of which the Employer is a part that is under common control.  A Controlled Group includes any group of
corporations, trades, or businesses, whether or not incorporated, which is
either a parent-subsidiary group, a brother-sister group, or a combined group
within the meaning of Code Section 414(b), Code Section 414(c) and
the regulations thereunder and, for purposes of determining contribution
limitations under the CONTRIBUTION LIMITATION SECTION of Article III,
as modified by Code Section 415(h). 
The term Controlled Group, as it is used in this Plan, shall include the
term Affiliated Service Group and any other employer required to be aggregated
with the Employer under Code Section 414(o) and the regulations
thereunder.


 


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


 


Discretionary
Contributions means discretionary contributions made by the
Employer to fund this Plan.  See the
EMPLOYER CONTRIBUTIONS SECTION of Article III.


 


Distributee
means an Employee or former Employee.  In
addition, the Employee’s (or former Employee’s) surviving spouse and the
Employee’s (or former Employee’s) spouse or former spouse who is the Alternate
Payee under a qualified domestic relations order, as defined in Code Section 414(p),
are Distributees with regard to the interest of the spouse or former spouse.


 


Earned
Income means, for a Self-employed Individual, net earnings
from self-employment in the trade or business for which this Plan is
established if such Self-employed Individual’s personal services are a material
income producing factor for that trade or business.  Net earnings shall be determined without
regard to items not included in gross income and the deductions properly
allocable to or chargeable against such items. 
Net earnings shall be reduced for the employer contributions to the
employer’s qualified retirement plan(s) to the extent deductible under
Code Section 404.


 


Net earnings shall
be determined with regard to the deduction allowed to the employer by Code Section 164(f) for
taxable years beginning after December 31, 1989.


 


Elective
Deferral Contributions means contributions made by the
Employer in accordance with elective deferral agreements between Eligible
Employees and the Employer.


 


Elective deferral
agreements shall be made, changed, or terminated according to the provisions of
the EMPLOYER CONTRIBUTIONS SECTION of Article III.


 


Elective Deferral Contributions
shall be 100% vested and subject to the distribution restrictions of Code Section 401(k) when
made.  See the WHEN BENEFITS START SECTION of
Article V.


 


Elective Deferral
Contributions means Pre-tax Elective Deferral Contributions.


 


Eligibility Break
in Service means an
Eligibility Computation Period in which an Employee is credited with 500 or
fewer Hours of Service.  An Employee
incurs an Eligibility Break in Service on the last day of an Eligibility
Computation Period in which he has an Eligibility Break in Service.


 


Eligibility
Computation Period means a consecutive 12-month period.  The first Eligibility Computation Period
begins on an Employee’s Employment Commencement Date.  Later Eligibility Computation Periods begin
on anniversaries of his Employment Commencement Date.


 


6
















 


To determine an Eligibility
Computation Period after an Eligibility Break in Service, the Plan shall use
the consecutive 12-month period beginning on an Employee’s Reemployment
Commencement Date as if his Reemployment Commencement Date were his Employment
Commencement Date.


 


Eligibility
Service means,
for purposes of Contributions other than Elective Deferral Contributions and
Matching Contributions, one year of service for each Eligibility Computation
Period that has ended and in which an Employee is credited with at least 1,000
Hours of Service.


 


For purposes of
Elective Deferral Contributions and Matching Contributions, Eligibility Service
means an Employee’s Period of Service. 
Eligibility Service shall be measured from his Employment Commencement
Date to his most recent Severance Date. 
This Period of Service shall be reduced by any Period of Severance that
occurred prior to his most recent Severance Date, unless such Period of
Severance is included under the service spanning rule below.  This period of Eligibility Service shall be
expressed as months (on the basis that 30 days equal one month).


 


However,
Eligibility Service is modified as follows:


 


Service with a
Predecessor Employer that did not maintain this Plan included:


 


An Employee’s
service with a Predecessor Employer that did not maintain this Plan shall be
included as service with the Employer. 
An Employee’s service with such Predecessor Employer shall be counted
only if service continued with the Employer without interruption.  This service includes service performed while
a proprietor or partner.


 


Period of Military
Duty included:


 


A Period of
Military Duty shall be included as service with the Employer to the extent it
has not already been credited.  For
purposes of crediting Hours of Service during the Period of Military Duty, an
Hour of Service shall be credited (without regard to the 501 Hour of Service
limitation) for each hour an Employee would normally have been scheduled to
work for the Employer during such period.


 


Period of
Severance included (service spanning rule):


 


A Period of
Severance shall be deemed to be a Period of Service under either of the
following conditions:


 


(a)                          the Period of Severance immediately
follows a period during which an Employee is not absent from work and ends
within 12 months; or


 


(b)                         the Period of Severance immediately
follows a period during which an Employee is absent from work for any reason
other than quitting, being discharged, or retiring (such as a leave of absence
or layoff) and ends within 12 months of the date he was first absent.


 


Controlled Group
service included:


 


An Employee’s service with a member
firm of a Controlled Group while both that firm and the Employer were members
of the Controlled Group shall be included as service with the Employer.


 


Eligible
Employee means
any Employee of the Employer excluding the following:


 


7

















 


Bargaining class, unless
the collective bargaining agreement specifically provides for participation in
this Plan.  Represented for collective
bargaining purposes by any collective bargaining agreement between the Employer
and employee representatives, if retirement benefits were the subject of good
faith bargaining and if two percent or less of the Employees who are covered pursuant
to that agreement are professionals as defined in section 1.410(b)-9 of the
regulations.  For this purpose, the term “employee
representatives” does not include any organization more than half of whose
members are Employees who are owners, officers, or executives of the Employer.


 


Nonresident alien, within
the meaning of Code Section 7701(b)(1)(B), who receives no earned income,
within the meaning of Code Section 911(d)(2), from the Employer that
constitutes income from sources within the United States, within the meaning of
Code Section 861(a)(3), or who receives such earned income but it is all
exempt from income tax in the United States under the terms of an income tax
convention.


 


Leased Employee.


 


An Employee considered by
the Employer to be an independent contractor, or the employee of an independent
contractor, who is later determined by the Internal Revenue Service to be an
Employee.


 


However, to the
extent an Employee becomes an Employee as a result of a Code Section 410(b)(6)(C) transaction,
that Employee shall not be an Eligible Employee during the period beginning on
the date of the transaction and ending on the last day of the first Plan Year
beginning after the date of the transaction. 
This period is called the transition period.  The transition period may end earlier if
there is a significant change in the coverage under the Plan or if the Employer chooses to cover all
similarly situated Employees as of an earlier date.  A Code Section 410(b)(6)(C) transaction
is an asset or stock acquisition, merger, or similar transaction involving a
change in the employer of the employees of a trade or business.


 


Eligible
Retirement Plan
means an eligible plan under Code Section 457(b) 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, an individual
retirement account described in Code Section 408(a), an individual retirement
annuity described in Code Section 408(b), an annuity plan described in
Code Section 403(a), an annuity contract described in Code Section 403(b),
or a qualified plan described in Code Section 401(a), 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
Code Section 414(p).


 


For taxable years
beginning on or after January 1, 2006, 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 (i) another designated Roth account of the
individual from whose Account the payments or distributions were made under an
annuity plan described in Code Section 403(a) or a qualified plan
described in Code Section 401(a); (ii) another designated Roth
account of such individual under an annuity contract described in Code Section 403(b);
or (iii) a Roth IRA described in Code Section 408A of such
individual.


 


Eligible
Rollover Distribution means 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:  (i) any distribution
that is one of a series of substantially equal periodic payments (not less
frequently than annually) made for the life (or life expectancy) of 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
years or more; (ii) any distribution to the extent such distribution is
required under Code Section 401(a)(9); (iii) any hardship
distribution; (iv) the portion 


 


8

















 


of any other
distribution(s) that is not includible in gross income (determined without
regard to the exclusion for net unrealized appreciation with respect to
employer securities); and (v) any other distribution(s) that is
reasonably expected to total less than $200 during a year.


 


A portion of a
distribution shall not fail to be an Eligible Rollover Distribution merely
because the portion consists of after-tax employee contributions that are not
includible in gross income.  However,
such portion may be transferred only to an individual retirement account or
individual retirement annuity described in Code Section 408(a) or
(b), or to a qualified defined contribution plan described in Code Section 401(a) or
403(a) that agrees to separately account for amounts so transferred,
including separately accounting for the portion of such distribution which is
includible in gross income and the portion of such distribution which is not so
includible.


 


A portion of a
distribution shall not fail to be an Eligible Rollover Distribution merely
because the portion consists of the portion of a designated Roth account that
is not includible in a Participant’s gross income.  However, for taxable years beginning on or
after January 1, 2006, such portion may be transferred only to a Roth IRA
described in Code Section 408A or to a designated Roth account under
another plan that agrees to separately account for amounts so transferred,
including separately accounting for the portion of such distribution which is
includible in gross income and the portion of such distribution which is not so
includible.


 


If the
distribution includes any portion of a designated Roth account, in determining
if (v) above applies: (i) any portion of the distribution from the
designated Roth account shall not be treated as an Eligible Rollover
Distribution if it is reasonably expected to total less than $200 during a year
and (ii) the balance of the distribution, if any, shall not be treated as
an Eligible Rollover Distribution if it is reasonably expected to total less
than $200 during a year.  In addition,
for taxable years beginning on or after January 1, 2006, a designated Roth
account and all other accounts under the Plan shall be treated as accounts held
under two separate plans and shall not be combined in determining a mandatory
distribution of an Eligible Rollover Distribution greater than $1,000 in the
DIRECT ROLLOVERS SECTION of Article X.


 


Employee means an individual who is employed by
the Employer or any other employer required to be aggregated with the Employer
under Code Sections 414(b), (c), (m), or (o). 
A Controlled Group member is required to be aggregated with the
Employer.


 


The term Employee
shall include any Self-employed Individual treated as an employee of any
employer described in the preceding paragraph as provided in Code Section 401(c)(1).  The term Employee shall also include any
Leased Employee deemed to be an employee of any employer described in the
preceding paragraph as provided in Code Section 414(n) or (o).


 


Employer means, except for purposes of the
CONTRIBUTION LIMITATION SECTION of Article III, the Primary
Employer.  This will also include any
successor corporation or firm of the Employer which shall, by written
agreement, assume the obligations of this Plan or any Predecessor Employer that
maintained this Plan.


 


Employer
Contributions
means


 


Elective Deferral
Contributions


Matching Contributions


Qualified
Nonelective Contributions


Discretionary
Contributions


 


as set out in Article III
and contributions made by the Employer to fund this Plan in accordance with the
provisions of the MODIFICATION OF CONTRIBUTIONS SECTION of Article XI,
unless the context clearly indicates only specific contributions are meant.


 


9

















 


Employment
Commencement Date
means the date an Employee first performs an Hour of Service.


 


Entry
Date means the
date an Employee first enters the Plan as an Active Participant for purposes of
specified Contributions in the ACTIVE PARTICIPANT SECTION of Article II.


 


ERISA means the Employee Retirement Income
Security Act of 1974, as amended.


 


Fiscal
Year means the
Primary Employer’s taxable year.  The
last day of the Fiscal Year is December 31.


 


Forfeiture means the part, if any, of a Participant’s
Account that is forfeited.  See the
FORFEITURES SECTION of Article III.


 


Forfeiture
Date means, as to
a Participant, the date the Participant incurs five consecutive Vesting Breaks
in Service.


 


Highly
Compensated Employee
means any Employee who:


 


(a)                          was a 5-percent owner at any time during
the year or the preceding year, or


 


(b)                         for the preceding year had compensation
from the Employer in excess of $80,000 and, if the Employer so elects, was in
the top-paid group for the preceding year. 
The $80,000 amount is adjusted at the same time and in the same manner
as under Code Section 415(d), except that the base period is the calendar
quarter ending September 30, 1996.


 


For this purpose the applicable
year of the plan for which a determination is being made is called a
determination year and the preceding 12-month period is called a look-back
year.  If the Employer makes a calendar year
data election, the look-back year shall be the calendar year beginning with or
within the look-back year.  The Plan may
not use such election to determine whether Employees are Highly Compensated
Employees on account of being a 5-percent owner.


 


In determining who
is a Highly Compensated Employee, the Employer does not make a top-paid group
election.  In determining who is a Highly
Compensated Employee, the Employer does not make a calendar year data election.


 


Calendar year data elections and
top-paid group elections, once made, apply for all subsequent years unless
changed by the Employer.  If the Employer
makes one election, the Employer is not required to make the other.  If both elections are made, the look-back
year in determining the top-paid group must be the calendar year beginning with
or within the look-back year.  These
elections must apply consistently to the determination years of all plans
maintained by the Employer which reference the highly compensated employee definition
in Code Section 414(q), except as provided in Internal Revenue Service
Notice 97-45 (or superseding guidance).


 


The determination of who is a
highly compensated former Employee is based on the rules applicable to
determining Highly Compensated Employee status as in effect for that determination
year, in accordance with section 1.414(q)-1T, A-4 of the temporary Income Tax
Regulations and Internal Revenue Service Notice 97-45.


 


The determination
of who is a Highly Compensated Employee, including the determinations of the
number and identity of Employees in the top-paid group, the compensation that
is considered, and the identity of the 5-percent owners, shall be made in
accordance with Code Section 414(q) and the regulations thereunder.


 


10

















 


Hour
of Service means,
for the elapsed time method of crediting service in this Plan, each hour for
which an Employee is paid, or entitled to payment, for performing duties for
the Employer.  Hour of Service means, for
the hours method of crediting service in this Plan, the following:


 


(a)                          Each hour for which an Employee is paid,
or entitled to payment, for performing duties for the Employer during the
applicable computation period.


 


(b)                         Each hour for which an
Employee is paid, or entitled to payment, by the Employer on account of a
period of time in 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
provisions of this subparagraph (b), no credit will be given to the Employee:


 


(1)         for more than 501 Hours of Service under
this subparagraph (b) on account of any single continuous period in which
the Employee performs no duties (whether or not such period occurs in a single
computation period); or


 


(2)         for an Hour of Service for which the
Employee is directly or indirectly paid, or entitled to payment, on account of
a period in which no duties are performed if such payment is made or due under
a plan maintained solely for the purpose of complying with applicable worker’s
or workmen’s compensation, or unemployment compensation, or disability
insurance laws; or


 


(3)         for an Hour of Service for a payment
which solely reimburses the Employee for medical or medically related expenses
incurred by him.


 


For purposes of
this subparagraph (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)                          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 subparagraph (a) or subparagraph (b) above
(as the case may be) and under this subparagraph (c).  Crediting of Hours of Service for back pay
awarded or agreed to with respect to periods described in subparagraph (b) above
will be subject to the limitations set forth in that subparagraph.


 


The crediting of Hours of Service
above shall be applied under the rules of paragraphs (b) and (c) of
the Department of Labor Regulation 2530.200b-2 (including any interpretations
or opinions implementing such rules); which rules, by this reference, are
specifically incorporated in full within this Plan.  The reference to paragraph (b) applies
to the special rule for determining Hours of Service for reasons other
than the performance of duties such as payments calculated (or not calculated)
on the basis of units of time and the rule against double credit.  The reference to paragraph (c) applies
to the crediting of Hours of Service to computation periods.


 


Hours of Service
shall be credited for employment with any other employer required to be
aggregated with the Employer under Code Sections 414(b), (c), (m), or (o) and
the regulations thereunder for purposes of eligibility and vesting.  Hours of Service shall also be credited for
any individual who is considered an employee for purposes of this Plan pursuant
to Code Section 414(n) or (o) and the regulations thereunder.


 


11

















 


Solely for
purposes of determining whether a one-year break in service has occurred for
eligibility or vesting purposes, during a Parental Absence an Employee shall be
credited with the Hours of Service which would otherwise have been credited to
the Employee but for such absence, or in any case in which such hours cannot be
determined, eight Hours of Service per day of such absence.  The Hours of Service credited under this
paragraph shall be credited in the computation period in which the absence
begins if the crediting is necessary to prevent a break in service in that
period; or in all other cases, in the following computation period.


 


Inactive
Participant means
a former Active Participant who has an Account. 
See the INACTIVE PARTICIPANT SECTION of Article II.


 


Insurer means Principal Life Insurance Company
or the insurance company or companies named by (i) the Primary Employer or
(ii) the Trustee in its discretion or as directed under the Trust
Agreement.


 


Investment
Fund means the
total of Plan assets, excluding the guaranteed benefit policy portion of any
Annuity Contract.  All or a portion of
these assets may be held under, or invested pursuant to, the terms of a Trust
Agreement.


 


The Investment Fund shall be valued
at current fair market value as of the Valuation Date.  The valuation shall take into consideration
investment earnings credited, expenses charged, payments made, and changes in
the values of the assets held in the Investment Fund.


 


The Investment
Fund shall be allocated at all times to Participants, except as otherwise
expressly provided in the Plan.  The
Account of a Participant shall be credited with its share of the gains and
losses of the Investment Fund.  That part
of a Participant’s Account invested in a funding arrangement that establishes
one or more accounts or investment vehicles for such Participant thereunder
shall be credited with the gain or loss from such accounts or investment
vehicles.  The part of a Participant’s
Account that is invested in other funding arrangements shall be credited with a
proportionate share of the gain or loss of such investments.  The share shall be determined by multiplying
the gain or loss of the investment by the ratio of the part of the Participant’s
Account invested in such funding arrangement to the total of the Investment
Fund invested in such funding arrangement.


 


Investment
Manager means any
fiduciary (other than a trustee or Named Fiduciary)


 


(a)                          who has the power to manage, acquire, or
dispose of any assets of the Plan;


 


(b)                         who (i) is registered as an
investment adviser under the Investment Advisers Act of 1940; (ii) is not
registered as an investment adviser under such Act by reason of paragraph (1) of
section 203A(a) of such Act, is registered as an investment adviser under
the laws of the state (referred to in such paragraph (1)) in which it maintains
its principal office and place of business, and, at the time it last filed the
registration form most recently filed by it with such state in order to
maintain its registration under the laws of such state, also filed a copy of
such form with the Secretary of Labor; (iii) is a bank, as defined in that
Act; or (iv) is an insurance company qualified to perform services
described in subparagraph (a) above under the laws of more than one state;
and


 


(c)                          who has acknowledged in writing being a
fiduciary with respect to the Plan.


 


Late
Retirement Date
means any day that is after a Participant’s Normal Retirement Date and on which
retirement benefits begin.  If a
Participant continues to work for the Employer after his Normal Retirement
Date, his Late Retirement Date shall be the day he has a Severance from Employment.  An earlier Retirement Date may apply if the
Participant so elects.  A later
Retirement Date may apply if the Participant so elects.  See the WHEN BENEFITS START SECTION of Article V.


 


12

















 


Leased
Employee means
any person (other than an employee of the recipient) who, pursuant to an
agreement between the recipient and any other person (“leasing organization”),
has performed services for the recipient (or for the recipient and related
persons determined in accordance with Code Section 414(n)(6)) on a
substantially full time basis for a period of at least one year, and such
services are performed under primary direction or control by the
recipient.  Contributions or benefits
provided by the leasing organization to a Leased Employee, which are
attributable to service performed for the recipient employer, shall be treated
as provided by the recipient employer.


 


A Leased Employee
shall not be considered an employee of the recipient if:


 


(a)                          such employee is covered by a money
purchase pension plan providing (i) a nonintegrated employer contribution
rate of at least 10 percent of compensation, as defined in Code Section 415(c)(3),
(ii) immediate participation, and (iii) full and immediate vesting,
and


 


(b)                         Leased Employees do not constitute more
than 20 percent of the recipient’s nonhighly compensated work force.


 


Loan
Administrator
means the person(s) or position(s) authorized to administer the
Participant loan program.


 


The Loan
Administrator is the Plan Administrator.


 


Matching
Contributions
means contributions made by the Employer to fund this Plan that are contingent
on a Participant’s Elective Deferral Contributions.  See the EMPLOYER CONTRIBUTIONS SECTION of
Article III.


 


Monthly Date means each Yearly Date and the same day
of each following month during the Plan Year beginning on such Yearly Date.


 


Named Fiduciary means the person or persons who have
authority to control and manage the operation and administration of the Plan.


 


The
Named Fiduciary is the Employer.


 


Nonhighly Compensated Employee means an
Employee of the Employer who is not a Highly Compensated Employee.


 


Nonvested Account means the
excess, if any, of a Participant’s Account over his Vested Account.


 


Normal Retirement Age means the
age at which the Participant’s normal retirement benefit becomes nonforfeitable
if he is an Employee.  A Participant’s
Normal Retirement Age is 65.


 


Normal Retirement Date means the
date the Participant reaches his Normal Retirement Age.  Unless otherwise provided in this Plan, a
Participant’s retirement benefits shall begin on his Normal Retirement Date if
he has had a Severance from Employment on such date.  Even if the Participant is an Employee on his
Normal Retirement Date, he may choose to have his retirement benefit begin on
such date.


 


Parental Absence means an Employee’s absence from work:


 


(a)                          by reason of
pregnancy of the Employee,


 


(b)                         by reason of
birth of a child of the Employee,


 


13

















 


(c)                          by reason of
the placement of a child with the Employee in connection with adoption of such
child by such Employee, or


 


(d)                         for purposes
of caring for such child for a period beginning immediately following such
birth or placement.


 


Participant means either an Active Participant or an
Inactive Participant.


 


Period of Military Duty means, for
an Employee


 


(a)                          who served
as a member of the armed forces of the United States, and


 


(b)                         who was
reemployed by the Employer at a time when the Employee had a right to
reemployment in accordance with seniority rights as protected under Chapter 43
of Title 38 of the U.S. Code,


 


the
period of time from the date the Employee was first absent from active work for
the Employer because of such military duty to the date the Employee was reemployed.


 


Period of Service means a
period of time beginning on an Employee’s Employment Commencement Date or
Reemployment Commencement Date (whichever applies) and ending on his Severance
Date.


 


Period of Severance means a
period of time beginning on an Employee’s Severance Date and ending on the date
he again performs an Hour of Service.


 


A
one-year Period of Severance means a Period of Severance of 12 consecutive
months.


 


Solely
for purposes of determining whether a one-year Period of Severance has occurred
for eligibility or vesting purposes, the consecutive 12-month period beginning
on the first anniversary of the first date of a Parental Absence shall not be a
one-year Period of Severance.


 


Plan means the 401(k) retirement plan of
the Employer set forth in this document, including any later amendments to it.


 


Plan Administrator means the
person or persons who administer the Plan.


 


The
Plan Administrator is the Employer.


 


Plan Fund means the total of the Investment Fund
and the guaranteed benefit policy portion of any Annuity Contract.  The Investment Fund shall be valued as stated
in its definition.  The guaranteed
benefit policy portion of any Annuity Contract shall be determined in
accordance with the terms of the Annuity Contract and, to the extent that such
Annuity Contract allocates contract values to Participants, allocated to
Participants in accordance with its terms. 
The total value of all amounts held under the Plan Fund shall equal the
value of the aggregate Participants’ Accounts under the Plan.


 


Plan Year means a period beginning on a Yearly
Date and ending on the day before the next Yearly Date.


 


Predecessor Employer means,
except for purposes of the CONTRIBUTION LIMITATION SECTION of Article III,
a firm of which the Employer was once a part (e.g., due to a spinoff or change
of corporate status) or a firm absorbed by the Employer because of a merger or
acquisition (stock or asset, including a division or an operation of such
company), unless otherwise specified in the acquisition agreement.


 


14

















 


Pre-tax Elective Deferral Contributions means a
Participant’s Elective Deferral Contributions that are not includible in the
Participant’s gross income at the time deferred.


 


Primary Employer means LKQ Corporation.


 


Qualified Matching Contributions means
Matching Contributions that are 100% vested when made to the Plan and that are
distributable only in accordance with the distribution provisions (other than
for hardships) applicable to Elective Deferral Contributions.


 


Qualified Nonelective Contributions means
contributions made by the Employer to fund this Plan (other than Elective
Deferral Contributions) that are 100% vested when made to the Plan and that are
distributable only in accordance with the distribution provisions (other than
for hardships) applicable to Elective Deferral Contributions. See the EMPLOYER
CONTRIBUTIONS SECTION of Article III and the WHEN BENEFITS START SECTION of
Article V.


 


Quarterly Date means each Yearly Date and the third,
sixth, and ninth Monthly Date after each Yearly Date that is within the same
Plan Year.


 


Reemployment Commencement Date means the
date an Employee first performs an Hour of Service following an Eligibility
Break in Service or a Period of Severance, whichever applies.


 


Reentry Date means the date a former Active
Participant reenters the Plan.  See the
ACTIVE PARTICIPANT SECTION of Article II.


 


Retirement Date means the date a retirement benefit will
begin and is a Participant’s Normal or Late Retirement Date, as the case may
be.


 


Rollover Contributions means the
Rollover Contributions which are made by an Eligible Employee or an Inactive
Participant according to the provisions of the ROLLOVER CONTRIBUTIONS SECTION of
Article III.


 


Self-employed
Individual means,
with respect to any taxable year, an individual who has Earned Income for the
taxable year (or who would have Earned Income but for the fact the trade or
business for which this Plan is established did not have net profits for such
taxable year).


 


Severance Date means the earlier of:


 


(a)                          the date on
which an Employee quits, retires, dies, or is discharged, or


 


(b)                         the first
anniversary of the date an Employee begins a one-year absence from service
(with or without pay).  This absence may
be the result of any combination of vacation, holiday, sickness, disability,
leave of absence, or layoff.


 


Solely
to determine whether a one-year Period of Severance has occurred for
eligibility or vesting purposes for an Employee who is absent from service
beyond the first anniversary of the first day of a Parental Absence, Severance
Date is the second anniversary of the first day of the Parental Absence.  The period between the first and second
anniversaries of the first day of the Parental Absence is not a Period of
Service and is not a Period of Severance.


 


Severance from Employment means,
except for purposes of the CONTRIBUTION LIMITATION SECTION of Article III,
an Employee has ceased to be an Employee. 
The Plan Administrator shall determine if a Severance from Employment has
occurred in accordance with section 1.401(k)-1(d)(2) of the regulations.


 


15

















 


Totally and Permanently Disabled means that
a Participant is disabled, as a result of sickness or injury, to the extent
that he is prevented from engaging in any substantial gainful activity as
determined by a certified physician, or as approved by the Plan Administrator,
or is eligible for and receives a disability benefit under Title II of the
Federal Social Security Act.


 


Trust Agreement means an agreement or agreements of
trust between the Primary Employer and Trustee established for the purpose of
holding and distributing the Trust Fund under the provisions of the Plan.  The Trust Agreement may provide for the
investment of all or any portion of the Trust Fund in the Annuity Contract or
any other investment arrangement.


 


Trust Fund means the total funds held under an
applicable Trust Agreement.  The term
Trust Fund when used within a Trust Agreement shall mean only the funds held
under that Trust Agreement.


 


Trustee means the party or parties named in the
applicable Trust Agreement.


 


Valuation Date means the date on which the value of the
assets of the Investment Fund is determined. 
The value of each Account that is maintained under this Plan shall be
determined on the Valuation Date.  In
each Plan Year, the Valuation Date shall be the last day of the Plan Year.  At the discretion of the Plan Administrator,
Trustee, or Insurer (whichever applies) and in a nondiscriminatory manner,
assets of the Investment Fund may be valued more frequently.  These dates shall also be Valuation Dates.


 


Vested Account means the vested part of a Participant’s
Account.  The Participant’s Vested
Account is determined as follows:


 


If
the Participant’s Vesting Percentage for all Employer Contributions is 100%,
his Vested Account equals his Account.


 


If
the Participant’s Vesting Percentage for all Employer Contributions is not
100%, his Vested Account equals the sum of (a) and (b) below:


 


(a)                          The part of the
Participant’s Account resulting from Employer Contributions made before a prior
Forfeiture Date and all other Contributions that were 100% vested when made.


 


(b)                         The balance
of the Participant’s Account in excess of the amount in (a) above
multiplied by his Vesting Percentage.  If
his Vesting Percentages that apply to such Employer Contributions are not
equal, the balance of his Account resulting from all types of Employer
Contributions subject to the same Vesting Percentage shall be multiplied by the
applicable Vesting Percentage and each product added together to determine this
amount.


 


If
the Participant has withdrawn any part of his Account resulting from Employer
Contributions, other than the vested Employer Contributions included in (a) above,
and his Vesting Percentage with respect to such Contributions is less than 100%,
the amount determined under this subparagraph (b) shall be equal to P(AB +
D) - D as defined below:


 


P                                 The
Participant’s Vesting Percentage.


 


AB                      The balance
of the Participant’s Account in excess of the amount in (a) above.


 


D                               The amount
of the withdrawal resulting from Employer Contributions, other than the vested
Employer Contributions included in (a) above.


 


16






 












 


If the amount determined
in this (b) is determined using different Vesting Percentages, this
formula shall apply separately to the calculation done for the balance of his
Account resulting from all types of Employer Contributions subject to the same
Vesting Percentage, including only the balance of his Account in excess of the
amount in (a) above resulting from Employer Contributions subject to the
same Vesting Percentage and the amount of the withdrawal resulting from such
Employer Contributions.  This calculation
is not required if the Vesting Percentage is 100%.


 


Vesting
Break in Service means a Vesting Computation Period in which
an Employee is credited with 500 or fewer Hours of Service.  An Employee incurs a Vesting Break in Service
on the last day of a Vesting Computation Period in which he has a Vesting Break
in Service.


 


Vesting
Computation Period means a consecutive 12-month period ending
on the last day of each Plan Year, including corresponding consecutive 12-month
periods before August 1, 1999.


 


Vesting
Percentage means the percentage used to determine the
nonforfeitable portion of a Participant’s Account attributable to Employer
Contributions that were not 100% vested when made.


 


For purposes of Employer
Contributions other than Matching Contributions, a Participant’s Vesting
Percentage is shown in the following schedule opposite the number of whole
years of his Vesting Service.


 


	
  VESTING SERVICE 

  (whole years)

  	
   

  	
  VESTING

  PERCENTAGE

  
	
   

  	
   

  	
   

  
	
  Less than 1

  	
   

  	
  0

  
	
  1

  	
   

  	
  25

  
	
  2

  	
   

  	
  50

  
	
  3

  	
   

  	
  75

  
	
  4 or more

  	
   

  	
  100

  



 


For purposes of Matching
Contributions, a Participant’s Vesting Percentage is shown in the following
schedule opposite the number of whole years of his Vesting Service.


 


	
  VESTING SERVICE 

  (whole years)

  	
   

  	
  VESTING

  PERCENTAGE

  
	
   

  	
   

  	
   

  
	
  Less than 2

  	
   

  	
  0

  
	
  2

  	
   

  	
  50

  
	
  3

  	
   

  	
  75

  
	
  4 or more

  	
   

  	
  100

  



 


The Vesting Percentage
for a Participant who is an Employee on or after the date he reaches Normal
Retirement Age shall be 100%.  The
Vesting Percentage for a Participant who is an Employee on the date he dies
shall be 100%.  The Vesting Percentage
for a Participant who is an Employee on the date he becomes disabled shall be
100% if such disability is subsequently determined to meet the definition of
Totally and Permanently Disabled.


 


If the schedule used to
determine a Participant’s Vesting Percentage is changed, the new schedule shall
not apply to a Participant unless he is credited with an Hour of Service on or
after the date of the change and the Participant’s nonforfeitable percentage on
the day before the date of the change is not reduced under this Plan.  The amendment provisions of the AMENDMENTS SECTION of
Article X regarding changes in the computation of the Vesting Percentage
shall apply.


 


17

















 


Vesting
Service means one year of service for each Vesting
Computation Period in which an Employee is credited with at least 1,000 Hours
of Service.


 


However, Vesting Service
is modified as follows:


 


Service with a
Predecessor Employer that did not maintain this Plan included:


 


An Employee’s service with
a Predecessor Employer that did not maintain this Plan shall be included as
service with the Employer.  An Employee’s
service with such Predecessor Employer shall be counted only if service
continued with the Employer without interruption.  This service includes service performed while
a proprietor or partner.


 


Period of Military Duty
included:


 


A Period of Military Duty
shall be included as service with the Employer to the extent it has not already
been credited.  For purposes of crediting
Hours of Service during the Period of Military Duty, an Hour of Service shall
be credited (without regard to the 501 Hour of Service limitation) for each
hour an Employee would normally have been scheduled to work for the Employer
during such period.


 


Controlled Group service
included:


 


An Employee’s service
with a member firm of a Controlled Group while both that firm and the Employer
were members of the Controlled Group shall be included as service with the
Employer.


 


Yearly
Date means August 1, 1999, and each following January 1.


 


Years of
Service means an Employee’s Vesting Service disregarding any
modifications that exclude service.


 


18

















 


ARTICLE II


 


PARTICIPATION


 


SECTION 2.01—ACTIVE
PARTICIPANT.


 


(a)                          For
purposes of Elective Deferral Contributions and Matching Contributions, an
Employee shall first become an Active Participant (begin active participation
in the Plan) on the earliest Quarterly Date on which he is an Eligible Employee
and has met both of the eligibility requirements set forth below.  This date is his Entry Date for purposes of
such Contributions.


 


(1)        He
has completed six months of Eligibility Service before his Entry Date.


 


(2)        He
is age 21 or older.


 


For purposes of
Contributions other than Elective Deferral Contributions or Matching
Contributions, an Employee shall first become an Active Participant (begin
active participation in the Plan) on the earliest Quarterly Date on which he is
an Eligible Employee and has met both of the eligibility requirements set forth
below.  This date is his Entry Date for
purposes of such Contributions.


 


(3)        He
has completed one year of Eligibility Service before his Entry Date.


 


(4)        He
is age 21 or older.


 


A Participant’s earliest
Entry Date shall be used to determine if he is an Active Participant for
purposes of any minimum contribution or allocation under the MODIFICATION OF
CONTRIBUTIONS SECTION of Article XI.


 


Each Employee who was an
Active Participant for purposes of specified Contributions under this Plan, the
Global Trade Alliance, Inc. 401(k) Plan, or the Keystone 401(k) Retirement
Plan on August 31, 2008, shall continue to be an Active Participant for
purposes of the specified Contributions under this Plan if he is still an
Eligible Employee on September 1, 2008, and his Entry Date shall not
change.


 


Each Employee who was an
Active Participant for purposes of specified Contributions under the Bodymaster
Auto Parts, Inc. 401(k) Plan on September 2, 2008, shall
continue to be an Active Participant for purposes of the specified
Contributions under this Plan if he is still an Eligible Employee on September 3,
2008, and his Entry Date shall not change.


 


If service with a
Predecessor Employer is counted for purposes of Eligibility Service, an
Employee shall be credited with such service on the date he becomes an Employee
and shall become an Active Participant for purposes of specified Contributions
which have an Eligibility Service requirement on the earliest Entry Date for
such Contributions on which he is an Eligible Employee and has met all of the
eligibility requirements for such Contributions above.  This date is his Entry Date for purposes of
such Contributions.


 


If a person has been an
Eligible Employee who has met all of the eligibility requirements for purposes
of specified Contributions above, but is not an Eligible Employee on the date
that would have been his Entry Date for purposes of such Contributions, he
shall become an Active Participant for purposes of such Contributions on the
date he again becomes an Eligible Employee. 
This date is his Entry Date for purposes of such Contributions.


 


19

















 


In the event an Employee
who is not an Eligible Employee becomes an Eligible Employee, such Eligible
Employee shall become an Active Participant for purposes of specified
Contributions immediately if such Eligible Employee has satisfied the
eligibility requirements for purposes of such Contributions above and would
have otherwise previously become an Active Participant for purpose of such
Contributions had he met the definition of Eligible Employee.  This date is his Entry Date for purposes of
such Contributions.


 


(b)                         An
Inactive Participant shall again become an Active Participant (resume active
participation in the Plan) for purposes of the Contributions for which he
previously had an Entry Date on the date he again performs an Hour of Service
as an Eligible Employee.  This date is
his Reentry Date for such Contributions.


 


Upon again becoming an
Active Participant, he shall cease to be an Inactive Participant.


 


(c)                          A former
Participant shall again become an Active Participant (resume active
participation in the Plan) for purposes of the Contributions for which he
previously had an Entry Date on the date he again performs an Hour of Service
as an Eligible Employee.  This date is
his Reentry Date for such Contributions.


 


There shall be no
duplication of benefits for a Participant because of more than one period as an
Active Participant.


 


SECTION 2.02—INACTIVE PARTICIPANT.


 


An Active Participant
shall become an Inactive Participant (stop accruing benefits) on the earlier of
the following:


 


(a)        the date the Participant ceases to be an
Eligible Employee, or


 


(b)        the effective date of complete
termination of the Plan under Article VIII.


 


An Employee or former
Employee who was an Inactive Participant under this Plan, the Global Trade
Alliance, Inc. 401(k) Plan, or the Keystone 401(k) Retirement Plan on
August 31, 2008, shall continue to be an Inactive Participant under this
Plan on September 1, 2008.  An
Employee or former Employee who was an Inactive Participant under the
Bodymaster Auto Parts, Inc. 401(k) Plan on September 2, 2008,
shall continue to be an Inactive Participant under this Plan on September 3,
2008.    Eligibility for any benefits
payable to the Participant or on his behalf and the amount of the benefits
shall be determined according to the provisions of the prior document, unless
otherwise stated in this document or any subsequent documents.


 


SECTION 2.03—CESSATION
OF PARTICIPATION.


 


A Participant shall cease
to be a Participant on the date he is no longer an Eligible Employee and his
Account is zero.


 


SECTION 2.04—ADOPTING EMPLOYERS - SINGLE PLAN.


 


Each of the Controlled
Group members listed below or in the attached participation agreement is an
Adopting Employer.  Each Adopting
Employer participates with the Employer in this Plan.  An Adopting Employer’s agreement to
participate in this Plan shall be in writing.


 


20

















 


The Employer has the
right to amend the Plan.  An Adopting
Employer does not have the right to amend the Plan.


 


If the Adopting Employer
did not maintain its plan before its date of adoption, its date of adoption
shall be the Entry Date for any of its Employees who have met the requirements
in the ACTIVE PARTICIPANT SECTION of this article as of that date.  Service with and Compensation from an
Adopting Employer shall be included as service with and Compensation from the
Employer.  Transfer of employment,
without interruption, between an Adopting Employer and another Adopting
Employer or the Employer shall not be considered an interruption of
service.  The Employer’s Fiscal Year
defined in the DEFINITIONS SECTION of Article I shall be the Fiscal
Year used in interpreting this Plan for Adopting Employers.


 


Contributions made by an
Adopting Employer shall be treated as Contributions made by the Employer.  Forfeitures arising from those Contributions
shall be used for the benefit of all Participants.


 


An employer shall not be
an Adopting Employer if it ceases to be a Controlled Group member.  Such an employer may continue a retirement
plan for its Employees in the form of a separate document.  This Plan shall be amended to delete a former
Adopting Employer from the list below.


 


If (i) an employer
ceases to be an Adopting Employer or the Plan is amended to delete an Adopting
Employer and (ii) the Adopting Employer does not continue a retirement
plan for the benefit of its Employees, partial termination may result and the
provisions of Article VIII shall apply.


 


ADOPTING EMPLOYERS


 


	
  NAME

  
	
   

  
	
  1323342 Alberta ULC

  
	
  1323352 Alberta ULC

  
	
  1323410 Alberta ULC

  
	
  A-Reliable Auto Parts & Wreckers, Inc.

  
	
  Accu-Parts, LLC

  
	
  Akron Airport Properties, Inc.

  
	
  B&D Automotive International, Inc.

  
	
  Bodymaster Auto Parts, Inc.

  
	
  Bodymaster Auto Parts Supply, Inc.

  
	
  Budget Auto Parts U-Pull-It, Inc.

  
	
  Car Body Concepts, Inc.

  
	
  Chambers Parts Distributors

  
	
  Damron Holding Company, LLC

  
	
  DAP Trucking, LLC

  
	
  Distribuidora Hermanos Copher Internacional, SA

  
	
  Double R Auto Sales, Inc.

  
	
  Fenders and More, Inc.

  
	
  Fit-Rite Body Parts, Inc.

  
	
  FM Acquisition Corporation

  
	
  Global Trade Alliance, Inc.

  
	
  Hermanos Copher Internacional, SA

  
	
  Inteuro Parts Distributors, Inc.

  
	
  Keystone Automotive de Mexico, Sociedad de
  Responsabilidad Limitada de Capital Variable

  
	
  Keystone Automotive Industries, Inc.

  
	
  Keystone Automotive Industries BC, Inc.

  



 


21

















 


	
  Keystone Automotive Industries CDN, Inc.

  
	
  Keystone Automotive Industries MN, Inc.

  
	
  Keystone Automotive Industries Nevada, Inc.

  
	
  Keystone Automotive Industries OH, Inc.

  
	
  Keystone Automotive Industries ON, Inc.

  
	
  Keystone Automotive Industries QC, Inc.

  
	
  Keystone Automotive Industries Resources, Inc.

  
	
  Keystone Automotive Industries TN, Inc.

  
	
  LKQ 1st Choice Auto Parts, LLC

  
	
  LKQ 250 Auto, Inc.

  
	
  LKQ A&R Auto Parts, Inc.

  
	
  LKQ All Models Corp.

  
	
  LKQ Apex Auto Parts, Inc.

  
	
  LKQ Atlanta, L.P.

  
	
  LKQ Auto Parts of Central California, Inc.

  
	
  LKQ Auto Parts of Memphis, Inc.

  
	
  LKQ Auto Parts of North Texas, Inc.

  
	
  LKQ Auto Parts of North Texas, L.P.

  
	
  LKQ Auto Parts of Orlando, LLC

  
	
  LKQ Auto Parts of Utah, LLC

  
	
  LKQ Best Automotive Corp.

  
	
  LKQ Birmingham, Inc.

  
	
  LKQ Brad’s Auto & Truck Parts, Inc.

  
	
  LKQ Broadway Auto Parts, Inc.

  
	
  LKQ Copher Self Service Auto Parts-Bradenton Inc.

  
	
  LKQ Copher Self Service Auto Parts-Clearwater Inc.

  
	
  LKQ Copher Self Service Auto Parts-St. Petersburg
  Inc.

  
	
  LKQ Copher Self Service Auto Parts-Tampa Inc.

  
	
  LKQ Crystal River, Inc.

  
	
  LKQ Delaware LLP

  
	
  LKQ Dominion Auto Recycling, Inc.

  
	
  LKQ Foster Auto Parts, Inc.

  
	
  LKQ Foster Auto Parts Salem, Inc.

  
	
  LKQ Foster Auto Parts Westside LLC

  
	
  LKQ Gorham Auto Parts Corp.

  
	
  LKQ Great Lakes Corp.

  
	
  LKQ Heavy Truck-Texas Best Diesel LP

  
	
  LKQ Holding Co.

  
	
  LKQ Hunts Point Auto Parts Corp.

  
	
  LKQ Lakenor Auto & Truck Salvage, Inc.

  
	
  LKQ Management Company

  
	
  LKQ Metro, Inc.

  
	
  LKQ Mid-America Auto Parts, Inc.

  
	
  LKQ Midwest Auto Parts Corp.

  
	
  LKQ Minnesota, Inc.

  
	
  LKQ of Indiana, Inc.

  
	
  LKQ of Michigan Inc.

  
	
  LKQ of Nevada, Inc.

  
	
  LKQ of Tennessee, Inc.

  
	
  LKQ Online Corp.

  
	
  LKQ Ontario LP

  



 


22

















 


	
  LKQ Penn-Mar, Inc.

  
	
  LKQ Pintendre Auto, Inc.

  
	
  LKQ Pull N Save Auto Parts of Aurora LLC

  
	
  LKQ Raleigh Auto Parts Corp.

  
	
  LKQ Route 16 Used Auto Parts, Inc.

  
	
  LKQ Salisbury, Inc.

  
	
  LKQ Savannah, Inc.

  
	
  LKQ Self Service Auto Parts-Memphis LLC

  
	
  LKQ Self Service Auto Parts-Tulsa, Inc.

  
	
  LKQ Self Service Auto Parts-Holland, Inc.

  
	
  LKQ Self Service Auto Parts-Kalamazoo, Inc.

  
	
  LKQ Smart Parts, Inc.

  
	
  LKQ Triplett ASAP, Inc.

  
	
  LKQ U-Pull-It Damascus, Inc.

  
	
  LKQ U-Pull-It Tigard, Inc.

  
	
  LKQ West Michigan Auto Parts, Inc.

  
	
  Michael Auto Parts, Incorporated

  
	
  Mid-State Aftermarket Body Parts, Inc.

  
	
  Northern Light Refinishing Inc.

  
	
  Pennsylvania Collision Parts LLC

  
	
  Potomac German Auto South, Inc.

  
	
  Potomac German Auto, Inc.

  
	
  Quality Body Parts, Inc.

  
	
  Redding Auto Center, Inc.

  
	
  Scrap Processors, LLC

  
	
  Speedway Pull-N-Save Auto Parts, LLC

  
	
  Supreme Auto Parts, Inc.

  
	
  Transmetco Corporation

  
	
  Transwheel Corporation

  
	
  U-Pull-It, Inc.

  
	
  U-Pull-It, North, LLC

  



 


Additional
Adopting Employers shall be listed according to the participation agreements as
provided by the Employer.


 


23

















 


ARTICLE III


 


CONTRIBUTIONS


 


SECTION 3.01—EMPLOYER
CONTRIBUTIONS.


 


Employer Contributions
shall be made without regard to current or accumulated net income, earnings, or
profits of the Employer.  Notwithstanding
the foregoing, the Plan shall continue to be designed to qualify as a profit
sharing plan for purposes of Code Sections 401(a), 402, 412, and 417.  Such Contributions shall be equal to the
Employer Contributions as described below:


 


(a)                          The
amount of each Elective Deferral Contribution for an Active Participant or an
Employee who has had a Severance from Employment, who was a Participant, and
who is still receiving Compensation from the Employer, shall be equal to a
portion of Compensation as specified in the elective deferral agreement.  An Employee who is eligible to participate in
the Plan for purposes of Elective Deferral Contributions may file an elective
deferral agreement with the Employer. 
The Participant shall modify or terminate the elective deferral
agreement by filing a new elective deferral agreement.  The elective deferral agreement may not be
made retroactively and shall remain in effect until modified or terminated.


 


The elective deferral
agreement to start or modify Elective Deferral Contributions shall be effective
as soon as administratively feasible on or after the Participant’s Entry Date
(Reentry Date, if applicable) or any following date.  The elective deferral agreement must be
entered into on or before the date it is effective.


 


The elective deferral
agreement to stop Elective Deferral Contributions may be entered into on any
date.  Such elective deferral agreement
shall be effective as soon as administratively feasible following the date on
which the elective deferral agreement is entered into.


 


Elective Deferral
Contributions cannot be more than 50% of Compensation.  A Participant who is eligible to make
Catch-up Contributions shall not be limited to the maximum deferral percentage
unless his Elective Deferral Contributions, including Catch-up Contributions,
exceed this limit plus the dollar amount of Catch-up Contributions permitted.


 


Any Participant who is
also a participant in the LKQ Corporation 401(k) Plus Plan (the “401(k) Plus
Plan”) may elect to have Elective Deferral Contributions made to the Plan for a
Plan Year in such amounts as are permitted in accordance with the limitations
of the EXCESS AMOUNTS SECTION of this article.  The contributions shall be made at such time
as the amount specified in the 401(k) Plus Plan Participation Agreement
shall be considered compensation in accordance with the terms of the 401(k) Plus
Plan.


 


A Participant who is age
50 or older by the end of the taxable year shall be eligible to make Catch-up
Contributions.


 


No Participant shall be
permitted to have Elective Deferral Contributions, as defined in the EXCESS
AMOUNTS SECTION of this article, made under this Plan, or any other plan,
contract, or arrangement maintained by the Employer, during any calendar year,
in excess of the dollar limitation contained in Code Section 402(g) in
effect for the Participant’s taxable year beginning in such calendar year.  The dollar limitation in the preceding
sentence shall be increased by the dollar limit on Catch-up


 


24

















 


Contributions under Code Section 414(v)(2)(B)(i) for
the taxable year for any Participant who will be age 50 or older by the end of
the taxable year.


 


The dollar limitation
contained in Code Section 402(g) is $10,500 for taxable years
beginning in 2000 and 2001, increasing to $11,000 for taxable years beginning
in 2002, and increasing by $1,000 for each year thereafter up to $15,000 for
taxable years beginning in 2006 and later years.  After 2006, the $15,000 limit will be
adjusted by the Secretary of the Treasury for cost-of-living increases under
Code Section 402(g)(4).  Any such
adjustments will be in multiples of $500.


 


Catch-up Contributions
for a Participant for a taxable year may not exceed the dollar limit on
Catch-up Contributions under Code Section 414(v)(2)(B)(i) for the
taxable year.  The dollar limit on
Catch-up Contributions under Code Section 414(v)(2)(B)(i) 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
Code Section 414(v)(2)(C).  Any such
adjustments will be in multiples of $500.


 


An elective deferral
agreement (or change thereto) must be made in such manner and in accordance
with such rules as the Employer may prescribe in a nondiscriminatory
manner (including by means of voice response or other electronic system under
circumstances the Employer permits) and may not be made retroactively.


 


Elective Deferral
Contributions are 100% vested and nonforfeitable.


 


(b)                         The
Employer shall make Matching Contributions in an amount not to exceed 50% of
Elective Deferral Contributions. 
Elective Deferral Contributions that are over 6% of Compensation won’t
be matched.


 


Matching Contributions
are calculated based on Elective Deferral Contributions and Compensation for
the payroll period.  Matching
Contributions are made for all persons who were Active Participants at any time
during that payroll period.


 


Matching Contributions
are subject to the Vesting Percentage.


 


(c)                          Qualified
Nonelective Contributions may be made for each Plan Year in an amount
determined by the Employer.


 


Qualified Nonelective
Contributions are 100% vested and are distributable only in accordance with the
distribution provisions (other than for hardships) applicable to Elective
Deferral Contributions.


 


(d)        Discretionary Contributions may be made
for each Plan Year in an amount determined by the Employer.


 


Discretionary
Contributions are subject to the Vesting Percentage.


 


Employer Contributions
are allocated according to the provisions of the ALLOCATION SECTION of
this article.


 


A portion of the Plan
assets resulting from Employer Contributions (but not more than the original
amount of those Contributions) may be returned if the Employer Contributions
are made because of a mistake of fact or are more than the amount deductible
under Code Section 404 (excluding any amount which is not deductible
because the Plan is disqualified).  The
amount involved must be returned to the Employer within one year after the date
the Employer Contributions are made by mistake of fact or the date the
deduction is disallowed, whichever applies. 
Except as provided under this paragraph and in Article VIII, the
assets of the Plan shall never be used for the benefit


 


25

















 


of the Employer and are
held for the exclusive purpose of providing benefits to Participants and their
Beneficiaries and for defraying reasonable expenses of administering the Plan.


 


SECTION 3.01A—ROLLOVER
CONTRIBUTIONS.


 


A Rollover Contribution
may be made by an Eligible Employee or Inactive Participant if the following
conditions are met:


 


(a)                          The
Contribution is a Participant Rollover Contribution or a direct rollover of a
distribution made after December 31, 2001 from the types of plans
specified below.


 


Direct Rollovers.  The Plan will accept a direct rollover of an
Eligible Rollover Distribution from (i) a qualified plan described in Code
Section 401(a) or 403(a), including after-tax employee contributions
and excluding any portion of a designated Roth account;  (ii) an annuity contract described in
Code Section 403(b), including after-tax employee contributions and
excluding any portion of a designated Roth account; and (iii) an eligible
plan under Code Section 457(b) 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.


 


Participant Rollover
Contributions from Other Plans.  The Plan will accept a Participant
contribution of an Eligible Rollover Distribution from (i) a qualified
plan described in Code Section 401(a) or 403(a), excluding
distributions of a designated Roth account; 
(ii) an annuity contract described in Code Section 403(b),
excluding distributions of a designated Roth account; and (iii) an
eligible plan under Code Section 457(b) 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.


 


Participant Rollover
Contributions from IRAs. 
The Plan will accept a Participant Rollover Contribution of the portion
of a distribution from an individual retirement account or individual
retirement annuity described in Code Section 408(a) or (b) that
is eligible to be rolled over and would otherwise be includible in the
Participant’s gross income.


 


(b)                         The
Contribution is of amounts that the Code permits to be transferred to a plan
that meets the requirements of Code Section 401(a).


 


(c)                          The
Contribution is made in the form of a direct rollover under Code Section 401(a)(31)
or is a rollover made under Code Section 402(c) or 408(d)(3)(A) within
60 days after the Eligible Employee or Inactive Participant receives the
distribution.


 


(d)                         The
Eligible Employee or Inactive Participant furnishes evidence satisfactory to
the Plan Administrator that the proposed rollover meets conditions (a), (b),
and (c) above.


 


(e)                          In the
case of an Inactive Participant, the Contribution must be of an amount
distributed from another plan of the Employer, or a plan of a Controlled Group
member, that satisfies the requirements of Code Section 401(a).


 


A Rollover Contribution
shall be allowed in cash only and must be made according to procedures set up
by the Plan Administrator.


 


If the Eligible Employee
is not an Active Participant when the Rollover Contribution is made, he shall
be deemed to be an Active Participant only for the purpose of investment and
distribution of the Rollover Contribution.


 


26

















 


Employer Contributions
shall not be made for or allocated to the Eligible Employee until the time he
meets all of the requirements to become an Active Participant.


 


Rollover Contributions
made by an Eligible Employee or an Inactive Participant shall be credited to
his Account.  The part of the Participant’s
Account resulting from Rollover Contributions is 100% vested and nonforfeitable
at all times.  Separate accounting
records shall be maintained for those parts of his Rollover Contributions
consisting of (i) voluntary contributions which were deducted from the
Participant’s gross income for Federal income tax purposes and (ii) after-tax
employee contributions, including the portion that would not have been
includible in the Participant’s gross income if the contributions were not
rolled over into this Plan.


 


SECTION 3.02—FORFEITURES.


 


The Nonvested Account of
a Participant shall be forfeited as of the earlier of the following:


 


(a)                          the date
the record keeper is notified that the Participant died (if prior to such date
he has had a Severance from Employment), or


 


(b)        the Participant’s Forfeiture Date.


 


All or a portion of a
Participant’s Nonvested Account shall be forfeited before such earlier date if,
after he has a Severance from Employment, he receives, or is deemed to receive,
a distribution of his entire Vested Account or a distribution of his Vested
Account derived from Employer Contributions that were not 100% vested when
made, under the RETIREMENT BENEFITS SECTION of Article V, the VESTED
BENEFITS SECTION of Article V, or the SMALL AMOUNTS SECTION of Article X.  The forfeiture shall occur as of the date the
Participant receives, or is deemed to receive, the distribution.  If a Participant receives, or is deemed to
receive, his entire Vested Account, his entire Nonvested Account shall be
forfeited.  If a Participant receives a
distribution of his Vested Account from Employer Contributions that were not
100% vested when made, but less than his entire Vested Account, the amount to
be forfeited shall be determined by multiplying his Nonvested Account from such
Contributions by a fraction.  The
numerator of the fraction is the amount of the distribution derived from
Employer Contributions that were not 100% vested when made and the denominator
of the fraction is his entire Vested Account derived from such Contributions on
the date of the distribution.  If
Employer Contributions that were not 100% vested when made are subject to
different Vesting Percentages, the amount to be forfeited for a distribution of
less than his entire Vested Account shall be determined separately for the
portion of his Account resulting from all Employer Contributions subject to the
same Vesting Percentage.  If a
Participant receives a distribution of his Vested Account from Employer
Contributions subject to one of the Vesting Percentages, but less than his
entire Vested Account, the amount to be forfeited shall be determined by
multiplying his Nonvested Account from Employer Contributions subject to the
same Vesting Percentage by a fraction. 
The numerator of the fraction is the amount of the distribution derived
from Employer Contributions subject to the same Vesting Percentage and the
denominator of the fraction is his entire Vested Account derived from such
Contributions on the date of the distribution.


 


A Forfeiture shall also
occur as provided in the EXCESS AMOUNTS SECTION of this article.


 


Forfeitures shall be
determined at least once during each Plan Year. 
Forfeitures may first be used to pay administrative expenses.  Forfeitures of Matching Contributions that relate
to excess amounts as provided in the EXCESS AMOUNTS SECTION of this
article, that have not been used to pay administrative expenses, shall be
applied to reduce the earliest Employer Contributions made after the
Forfeitures are determined.  Any other
Forfeitures that have not been used to pay administrative expenses shall be
applied to reduce the earliest Employer Contributions made after the
Forfeitures are determined.  Upon their
application to reduce Employer Contributions, Forfeitures shall be deemed to be
Employer Contributions.


 


27
















 


If a Participant again
becomes an Eligible Employee after receiving a distribution which caused all or
a portion of his Nonvested Account to be forfeited, he shall have the right to
repay to the Plan the entire amount of the distribution he received (excluding
any amount of such distribution resulting from Contributions that were 100%
vested when made).  The repayment must be
made in a single sum (repayment in installments is not permitted) before the
earlier of the date five years after the date he again becomes an Eligible
Employee or the end of the first period of five consecutive Vesting Breaks in
Service which begin after the date of the distribution.


 


If the Participant makes
the repayment above, the Plan Administrator shall restore to his Account an amount
equal to his Nonvested Account that was forfeited on the date of distribution,
unadjusted for any investment gains or losses. 
If no amount is to be repaid because the Participant was deemed to have
received a distribution, or only received a distribution of Contributions which
were 100% vested when made, and he again performs an Hour of Service as an
Eligible Employee within the repayment period, the Plan Administrator shall
restore the Participant’s Account as if he had made a required repayment on the
date he performed such Hour of Service. 
Restoration of the Participant’s Account shall include restoration of
all Code Section 411(d)(6) protected benefits with respect to the
restored Account, according to applicable Treasury regulations.  Provided, however, the Plan Administrator
shall not restore the Nonvested Account if (i) a Forfeiture Date has
occurred after the date of the distribution and on or before the date of
repayment and (ii) that Forfeiture Date would result in a complete
forfeiture of the amount the Plan Administrator would otherwise restore.


 


The Plan Administrator
shall restore the Participant’s Account by the close of the Plan Year following
the Plan Year in which repayment is made. 
The permissible sources for restoration of the Participant’s Account are
Forfeitures or special Employer Contributions. 
Such special Employer Contributions shall be made without regard to
profits.  The repaid and restored amounts
are not included in the Participant’s Annual Additions, as defined in the CONTRIBUTION
LIMITATION SECTION of this article.


 


SECTION 3.03—ALLOCATION.


 


A person meets the
allocation requirements of this section if he is an Active Participant on the
last day of the Plan Year and has at least 1,000 Hours of Service during the
latest Accrual Computation Period ending on or before that date.  A person shall also meet the requirements of
this section if he was an Active Participant at any time during the Plan Year
and retires, becomes Totally and Permanently Disabled, or dies.


 


An Employee’s service
with a Predecessor Employer that did not maintain this Plan shall be included
as service with the Employer for the purpose of determining his Hours of
Service to be eligible for an allocation. 
An Employee’s service with such Predecessor Employer shall be counted
only if service continued with the Employer without interruption.  This service includes service performed while
a proprietor or partner.


 


Elective Deferral
Contributions shall be allocated to the Participants for whom such Contributions
are made under the EMPLOYER CONTRIBUTIONS SECTION of this article.  Such Contributions shall be allocated when
made and credited to the Participant’s Account.


 


Matching Contributions
shall be allocated to the persons for whom such Contributions are made under
the EMPLOYER CONTRIBUTIONS SECTION of this article.  Such Contributions shall be allocated when
made and credited to the person’s Account.


 


Qualified Nonelective
Contributions shall be allocated as of the last day of the Plan Year to each
person who was an Active Participant at any time during the Plan Year.  Such Qualified Nonelective Contributions
shall be allocated only to Nonhighly Compensated Employees.  The amount allocated to such person for the
Plan Year shall be equal to such Qualified Nonelective Contributions multiplied
by the ratio of such person’s Annual Compensation for the Plan Year to the
total Annual Compensation of all such persons. 
This amount shall be credited to the person’s Account.


 


28

















 


Discretionary
Contributions shall be allocated as of the last day of the Plan Year, using
Annual Compensation for the Plan Year. 
In years in which the Plan is a Top-heavy Plan, as defined in the
DEFINITIONS SECTION of Article XI, and the minimum contribution under
the MODIFICATION OF CONTRIBUTIONS SECTION of Article XI is not being
provided by other contributions to this Plan or another plan of the Employer,
the allocation shall be made to each person meeting the allocation requirements
of this section and each person entitled to a minimum contribution under the
MODIFICATION OF CONTRIBUTIONS SECTION of Article XI.  In all other years, the allocation shall be
made to each person meeting the allocation requirements of this section.  The amount allocated shall be equal to the
Discretionary Contributions multiplied by the ratio of such person’s Annual
Compensation to the total Annual Compensation for all such persons.  The allocation for any person who does not
meet the allocation requirements of this section shall be limited to the amount
necessary to fund the minimum contribution.


 


In years in which
the Plan is a Top-heavy Plan, the minimum contribution under the MODIFICATION
OF CONTRIBUTIONS SECTION of Article XI is not being provided by other
contributions to this Plan or another plan of the Employer, and the allocation
described above (or any subsequent allocation described below) would provide an
allocation for any person less than the minimum contribution required for such
person in the MODIFICATION OF CONTRIBUTIONS SECTION of Article XI,
such minimum contribution shall first be allocated to all such persons.  Then any amount remaining shall be allocated
to the remaining persons sharing in the allocation based on Annual Compensation
as described above, as if they were the only persons sharing in the allocation
for the Plan Year.


 


This amount shall be
credited to the person’s Account.


 


If Leased Employees are
Eligible Employees, in determining the amount of Employer Contributions
allocated to a person who is a Leased Employee, contributions provided by the
leasing organization that are attributable to services such Leased Employee
performs for the Employer shall be treated as provided by the Employer.  Those contributions shall not be duplicated
under this Plan.


 


SECTION 3.04—CONTRIBUTION
LIMITATION.


 


Contributions to the Plan
shall be limited in accordance with Code Section 415 and the regulations
thereunder.  The limitations of this
section shall apply to Limitation Years beginning on or after July 1,
2007, except as otherwise provided herein.


 


(a)                          Definitions.  For the purpose of determining the
contribution limitation set forth in this section, the following terms are
defined.


 


Annual
Additions means the sum of the following amounts credited to
a Participant’s account for the Limitation Year:


 


(1)         employer
contributions;


 


(2)         employee
contributions; and


 


(3)         forfeitures.


 


Annual Additions
to a defined contribution plan, as defined in section 1.415(c)-1(a)(2)(i) of
the regulations, shall also include the following:


 


(4)        mandatory
employee contributions, as defined in Code Section 411(c)(2)(C) and
section 1.411(c)-1(c)(4) of the regulations, to a defined benefit plan;


 


29

















 


(5)                          contributions
allocated to any individual medical benefit account, as defined in Code Section 415(l)(2),
which is part of a pension or annuity plan maintained by the Employer;


 


(6)                          amounts
attributable to post-retirement medical benefits, allocated to the separate
account of a key employee, as defined in Code Section 419A(d)(3), under a
welfare benefit fund, as defined in Code Section 419(e), maintained by the
Employer; and


 


(7)                          annual
additions under an annuity contract described in Code Section 403(b).


 


Compensation
means wages, salaries, and fees for professional services and other amounts
received (without regard to whether or not an amount is paid in cash) for
personal services actually rendered in the course of employment with the
Employer maintaining the plan to the extent that the amounts are includible in
gross income (including, but not limited to, commissions paid to salespersons,
compensation for services on the basis of a percentage of profits, commissions
on insurance premiums, tips, bonuses, fringe benefits, and reimbursements or
other expense allowances under a nonaccountable plan (as described in section
1.62-2(c) of the regulations)), and excluding the following:


 


(1)                          employer
contributions (other than elective contributions described in Code Section 402(e)(3),
408(k)(6), 408(p)(2)(A)(i), or 457(b)) to a plan of deferred compensation
(including a simplified employee pension described in Code Section 408(k) or
a simple retirement account described in Code Section 408(p), and whether
or not qualified) to the extent such contributions are not includible in the
employee’s gross income for the taxable year in which contributed, and any
distributions (whether or not includible in gross income when distributed) from
a plan of deferred compensation (whether or not qualified);


 


(2)                          amounts
realized from the exercise of a nonstatutory stock option (that is, an option
other than a statutory stock option as defined in section 1.421-1(b) of
the regulations), 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;


 


(3)                          amounts
realized from the sale, exchange or other disposition of stock acquired under a
statutory stock option;


 


(4)                          other
amounts that receive special tax benefits, such as premiums for group-term life
insurance (but only to the extent that the premiums are not includible in the
gross income of the employee and are not salary reduction amounts that are
described in Code Section 125); and


 


(5)                          other
items of remuneration that are similar to any of the items listed in (1) through
(4) above.


 


For any
Self-employed Individual, Compensation shall mean Earned Income.


 


Except as provided
herein, Compensation for a Limitation Year is the Compensation actually paid or
made available (or if earlier, includible in gross income) during such
Limitation Year.


 


For Limitation Years beginning on
or after July 1, 2007, Compensation for a Limitation Year shall also
include Compensation paid by the later of 2 1/2 months after an employee’s
Severance from Employment with the Employer maintaining the plan or the end of
the Limitation Year that includes the date of the employee’s Severance from
Employment with the Employer maintaining the plan, if the payment is regular
Compensation for services during the employee’s regular working hours, or
Compensation for services outside the employee’s regular working hours (such as
overtime or shift differential), commissions, bonuses, or other similar
payments, and, absent a Severance from


 


30

















 


Employment, the payments would have
been paid to the employee while the employee continued in employment with the
Employer.


 


Any payments not described above
shall not be considered Compensation if paid after Severance from Employment,
even if they are paid by the later of 2 1/2 months after the date of
Severance from Employment or the end of the Limitation Year that includes the
date of Severance from Employment, except, payments to an individual who does
not currently perform services for the Employer by reason of qualified military
service (within the meaning of Code Section 414(u)(1)) to the extent these
payments do not exceed the amounts the individual would have received if the
individual had continued to perform services for the Employer rather than
entering qualified military service.


 


Back pay, within the meaning of
section 1.415(c)-2(g)(8) of the regulations, shall be treated as
Compensation for the Limitation Year to which the back pay relates to the
extent the back pay represents wages and compensation that would otherwise be
included in this definition. Compensation paid or made available during such
Limitation Year shall include amounts that would otherwise be included in
Compensation but for an election under Code Section 125(a), 132(f)(4),
402(e)(3), 402(h)(1)(B), 402(k), or 457(b).


 


Compensation shall not include
amounts paid as Compensation to a nonresident alien, as defined in Code Section 7701(b)(1)(B),
who is not a Participant in the Plan to the extent the Compensation is
excludible from gross income and is not effectively connected with the conduct
of a trade or business within the United States.


 


Defined Contribution Dollar
Limitation means, effective for Limitation Years beginning
after December 31, 2001, $40,000, automatically adjusted under Code Section 415(d),
effective January 1 of each year, as published in the Internal Revenue
Bulletin.  The new limitation shall apply
to Limitation Years ending with or within the calendar year of the date of the
adjustment, but a Participant’s Annual Additions for a Limitation Year cannot
exceed the currently applicable dollar limitation (as in effect before the January 1
adjustment) prior to January 1. 
However, after a January 1 adjustment is made, Annual Additions for
the entire Limitation Year are permitted to reflect the dollar limitation as
adjusted on January 1.


 


Employer means the employer that adopts this Plan, and all
members of a controlled group of corporations (as defined in Code Section 414(b) as
modified by Code Section 415(h)), all commonly controlled trades or
businesses (as defined in Code Section 414(c), as modified, except in the
case of a brother-sister group of trades or businesses under common control, by
Code Section 415(h)), or affiliated service groups (as defined in Code Section 414(m))
of which the adopting employer is a part, and any other entity required to be
aggregated with the employer pursuant to Code Section 414(o).


 


Limitation Year means the consecutive 12-month period ending on the
last day of each Plan Year, including corresponding consecutive 12-month
periods before August 1, 1999.  If
the Limitation Year is other than the calendar year, execution of this Plan (or
any amendment to this Plan changing the Limitation Year) constitutes the
Employer’s adoption of a written resolution electing the Limitation Year.  If the Limitation Year is amended to a
different consecutive 12-month period, the new Limitation Year must begin on a
date within the Limitation Year in which the amendment is made.


 


Maximum Annual Addition means,
for Limitation Years beginning on or after January 1, 2002, except for
catch-up contributions described in Code Section 414(v), the Annual
Addition that may be contributed or allocated to a Participant’s Account under
the Plan for any Limitation Year.  This
amount shall not exceed the lesser of:


 


31

















 


(1)                          The
Defined Contribution Dollar Limitation, or


 


(2)                          100
percent of the Participant’s Compensation for the Limitation Year.


 


A Participant’s
Compensation for a Limitation Year shall not include Compensation in excess of
the limitation under Code Section 401(a)(17) that is in effect for the
calendar year in which the Limitation Year begins.


 


The compensation
limitation referred to in (2) shall not apply to an individual medical
benefit account (as defined in Code Section 415(l); or a post-retirement
medical benefits account for a key employee (as defined in Code Section 419A(d)(1)).


 


If a short
Limitation Year is created because of an amendment changing the Limitation Year
to a different consecutive 12-month period, the Maximum Annual Addition will
not exceed the Defined Contribution Dollar Limitation multiplied by the
following fraction:


 


Number of months
(including any fractional parts of a month)


in the short
Limitation Year


12


 


If the Plan is
terminated as of a date other than the last day of the Limitation Year, the
Plan is treated as if the Plan was amended to change the Limitation Year and
create a short Limitation Year ending on the date the Plan is terminated.


 


If a short
Limitation Year is created, the limitation under Code Section 401(a)(17)
shall be prorated in the same manner as the Defined Contribution Dollar
Limitation.


 


Predecessor
Employer means, with respect to a Participant, a former
employer if the Employer maintains a plan that provides a benefit which the
Participant accrued while performing services for the former employer.  Predecessor Employer also means, with respect
to a Participant, a former entity that antedates the Employer if, under the
facts and circumstances, the Employer constitutes a continuation of all or a
portion of the trade or business of the former entity.


 


Severance
from Employment means an employee has ceased to be an
employee of the Employer maintaining the plan. 
An employee does not have a Severance from Employment if, in connection
with a change of employment, the employee’s new employer maintains the plan
with respect to the employee.


 


(b)                         If the
Participant does not participate in another defined contribution plan, as
defined in section 1.415(c)-1(a)(2)(i) of the regulations (without regard
to whether the plan(s) have been terminated) maintained by the Employer,
the amount of Annual Additions that may be credited to the Participant’s Account
for any Limitation Year shall not exceed the lesser of the Maximum Annual
Addition or any other limitation contained in this Plan.  If the Employer Contribution that would
otherwise be contributed or allocated to the Participant’s Account would cause
the Annual Additions for the Limitation Year to exceed the Maximum Annual
Addition, the amount contributed or allocated shall be reduced so that the
Annual Additions for the Limitation Year will equal the Maximum Annual
Addition.


 


(c)                          If, in
addition to this Plan, the Participant is covered under another defined
contribution plan, as defined in section 1.415(c)-1(a)(2)(i) of the
regulations, (without regard to whether the plan(s) have been terminated)
maintained by the Employer that provides an Annual Addition during any
Limitation Year, the Annual Additions that may be credited to a Participant’s
Account under this Plan for any such


 


32

















 


Limitation Year
will not exceed the Maximum Annual Addition, reduced by the Annual Additions
credited to a Participant’s account under the other defined contribution plan(s) for
the same Limitation Year.  If the Annual
Additions with respect to the Participant under the other defined contribution
plan(s) maintained by the Employer are less than the Maximum Annual
Addition, and the Employer Contribution that would otherwise be contributed or
allocated to the Participant’s Account under this Plan would cause the Annual
Additions for the Limitation Year to exceed this limitation, the amount
contributed or allocated will be reduced so that the Annual Additions under all
such plans and funds for the Limitation Year will equal the Maximum Annual
Addition.  If the Annual Additions with
respect to the Participant under the other defined contribution plan(s) in
the aggregate are equal to or greater than the Maximum Annual Addition, no
amount will be contributed or allocated to the Participant’s Account under this
Plan for the Limitation Year.


 


(d)                         The
limitation of this section shall be determined and applied taking into account
the rules in subparagraph (e) below.


 


(e)                          Other
Rules


 


(1)                          Aggregating
Plans.  For purposes of applying the
limitations of this section for a Limitation Year, all defined contribution
plans (as defined in section 1.415(c)-1(a)(2)(i) of the regulations and
without regard to whether the plan(s) have been terminated) ever
maintained by the Employer and all defined contribution plans of a Predecessor
Employer (in the Limitation Year in which such Predecessor Employer is created)
under which a Participant receives Annual Additions are treated as one defined
contribution plan.


 


(2)                          Break-up
of Affiliated Employers.  The Annual
Additions under a formerly affiliated plan (as defined in section
1.415(f)-1(b)(2)(ii) of the regulations) of the Employer are taken into
account for purposes of applying the limitations of this section for the
Limitation Year in which the cessation of affiliation took place.


 


(3)                          Previously
Unaggregated Plans.  The limitations
of this section are not exceeded for the first Limitation Year in which two or
more existing plans, which previously were not required to be aggregated
pursuant to section 1.415(f) of the regulations, are aggregated, provided
that no Annual Additions are credited to a Participant after the date on which
the plans are required to be aggregated if the Annual Additions already
credited to the Participant in the existing plans equal or exceed the Maximum
Annual Addition.


 


(4)                          Aggregation
with Multiemployer Plan.  If the
Employer maintains a multiemployer plan, as defined in Code Section 414(f),
and the multiemployer plan so provides, only the Annual Additions under the
multiemployer plan that are provided by the Employer shall be treated as Annual
Additions provided under a plan maintained by the Employer for purposes of this
section.


 


SECTION 3.05—EXCESS
AMOUNTS.


 


(a)                          Definitions.  For purposes of this section, the following
terms are defined:


 


ACP
means, for a specified group of Participants (either Highly Compensated
Employees or Nonhighly Compensated Employees) for a Plan Year, the average
(expressed as a percentage) of the Contribution Percentages of the Eligible
Participants in the group.


 


33

















 


ADP
means, for a specified group of Participants (either Highly Compensated
Employees or Nonhighly Compensated Employees) for a Plan Year, the average
(expressed as a percentage) of the Deferral Percentages of the Eligible
Participants in the group.


 


Catch-up
Contributions means Elective Deferral Contributions made to a
plan that are in excess of an otherwise applicable plan limit and that are made
by participants who are age 50 or older by the end of the taxable year.  An otherwise applicable plan limit is a limit
in the plan that applies to Elective Deferral Contributions without regard to
Catch-up Contributions, such as the limits on the maximum annual additions
under Code Section 415, the dollar limitation on Elective Deferral
Contributions under Code Section 402(g) (not counting Catch-up Contributions),
and the limit imposed by the nondiscrimination test described in Code Section 401(k)(3).


 


Contribution
Percentage means the ratio (expressed as a percentage) of the
Eligible Participant’s Contribution Percentage Amounts to the Eligible
Participant’s Compensation for the Plan Year (whether or not the Eligible
Participant was an Eligible Participant for the entire Plan Year).  For an Eligible Participant for whom such
Contribution Percentage Amounts for the Plan Year are zero, the percentage is
zero.


 


Contribution
Percentage Amounts means the sum of the Participant
Contributions and Matching Contributions (that are not Qualified Matching
Contributions taken into account for purposes of the ADP Test) made under the
plan on behalf of the Eligible Participant for the plan year.  For plan years beginning on or after January 1,
2006, Matching Contributions cannot be taken into account for a plan year for a
Nonhighly Compensated Employee to the extent they are disproportionate matching
contributions as defined in section 1.401(m)-2(a)(5)(ii) of the
regulations.  Such Contribution
Percentage Amounts shall not include Matching Contributions that are forfeited
either to correct Excess Aggregate Contributions or because the contributions
to which they relate are Excess Elective Deferrals, Excess Contributions, or
Excess Aggregate Contributions.  Under
such rules as the Secretary of the Treasury shall prescribe, in
determining the Contribution Percentage the Employer may elect to include
Qualified Nonelective Contributions under this Plan that were not used in
computing the Deferral Percentage.  For
plan years beginning on or after January 1, 2006, Qualified Nonelective
Contributions cannot be taken into account for a plan year for a Nonhighly
Compensated Employee to the extent they are disproportionate contributions as
defined in section 1.401(m)-2(a)(6)(v) of the regulations.  The Employer may also elect to use Elective
Deferral Contributions in computing the Contribution Percentage so long as the
ADP Test is met before the Elective Deferral Contributions are used in the ACP
Test and continues to be met following the exclusion of those Elective Deferral
Contributions that are used to meet the ACP Test.


 


Deferral
Percentage means the ratio (expressed as a percentage) of
Elective Deferral Contributions (other than Catch-up Contributions) under this
Plan on behalf of the Eligible Participant for the Plan Year to the Eligible
Participant’s Compensation for the Plan Year (whether or not the Eligible
Participant was an Eligible Participant for the entire Plan Year).  The Elective Deferral Contributions used to
determine the Deferral Percentage shall include Excess Elective Deferrals
(other than Excess Elective Deferrals of Nonhighly Compensated Employees that
arise solely from Elective Deferral Contributions made under this Plan or any
other plans of the Employer or a Controlled Group member), but shall exclude
Elective Deferral Contributions that are used in computing the Contribution
Percentage (provided the ADP Test is satisfied both with and without exclusion
of these Elective Deferral Contributions). 
Under such rules as the Secretary of the Treasury shall prescribe,
the Employer may elect to include Qualified Nonelective Contributions and
Qualified Matching Contributions under this Plan in computing the Deferral
Percentage.  For Plan Years beginning on
or after January 1, 2006, Qualified Matching Contributions cannot be taken
into account for a Plan Year for a Nonhighly Compensated Employee to the extent
they are disproportionate matching contributions as defined in section
1.401(m)-2(a)(5)(ii) of


 


34

















 


the
regulations.  For Plan Years beginning on
or after January 1, 2006, Qualified Nonelective Contributions cannot be
taken into account for a Plan Year for a Nonhighly Compensated Employee to the
extent they are disproportionate contributions as defined in section
1.401(k)-2(a)(6)(iv) of the regulations. 
For an Eligible Participant for whom such contributions on his behalf for
the Plan Year are zero, the percentage is zero.


 


Elective
Deferral Contributions means any employer contributions made
to a plan at the election of a participant in lieu of cash compensation.  With respect to any taxable year, a
participant’s Elective Deferral Contributions are 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 Code Section 401(k),
any salary reduction simplified employee pension plan described in Code Section 408(k)(6),
any SIMPLE IRA plan described in Code Section 408(p), any plan described
under Code Section 501(c)(18), and any employer contributions made on
behalf of a participant for the purchase of an annuity contract under Code Section 403(b) pursuant
to a salary reduction agreement.  For
taxable years beginning after December 31, 2005, Elective Deferral
Contributions include Pre-tax Elective Deferral Contributions and Roth Elective
Deferral Contributions.  Elective Deferral
Contributions shall not include any deferrals properly distributed as excess
annual additions.


 


Eligible
Participant means, for purposes of determining the Deferral
Percentage, any Employee who is otherwise entitled to make Elective Deferral
Contributions under the terms of the plan for the plan year.  Eligible Participant means, for purposes of
determining the Contribution Percentage, any Employee who is eligible (i) to
make a Participant Contribution or an Elective Deferral Contribution (if the Employer
takes such contributions into account in the calculation of the Contribution
Percentage), or (ii) to receive a Matching Contribution (including
forfeitures) or a Qualified Matching Contribution.  If a Participant Contribution is required as
a condition of participation in the plan, any Employee who would be a
participant in the plan if such Employee made such a contribution shall be
treated as an Eligible Participant on behalf of whom no Participant
Contributions are made.


 


Excess
Aggregate Contributions means, with respect to any Plan Year,
the excess of:


 


(1)        The aggregate
Contribution Percentage Amounts taken into account in computing the numerator
of the Contribution Percentage actually made on behalf of Highly Compensated
Employees for such Plan Year, over


 


(2)        The maximum
Contribution Percentage Amounts permitted by the ACP Test (determined by
hypothetically reducing contributions made on behalf of Highly Compensated
Employees in order of their Contribution Percentages beginning with the highest
of such percentages).


 


Such determination
shall be made after first determining Excess Elective Deferrals and then
determining Excess Contributions.


 


Excess
Contributions means, with respect to any Plan Year, the
excess of:


 


(1)        The aggregate
amount of employer contributions actually taken into account in computing the
Deferral Percentage of Highly Compensated Employees for such Plan Year, over


 


(2)        The maximum
amount of such contributions permitted by the ADP Test (determined by
hypothetically reducing contributions made on behalf of Highly Compensated
Employees in the order of the Deferral Percentages, beginning with the highest
of such percentages).


 


Such determination
shall be made after first determining Excess Elective Deferrals.


 


35

















 


Excess
Elective Deferrals means those Elective Deferral
Contributions of a Participant that either (i) are made during the
Participant’s taxable year and exceed the dollar limitation under Code Section 402(g) or
(ii) are made during a calendar year and exceed the dollar limitation
under Code Section 402(g) for the Participant’s taxable year
beginning in such calendar year, counting only Elective Deferral Contributions
made under this Plan and any other plan, contract, or arrangement maintained by
the Employer. The dollar limitation shall be increased by the dollar limit on
Catch-up Contributions under Code Section 414(v), if applicable.


 


Excess Elective
Deferrals shall be treated as Annual Additions, as defined in the CONTRIBUTION
LIMITATION SECTION of this article, under the Plan, unless such amounts
are distributed no later than the first April 15 following the close of
the Participant’s taxable year.


 


Matching
Contributions means employer contributions made to this or
any other defined contribution plan, or to a contract described in Code Section 403(b),
on behalf of a participant on account of a Participant Contribution made by
such participant, or on account of a participant’s Elective Deferral
Contributions, under a plan maintained by the Employer or a Controlled Group
member.


 


Participant
Contributions means contributions (other than Roth Elective
Deferral Contributions) made to the plan by or on behalf of a participant that
are included in the participant’s gross income in the year in which made and
that are maintained under a separate account to which the earnings and losses
are allocated.


 


Pre-tax
Elective Deferral Contributions means a participant’s
Elective Deferral Contributions that are not includible in the participant’s
gross income at the time deferred.


 


Qualified
Matching Contributions means Matching Contributions that are
nonforfeitable when made to the plan and that are distributable only in
accordance with the distribution provisions (other than for hardships) applicable
to Elective Deferral Contributions.


 


Qualified
Nonelective Contributions means any employer contributions
(other than Matching Contributions) that an Employee may not elect to have paid
to him in cash instead of being contributed to the plan and that are
nonforfeitable when made to the plan and that are distributable only in
accordance with the distribution provisions (other than for hardships)
applicable to Elective Deferral Contributions.


 


Roth
Elective Deferral Contributions means a participant’s
Elective Deferral Contributions that are not excludible from the participant’s
gross income at the time deferred and have been irrevocably designated as Roth
Elective Deferral Contributions by the participant in his elective deferral
agreement.  Whether an Elective Deferral
Contribution is not excludible from a participant’s gross income will be
determined in accordance with section 1.40(k)-1(f)(2) of the
regulations.  In the case of a
self-employed individual, an Elective Deferral Contribution is not excludible
from gross income only if the individual does not claim a deduction for such
amount.


 


(b)                         Excess
Elective Deferrals.  A Participant
may assign to this Plan any Excess Elective Deferrals made during a taxable
year of the Participant by notifying the Plan Administrator in writing on or
before the first following March 1 of the amount of the Excess Elective
Deferrals to be assigned to the Plan.  A
Participant is deemed to notify the Plan Administrator of any Excess Elective
Deferrals that arise by taking into account only those Elective Deferral
Contributions made to this Plan and any other plan, contract, or arrangement of
the Employer or a Controlled Group member. 
The Participant’s claim for Excess Elective Deferrals shall be
accompanied by the Participant’s written statement that if such


 


36

















 


amounts are not
distributed, such Excess Elective Deferrals will exceed the limit imposed on
the Participant by Code Section 402(g) (including, if applicable, the
dollar limitation on Catch-up Contributions under Code Section 414(v)) for
the year in which the deferral occurred. 
The Excess Elective Deferrals assigned to this Plan cannot exceed the
Elective Deferral Contributions allocated under this Plan for such taxable
year.


 


Notwithstanding
any other provisions of the Plan, Elective Deferral Contributions in an amount
equal to the Excess Elective Deferrals assigned to this Plan, plus any income
and minus any loss allocable thereto, shall be distributed no later than April 15
to any Participant to whose Account Excess Elective Deferrals were assigned for
the preceding year and who claims Excess Elective Deferrals for such taxable
year or calendar year.


 


The Excess
Elective Deferrals shall be adjusted for any income or loss.  The income or loss allocable to such Excess
Elective Deferrals shall be equal to the income or loss allocable to the
Participant’s Elective Deferral Contributions for the taxable year in which the
excess occurred multiplied by a fraction. 
The numerator of the fraction is the Excess Elective Deferrals.  The denominator of the fraction is the
closing balance without regard to any income or loss occurring during such
taxable year (as of the end of such taxable year) of the Participant’s Account
resulting from Elective Deferral Contributions.


 


For purposes of
determining income or loss on Excess Elective Deferrals for taxable years
beginning on or after January 1, 2006, any Excess Elective Deferrals, in
addition to any adjustment for income or loss for the taxable year in which the
excess occurred, shall be adjusted for income or loss for the gap period
between the end of such taxable year and the date of distribution.  Such income or loss allocable to the gap period
shall be equal to 10% of the income or loss allocable to the Excess Elective
Deferrals for the taxable year multiplied by the number of complete months
(counting a partial month of 16 days or more as a complete month) in the gap
period.


 


Any Matching
Contributions that were based on the Elective Deferral Contributions
distributed as Excess Elective Deferrals, plus any income and minus any loss
allocable thereto, shall be forfeited whether or not such amounts are
distributed as Excess Elective Deferrals.


 


(c)                        ADP
Test.  As of the end of each Plan
Year after Excess Elective Deferrals have been determined, the Plan must
satisfy the ADP Test.  The ADP Test shall
be satisfied using the prior year testing method or the current year testing
method, as elected by the Employer.


 


(1)                          Prior
Year Testing Method.  The ADP for a
Plan Year for Eligible Participants who are Highly Compensated Employees for
each Plan Year and the prior year’s ADP for Eligible Participants who were
Nonhighly Compensated Employees for the prior Plan Year must satisfy one of the
following tests:


 


(i)                            The
ADP for a Plan Year for Eligible Participants who are Highly Compensated
Employees for the Plan Year shall not exceed the prior year’s ADP for Eligible
Participants who were Nonhighly Compensated Employees for the prior Plan Year
multiplied by 1.25; or


 


(ii)                         The ADP
for a Plan Year for Eligible Participants who are Highly Compensated Employees
for the Plan Year:


 


A.                            shall
not exceed the prior year’s ADP for Eligible Participants who were Nonhighly
Compensated Employees for the prior Plan Year multiplied by 2, and


 


37

















 


B.                              the
difference between such ADPs is not more than 2.


 


If this is not a
successor plan, for the first Plan Year the Plan permits any Participant to
make Elective Deferral Contributions, for purposes of the foregoing tests, the
prior year’s Nonhighly Compensated Employees’ ADP shall be 3 percent or the
Plan Year’s ADP for these Eligible Participants, as elected by the Employer.


 


(2)                          Current
Year Testing Method.  The ADP for a
Plan Year for Eligible Participants who are Highly Compensated Employees for
each Plan Year and the ADP for Eligible Participants who are Nonhighly
Compensated Employees for the Plan Year must satisfy one of the following
tests:


 


(i)                            The
ADP for a Plan Year for Eligible Participants who are Highly Compensated
Employees for the Plan Year shall not exceed the ADP for Eligible Participants
who are Nonhighly Compensated Employees for the Plan Year multiplied by 1.25;
or


 


(ii)                         The ADP
for a Plan Year for Eligible Participants who are Highly Compensated Employees
for the Plan Year:


 


A.                            shall
not exceed the ADP for Eligible Participants who are Nonhighly Compensated
Employees for the Plan Year multiplied by 2, and


 


B.                              the
difference between such ADP’s is not more than 2.


 


If the Employer
has elected to use the current year testing method, that election cannot be
changed unless (i) the Plan has been using the current year testing method
for the preceding five Plan Years, or if less, the number of Plan Years the
Plan has been in existence; or (ii) if as a result of a merger or
acquisition described in Code Section 410(b)(6)(C)(i), the Employer
maintains both a plan using the prior year testing method and a plan using the
current year testing method and the change is made within the transition period
described in Code Section 410(b)(6)(C)(ii).


 


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


 


The Deferral
Percentage for any Eligible Participant who is a Highly Compensated Employee
for the Plan Year and who is eligible to have Elective Deferral Contributions
(and Qualified Nonelective Contributions or Qualified Matching Contributions,
or both, if treated as Elective Deferral Contributions for purposes of the ADP
Test) allocated to his account under two or more arrangements described in Code
Section 401(k) that are maintained by the Employer or a Controlled
Group member shall be determined as if such Elective Deferral Contributions
(and, if applicable, such Qualified Nonelective Contributions or Qualified
Matching Contributions, or both) were made under a single arrangement.  For Plan Years beginning on or after January 1,
2006, if a Highly Compensated Employee participates in two or more cash or
deferred arrangements of the Employer or of a Controlled Group member that have
different plan years, all Elective Deferral Contributions made during the Plan
Year shall be aggregated.  For Plan Years
beginning before January 1, 2006, all such cash or deferred arrangements
ending with or within the same calendar year shall be treated as a single
arrangement.  The foregoing
notwithstanding, certain plans shall be treated as separate if mandatorily
disaggregated under the regulations of Code Section 401(k).


 


38
















 


In the event this Plan satisfies
the requirements of Code Section 401(k), 401(a)(4), or 410(b) only if
aggregated with one or more other plans, or if one or more other plans satisfy
the requirements of such Code sections only if aggregated with this Plan, then
this section shall be applied by determining the Deferral Percentage of
Employees as if all such plans were a single plan.  If more than 10 percent of the Employer’s
Nonhighly Compensated Employees are involved in a plan coverage change as
defined in section 1.401(k)-2(c)(4) of the regulations, then any
adjustments to the Nonhighly Compensated Employee ADP for the prior year shall
be made in accordance with such regulations if the Employer has elected to use
the prior year testing method.  Plans may
be aggregated in order to satisfy Code Section 401(k) only if they
have the same plan year and use the same testing method for the ADP Test.


 


For purposes of the ADP Test, Elective Deferral
Contributions, Qualified Nonelective Contributions, and Qualified Matching
Contributions must be made before the end of the 12-month period immediately
following the Plan Year to which the contributions relate.


 


If the Plan Administrator should determine during the
Plan Year that the ADP Test is not being met, the Plan Administrator may limit
the amount of future Elective Deferral Contributions of the Highly Compensated
Employees.


 


Notwithstanding any other provisions of this Plan,
Excess Contributions, plus any income and minus any loss allocable thereto,
shall be distributed no later than 12 months after the last day of a Plan Year
to Participants to whose Accounts such Excess Contributions were allocated for
such Plan Year, except to the extent such Excess Contributions are classified
as Catch-up Contributions.  Excess Contributions
are allocated to the Highly Compensated Employees with the largest amounts of
employer contributions taken into account in calculating the ADP Test for the
year in which the excess arose, beginning with the Highly Compensated Employee
with the largest amount of such employer contributions and continuing in
descending order until all of the Excess Contributions have been
allocated.  For Plan Years beginning on
or after January 1, 2006, if a Highly Compensated Employee participates in
two or more cash or deferred arrangements of the Employer or of a Controlled
Group member, the amount distributed shall not exceed the amount of the
employer contributions taken into account in calculating the ADP test and made
to this Plan for the year in which the excess arose.  If Catch-up Contributions are allowed for the
Plan Year being tested, to the extent a Highly Compensated Employee has not
reached his Catch-up Contribution limit under the Plan for such year, Excess Contributions
allocated to such Highly Compensated Employee are Catch-up Contributions and
will not be treated as Excess Contributions. 
If such excess amounts (other than Catch-up Contributions) are
distributed more than 2 1/2 months after the last day of the Plan Year in
which such excess amounts arose, a 10 percent excise tax shall be imposed on
the employer maintaining the plan with respect to such amounts.


 


Excess Contributions shall be treated as Annual
Additions, as defined in the CONTRIBUTION LIMITATION SECTION of this
article, even if distributed.


 


The Excess Contributions shall be adjusted for any
income or loss.  The income or loss
allocable to such Excess Contributions allocated to each Participant shall be
equal to the income or loss allocable to the Participant’s Elective Deferral
Contributions (and, if applicable, Qualified Nonelective Contributions or
Qualified Matching Contributions, or both) for the Plan Year in which the
excess occurred multiplied by a fraction. 
The numerator of the fraction is the Excess Contributions.  The denominator of the fraction is the
closing balance without regard to any income or loss occurring during such Plan
Year (as of the end of such Plan Year) of the Participant’s Account resulting
from Elective Deferral Contributions (and Qualified Nonelective Contributions
or Qualified Matching Contributions, or both, if such contributions are
included in the ADP Test).


 


39

















 


For purposes of determining income or loss on Excess
Contributions beginning with the 2006 Plan Year, any Excess Contributions, in
addition to any adjustment for income or loss for the Plan Year in which the
excess occurred, shall be adjusted for income or loss for the gap period
between the end of such Plan Year and the date of distribution.  Such income or loss allocable to the gap
period shall be equal to 10% of the income or loss allocable to the Excess
Contributions for the Plan Year multiplied by the number of complete months
(counting a partial month of 16 days or more as a complete month) in the gap
period.


 


Excess Contributions allocated to a Participant shall
be distributed from the Participant’s Account resulting from Elective Deferral
Contributions.  If such Excess
Contributions exceed the amount of Excess Contributions in the Participant’s
Account resulting from Elective Deferral Contributions, the balance shall be
distributed from the Participant’s Account resulting from Qualified Matching
Contributions (if applicable) and Qualified Nonelective Contributions,
respectively.


 


Any Matching Contributions that were based on the
Elective Deferral Contributions distributed as Excess Contributions, plus any
income and minus any loss allocable thereto, shall be forfeited whether or not
such amounts are distributed as Excess Contributions.


 


(d)                         ACP
Test.  As of the end of each Plan
Year, the Plan must satisfy the ACP Test. 
The ACP Test shall be satisfied using the prior year testing method or
the current year testing method, as elected by the Employer.


 


(1)                          Prior
Year Testing Method.  The ACP for a
Plan Year for Eligible Participants who are Highly Compensated Employees for
each Plan Year and the prior year’s ACP for Eligible Participants who were
Nonhighly Compensated Employees for the prior Plan Year must satisfy one of the
following tests:


 


(i)                            The
ACP for a Plan Year for Eligible Participants who are Highly Compensated
Employees for the Plan Year shall not exceed the prior year’s ACP for Eligible
Participants who were Nonhighly Compensated Employees for the prior Plan Year
multiplied by 1.25; or


 


(ii)                         The ACP
for a Plan Year for Eligible Participants who are Highly Compensated Employees
for the Plan Year:


 


A.                            shall
not exceed the prior year’s ACP for Eligible Participants who were Nonhighly
Compensated Employees for the prior Plan Year multiplied by 2, and


 


B.                              the
difference between such ACPs is not more than 2.


 


If this is not a
successor plan, for the first Plan Year the Plan permits any Participant to
make Participant Contributions, provides for Matching Contributions, or both,
for purposes of the foregoing tests, the prior year’s Nonhighly Compensated
Employees’ ACP shall be 3 percent or the Plan Year’s ACP for these Eligible
Participants, as elected by the Employer.


 


(2)                          Current
Year Testing Method.  The ACP for a
Plan Year for Eligible Participants who are Highly Compensated Employees for
each Plan Year and the ACP for Eligible Participants who are Nonhighly
Compensated Employees for the Plan Year must satisfy one of the following
tests:


 


(i)                            The
ACP for a Plan Year for Eligible Participants who are Highly Compensated
Employees for the Plan Year shall not exceed the ACP for Eligible Participants
who are Nonhighly Compensated Employees for the Plan Year multiplied by 1.25;
or


 


40

















 


(ii)                         The ACP for
a Plan Year for Eligible Participants who are Highly Compensated Employees for
the Plan Year:


 


A.                            shall
not exceed the ACP for Eligible Participants who are Nonhighly Compensated
Employees for the Plan Year multiplied by 2, and


 


B.                              the
difference between such ACPs is not more than 2.


 


If the Employer
has elected to use the current year testing method, that election cannot be
changed unless (i) the Plan has been using the current year testing method
for the preceding five Plan Years, or if less, the number of Plan Years the
Plan has been in existence; or (ii) if as a result of a merger or
acquisition described in Code Section 410(b)(6)(C)(i), the Employer
maintains both a plan using the prior year testing method and a plan using the
current year testing method and the change is made within the transition period
described in Code Section 410(b)(6)(C)(ii).


 


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


 


The Contribution
Percentage for any Eligible Participant who is a Highly Compensated Employee
for the Plan Year and who is eligible to have Contribution Percentage Amounts
allocated to his account under two or more plans described in Code Section 401(a) or
arrangements described in Code Section 401(k) that are maintained by
the Employer or a Controlled Group member shall be determined as if the total
of such Contribution Percentage Amounts was made under each plan and
arrangement.  For Plan Years beginning on
or after January 1, 2006, if a Highly Compensated Employee participates in
two or more such plans or arrangements that have different plan years, all
Contribution Percentage Amounts made during the Plan Year shall be
aggregated.  For Plan Years beginning
before January 1, 2006, all such plans and arrangements ending with or
within the same calendar year shall be treated as a single plan or
arrangement.  The foregoing
notwithstanding, certain plans shall be treated as separate if mandatorily
disaggregated under the regulations of Code Section 401(m).


 


In the event this
Plan satisfies the requirements of Code Section 401(m), 401(a)(4), or 410(b) only
if aggregated with one or more other plans, or if one or more other plans
satisfy the requirements of such Code sections only if aggregated with this
Plan, then this section shall be applied by determining the Contribution
Percentage of Employees as if all such plans were a single plan.  If more than 10 percent of the Employer’s
Nonhighly Compensated Employees are involved in a plan coverage change as
defined in section 1.401(m)-2(c)(4) of the regulations, then any
adjustments to the Nonhighly Compensated Employee ACP for the prior year shall
be made in accordance with such regulations if the Employer has elected to use
the prior year testing method.  Plans may
be aggregated in order to satisfy Code Section 401(m) only if they
have the same plan year and use the same testing method for the ACP Test.


 


For purposes of
the ACP Test, Participant Contributions are considered to have been made in the
Plan Year in which contributed to the Plan. 
Matching Contributions and Qualified Nonelective Contributions will be
considered to have been made for a Plan Year if made no later than the end of
the 12-month period beginning on the day after the close of the Plan Year.


 


41

















 


Notwithstanding
any other provisions of this Plan, Excess Aggregate Contributions, plus any
income and minus any loss allocable thereto, shall be forfeited, if not vested,
or distributed, if vested, no later than 12 months after the last day of a Plan
Year to Participants to whose Accounts such Excess Aggregate Contributions were
allocated for such Plan Year.  Excess
Aggregate Contributions are allocated to the Highly Compensated Employees with
the largest Contribution Percentage Amounts taken into account in calculating
the ACP 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 of the Excess Aggregate
Contributions have been allocated.  For
Plan Years beginning on or after January 1, 2006, if a Highly Compensated
Employee participates in two or more plans or arrangements of the Employer or
of a Controlled Group member that include Contribution Percentage Amounts, the
amount distributed shall not exceed the Contribution Percentage Amounts taken
into account in calculating the ACP Test and made to this Plan for the year in
which the excess arose.  If such Excess
Aggregate Contributions are distributed more than 2 1/2 months after the
last day of the Plan Year in which such excess amounts arose, a 10 percent
excise tax shall be imposed on the employer maintaining the plan with respect
to such amounts.


 


Excess Aggregate
Contributions shall be treated as Annual Additions, as defined in the
CONTRIBUTION LIMITATION SECTION of this article, even if distributed.


 


The Excess
Aggregate Contributions shall be adjusted for any income or loss.  The income or loss allocable to such Excess Aggregate
Contributions allocated to each Participant shall be equal to the income or
loss allocable to the Participant’s Contribution Percentage Amounts for the
Plan Year in which the excess occurred multiplied by a fraction.  The numerator of the fraction is the Excess
Aggregate Contributions.  The denominator
of the fraction is the closing balance without regard to any income or loss
occurring during such Plan Year (as of the end of such Plan Year) of the
Participant’s Account resulting from Contribution Percentage Amounts.


 


For purposes of
determining income or loss on Excess Aggregate Contributions beginning with the
2006 Plan Year, any Excess Aggregate Contributions, in addition to any
adjustment for income or loss for the Plan Year in which the excess occurred,
shall be adjusted for income or loss for the gap period between the end of such
Plan Year and the date of distribution. 
Such income or loss allocable to the gap period shall be equal to 10% of
the income or loss allocable to the Excess Aggregate Contributions for the Plan
Year multiplied by the number of complete months (counting a partial month of
16 days or more as a complete month) in the gap period.


 


Excess Aggregate
Contributions allocated to a Participant shall be distributed from the Participant’s
Account resulting from Participant Contributions that are not required as a
condition of employment or participation or for obtaining additional benefits
from Employer Contributions.  If such
Excess Aggregate Contributions exceed the balance in the Participant’s Account
resulting from such Participant Contributions, the balance shall be forfeited,
if not vested, or distributed, if vested, on a pro rata basis from the
Participant’s Account resulting from Contribution Percentage Amounts.


 


(e)                          Employer
Elections.  The Employer has made an
election to use the prior year testing method.


 


42

















 


ARTICLE IV


 


INVESTMENT
OF CONTRIBUTIONS


 


SECTION 4.01—INVESTMENT AND
TIMING OF CONTRIBUTIONS.


 


The handling of
Contributions and Plan assets is governed by the provisions of the Trust
Agreement and any other relevant document, such as an Annuity Contract (for the
purposes of this paragraph alone, the Trust Agreement and such other documents
will each be referred to as a “document” or collectively as the “documents”),
duly entered into by or with regard to the Plan that govern such matters.  To the extent permitted by the documents, the
parties named below shall direct the Contributions for investment in any of the
investment options or investment vehicles available to the Plan under or
through the documents, and may request the transfer of amounts resulting from
those Contributions between such investment options and investment
vehicles.  A Participant may not direct
the investment of all or any portion of his Account in collectibles.  Collectibles mean any work of art, rug or
antique, metal or gem, stamp or coin, alcoholic beverage, or other tangible
personal property specified by the Secretary of the Treasury.  However, for tax years beginning after December 31,
1997, certain coins and bullion as provided in Code Section 408(m)(3) shall
not be considered collectibles.  To the
extent that a Participant who has the ability to provide investment direction
fails to give timely investment direction, the amount for which no investment
direction is in place shall be invested in such investment options and
investment vehicles as provided in the service and expense agreement or such
other documents duly entered into by or with regard to the Plan that govern
such matters.  If the Primary Employer
has investment direction, the Contributions shall be invested ratably in the
investment options and investment vehicles available to the Plan under or
through the documents.  The Primary Employer
shall have investment direction for amounts that have not been allocated to
Participants.  To the extent an
investment is no longer available, the Primary Employer may require that
amounts currently held in such investment be reinvested in other investments.


 


At least annually, the Named Fiduciary shall review all
pertinent Employee information and Plan data in order to establish the funding
policy of the Plan and to determine appropriate methods of carrying out the
Plan’s objectives.  The Named Fiduciary
shall inform the Trustee and any Investment Manager of the Plan’s short-term
and long-term financial needs so the investment policy can be coordinated with
the Plan’s financial requirements.


 


(a)                          Employer
Contributions other than Elective Deferral Contributions:  The Participant shall direct the investment
of such Employer Contributions and transfer of amounts resulting from those
Contributions.


 


(b)                         Elective
Deferral Contributions:  The Participant
shall direct the investment of Elective Deferral Contributions and transfer of
amounts resulting from those Contributions.


 


(c)                          Rollover
Contributions:  The Participant shall
direct the investment of Rollover Contributions and transfer of amounts
resulting from those Contributions.


 


However, the Named Fiduciary may delegate to the Investment
Manager investment direction for Contributions and amounts that are not subject
to Participant direction.


 


All Contributions are
forwarded by the Employer to (i) the Trustee to be deposited in the Trust
Fund or otherwise invested by the Trustee in accordance with the relevant
documents; or (ii) the Insurer to be deposited under the Annuity Contract,
as applicable.


 


43

















 


ARTICLE V


 


BENEFITS


 


SECTION 5.01—RETIREMENT
BENEFITS.


 


On a Participant’s
Retirement Date, his Vested Account shall be distributed to him according to
the distribution of benefits provisions of Article VI and the provisions
of the SMALL AMOUNTS SECTION of Article X.


 


SECTION 5.02—DEATH
BENEFITS.


 


If a Participant
dies before his Annuity Starting Date, his Vested Account shall be distributed
according to the distribution of benefits provisions of Article VI and the
provisions of the SMALL AMOUNTS SECTION of Article X.


 


SECTION 5.03—VESTED
BENEFITS.


 


If an Inactive
Participant’s Vested Account is not payable under the SMALL AMOUNTS SECTION of
Article X, he may elect, but is not required, to receive a distribution of
any part of his Vested Account after he has a Severance from Employment.  A distribution under this paragraph shall be
a retirement benefit and shall be distributed to the Participant according to
the distribution of benefits provisions of Article VI.


 


A Participant may
not elect to receive a distribution under the provisions of this section after
he again becomes an Employee until he subsequently has a Severance from
Employment and meets the requirements of this section.


 


If an Inactive
Participant does not receive an earlier distribution, upon his Retirement Date
or death, his Vested Account shall be distributed according to the provisions
of the RETIREMENT BENEFITS SECTION or the DEATH BENEFITS SECTION of
this article.


 


The Nonvested
Account of an Inactive Participant who has had a Severance from Employment
shall remain a part of his Account until it becomes a Forfeiture.  However, if he again becomes an Employee so
that his Vesting Percentage can increase, the Nonvested Account may become a
part of his Vested Account.


 


SECTION 5.04—WHEN BENEFITS
START.


 


(a)                          Unless
otherwise elected, benefits shall begin before the 60th day following the close
of the Plan Year in which the latest date below occurs:


 


(1)                          The date
the Participant attains age 65 (or Normal Retirement Age, if earlier).


 


(2)                          The 10th
anniversary of the Participant’s earliest Entry Date.


 


(3)                          The date
the Participant terminates service with the Employer.


 


Notwithstanding
the foregoing, the failure of a Participant to consent to a distribution while
a benefit is immediately distributable, within the meaning of the ELECTION
PROCEDURES SECTION of Article VI, shall be deemed to be an election
to defer the start of benefits sufficient to satisfy this section.


 


The Participant
may elect to have benefits begin after the latest date for beginning benefits
described above, subject to the following provisions of this section.  The Participant shall make the election in
writing.  Such election must be made
before his Normal Retirement Date or the date he has a


 


44

















 


Severance from
Employment, if later.  The Participant
shall not elect a date for beginning benefits or a form of distribution that
would result in a benefit payable when he dies which would be more than
incidental within the meaning of governmental regulations.


 


Benefits shall
begin on an earlier date if otherwise provided in the Plan.  For example, the Participant’s Retirement
Date or Required Beginning Date, as defined in the DEFINITIONS SECTION of Article VII.


 


(b)                         The Participant’s Vested Account that results from
Elective Deferral Contributions, Qualified Matching Contributions, and
Qualified Nonelective Contributions may not be distributed earlier than
Severance from Employment (separation from service, for Plan Years beginning
before January 1, 2002), death, or disability.  Such amount may also be distributed upon:


 


(1)        Termination
of the Plan, as permitted in Article VIII.


 


(2)        The
attainment of age 59 1/2 as permitted in the WITHDRAWAL BENEFITS SECTION of
this article or in the definition of Normal Retirement Date in the DEFINITIONS SECTION of
Article I.


 


(3)        The hardship
of the Participant as permitted in the WITHDRAWAL BENEFITS SECTION of this
article.


 


All distributions
that may be made pursuant to one or more of the foregoing distributable events
will be a retirement benefit and shall be distributed to the Participant
according to the distribution of benefits provisions of Article VI.  In addition, distributions that are triggered
by the termination of the Plan must be made in a lump sum.  A lump sum shall include a distribution of an
annuity contract.


 


SECTION 5.05—WITHDRAWAL
BENEFITS.


 


A Participant may
withdraw any part of his Vested Account resulting from Rollover
Contributions.  A Participant may make
such a withdrawal at any time.


 


A Participant, who
has been an Active Participant for at least five years, may withdraw any part
of his Vested Account resulting from the following Contributions that were
transferred to this Plan from the Keystone 401(k) Retirement Plan:


 


Matching
Contributions, other than Qualified Matching Contributions


Discretionary
Contributions


Rollover
Contributions


 


A Participant’s
earliest Entry Date shall be used to determine his eligibility for such a
withdrawal.  A Participant may make such
a withdrawal at any time.


 


A Participant who has attained age 59 1/2 may withdraw
any part of his Vested Account resulting from the following Contributions:


 


Elective Deferral
Contributions


Matching
Contributions


Qualified
Nonelective Contributions


Discretionary
Contributions


 


A Participant may
make such a withdrawal at any time.


 


45

















 


A Participant may
withdraw any part of his Vested Account resulting from the following
Contributions:


 


Elective Deferral
Contributions


 


in the event of
hardship due to an immediate and heavy financial need.  Withdrawals from the Participant’s Account
resulting from Elective Deferral Contributions shall be limited to the amount
of the Participant’s Elective Deferral Contributions.


 


Immediate and
heavy financial need shall be limited to: 
(i) expenses incurred or necessary for medical care that would be
deductible under Code Section 213(d) (determined without regard to
whether the expenses exceed 7.5% of adjusted gross income); (ii) the
purchase (excluding mortgage payments) of a principal residence for the Participant;
(iii) payment of tuition, related educational fees, and room and board
expenses, for the next 12 months of post-secondary education for the
Participant, his spouse, children, or dependents (as defined in Code Section 152
without regard to Code Sections 152(b)(1), (b)(2), and (d)(1)(B)); (iv) payments
necessary to prevent the eviction of the Participant from, or foreclosure on
the mortgage of, the Participant’s principal residence; (v) payments for
funeral or burial expenses for the Participant’s deceased parent, spouse,
child, or dependent (as defined in Code Section 152 without regard to Code
Section 152(d))1)(B)); (vi) expenses to repair damage to the
Participant’s principal residence that would qualify for a casualty loss
deduction under Code Section 165 (determined without regard to whether the
loss exceeds 10% of adjusted gross income); or (vii) any other
distribution which is deemed by the Commissioner of Internal Revenue to be made
on account of immediate and heavy financial need as provided in Treasury
regulations.


 


No withdrawal
shall be allowed which is not necessary to satisfy such immediate and heavy
financial need.  Such withdrawal shall be
deemed necessary only if all of the following requirements are met:  (i) the distribution is not in excess of
the amount of the immediate and heavy financial need (including amounts
necessary to pay any Federal, state, or local income taxes or penalties
reasonably anticipated to result from the distribution); (ii) the
Participant has obtained all distributions, other than hardship distributions,
and all nontaxable loans currently available under all plans maintained by the
Employer; and (iii) the Plan, and all other plans maintained by the
Employer, provide that the Participant’s elective contributions and participant
contributions will be suspended for at least six months after receipt of the
hardship distribution.  The Plan will
suspend elective contributions and participant contributions for six months as
provided in the preceding sentence.  A
Participant shall not cease to be an Eligible Participant, as defined in the
EXCESS AMOUNTS SECTION of Article III, merely because his elective
contributions or participant contributions are suspended.


 


A request for
withdrawal shall be made in such manner and in accordance with such rules as
the Employer will prescribe for this purpose (including by means of voice
response or other electronic means under circumstances the Employer permits).
Withdrawals shall be a retirement benefit and shall be distributed to the
Participant according to the distribution of benefits provisions of Article VI.  A forfeiture shall not occur solely as a
result of a withdrawal.


 


SECTION 5.06—LOANS TO
PARTICIPANTS.


 


Loans shall be
made available to all Participants on a reasonably equivalent basis.  For purposes of this section, and unless
otherwise specified, Participant means any Participant or Beneficiary who is a
party-in-interest as defined in ERISA. 
Loans shall not be made to Highly Compensated Employees in an amount
greater than the amount made available to other Participants.


 


A loan to a
Participant shall be a Participant-directed investment of his Account.  The loan is a Trust Fund investment but no
Account other than the borrowing Participant’s Account shall share in the interest
paid on the loan or bear any expense or loss incurred because of the loan.


 


46

















 


The number of
outstanding loans shall be limited to one. 
Loan consolidation is not allowed. 
The minimum amount of any loan shall be $1,000.


 


Loans must be
adequately secured and bear a reasonable rate of interest.


 


The amount of the
loan shall not exceed the maximum amount that may be treated as a loan under
Code Section 72(p) (rather than a distribution) to the Participant and
shall be equal to the lesser of (a) or (b) below:


 


(a)                          $50,000,
reduced by the highest outstanding loan balance of loans during the one-year
period ending on the day before the new loan is made.


 


(b)                         The
greater of (1) or (2), reduced by (3) below:


 


(1)        One-half of
the Participant’s Vested Account (without regard to any accumulated deductible
employee contributions, as defined in Code Section 72(o)(5)(B)).


 


(2)        $10,000.


 


(3)        Any
outstanding loan balance on the date the new loan is made.


 


For purposes of
this maximum, all qualified employer plans, as defined in Code Section 72(p)(4),
of the Employer and any Controlled Group member shall be treated as one plan.


 


The foregoing notwithstanding, the amount of such loan
shall not exceed 50 percent of the amount of the Participant’s Vested
Account.  For purposes of this maximum, a
Participant’s Vested Account does not include any accumulated deductible
employee contributions, as defined in Code Section 72(o)(5)(B).  No collateral other than a portion of the
Participant’s Vested Account (as limited above) shall be accepted.


 


The
Participant’s outstanding loan balance shall include any deemed distribution,
along with accrued interest, that has not been repaid (offset).


 


Each loan shall
bear a reasonable fixed rate of interest to be determined by the Loan
Administrator.  In determining the
interest rate, the Loan Administrator shall take into consideration fixed
interest rates currently being charged by commercial lenders for loans of
comparable risk on similar terms and for similar durations, so that the
interest will provide for a return commensurate with rates currently charged by
commercial lenders for loans made under similar circumstances.  The Loan Administrator shall not discriminate
among Participants in the matter of interest rates; but loans granted at
different times may bear different interest rates in accordance with the
current appropriate standards.


 


The loan shall by
its terms require that repayment (principal and interest) be amortized in level
payments, not less frequently than quarterly, over a period not extending
beyond five years from the date of the loan. 
If the loan is used to acquire a dwelling unit, which within a
reasonable time (determined at the time the loan is made) will be used as the principal
residence of the Participant, the repayment period may extend beyond five years
from the date of the loan, but the extended period shall be the lesser of 15
years or a repayment period consistent with commercial home loan practices.


 


The Participant shall make an application
for a loan in such manner and in accordance with such rules as the
Employer shall prescribe for this purpose (including by means of voice response
or other electronic means under circumstances the Employer permits).  The application must specify the amount and
duration requested.


 


47

















 


Information
contained in the application for the loan concerning the income, liabilities,
and assets of the Participant will be evaluated to determine whether there is a
reasonable expectation that the Participant will be able to satisfy payments on
the loan as due.  Additionally, the Loan
Administrator will pursue any appropriate further investigations concerning the
creditworthiness and credit history of the Participant to determine whether a
loan should be approved.


 


Each loan shall be fully documented in the form of a
promissory note signed by the Participant for the face amount of the loan,
together with interest determined as specified above.


 


There will be an assignment of collateral to the Plan
executed at the time the loan is made.


 


In those cases where repayment through payroll deduction is
available, installments are so payable, and a payroll deduction agreement shall
be executed by the Participant at the time the loan is made.  If the Participant has previously been
treated as having received a deemed distribution and the subsequent loan is
being made before the deemed distribution, along with accrued interest, has
been repaid (or offset), a payroll deduction agreement shall be required for
loans made on or after January 1, 2004. If a payroll deduction agreement
is required because of a previous deemed distribution and the Participant later
revokes such agreement, the outstanding loan balance at the time of the
revocation shall be treated as a deemed distribution.  Loan repayments that are accumulated through
payroll deduction shall be paid to the Trustee by the earlier of (i) the
date the loan repayments can reasonably be segregated from the Employer’s
assets, or (ii) the 15th business day of the month following the month in
which such amounts would otherwise have been paid in cash to the Participant.


 


Where payroll
deduction is not available, payments in cash are to be timely made.  Any payment that is not by payroll deduction
shall be made payable to the Employer or the Trustee, as specified in the
promissory note, and delivered to the Loan Administrator, including
prepayments, service fees and penalties, if any, and other amounts due under the
note.  The Loan Administrator shall
deposit such amounts into the Plan as soon as administratively practicable
after they are received, but in no event later than the 15th business day of
the month after they are received.


 


The promissory note may provide for reasonable late payment
penalties and service fees.  Any
penalties or service fees shall be applied to all Participants in a
nondiscriminatory manner.  If the
promissory note so provides, such amounts may be assessed and collected from
the Account of the Participant as part of the loan balance.


 


Each loan may be
paid prior to maturity, in part or in full, without penalty or service fee,
except as may be set out in the promissory note.


 


The Plan shall
suspend loan payments for a period not exceeding one year during which an
approved unpaid leave of absence occurs other than a military leave of
absence.  The Loan Administrator shall
provide the Participant a written explanation of the effect of the suspension
of payments upon his loan.


 


If a Participant separates from service (or takes a leave
of absence) from the Employer because of service in the military and does not
receive a distribution of his Vested Account, the Plan shall suspend loan
payments until the Participant’s completion of military service or until the
Participant’s fifth anniversary of commencement of military service, if
earlier, as permitted under Code Section 414(u).  The Loan Administrator shall provide the
Participant a written explanation of the effect of his military service upon
his loan.


 


If any payment of
principal and interest, or any portion thereof, remains unpaid for more than 90
days after due, the loan shall be in default. 
For purposes of Code Section 72(p), the Participant shall then be
treated as having received a deemed distribution regardless of whether or not a
distributable event has occurred.


 


48
















 


Upon default, the Plan has the right to pursue any remedy
available by law to satisfy the amount due, along with accrued interest,
including the right to enforce its claim against the security pledged and
execute upon the collateral as allowed by law. 
The entire principal balance whether or not otherwise then due, along
with accrued interest, shall become immediately due and payable without demand
or notice, and subject to collection or satisfaction by any lawful means,
including specifically, but not limited to, the right to enforce the claim
against the security pledged and to execute upon the collateral as allowed by
law.


 


In the event of
default, foreclosure on the note and attachment of security or use of amounts
pledged to satisfy the amount then due shall not occur until a distributable
event occurs in accordance with the Plan, and shall not occur to an extent
greater than the amount then available upon any distributable event which has
occurred under the Plan.


 


All reasonable costs and expenses, including but not
limited to attorney’s fees, incurred by the Plan in connection with any default
or in any proceeding to enforce any provision of a promissory note or
instrument by which a promissory note for a Participant loan is secured, shall
be assessed and collected from the Account of the Participant as part of the
loan balance.


 


If payroll
deduction is being utilized, in the event that a Participant’s available
payroll deduction amounts in any given month are insufficient to satisfy the
total amount due, there will be an increase in the amount taken subsequently,
sufficient to make up the amount that is then due.  If any amount remains past due more than 90
days, the entire principal amount, whether or not otherwise then due, along
with interest then accrued, shall become due and payable, as above.


 


If no
distributable event has occurred under the Plan at the time that the
Participant’s Vested Account would otherwise be used under this provision to
pay any amount due under the outstanding loan, this will not occur until the
time, or in excess of the extent to which, a distributable event occurs under
the Plan.  An outstanding loan will
become due and payable in full 60 days after a Participant has a Severance from
Employment and ceases to be a party-in-interest as defined in ERISA or after
complete termination of the Plan.


 


SECTION 5.07—DISTRIBUTIONS
UNDER QUALIFIED DOMESTIC RELATIONS ORDERS.


 


The Plan specifically permits distributions to an Alternate
Payee under a qualified domestic relations order as defined in Code Section 414(p),
at any time, irrespective of whether the Participant has attained his earliest
retirement age, as defined in Code Section 414(p), under the Plan.  A distribution to an Alternate Payee before
the Participant has attained his earliest retirement age is available only if
the order specifies that distribution shall be made prior to the earliest
retirement age or allows the Alternate Payee to elect a distribution prior to
the earliest retirement age.


 


Nothing in this
section shall permit a Participant to receive a distribution at a time
otherwise not permitted under the Plan nor shall it permit the Alternate Payee
to receive a form of payment not permitted under the Plan.


 


The benefit
payable to an Alternate Payee shall be subject to the provisions of the SMALL
AMOUNTS SECTION of Article X if the value of the benefit
(disregarding the portion, if any, of the benefit resulting from the
Participant’s Rollover Contributions) does not exceed $5,000.


 


The Plan Administrator shall establish reasonable
procedures to determine the qualified status of a domestic relations
order.  Upon receiving a domestic
relations order, the Plan Administrator shall promptly notify the Participant
and each Alternate Payee named in the order, in writing, of the receipt of the
order and the Plan’s procedures for determining the qualified status of the
order.  Within a reasonable period of
time after receiving the domestic relations order, the Plan Administrator shall
determine the qualified status of the order and shall notify the Participant
and each Alternate Payee, in writing, of its determination.  The Plan Administrator shall provide notice
under this paragraph by mailing to the individual’s address specified in the
domestic relations order, or in a manner consistent with Department of Labor
regulations.  The Plan Administrator may
treat as qualified any domestic relations order entered before January 1,
1985, irrespective of whether it satisfies all the requirements described in
Code Section 414(p).


 


49

















 


If any portion of the
Participant’s Vested Account is payable during the period the Plan
Administrator is making its determination of the qualified status of the
domestic relations order, a separate accounting shall be made of the amount
payable.  If the Plan Administrator
determines the order is a qualified domestic relations order within 18 months
of the date amounts are first payable following receipt of the order, the
payable amounts shall be distributed in accordance with the order.  If the Plan Administrator does not make its
determination of the qualified status of the order within the 18-month
determination period, the payable amounts shall be distributed in the manner
the Plan would distribute if the order did not exist and the order shall apply
prospectively if the Plan Administrator later determines the order is a
qualified domestic relations order.


 


The Plan shall
make payments or distributions required under this section by separate benefit
checks or other separate distribution to the Alternate Payee(s).


 


50

















 


ARTICLE VI


 


DISTRIBUTION
OF BENEFITS


 


SECTION 6.01—FORM OF
DISTRIBUTION.


 


(a)                          Retirement
Benefits.  The only form of
retirement benefit is a single sum payment.


 


(b)                         Death
Benefits.  The only form of death
benefit is a single sum payment.


 


SECTION 6.02—ELECTION
PROCEDURES.


 


The Participant
shall make any election under this section in writing.  The Plan Administrator may require such
individual to complete and sign any necessary documents as to the provisions to
be made.  Any election permitted under (a) and
(b) below shall be subject to the qualified election provisions of (c) below.


 


(a)                          Retirement
Benefits.  A Participant may elect to
have retirement benefits distributed.


 


(b)                         Death
Benefits.  A Participant may elect
his Beneficiary.


 


(c)                          Qualified
Election.  The Participant may make
an election at any time during the election period.  The Participant may revoke the election made
(or make a new election) at any time and any number of times during the
election period.  An election is
effective only if it meets the consent requirements below.


 


(1)                          Election Period for Retirement Benefits.  The Participant may make an
election as to retirement benefits at any time before the Annuity Starting
Date.


 


(2)                          Election
Period for Death Benefits.  A
Participant may make an election as to death benefits at any time before he
dies.


 


(3)                          Consent
to Election.  If the Participant’s
Vested Account (disregarding the portion, if any, of his Account resulting from
Rollover Contributions) exceeds $5,000, any benefit that is immediately
distributable requires the consent of the Participant.


 


The consent of the
Participant to a benefit that is immediately distributable must not be made
before the date the Participant is provided with the notice of the ability to
defer the distribution.  Such consent
shall be in writing.


 


The consent shall
not be made more than 90 days before the Annuity Starting Date.  The consent of the Participant shall not be
required to the extent that a distribution is required to satisfy Code Section 401(a)(9) or
415.


 


In addition, upon
termination of this Plan, if the Plan does not offer an annuity option
(purchased from a commercial provider), and if the Employer (or any entity
within the same Controlled Group) does not maintain another defined
contribution plan (other than an employee stock ownership plan as defined in
Code Section 4975(e)(7)), the Participant’s Account balance will, without the
Participant’s consent, be distributed to the Participant.  However, if any entity within the same
Controlled Group maintains another defined contribution plan (other than an
employee stock ownership plan as defined in Code Section 4975(e)(7)) then
the Participant’s Account will 


 


51

















 


be transferred,
without the Participant’s consent, to the other plan if the Participant does
not consent to an immediate distribution.


 


A benefit is
immediately distributable if any part of the benefit could be distributed to
the Participant before the Participant attains the older of Normal Retirement
Age or age 62.


 


Spousal consent is
needed to name a Beneficiary other than the Participant’s spouse.  If the Participant names a Beneficiary other
than his spouse, the spouse has the right to limit consent only to a specific
Beneficiary.  The spouse can relinquish
such right.  Such consent shall be in
writing.  The spouse’s consent shall be
witnessed by a plan representative or notary public.  The spouse’s consent must acknowledge the
effect of the election, including that the spouse had the right to limit
consent only to a specific Beneficiary and that the relinquishment of such
right was voluntary.  Unless the consent
of the spouse expressly permits designations by the Participant without a
requirement of further consent by the spouse, the spouse’s consent must be
limited to the Beneficiary, class of Beneficiaries, or contingent Beneficiary
named in the election.


 


Spousal consent is
not required, however, if the Participant establishes to the satisfaction of
the plan representative that the consent of the spouse cannot be obtained
because there is no spouse or the spouse cannot be located.  A spouse’s consent under this paragraph shall
not be valid with respect to any other spouse. 
A Participant may revoke a prior election without the consent of the
spouse.  Any new election will require a
new spousal consent, unless the consent of the spouse expressly permits such
election by the Participant without further consent by the spouse.  A spouse’s consent may be revoked at any time
within the Participant’s election period.


 


SECTION 6.03—NOTICE
REQUIREMENTS.


 


Right to Defer.  The Plan Administrator shall furnish to the
Participant a written explanation of the right of the Participant to defer
distribution until the benefit is no longer immediately distributable.


 


The Plan
Administrator shall furnish the written explanation by a method reasonably
calculated to reach the attention of the Participant no less than 30 days, and
no more than 90 days, before the Annuity Starting Date.


 


However,
distribution may begin less than 30 days after the notice described in this
subparagraph is given, provided the Plan Administrator clearly informs the
Participant that he has a right to a period of at least 30 days after receiving
the notice to consider the decision of whether or not to elect a distribution,
and the Participant, after receiving the notice, affirmatively elects a
distribution.


 


52

















 


ARTICLE VII


 


REQUIRED
MINIMUM DISTRIBUTIONS


 


SECTION 7.01—APPLICATION.


 


The optional forms
of distribution are only those provided in Article VI.  An optional form of distribution shall not be
permitted unless it meets the requirements of this article.  The timing of any distribution must meet the
requirements of this article.


 


SECTION 7.02—DEFINITIONS.


 


For
purposes of this article, the following terms are defined:


 


Designated Beneficiary means the
individual who is designated by the Participant (or the Participant’s surviving
spouse) as the Beneficiary of the Participant’s interest under the Plan and who
is the designated beneficiary under Code Section 401(a)(9) and section
1.401(a)(9)-4 of the regulations.


 


Distribution Calendar Year means 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 that 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 (b)(2) of the REQUIRED MINIMUM DISTRIBUTIONS SECTION of this
article.  The required minimum
distribution for the Participant’s first Distribution Calendar Year will be
made on or before the Participant’s Required Beginning Date.  The required minimum distribution for other
Distribution Calendar Years, including the required minimum distribution for
the Distribution Calendar Year in which the Participant’s Required Beginning
Date occurs, will be made on or before December 31 of that Distribution
Calendar Year.


 


5-percent Owner means a Participant who is treated as a
5-percent Owner for purposes of this article. 
A Participant is treated as a 5-percent Owner for purposes of this
article if such Participant is a 5-percent owner as defined in Code Section 416
at any time during the Plan Year ending with or within the calendar year in
which such owner attains age 70 1/2.


 


Once
distributions have begun to a 5-percent Owner under this article, they must
continue to be distributed, even if the Participant ceases to be a 5-percent
Owner in a subsequent year.


 


Life Expectancy means life expectancy as computed by use
of the Single Life Table in Q&A-1 in section 1.401(a)(9)-9 of the
regulations.


 


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


 


Required Beginning Date means, for
a Participant who is a 5-percent Owner, April 1 of the calendar year
following the calendar year in which he attains age 70 1/2.


 


53

















 


Required
Beginning Date means, for any Participant who is not a 5-percent Owner, April 1
of the calendar year following the later of the calendar year in which he
attains age 70 1/2 or the calendar year in which he retires.


 


The
preretirement age 70 1/2 distribution option is only eliminated with
respect to Participants who reach age 70 1/2 in or after a calendar year
that begins after the later of December 31, 1998, or the adoption date of
the amendment which eliminated such option. 
The preretirement age 70 1/2 distribution option is an optional
form of benefit under which benefits payable in a particular distribution form
(including any modifications that may be elected after benefits begin) begin at
a time during the period that begins on or after January 1 of the calendar
year in which the Participant attains age 70 1/2 and ends April 1 of
the immediately following calendar year.


 


The
options available for Participants who are not 5-percent Owners and attained
age 70 1/2 in calendar years before the calendar year that begins after
the later of December 31, 1998, or the adoption date of the amendment
which eliminated the preretirement age 70 1/2 distribution option shall be
the following.  Any such Participant
attaining age 70 1/2 in years after 1995 may elect by April 1 of the
calendar year following the calendar year in which he attained age 70 1/2
(or by December 31, 1997 in the case of a Participant attaining age
70 1/2 in 1996) to defer distributions until April 1 of the calendar year
following the calendar year in which he retires.  If no such election is made, the Participant
shall begin receiving distributions by April 1 of the calendar year
following the year in which he attained age 70 1/2 (or by December 31,
1997 in the case of a Participant attaining age 70 1/2 in 1996).  Any such Participant attaining age
70 1/2 in years prior to 1997 may elect to stop distributions that are not
purchased annuities and recommence by April 1 of the calendar year
following the calendar year in which he retires.  There shall be a new Annuity Starting Date
upon recommencement.


 


SECTION 7.03—REQUIRED
MINIMUM DISTRIBUTIONS.


 


(a)                          General
Rules.


 


(1)                          The
requirements of this article shall apply to any distribution of a Participant’s
interest and will take precedence over any inconsistent provisions of this
Plan.  Unless otherwise specified, the
provisions of this article apply to calendar years beginning after December 31,
2002.


 


(2)                          All
distributions required under this article shall be determined and made in
accordance with the regulations under Code Section 401(a)(9) and the
minimum distribution incidental benefit requirement of Code Section 401(a)(9)(G).


 


(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:


 


(i)                           If the Participant’s surviving spouse is the
Participant’s sole Designated Beneficiary, then distributions to the surviving
spouse will begin by December 31 of the calendar year immediately
following the calendar year in which the Participant died, or by December 31
of the calendar year in which the Participant would have attained age
70 1/2, if later, except to the extent that an election is made to receive
distributions in accordance with the 5-year rule under (e) below.  Under the 5-year rule, the Participant’s
entire interest will be 


 


54

















 


distributed to the Designated Beneficiary by December 31
of the calendar year containing the fifth anniversary of the Participant’s
death.


 


(ii)                        If the Participant’s surviving spouse is not the
Participant’s sole Designated Beneficiary, then distributions to the Designated
Beneficiary will begin by December 31 of the calendar year immediately
following the calendar year in which the Participant died, except to the extent
that an election is made to receive distributions in accordance with the 5-year
rule under (e) below.  Under
the 5-year rule, the Participant’s entire interest will be distributed to the
Designated Beneficiary by December 31 of the calendar year containing the
fifth anniversary of the Participant’s death.


 


(iii)                     If there is no Designated Beneficiary as of September 30
of the year following the year of the Participant’s death, the Participant’s
entire interest will be distributed by December 31 of the calendar year
containing the fifth anniversary of the Participant’s death.


 


(iv)                    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 are required
to begin, this (b)(2), other than (b)(2)(i), will apply as if the surviving
spouse were the Participant.


 


For purposes of this (b)(2) and (d) below, unless
(b)(2)(iv) above applies, distributions are considered to begin on the
Participant’s Required Beginning Date. 
If (b)(2)(iv) above applies, distributions are considered to begin
on the date distributions are required to begin to the surviving spouse under
(b)(2)(i) above.  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 (b)(2)(i) above), 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 (c) and (d) below. 
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 Code Section 401(a)(9) and the
regulations thereunder.


 


(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:


 


(i)                           the quotient obtained by dividing the Participant’s Account Balance by the
distribution period in the Uniform Lifetime Table set forth in Q&A-2 in
section 1.401(a)(9)-9 of the regulations, using the Participant’s age as of the
Participant’s birthday in the Distribution Calendar Year; or


 


(ii)                        if the Participant’s sole Designated Beneficiary for the Distribution
Calendar Year is the Participant’s spouse, the quotient obtained by dividing
the Participant’s Account Balance by the number in the Joint and Last Survivor
Table set forth in Q&A-3 in section 


 


55

















 


1.401(a)(9)-9 of the 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 (c) beginning with the first Distribution Calendar
Year and continuing 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.


 


(i)                           Participant Survived by Designated Beneficiary.  If the Participant dies on or
after the date distributions begin and there is a Designated Beneficiary, the
minimum amount that will be distributed for each Distribution Calendar Year
after the year of the Participant’s death is the quotient obtained by dividing
the Participant’s Account Balance by the longer of the remaining Life
Expectancy of the Participant or the remaining Life Expectancy of the
Participant’s Designated Beneficiary, determined as follows:


 


A.                            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.


 


B.                              If the Participant’s surviving spouse is the Participant’s sole Designated
Beneficiary, the remaining Life Expectancy of the surviving spouse is
calculated for each Distribution Calendar Year after the year of the
Participant’s death using the surviving spouse’s age as of the spouse’s
birthday in that year.  For Distribution
Calendar Years after the year of the surviving spouse’s death, the remaining
Life Expectancy of the surviving spouse is calculated using the age of the
surviving spouse as of the spouse’s birthday in the calendar year of the spouse’s
death, reduced by one for each subsequent calendar year.


 


C.                              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.


 


(ii)                        No Designated Beneficiary.  If the Participant dies on or after the date
distributions begin and there is no Designated Beneficiary as of September 30
of the year after the year of the Participant’s death, the minimum amount that
will be distributed for each Distribution Calendar Year after the year of the
Participant’s death is the quotient obtained by dividing the Participant’s
Account Balance by the Participant’s remaining Life Expectancy calculated using
the age of the Participant in the year of death, reduced by one for each
subsequent year.


 


(2)                           Death Before Date Distributions Begin.


 


(i)                           Participant Survived by Designated Beneficiary.  If the Participant dies before
the date distributions begin and there is a Designated Beneficiary, the minimum
amount that will be distributed for each Distribution Calendar Year after the
year of the Participant’s death is the quotient obtained by dividing the
Participant’s Account Balance by the remaining Life Expectancy of the
Participant’s Designated Beneficiary, determined as provided in (d)(1) 


 


56

















 


above, except to the extent that an election is made to
receive distributions in accordance with the 5-year rule under (e) below.  Under the 5-year rule, the Participant’s
entire interest will be distributed to the Designated Beneficiary by December 31
of the calendar year containing the fifth anniversary of the Participant’s
death.


 


(ii)                        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.


 


(iii)                     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 (b)(2)(i) above, this
(d)(2) will apply as if the surviving spouse were the Participant.


 


(e)                          Election of 5-year Rule.  Participants or Beneficiaries may elect on an
individual basis whether the 5-year rule in (b)(2) and (d)(2) above
applies to distributions after the death of a Participant who has a Designated
Beneficiary.  The election must be made
no later than the earlier of September 30 of the calendar year in which
the distribution would be required to begin under (b)(2) above if no such
election is made, or by September 30 of the calendar year which contains
the fifth anniversary of the Participant’s (or, if applicable, surviving spouse’s)
death.


 


SECTION 7.04—TRANSITION
RULES.


 


To the extent the
Plan was effective before 2003, required minimum distributions were made
pursuant to (a) and (b) below:


 


(a)                          2000
and Before.  Required minimum
distributions for calendar years after 1984 and before 2001 were made in
accordance with Code Section 401(a)(9) and the proposed regulations
thereunder published in the Federal Register on July 27, 1987 (the 1987
Proposed Regulations).


 


(b)                         2001
and 2002.  Required minimum
distributions for calendar years 2001 and 2002 were made pursuant to the
proposed regulations under Code Section 401(a)(9) published in the
Federal Register on January 17, 2001 (the 2001 Proposed Regulations).  Distributions were made in 2001 under the
1987 Proposed Regulations prior to June 14, 2001, and the special
transition rule in Announcement 2001-82, 2001-2 C.B. 123, applied.


 


57

















 


ARTICLE VIII


 


TERMINATION OF THE PLAN


 


The Employer expects to continue the Plan indefinitely but
reserves the right to terminate the Plan in whole or in part at any time upon
giving written notice to all parties concerned. 
Complete discontinuance of Contributions constitutes complete
termination of the Plan.


 


The Account of
each Participant shall be 100% vested and nonforfeitable as of the effective
date of complete termination of the Plan. 
The Account of each Participant who is included in the group of
Participants deemed to be affected by the partial termination of the Plan shall
be 100% vested and nonforfeitable as of the effective date of the partial
termination of the Plan.  The Participant’s
Vested Account shall continue to participate in the earnings credited, expenses
charged, and any appreciation or depreciation of the Investment Fund until his
Vested Account is distributed.


 


A Participant’s
Vested Account that does not result from the Contributions listed below may be
distributed to the Participant after the effective date of the complete
termination of the Plan:


 


Elective Deferral
Contributions


Qualified Matching
Contributions


Qualified
Nonelective Contributions


 


A Participant’s
Vested Account resulting from such Contributions may be distributed upon
complete termination of the Plan, but only if neither the Employer nor any
Controlled Group member maintain another defined contribution plan (other than
an employee stock ownership plan as defined in Code Section 4975(e)(7) or
409(a), a simplified employee pension plan as defined in Code Section 408(k),
a SIMPLE IRA plan as defined in Code Section 408(p), a plan or contract
that satisfies the requirements of Code Section 403(b), or a plan
described in Code Section 457(b) or (f)) at any time during the
period beginning on the date of complete termination of the Plan and ending 12
months after all assets have been distributed from the Plan.  Such distribution is made in a lump sum.  A distribution under this article shall be a
retirement benefit and shall be distributed to the Participant according to the
provisions of Article VI.


 


The Participant’s
entire Vested Account shall be paid in a single sum to the Participant as of
the effective date of complete termination of the Plan if (i) the
requirements for distribution of Elective Deferral Contributions in the above
paragraph are met and (ii) consent of the Participant is not required in
the ELECTION PROCEDURES SECTION of Article VI to distribute a benefit
that is immediately distributable.  This
is a small amounts payment.  The small
amounts payment is in full settlement of all benefits otherwise payable.


 


Upon complete termination
of the Plan, no more Employees shall become Participants and no more
Contributions shall be made.


 


The assets of this Plan shall not be paid to the Employer
at any time, except that, after the satisfaction of all liabilities under the
Plan, any assets remaining may be paid to the Employer.  The payment may not be made if it would
contravene any provision of law.


 


58
















 


ARTICLE IX


 


ADMINISTRATION OF THE
PLAN


 


SECTION 9.01—ADMINISTRATION.


 


Subject to the
provisions of this article, the Plan Administrator has complete control of the
administration of the Plan.  The Plan
Administrator has all the powers necessary for it to properly carry out its
administrative duties.  Not in
limitation, but in amplification of the foregoing, the Plan Administrator has
complete discretion to construe or interpret the provisions of the Plan,
including ambiguous provisions, if any, and to determine all questions that may
arise under the Plan, including all questions relating to the eligibility of
Employees to participate in the Plan and the amount of benefit to which any
Participant or Beneficiary may become entitled. 
The Plan Administrator’s decisions upon all matters within the scope of
its authority shall be final.


 


Unless otherwise
set out in the Plan or Annuity Contract, the Plan Administrator may delegate
recordkeeping and other duties which are necessary to assist it with the
administration of the Plan to any person or firm which agrees to accept such
duties.  The Plan Administrator shall be
entitled to rely upon all tables, valuations, certificates and reports
furnished by the consultant or actuary appointed by the Plan Administrator and
upon all opinions given by any counsel selected or approved by the Plan
Administrator.


 


The Plan
Administrator shall receive all claims for benefits by Participants, former
Participants and Beneficiaries.  The Plan
Administrator shall determine all facts necessary to establish the right of any
Claimant to benefits and the amount of those benefits under the provisions of
the Plan.  The Plan Administrator may
establish rules and procedures to be followed by Claimants in filing
claims for benefits, in furnishing and verifying proofs necessary to determine
age, and in any other matters required to administer the Plan.


 


SECTION 9.02—EXPENSES.


 


Expenses of the
Plan, to the extent that the Employer does not pay such expenses, may be paid
out of the assets of the Plan provided that such payment is consistent with
ERISA.  Such expenses include, but are
not limited to, expenses for bonding required by ERISA; expenses for
recordkeeping and other administrative services; fees and expenses of the
Trustee or Annuity Contract; expenses for investment education service; and
direct costs that the Employer incurs with respect to the Plan.  Expenses that relate solely to a specific
Participant or Alternate Payee may be assessed against such Participant or
Alternate Payee as provided in the service and expense agreement or such other
documents duly entered into by or with regard to the Plan that govern such
matters.


 


SECTION 9.03—RECORDS.


 


All acts and
determinations of the Plan Administrator shall be duly recorded.  All these records, together with other
documents necessary for the administration of the Plan, shall be preserved in
the Plan Administrator’s custody.


 


Writing
(handwriting, typing, printing), photostating, photographing, microfilming,
magnetic impulse, mechanical or electrical recording, or other forms of data
compilation shall be acceptable means of keeping records.


 


SECTION 9.04—INFORMATION AVAILABLE.


 


Any Participant in
the Plan or any Beneficiary may examine copies of the Plan description, latest
annual report, any bargaining agreement, this Plan, the Annuity Contract, or
any other instrument under which the Plan was established or is operated.  The Plan Administrator shall maintain all of
the items listed in this section in its office, or in such other place or places
as it may designate in order to comply with governmental regulations.  These items may be examined during reasonable
business hours.  Upon the written request
of a Participant or Beneficiary receiving 


 


59

















 


benefits under the
Plan, the Plan Administrator shall furnish him with a copy of any of these
items.  The Plan Administrator may make a
reasonable charge to the requesting person for the copy.


 


SECTION 9.05—CLAIM PROCEDURES.


 


A Claimant must
submit any necessary forms and needed information when making a claim for
benefits under the Plan.


 


If a claim for
benefits under the Plan is wholly or partially denied, the Plan Administrator
shall provide adequate written notice to the Claimant whose claim for benefits
under the Plan has been denied.  The
notice must be furnished within 90 days of the date that the claim is received
by the Plan without regard to whether all of the information necessary to make
a benefit determination is received.  The
Claimant shall be notified in writing within this initial 90-day period if
special circumstances require an extension of the time needed to process the
claim.  The notice shall indicate the
special circumstances requiring an extension of time and the date by which the
Plan Administrator’s decision is expected to be rendered.  In no event shall such extension exceed a
period of 90 days from the end of the initial 90-day period.


 


The Plan
Administrator’s notice to the Claimant shall: (i) specify the reason or
reasons for the denial; (ii) reference the specific Plan provisions on
which the denial is based; (iii) describe any additional material and
information needed for the Claimant to perfect his claim for benefits; (iv) explain
why the material and information is needed; and (v) inform the Claimant of
the Plan’s appeal procedures and the time limits applicable to such procedures,
including a statement of the Claimant’s right to bring a civil action under
ERISA section 502(a) following an adverse benefit determination on appeal.


 


Any appeal made by
a Claimant must be made in writing to the Plan Administrator within 60 days
after receipt of the Plan Administrator’s notice of denial of benefits.  If the Claimant appeals to the Plan
Administrator, the Claimant may submit written comments, documents, records,
and other information relating to the claim for benefits.  The Claimant shall be provided, upon request
and free of charge, reasonable access to, and copies of, all documents, records,
and other information relevant to the Claimant’s claim for benefits.  The Plan Administrator shall review the claim
taking into account all comments, documents, records, and other information
submitted by the Claimant relating to the claim, without regard to whether such
information was submitted or considered in the initial benefit determination.


 


The Plan
Administrator shall provide adequate written notice to the Claimant of the Plan’s
benefit determination on review.  The
notice must be furnished within 60 days of the date that the request for review
is received by the Plan without regard to whether all of the information
necessary to make a benefit determination on review is received.  The Claimant shall be notified in writing
within this initial 60-day period if special circumstances require an extension
of the time needed to process the claim. 
The notice shall indicate the special circumstances requiring an
extension of time and the date by which the Plan Administrator expects to
render the determination on review.  In
no event shall such extension exceed a period of 60 days from the end of the
initial 60-day period.


 


In the event the
benefit determination is being made by a committee or board of trustees that
hold regularly scheduled meetings at least quarterly, the above paragraph shall
not apply.  The benefit determination
must be made by the date of the meeting of the committee or board that
immediately follows the Plan’s receipt of a request for review, unless the
request for review is filed within 30 days preceding the date of such
meeting.  In such case, the benefit
determination must be made by the date of the second meeting following the Plan’s
receipt of the request for review.  The
date of the receipt of the request for review shall be determined without
regard to whether all of the information necessary to make a benefit
determination on review is received.  The
Claimant shall be notified in writing within this initial period if special
circumstances require an extension of the time needed to process the
claim.  The notice shall indicate the
special circumstances requiring an extension of time and the date by which the
committee or board expects to render the determination on review.  In no event shall such benefit determination
be made later than 


 


60

















 


the third meeting
of the committee or board following the Plan’s receipt of the request for
review.  The Plan Administrator shall
provide adequate written notice to the Claimant of the Plan’s benefit
determination on review as soon as possible, but not later than five days after
the benefit determination is made.


 


If the claim for
benefits is wholly or partially denied on review, the Plan Administrator’s
notice to the Claimant shall: (i) specify the reason or reasons for the
denial; (ii) reference the specific Plan provisions on which the denial is
based; (iii) include a statement that the Claimant is entitled to receive,
upon request and free of charge, reasonable access to, and copies of, all
documents, records, and other information relevant to the Claimant’s claim for
benefits; and (iv) include a statement of the Claimant’s right to bring a
civil action under ERISA section 502(a).


 


A Claimant may
authorize a representative to act on the Claimant’s behalf with respect to a
benefit claim or appeal of an adverse benefit determination.  Such authorization shall be made by
completion of a form furnished for that purpose.  In the absence of any contrary direction from
the Claimant, all information and notifications to which the Claimant is
entitled shall be directed to the authorized representative.


 


The Plan
Administrator shall perform periodic examinations, reviews, or audits of
benefit claims to determine whether claims determinations are made in
accordance with the governing Plan documents and, where appropriate, Plan
provisions have been consistently applied with respect to similarly situated
Claimants.


 


Disability Claim
Procedures.  In the case of a claim for disability
benefits, the above provisions will be modified as provided below.


 


If a claim for disability benefits under the Plan is wholly
or partially denied, the Plan Administrator shall provide adequate written
notice to the Claimant whose claim for benefits under the Plan has been
denied.  The notice must be furnished
within 45 days of the date that the claim is received by the Plan without
regard to whether all of the information necessary to make a benefit
determination is received.  The period
for furnishing the notice may be extended for up to 30 days if the Plan
Administrator both determines an extension is necessary due to matters beyond
the control of the Plan and notifies the Claimant in writing within this
initial 45-day period.  The notice shall
indicate the circumstances requiring the extension of time and the date by which
the Plan expects to render a decision. 
If prior to the end of the first 30-day extension period, the Plan
Administrator determines that, due to matters beyond the control of the Plan, a
decision cannot be rendered within that extension period, the period may be
extended for up to an additional 30 days, provided the Plan Administrator
notifies the Claimant in writing, within the first 30-day extension period, of
the circumstances requiring the extension and the date by which the Plan
expects to render a decision.  In the
case of any extension, the notice of extension shall specifically explain the
standards on which entitlement to a benefit is based, the unresolved issues
that prevent a decision on the claim, and the additional information needed to
resolve those issues.  The Claimant shall
be afforded at least 45 days within which to provide the specified information.


 


In the event that
a period of time is extended due to a Claimant’s failure to submit information
necessary to decide a claim, the period for making the benefit determination
shall be tolled from the date on which the notification of the extension is
sent to the Claimant until the date on which the Claimant responds to the
request for additional information.


 


The Plan
Administrator’s notice to the Claimant shall: (i) specify the reason or
reasons for the denial; (ii) reference the specific Plan provisions on
which the denial is based; (iii) describe any additional material and
information needed for the Claimant to perfect his claim for benefits; (iv) explain
why the material and information is needed; (v) inform the Claimant of the
Plan’s appeal procedures and the time limits applicable to such procedures,
including a statement of the Claimant’s right to bring a civil action under
ERISA section 502(a) following an adverse benefit determination on appeal;
(vi) provide the Claimant with any internal rule, guideline, protocol, or
other similar criterion that was relied upon in making the adverse
determination or a statement that such rule, guideline, protocol, or other
similar criterion was relied upon and a copy will be provided free of charge
upon request; and (vii) provide the 


 


61

















 


Claimant with an
explanation of any scientific or clinical judgment for the determination if
benefit determination is based on a medical necessity or experimental treatment
or similar exclusion or limit or a statement that the benefit is based on such
an exclusion or limit and such explanation will be provided free of charge.


 


Any appeal made by a Claimant must be made in writing to
the Plan Administrator within 180 days after receipt of the Plan Administrator’s
notice of denial of benefits.  The
Claimant may submit written comments, documents, records, and other information
relating to the claim for benefits.  The
Claimant shall be provided, upon request and free of charge, reasonable access
to, and copies of, all documents, records, and other information relevant to
the Claimant’s claim for benefits.  The
Plan Administrator shall review the claim taking into account all comments,
documents, records, and other information submitted by the Claimant relating to
the claim, without regard to whether such information was submitted or
considered in the initial benefit determination.  The review shall not afford deference to the
initial adverse benefit determination and shall be conducted by an appropriate
named fiduciary who is neither the individual who made the adverse benefit
determination that is the subject of the appeal, nor the subordinate of such
individual.  If the adverse benefit
determination is based in whole or in part on a medical judgment, the
appropriate named fiduciary shall consult with a health care professional who
has appropriate training and experience in the field of medicine involved in
the medical judgment.  Such health care
professional shall be an individual who is neither an individual who was
consulted in connection with the adverse benefit determination that is the
subject of the appeal, nor the subordinate of such individual.  The Claimant shall be provided with the
identity of medical or vocational experts whose advice was obtained on behalf
of the Plan in connection with the adverse benefit determination, without
regard to whether the advice was relied on.


 


The Plan
Administrator shall provide adequate written notice to the Claimant of the Plan’s
benefit determination on review.  The
notice must be furnished within 45 days of the date that the request for review
is received by the Plan without regard to whether all of the information
necessary to make a benefit determination on review is received.  The Claimant shall be notified in writing
within this initial 45-day period if special circumstances require an extension
of the time needed to process the claim. 
The notice shall indicate the special circumstances requiring an
extension of time and the date by which the Plan Administrator expects to
render the determination on review.  In
no event shall such extension exceed a period of 45 days from the end of the
initial 45-day period.


 


In the event the
benefit determination is being made by a committee or board of trustees that
hold regularly scheduled meetings at least quarterly, the above paragraph shall
not apply.  The benefit determination
must be made by the date of the meeting of the committee or board that
immediately follows the Plan’s receipt of a request for review, unless the
request for review is filed within 30 days preceding the date of such
meeting.  In such case, the benefit
determination must be made by the date of the second meeting following the Plan’s
receipt of the request for review.  The
date of the receipt of the request for review shall be determined without
regard to whether all of the information necessary to make a benefit determination
on review is received.  The Claimant
shall be notified in writing within this initial period if special
circumstances require an extension of the time needed to process the claim.  The notice shall indicate the special
circumstances requiring an extension of time and the date by which the
committee or board expects to render the determination on review.  In no event shall such benefit determination
be made later than the third meeting of the committee or board following the
Plan’s receipt of the request for review. 
The Plan Administrator shall provide adequate written notice to the
Claimant of the Plan’s benefit determination on review as soon as possible, but
not later than five days after the benefit determination is made.


 


To the extent that
a period of time is extended due to a Claimant’s failure to submit information
necessary to decide a claim, the period for making the benefit determination on
review shall be tolled from the date on which the notification of the extension
is sent to the Claimant until the date on which the Claimant responds to the
request for additional information.


 


If the claim for
disability benefits is wholly or partially denied on review, the Plan
Administrator’s notice to the Claimant shall: (i) specify the reason or reasons
for the denial; (ii) reference the specific Plan provisions on which the
denial is based; (iii) include a statement that the Claimant is entitled
to receive, upon request and free of charge, 


 


62

















 


reasonable access
to, and copies of, all documents, records, and other information relevant to
the Claimant’s claim for benefits; (iv) include a statement of the
Claimant’s right to bring a civil action under ERISA section 502(a); (v) provide
the Claimant with any internal rule, guideline, protocol, or other similar
criterion that was relied upon in making the adverse determination or a
statement that such rule, guideline, protocol, or other similar criterion was
relied upon and a copy will be provided free of charge upon request; (vi) provide
the Claimant with an explanation of any scientific or clinical judgment for the
determination if benefit determination is based on a medical necessity or
experimental treatment or similar exclusion or limit or a statement that the
benefit is based on such an exclusion or limit and such explanation will be
provided free of charge; and (vii) provide the Claimant with the following
statement: “You and your plan may have other voluntary alternative dispute
resolution options, such as mediation. 
One way to find out what may be available is to contact your local U.S.
Department of Labor Office and your State insurance regulatory agency.”


 


SECTION 9.06—DELEGATION OF AUTHORITY.


 


All or any part of the administrative duties and responsibilities
under this article may be delegated by the Plan Administrator to a retirement
committee.  The duties and
responsibilities of the retirement committee shall be set out in a separate
written agreement.


 


SECTION 9.07—EXERCISE OF DISCRETIONARY AUTHORITY.


 


The Employer, Plan Administrator, and any other person or
entity who has authority with respect to the management, administration, or
investment of the Plan may exercise that authority in its/his full discretion,
subject only to the duties imposed under ERISA. 
This discretionary authority includes, but is not limited to, the
authority to make any and all factual determinations and interpret all terms
and provisions of the Plan documents relevant to the issue under
consideration.  The exercise of authority
will be binding upon all persons; will be given deference in all courts of law
to the greatest extent allowed under law; and will not be overturned or set
aside by any court of law unless found to be arbitrary and capricious or made
in bad faith.


 


SECTION 9.08—TRANSACTION PROCESSING.


 


Transactions
(including, but not limited to, investment directions, trades, loans, and
distributions) shall be processed as soon as administratively practicable after
proper directions are received from the Participant or other parties.  No guarantee is made by the Plan, Plan
Administrator, Trustee, Insurer, or Employer that such transactions will be
processed on a daily or other basis, and no guarantee is made in any respect
regarding the processing time of such transactions.


 


Notwithstanding
any other provision of the Plan, the Employer, the Plan Administrator, or the
Trustee reserves the right to not value an investment option on any given
Valuation Date for any reason deemed appropriate by the Employer, the Plan Administrator,
or the Trustee.


 


Administrative
practicality will be determined by legitimate business factors (including, but
not limited to, failure of systems or computer programs, failure of the means
of the transmission of data, force majeure, the failure of a service provider
to timely receive values or prices, and correction for errors or omissions or
the errors or omissions of any service provider) and in no event will be deemed
to be less than 14 days.  The processing
date of a transaction shall be binding for all purposes of the Plan and
considered the applicable Valuation Date for any transaction.


 


63

















 


ARTICLE X


 


GENERAL PROVISIONS


 


SECTION 10.01—AMENDMENTS.


 


The Employer may
amend this Plan at any time, including any remedial retroactive changes (within
the time specified by Internal Revenue Service regulations), to comply with any
law or regulation issued by any governmental agency to which the Plan is
subject.  The Employer may correct
obvious and unambiguous typographical errors and cross references that merely
correct a reference but that do not in any way change the original intended
meaning of the provisions.


 


An amendment may
not allow reversion or diversion of Plan assets to the Employer at any time,
except as may be required to comply with any law or regulation issued by any
governmental agency to which the Plan is subject.


 


An amendment may
not eliminate or reduce a section 411(d)(6) protected benefit, as defined
in Q&A-1 in section 1.411(d)-4 of the regulations, that has already
accrued, except as provided in section 1.411(d)-3 or 1.411(d)-4 of the
regulations.  This is generally the case
even if such elimination or reduction is contingent upon the Employee’s
consent.  However, the Plan may be amended
to eliminate or reduce section 411(d)(6) protected benefits with respect
to benefits not yet accrued as of the later of the amendment’s adoption date or
effective date without violating Code Section 411(d)(6).  Notwithstanding the preceding sentences, a
Participant’s Account may be reduced to the extent permitted under Code Section 412(c)(8).


 


If, as a result of
an amendment, an Employer Contribution is removed that is not 100% immediately
vested when made, the applicable vesting schedule shall remain in effect with
respect to that part of his Account resulting from such Contributions after the
date of such amendment.  The Participant
shall not become immediately 100% vested in such Contributions as a result of
the elimination of such Contribution except as otherwise specifically provided
in the Plan.


 


An amendment shall not decrease a Participant’s vested
interest in the Plan.  If an amendment to
the Plan changes the computation of the percentage used to determine that
portion of a Participant’s Account attributable to Employer Contributions which
is nonforfeitable (whether directly or indirectly), in the case of an Employee
who is a Participant as of the later of the date such amendment or change is
adopted or the date it becomes effective, the nonforfeitable percentage
(determined as of such date) of such Employee’s right to his Account
attributable to Employer Contributions shall not be less than the percentage
computed under the Plan without regard to such amendment or change.  Furthermore, each Participant or former
Participant


 


(a)         who has completed at least three Years of
Service on the date the election period described below ends (five Years of
Service if the Participant does not have at least one Hour of Service in a Plan
Year beginning after December 31, 1988) and


 


(b)        whose nonforfeitable percentage will be determined on
any date after the date of the change


 


may elect, during the election period, to have the
nonforfeitable percentage of his Account that results from Employer
Contributions determined without regard to the amendment.  This election may not be revoked.  If after the Plan is changed, the Participant’s
nonforfeitable percentage will at all times be as great as it would have been
if the change had not been made, no election needs to be provided.  The election period shall begin no later than
the date the Plan amendment is adopted and end no earlier than the 60th day
after the latest of the date the amendment is adopted or becomes effective, or
the date the Participant is issued written notice of the amendment by the
Employer or the Plan Administrator.


 


64

















 


For an amendment
adopted after August 9, 2006, with respect to a Participant’s Account
attributable to Employer Contributions accrued as of the later of the adoption
or effective date of the amendment and earnings, the vested percentage of each
Participant will be the greater of the vested percentage under the old vesting
schedule or the vested percentage under the new vesting schedule.


 


SECTION 10.02—DIRECT ROLLOVERS.


 


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


 


In the event of a
mandatory distribution of an Eligible Rollover Distribution greater than $1,000
in accordance with the SMALL AMOUNTS SECTION of this article (or which is
a small amounts payment under Article VIII at complete termination of the
Plan), if the Participant does not elect to have such distribution paid
directly to an Eligible Retirement Plan specified by the Participant in a
Direct Rollover or to receive the distribution directly, the Plan Administrator
will pay the distribution in a Direct Rollover to an individual retirement plan
designated by the Plan Administrator.


 


In the event of
any other Eligible Rollover Distribution to a Distributee in accordance with
the SMALL AMOUNTS SECTION of this article (or which is a small amounts
payment under Article VIII at complete termination of the Plan), if the
Distributee does not elect to have such distribution paid directly to an
Eligible Retirement Plan specified by the Distributee in a Direct Rollover or
to receive the distribution directly, the Plan Administrator will pay the
distribution to the Distributee.


 


A mandatory
distribution is a distribution to a Participant that is made without the
Participant’s consent and is made to the Participant before he attains the
older of age 62 or his Normal Retirement Age.


 


SECTION 10.03—MERGERS AND DIRECT TRANSFERS.


 


The Plan may not
be merged or consolidated with, nor have its assets or liabilities transferred
to, any other retirement plan, unless each Participant in this Plan would (if
that plan then terminated) receive a benefit immediately after the merger,
consolidation, or transfer that is equal to or greater than the benefit the
Participant would have been entitled to receive immediately before the merger,
consolidation, or transfer (if this Plan had then terminated).  The Employer may enter into merger agreements
or direct transfer of assets agreements with the employers under other
retirement plans which are qualifiable under Code Section 401(a),
including an elective transfer, and may accept the direct transfer of plan
assets, or may transfer plan assets, as a party to any such agreement.  The Employer shall not consent to, or be a
party to a merger, consolidation, or transfer of assets with a plan which is
subject to the survivor annuity requirements of Code Section 401(a)(11) if
such action would result in a survivor annuity feature being maintained under
this Plan.  The Employer will not
transfer any amounts attributable to elective deferral contributions, qualified
matching contributions, and qualified nonelective contributions unless the
transferee plan provides that the limitations of section 1.401(k)-1(d) of
the regulations shall apply to such amounts (including post-transfer earnings
thereon), unless the amounts could have been distributed at the time of the
transfer (other than for hardship), and the transfer is an elective transfer
described in Q&A-3(b)(1) in section 1.411(d)-4 of the regulations.


 


Notwithstanding any provision of the Plan to the contrary,
to the extent any optional form of benefit under the Plan permits a
distribution prior to the Employee’s retirement, death, disability, or Severance
from Employment, and prior to plan termination, the optional form of benefit is
not available with respect to benefits attributable to assets (including the
post-transfer earnings thereon) and liabilities that are transferred, within
the meaning of Code Section 414(l), to this Plan from a money purchase
pension plan qualified under Code Section 401(a) (other than any
portion 


 


65

















 


of those assets and liabilities attributable to voluntary
employee contributions).  The limitations
of section 1.401(k)-1(d) of the regulations applicable to elective
deferral contributions, qualified matching contributions, and qualified
nonelective contributions shall continue to apply to any amounts attributable
to such contributions (including post-transfer earnings thereon) transferred to
this Plan, unless the amounts could have been distributed at the time of the
transfer (other than for hardship), and the transfer is an elective transfer
described in Q&A-3(b)(1) in section 1.411(d)-4 of the regulations.


 


The Plan may
accept a direct transfer of plan assets on behalf of an Eligible Employee.  If the Eligible Employee is not an Active
Participant when the transfer is made, the Eligible Employee shall be deemed to
be an Active Participant only for the purpose of investment and distribution of
the transferred assets.  Employer
Contributions shall not be made for or allocated to the Eligible Employee,
until the time he meets all of the requirements to become an Active
Participant.


 


The Plan shall hold, administer, and distribute the
transferred assets as a part of the Plan. 
The Plan shall maintain a separate account for the benefit of the
Employee on whose behalf the Plan accepted the transfer in order to reflect the
value of the transferred assets.


 


A Participant’s
section 411(d)(6) protected benefits, as defined in Q&A-1 in section
1.411(d)-4 of the regulations, may not be eliminated by reason of transfer or
any transaction amending or having the effect of amending a plan or plans to
transfer benefits except as provided below.


 


A Participant’s
section 411(d)(6) protected benefits may be eliminated or reduced upon
transfer between qualified defined contribution plans if the conditions in
Q&A-3(b)(1) in section 1.411(d)-4 of the regulations are met.  The transfer must meet all of the other
applicable qualification requirements.


 


A Participant’s
section 411(d)(6) protected benefits may be eliminated or reduced if a
transfer is an elective transfer of certain distributable benefits between
qualified plans (both defined benefit and defined contribution) and the
conditions in Q&A-3(c)(1) in section 1.411(d)-4 of the regulations are
met.  The rules applicable to
distributions under the plan would apply to the transfer, but the transfer would
not be treated as a distribution for purposes of the minimum distribution
requirements of Code Section 401(a)(9). 
Beginning January 1, 2002, if the Participant is eligible to
receive an immediate distribution of his entire nonforfeitable accrued benefit
in a single sum distribution that would consist entirely of an eligible
rollover distribution under Code Section 401(a)(31), such transfer will be
accomplished as a direct rollover under Code Section 401(a)(31).


 


SECTION 10.04—PROVISIONS
RELATING TO THE INSURER AND OTHER PARTIES.


 


The obligations of
an Insurer shall be governed solely by the provisions of the Annuity
Contract.  The Insurer shall not be
required to perform any act not provided in or contrary to the provisions of
the Annuity Contract.  Each Annuity
Contract when purchased shall comply with the Plan.  See the CONSTRUCTION SECTION of this
article.


 


Any
issuer or distributor of investment contracts or securities is governed solely
by the terms of its policies, written investment contract, prospectuses,
security instruments, and any other written agreements entered into with the
Trustee with regard to such investment contracts or securities.


 


Such Insurer,
issuer or distributor is not a party to the Plan, nor bound in any way by the
Plan provisions.  Such parties shall not
be required to look to the terms of this Plan, nor to determine whether the
Employer, the Plan Administrator, the Trustee, or the Named Fiduciary have the
authority to act in any particular manner or to make any contract or agreement.


 


Until notice of
any amendment or termination of this Plan or a change in Trustee has been
received by the Insurer at its home office or an issuer or distributor at their
principal address, they are and shall be fully protected in 


 


66

















 


assuming that the
Plan has not been amended or terminated and in dealing with any party acting as
Trustee according to the latest information which they have received at their
home office or principal address.


 


SECTION 10.05—EMPLOYMENT
STATUS.


 


Nothing contained
in this Plan gives an Employee the right to be retained in the Employer’s
employ or to interfere with the Employer’s right to discharge any Employee.


 


SECTION 10.06—RIGHTS TO PLAN ASSETS.


 


An Employee shall
not have any right to or interest in any assets of the Plan upon termination of
employment or otherwise except as specifically provided under this Plan, and
then only to the extent of the benefits payable to such Employee according to
the Plan provisions.


 


Any final payment
or distribution to a Participant or his legal representative or to any
Beneficiaries of such Participant under the Plan provisions shall be in full
satisfaction of all claims against the Plan, the Named Fiduciary, the Plan
Administrator, the Insurer, the Trustee, and the Employer arising under or by
virtue of the Plan.


 


SECTION 10.07—BENEFICIARY.


 


Each Participant
may name a Beneficiary to receive any death benefit that may arise out of his
participation in the Plan.  The
Participant may change his Beneficiary from time to time.  Unless a qualified election has been made,
for purposes of distributing any death benefits before the Participant’s
Retirement Date, the Beneficiary of a Participant who has a spouse shall be the
Participant’s spouse.  The Participant’s
Beneficiary designation and any change of Beneficiary shall be subject to the
provisions of the ELECTION PROCEDURES SECTION of Article VI.


 


It is the responsibility of the Participant to give written
notice to the Plan Administrator of the name of the Beneficiary on a form
furnished for that purpose.  The Plan
Administrator shall maintain records of Beneficiary designations for
Participants before their Retirement Dates. 
However, the Plan Administrator may delegate to another party the responsibility
of maintaining records of Beneficiary designations.  In that event, the written designations made
by Participants shall be filed with such other party.  If a party other than the Insurer maintains
the records of Beneficiary designations and a Participant dies before his
Retirement Date, such other party shall certify to the Insurer the Beneficiary
designation on its records for the Participant.


 


If there is no Beneficiary named or surviving when a
Participant dies, the Participant’s Beneficiary shall be the Participant’s
surviving spouse, or where there is no surviving spouse, the executor or
administrator of the Participant’s estate.


 


SECTION 10.08—NONALIENATION OF BENEFITS.


 


Benefits payable under the Plan are not subject to the
claims of any creditor of any Participant or Beneficiary.  A Participant or Beneficiary does not have
any rights to alienate, anticipate, commute, pledge, encumber, or assign such
benefits, except in the case of a loan as provided in the LOANS TO PARTICIPANTS
SECTION of Article V.  The
preceding sentences shall also apply to the creation, assignment, or
recognition of a right to any benefit payable with respect to a Participant
according to a domestic relations order, unless such order is determined by the
Plan Administrator to be a qualified domestic relations order, as defined in
Code Section 414(p), or any domestic relations order entered before January 1,
1985.  The preceding sentences shall not
apply to any offset of a Participant’s benefits provided under the Plan against
an amount the Participant is required to pay the Plan with respect to a
judgment, order, or decree issued, or a settlement entered into, on or after August 5,
1997, which meets the requirements of Code Sections 401(a)(13)(C) or (D).


 


67
















 


SECTION 10.09—CONSTRUCTION.


 


The validity of
the Plan or any of its provisions is determined under and construed according
to Federal law and, to the extent permissible, according to the laws of the
state in which the Employer has its principal office.  In case any provision of this Plan is held
illegal or invalid for any reason, such determination shall not affect the
remaining provisions of this Plan, and the Plan shall be construed and enforced
as if the illegal or invalid provision had never been included.


 


In the event of
any conflict between the provisions of the Plan and the terms of any Annuity
Contract issued hereunder, the provisions of the Plan control.


 


SECTION 10.10—LEGAL
ACTIONS.


 


No person employed
by the Employer; no Participant, former Participant, or their Beneficiaries;
nor any other person having or claiming to have an interest in the Plan is
entitled to any notice of process.  A
final judgment entered in any such action or proceeding shall be binding and
conclusive on all persons having or claiming to have an interest in the Plan.


 


SECTION 10.11—SMALL
AMOUNTS.


 


If consent of the
Participant is not required for a benefit that is immediately distributable in
the ELECTION PROCEDURES SECTION of Article VI, a Participant’s entire
Vested Account shall be paid in a single sum as of the earliest of his
Retirement Date, the date he dies, or the date he has a Severance from
Employment for any other reason (the date the Employer provides notice to the
record keeper of the Plan of such event, if later).  For purposes of this section, if the
Participant’s Vested Account is zero, the Participant shall be deemed to have
received a distribution of such Vested Account. 
If a Participant would have received a distribution under the first
sentence of this paragraph but for the fact that the Participant’s consent was
needed to distribute a benefit which is immediately distributable, and if at a
later time consent would not be needed to distribute a benefit that is
immediately distributable and such Participant has not again become an
Employee, such Vested Account shall be paid in a single sum.  This is a small amounts payment.


 


If a small amounts
payment is made as of the date the Participant dies, the small amounts payment
shall be made to the Participant’s Beneficiary. 
If a small amounts payment is made while the Participant is living, the
small amounts payment shall be made to the Participant.  The small amounts payment is in full settlement
of all benefits otherwise payable.


 


No other small
amounts payments shall be made.


 


SECTION 10.12—WORD USAGE.


 


The masculine
gender, where used in this Plan, shall include the feminine gender and the
singular words, where used in this Plan, shall include the plural, unless the
context indicates otherwise.


 


The words “in writing”
and “written,” where used in this Plan, shall include any other forms, such as
voice response or other electronic system, as permitted by any governmental
agency to which the Plan is subject.


 


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SECTION 10.13—CHANGE IN
SERVICE METHOD.


 


(a)                          Change
of Service Method Under This Plan. 
If this Plan is amended to change the method of crediting service from
the elapsed time method to the hours method for any purpose under this Plan,
the Employee’s service shall be equal to the sum of (1), (2), and (3) below:


 


(1)                          The
number of whole years of service credited to the Employee under the Plan as of
the date the change is effective.


 


(2)                          One year
of service for the computation period in which the change is effective if he is
credited with the required number of Hours of Service.  For that portion of the computation period
ending on the date of the change (for the first day of the computation period
if the change is made on the first day of the computation period), the Employee
will be credited with the greater of (i) his actual Hours of Service or (ii) the
number of Hours of Service that is equivalent to the fractional part of a year
of elapsed time service credited as of the date of the change, if any.  In determining the equivalent Hours of
Service, the Employee shall be credited with 190 Hours of Service for each
month and any fractional part of a month in such fractional part of a
year.  The number of months and any fractional
part of a month shall be determined by multiplying the fractional part of a
year, expressed as a decimal, by 12.  For
the remaining portion of the computation period (the period beginning on the
second day of the computation period and ending on the last day of the
computation period if the change is made on the first day of the computation
period), the Employee will be credited with his actual Hours of Service.


 


(3)                          The
Employee’s service determined under this Plan using the hours method after the
end of the computation period in which the change in service method was
effective.


 


If this Plan is
amended to change the method of crediting service from the hours method to the
elapsed time method for any purpose under this Plan, the Employee’s service
shall be equal to the sum of (4), (5), and (6) below:


 


(4)                          The
number of whole years of service credited to the Employee under the Plan as of
the beginning of the computation period in which the change in service method
is effective.


 


(5)                          The
greater of (i) the service that would be credited to the Employee for that
entire computation period using the elapsed time method or (ii) the
service credited to him under the Plan as of the date the change is effective.


 


(6)                          The
Employee’s service determined under this Plan using the elapsed time method after
the end of the applicable computation period in which the change in service
method was effective.


 


(b)                         Transfers
Between Plans with Different Service Methods.  If an Employee has been a participant in
another plan of the Employer that credited service under the elapsed time
method for any purpose that under this Plan is determined using the hours
method, then the Employee’s service shall be equal to the sum of (1), (2), and (3) below:


 


(1)                          The
number of whole years of service credited to the Employee under the other plan
as of the date he became an Eligible Employee under this Plan.


 


(2)                          One year
of service for the applicable computation period in which he became an Eligible
Employee if he is credited with the required number of Hours of Service.  For that portion of such computation period
ending on the date he became an Eligible Employee (for the first day of such
computation period if he became an Eligible Employee on the first day of such
computation period), the Employee will be credited with the greater of (i) his
actual Hours of Service or (ii) the


 


69

















 


number of Hours of
Service that is equivalent to the fractional part of a year of elapsed time
service credited as of the date he became an Eligible Employee, if any.  In determining the equivalent Hours of
Service, the Employee shall be credited with 190 Hours of Service for each
month and any fractional part of a month in such fractional part of a year.  The number of months and any fractional part
of a month shall be determined by multiplying the fractional part of a year,
expressed as a decimal, by 12.  For the
remaining portion of such computation period (the period beginning on the
second day of such computation period and ending on the last day of such
computation period if he became an Eligible Employee on the first day of such
computation period), the Employee will be credited with his actual Hours of
Service.


 


(3)                          The
Employee’s service determined under this Plan using the hours method after the end
of the computation period in which he became an Eligible Employee.


 


If an Employee has
been a participant in another plan of the Employer that credited service under
the hours method for any purpose that under this Plan is determined using the
elapsed time method, then the Employee’s service shall be equal to the sum of
(4), (5), and (6) below:


 


(4)                          The
number of whole years of service credited to the Employee under the other plan
as of the beginning of the computation period under that plan in which he
became an Eligible Employee under this Plan.


 


(5)                          The
greater of (i) the service that would be credited to the Employee for that
entire computation period using the elapsed time method or (ii) the
service credited to him under the other plan as of the date he became an
Eligible Employee under this Plan.


 


(6)                          The
Employee’s service determined under this Plan using the elapsed time method
after the end of the applicable computation period under the other plan in
which he became an Eligible Employee.


 


If an Employee has
been a participant in a Controlled Group member’s plan that credited service
under a different method than is used in this Plan, in order to determine entry
and vesting, the provisions in (b) above shall apply as though the
Controlled Group member’s plan was a plan of the Employer.


 


Any modification
of service contained in this Plan shall be applicable to the service determined
pursuant to this section.


 


SECTION 10.14—MILITARY
SERVICE.


 


Notwithstanding
any provision of this Plan to the contrary, the Plan shall provide
contributions, benefits, and service credit with respect to qualified military
service in accordance with Code Section 414(u).  Loan repayments shall be suspended under this
Plan as permitted under Code Section 414(u).


 


SECTION 10.15—MISSING
PARTICIPANTS AND BENEFICIARIES.


 


If a portion of an Account remains to be distributed
to a Participant or Beneficiary at a time when the Plan Administrator is unable
to locate the Participant or Beneficiary, and the Participant or Beneficiary
fails to contact the Plan Administrator within three years after being notified of his right to receive such distribution by a letter sent to
his address on file with the Plan Administrator, then such Account shall be
applied to reduce the amount of Contributions that the Employer would otherwise
be required to contribute to the Plan, but if the Participant or Beneficiary
later asserts a proper claim for such distribution, or if the person who would
be entitled to receive such distribution upon the 


 


70

















 


death of such Participant or Beneficiary establishes
that such Participant or Beneficiary has died, the Employer shall contribute
the amount necessary to restore such Account.


 


71

















 


ARTICLE XI


 


TOP-HEAVY
PLAN REQUIREMENTS


 


SECTION 11.01—APPLICATION.


 


The provisions of
this article shall supersede all other provisions in the Plan to the
contrary.  The provisions of this article
shall apply for purposes of determining whether the Plan is a Top-heavy Plan
for Plan Years beginning after December 31, 2001, and whether the Plan
satisfies the minimum benefit requirements of Code Section 416(c) for
such years.


 


For the purpose of
applying the Top-heavy Plan requirements of this article, all members of the
Controlled Group shall be treated as one Employer.  The term Employer, as used in this article,
shall be deemed to include all members of the Controlled Group, unless the term
as used clearly indicates only the Employer is meant.


 


The accrued
benefit or account of a participant that results from deductible employee
contributions shall not be included for any purpose under this article.


 


The minimum
vesting and contribution provisions of the MODIFICATION OF VESTING REQUIREMENTS
and MODIFICATION OF CONTRIBUTIONS SECTIONS of this article shall not apply to
any Employee who is included in a group of Employees covered by a collective
bargaining agreement which the Secretary of Labor finds to be a collective
bargaining agreement between employee representatives and one or more
employers, including the Employer, if there is evidence that retirement
benefits were the subject of good faith bargaining between such
representatives.  For this purpose, the
term “employee representatives” does not include any organization more than
half of whose members are employees who are owners, officers, or executives.


 


SECTION 11.02—DEFINITIONS.


 


For purposes of
this article the following terms are defined:


 


Aggregation
Group means:


 


(a)                          each of
the Employer’s qualified plans in which a Key Employee is a participant during
the Plan Year containing the Determination Date or any of the four preceding
Plan Years (regardless of whether the plans have terminated),


 


(b)                         each of
the Employer’s other qualified plans which allows the plan(s) described in
(a) above to meet the nondiscrimination requirement of Code Section 401(a)(4) or
the minimum coverage requirement of Code Section 410, and


 


(c)                          any of
the Employer’s other qualified plans not included in (a) or (b) above
which the Employer desires to include as part of the Aggregation Group.  Such a qualified plan shall be included only
if the Aggregation Group would continue to satisfy the requirements of Code
Sections 401(a)(4) and 410.


 


The plans in (a) and
(b) above constitute the “required” Aggregation Group.  The plans in (a), (b), and (c) above
constitute the “permissive” Aggregation Group.


 


Compensation
means compensation as defined in the CONTRIBUTION LIMITATION SECTION of Article III.


 


72

















 


Determination
Date means as to any plan, 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, the
Determination Date is the last day of that year.


 


Key
Employee means any Employee or former Employee (including any
deceased Employee) who at any time during the Plan Year that includes the
Determination Date is:


 


(a)                          an
officer of the Employer having Compensation for the Plan Year greater than
$130,000 (as adjusted under Code Section 416(i)(1) for Plan Years
beginning after December 31, 2002),


 


(b)                         a
5-percent owner of the Employer, or


 


(c)                          a
1-percent owner of the Employer having Compensation for the Plan Year of more
than $150,000.


 


The determination of who is a Key
Employee shall be made according to Code Section 416(i)(1) and the
applicable regulations and other guidance of general applicability issued
thereunder.


 


Nonkey
Employee means any Employee who is not a Key Employee.


 


Top-heavy
Plan means a plan that is top-heavy for any plan year.  This Plan shall be top-heavy if any of the
following conditions exist:


 


(a)                          The
Top-heavy Ratio for this Plan exceeds 60 percent and this Plan is not part of
any required Aggregation Group or permissive Aggregation Group.


 


(b)                         This Plan
is a part of a required Aggregation Group, but not part of a permissive
Aggregation Group, and the Top-heavy Ratio for the required Aggregation Group
exceeds 60 percent.


 


(c)                          This
Plan is a part of a required Aggregation Group and part of a permissive
Aggregation Group and the Top-heavy Ratio for the permissive Aggregation Group
exceeds 60 percent.


 


Top-heavy
Ratio means:


 


(a)                          If the
Employer maintains one or more defined contribution plans (including any
simplified employee pension plan) and the Employer has not maintained any
defined benefit plan which during the five-year period ending on the
Determination Date(s) has or has had accrued benefits, the Top-heavy Ratio
for this Plan alone or for the required or permissive Aggregation Group, as
appropriate, is a fraction, the numerator of which is the sum of the account
balances of all Key Employees as of the Determination Date(s) (including
any part of any account balance distributed in the one-year period ending on
the Determination Date(s) and distributions under a terminated plan which
if it had not been terminated would have been required to be included in the
Aggregation Group), and the denominator of which is the sum of all account
balances (including any part of any account balance distributed in the one-year
period ending on the Determination Date(s) and distributions under a
terminated plan which if it had not been terminated would have been required to
be included in the Aggregation Group), both computed in accordance with Code Section 416
and the regulations thereunder.  In the
case of a distribution made for a reason other than Severance from Employment,
death, or disability, this provision shall be applied by substituting “five-year
period” for “one-year period.”  Both the
numerator and denominator of the Top-heavy Ratio are increased to reflect any
contribution not actually made as of the Determination Date, but which is
required to be taken into account on that date under Code Section 416 and
the regulations thereunder.


 


73

















 


(b)                         If the
Employer maintains one or more defined contribution plans (including any
simplified employee pension plan) and the Employer maintains or has maintained
one or more defined benefit plans which during the five-year period ending on
the Determination Date(s) has or has had accrued benefits, the Top-heavy
Ratio for any required or permissive Aggregation Group, as appropriate, is a
fraction, the numerator of which is the sum of the account balances under the
aggregated defined contribution plan or plans of all Key Employees, determined
in accordance with (a) above, and the present value of accrued benefits
under the aggregated defined benefit plan or plans for all Key Employees as of
the Determination Date(s), and the denominator of which is the sum of the
account balances under the aggregated defined contribution plan or plans for
all participants, determined in accordance with (a) above, and the present
value of accrued benefits under the defined benefit plan or plans for all
participants as of the Determination Date(s), all determined in accordance with
Code Section 416 and the regulations thereunder.  The accrued benefits under a defined benefit
plan in both the numerator and denominator of the Top-heavy Ratio are increased
for any distribution of an accrued benefit made in the one-year period ending
on the Determination Date (and distributions under a terminated plan which if
it had not been terminated would have been required to be included in the Aggregation
Group).  In the case of a distribution
made for a reason other than Severance from Employment, death, or disability,
this provision shall be applied by substituting “five-year period” for “one-year
period.”


 


(c)                          For
purposes of (a) and (b) above, the value of account balances and the
present value of accrued benefits will be determined as of the most recent
Valuation Date that falls within or ends with the 12-month period ending on the
Determination Date, except as provided in Code Section 416 and the
regulations thereunder for the first and second plan years of a defined benefit
plan.  The account balances and accrued
benefits of a participant (i) who is not a Key Employee but who was a Key
Employee in a prior year or (ii) who has not been credited with at least
one hour of service with any employer maintaining the plan at any time during
the one-year period ending on the Determination Date will be disregarded.  The calculation of the Top-heavy Ratio and
the extent to which distributions, rollovers, and transfers are taken into
account will be made in accordance with Code Section 416 and the
regulations thereunder.  Deductible
employee contributions will not be taken into account for purposes of computing
the Top-heavy Ratio.  When aggregating
plans, the value of account balances and accrued benefits will be calculated
with reference to the Determination Dates that fall within the same calendar
year.


 


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


 


SECTION 11.03—MODIFICATION
OF VESTING REQUIREMENTS.


 


A Participant’s
Vesting Percentage is at all times at least as great as the Vesting Percentage
required to satisfy the requirements of Code Section 416.


 


The part of the Participant’s Vested Account resulting from
the minimum contributions required pursuant to the MODIFICATION OF
CONTRIBUTIONS SECTION of this article (to the extent required to be
nonforfeitable under Code Section 416(b)) may not be forfeited under Code Section 411(a)(3)(B) or
(D).


 


SECTION 11.04—MODIFICATION
OF CONTRIBUTIONS.


 


During any Plan Year in which this Plan is a Top-heavy
Plan, the Employer shall make a minimum contribution as of the last day of the
Plan Year for each Nonkey Employee who is an Employee on the last day of the
Plan Year and who was an Active Participant at any time during the Plan
Year.  A Nonkey Employee is not required
to have a minimum number of Hours of Service or minimum amount of Compensation
in order to be entitled to this minimum. 
A 


 


74

















 


Nonkey Employee who fails to be an Active Participant
merely because his Compensation is less than a stated amount or merely because
of a failure to make mandatory participant contributions or, in the case of a
cash or deferred arrangement, elective contributions shall be treated as if he
were an Active Participant.  The minimum
is the lesser of (a) or (b) below:


 


(a)                          3
percent of such person’s Compensation for such Plan Year.


 


(b)                         The “highest
percentage” of Compensation for such Plan Year at which the Employer’s
Contributions are made for or allocated to any Key Employee.  The highest percentage shall be determined by
dividing the Employer Contributions made for or allocated to each Key Employee
during the Plan Year by the amount of his Compensation for such Plan Year, and
selecting the greatest quotient (expressed as a percentage).  To determine the highest percentage, all of
the Employer’s defined contribution plans within the Aggregation Group shall be
treated as one plan.  The minimum shall
be the amount in (a) above if this Plan and a defined benefit plan of the
Employer are required to be included in the Aggregation Group and this Plan
enables the defined benefit plan to meet the requirements of Code Section 401(a)(4)
or 410.


 


For purposes of (a) and
(b) above, Compensation shall be limited by Code Section 401(a)(17).


 


If the Employer’s
contributions and allocations otherwise required under the defined contribution
plan(s) are at least equal to the minimum above, no additional
contribution shall be required. If the Employer’s total contributions and
allocations are less than the minimum above, the Employer shall contribute the
difference for the Plan Year.


 


The minimum
contribution applies to all of the Employer’s defined contribution plans in the
aggregate which are Top-heavy Plans.  A
minimum contribution under a profit sharing plan shall be made without regard
to whether or not the Employer has profits.


 


If a person who is
otherwise entitled to a minimum contribution above is also covered under
another defined contribution plan of the Employer’s which is a Top-heavy Plan
during that same Plan Year, any additional contribution required to meet the
minimum above shall be provided in this Plan.


 


If a person who is
otherwise entitled to a minimum contribution above is also covered under a
defined benefit plan of the Employer’s that is a Top-heavy Plan during that
same Plan Year, the minimum benefits for him shall not be duplicated.  The defined benefit plan shall provide an
annual benefit for him on, or adjusted to, a straight life basis equal to the
lesser of:


 


(c)         2 percent of
his average compensation multiplied by his years of service, or 


 


(d)        20 percent of his average compensation.


 


Average compensation
and years of service shall have the meaning set forth in such defined benefit
plan for this purpose.


 


For purposes of
this section, any employer contribution made according to a salary reduction or
similar arrangement shall not apply in determining if the minimum contribution
requirement has been met, but shall apply in determining the minimum
contribution required.  Matching
contributions, as defined in Code Section 401(m), shall be taken into
account for purposes of satisfying the minimum contribution requirements of
Code Section 416(c)(2) and the Plan. 
Matching contributions that are used to satisfy the minimum contribution
requirements shall be treated as matching contributions for purposes of the
actual contribution percentage test and other requirements of Code Section 401(m).


 


75

















 


The requirements
of this section shall be met without regard to any Social Security
contribution.


 


76

















 


By executing this Plan, the Primary Employer acknowledges
having counseled to the extent necessary with selected legal and tax advisors
regarding the Plan’s legal and tax implications.


 


Executed
this 18th day of September, 2008.


 


	
   

  	
  LKQ CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Walter P. Hanley

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Senior Vice President

  
	
   

  	
   

  	
  Title

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Defined Contribution Plan CL2007

  



 


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PROTECTED BENEFIT
ADDENDUM


 


The following benefit(s) were included in
the Keystone 401(k) Retirement Plan and were removed as of April 1,
2000.  According to Section 411(d)(6) of
the Internal Revenue Code, the benefit(s) described below shall be
available to Plan Participants who were former participants of the Keystone 401(k) Retirement
Plan who had an account balance on that date (or the date of adoption, if
later).  The protected benefit(s) only
apply to the account balance accrued as of that date, adjusted for earnings or
losses since that date.


 


Early retirement age was
age 55 with the completion of four years of Vesting Service.


 


The following benefit(s) were included in
the Keystone 401(k) Retirement Plan and are being removed as of September 1,
2008.  According to Section 411(d)(6) of
the Internal Revenue Code, the benefit(s) described below shall be available
to Plan Participants who were former participants of the Keystone 401(k) Retirement
Plan who had an account balance on that date (or the date of adoption, if
later).  The protected benefit(s) only
apply to the account balance accrued as of that date, adjusted for earnings or
losses since that date.


 


Disability was
determined by a certified physician selected or approved by the advisory
committee. The plan defined disability as the inability to engage in his
regular occupation or gainful activity in the Employee’s trade for which the
Employee is best qualified through two years of training or education.


 


The following benefit(s) were included in
the Global Trade Alliance Inc. 401(k) Plan and are being removed as of September 1,
2008.  According to Section 411(d)(6) of
the Internal Revenue Code, the benefit(s) described below shall be
available to Plan Participants who were former participants of the Global Trade
Alliance Inc. 401(k) Plan who had an account balance on that date (or the
date of adoption, if later).  The
protected benefit(s) only apply to the account balance accrued as of that
date, adjusted for earnings or losses since that date.


 


Disability was defined
as the inability to engage in any substantial gainful activity in the Employee’s
trade for which the Employee is best qualified through training or experience.
An Employee was allowed to take a distribution upon becoming disabled.


 


The following benefit(s) were included in
the Bodymaster Auto Parts, Inc. 401(k) Plan and are being removed as
of September 3, 2008.  According to Section 411(d)(6) of
the Internal Revenue Code, the benefit(s) described below shall be
available to Plan Participants who were former participants of the Bodymaster
Auto Parts, Inc. 401(k) Plan who had an account balance on that date
(or the date of adoption, if later).  The
protected benefit(s) only apply to the account balance accrued as of that
date, adjusted for earnings or losses since that date.


 


Disability was
determined by a certified physician selected by the plan administrator or
allowed if the Participant received benefits under Title II of the Federal
Social Security Act (but excluded reasons of self-infliction, military – if
receiving government pension, unlawful acts or excessive intoxicants.)


 


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