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EXHIBIT 10.11


 


GXS



Investment and Savings Plan



- - oOo - -



PLAN DOCUMENT



- - oOo - -



Effective Date: November 18, 2002



 






 





Table of Contents




	 	 	 	 	 	 	 	 	 
	Section	 	 	 	Page
	Article I
	Name, Effective Date and Purpose
	1.01	 	 	Name
	 	 	1	 
	1.02	 	 	Effective Date
	 	 	1	 
	1.03	 	 	Purpose
	 	 	1	 
	1.04	 	 	Type of Plan
	 	 	1	 
	Article II
	Definitions
	2.01	 	 	Account or Participant’s Account
	 	 	2	 
	2.02	 	 	Actual Retirement Date
	 	 	2	 
	2.03	 	 	Adjustment Factor
	 	 	2	 
	2.04	 	 	Affiliated Employer
	 	 	2	 
	2.05	 	 	Annuity Starting Date
	 	 	3	 
	2.06	 	 	Appropriate Request
	 	 	3	 
	2.07	 	 	Beneficiary
	 	 	3	 
	2.08	 	 	Board
	 	 	3	 
	2.09	 	 	Code
	 	 	3	 
	2.10	 	 	Catch-up Contributions
	 	 	3	 
	2.11	 	 	Committee
	 	 	3	 
	2.12	 	 	Compensation
	 	 	4	 
	2.13	 	 	Compensation Reduction Contributions
	 	 	4	 
	2.14	 	 	Date of Employment
	 	 	4	 
	2.15	 	 	Disability
	 	 	4	 
	2.16	 	 	Employee
	 	 	4	 
	2.17	 	 	Employee After-tax Contributions
	 	 	5	 
	2.18	 	 	Employer
	 	 	5	 
	2.19	 	 	Employer Matching Contributions
	 	 	6	 
	2.20	 	 	Employer Profit Sharing Contribution
	 	 	6	 
	2.21	 	 	Employment Year
	 	 	6	 
	2.22	 	 	Entry Date
	 	 	 	 



 






 




	 	 	 	 	 	 	 	 	 
	Section	 	 	 	Page
	2.23	 	 	ERISA
	 	 	6	 
	2.24	 	 	Excess Aggregate Contribution
	 	 	6	 
	2.25	 	 	Excess Compensation Reduction Contribution
	 	 	7	 
	2.26	 	 	Excess Contribution
	 	 	7	 
	2.27	 	 	Fiduciary
	 	 	7	 
	2.28	 	 	Fiscal Year
	 	 	8	 
	2.29	 	 	Forfeiture
	 	 	8	 
	2.30	 	 	Former Participant
	 	 	8	 
	2.31	 	 	Full Time Employee
	 	 	8	 
	2.32	 	 	Highly Compensated Employee
	 	 	8	 
	2.33	 	 	Hour or Hour of Service
	 	 	9	 
	2.34	 	 	Investment Funds
	 	 	9	 
	2.35	 	 	Leased Employee
	 	 	9	 
	2.36	 	 	Limitation Year
	 	 	10	 
	2.37	 	 	Married Participant
	 	 	10	 
	2.38	 	 	Non-highly Compensated Employee
	 	 	10	 
	2.39	 	 	Normal Retirement Age
	 	 	10	 
	2.40	 	 	Normal Retirement Date
	 	 	10	 
	2.41	 	 	One-Year Period of Severance
	 	 	10	 
	2.42	 	 	Participant
	 	 	11	 
	2.43	 	 	Part Time Employee
	 	 	11	 
	2.44	 	 	Participant’s Rollover Account
	 	 	11	 
	2.45	 	 	Period of Service
	 	 	11	 
	2.46	 	 	Period of Severance
	 	 	12	 
	2.47	 	 	Plan
	 	 	12	 
	2.48	 	 	Plan Administrator
	 	 	12	 
	2.49	 	 	Plan Year
	 	 	12	 
	2.50	 	 	Postponed Retirement Date
	 	 	12	 
	2.51	 	 	Qualified Employer Profit Sharing Contribution
	 	 	12	 
	2.52	 	 	Re-Employment Commencement Date
	 	 	12	 
	2.53	 	 	Rollover Contributions
	 	 	13	 
	2.54	 	 	Safe Harbor Plan
	 	 	13	 
	2.55	 	 	Section 401(a)(17) Limitation
	 	 	13	 
	2.56	 	 	Severance from Service Date
	 	 	14	 
	2.57	 	 	Sponsoring Employer
	 	 	14	 
	2.58	 	 	Sub Account
	 	 	15	 
	2.59	 	 	Testing Compensation
	 	 	15	 
	2.60	 	 	Trust
	 	 	15	 
	2.61	 	 	Trust Fund
	 	 	16	 
	2.62	 	 	Trustees
	 	 	16	 
	2.63	 	 	USERRA
	 	 	16	 



 






 




	 	 	 	 	 	 	 	 	 
	Section	 	 	 	Page
	2.64	 	 	Valuation Date
	 	 	16	 
	2.65	 	 	Vested
	 	 	16	 
	2.66	 	 	Vesting Service
	 	 	16	 
	Article III
	Eligibility, Enrollment and Participation
	3.01	 	 	Eligibility
	 	 	17	 
	3.02	 	 	Employees Ineligible to Participate
	 	 	17	 
	3.03	 	 	Enrollment and Participation
	 	 	18	 
	3.04	 	 	Termination of Participation
	 	 	18	 
	3.05	 	 	Re-Employment After Termination of Participation
	 	 	19	 
	3.06	 	 	Change in Eligibility Classification
	 	 	19	 
	Article IV
	Contributions and Allocations
	4.01	 	 	Contributions
	 	 	20	 
	4.02	 	 	Allocation of Contribution
	 	 	21	 
	4.03	 	 	Regulations for Compensation Reduction Contributions
	 	 	22	 
	4.04	 	 	Regulations for After-tax Contributions
	 	 	23	 
	4.05	 	 	Regulations for Catch-up Contributions
	 	 	24	 
	4.06	 	 	Time of Payment of Compensation Reduction Contributions,
Catch-up Contributions, After-tax Contributions and
Qualified Employer Profit Sharing Contributions
	 	 	25	 
	4.07	 	 	Time of Payment of Employer Matching Contributions
and Employer Profit Sharing Contributions
	 	 	25	 
	4.08	 	 	Prohibition Against Assets Returning to Employer
	 	 	26	 
	4.09	 	 	Profits Not Required
	 	 	27	 
	4.10	 	 	Forfeiture
	 	 	27	 
	Article V
	Participant Accounts
	5.01	 	 	Separate Accounts
	 	 	28	 
	5.02	 	 	Valuation of Separate Accounts
	 	 	28	 
	5.03	 	 	Assumption of Risk by Participant
	 	 	28	 
	5.04	 	 	Election of Investment Fund
	 	 	28	 
	5.05	 	 	Change in Investment Election
	 	 	29	 
	5.06	 	 	Investment Funds
	 	 	29	 



 






 




	 	 	 	 	 	 	 	 	 
	Section	 	 	 	Page
	Article VI
	Limitation on Contributions
	6.01	 	 	Maximum Amount of Compensation Reduction Contributions
	 	 	30	 
	6.02	 	 	Distribution of Excess Compensation Reduction Contributions
	 	 	30	 
	6.03	 	 	Average Actual Deferral Percentage Test
	 	 	32	 
	6.04	 	 	Special Rules: Actual Deferral Percentage and Prior Plan
Year Average Actual Deferral Percentage
	 	 	34	 
	6.05	 	 	Action to Be Taken If Tests Are Not Satisfied
	 	 	36	 
	6.06	 	 	Average Contribution Percentage Test and Prior Plan Year
Average Contribution Percentage
	 	 	39	 
	6.07	 	 	Special Rules: Contribution Percentage
	 	 	41	 
	6.08	 	 	Excess Aggregate Contributions: Action to be Taken If
Tests are Not Satisfied
	 	 	42	 
	6.09	 	 	Annual Addition Limitation
	 	 	46	 
	Article VII
	Vesting
	7.01	 	 	Compensation Reduction Contributions, Employer Matching
Contributions,Employer After-tax Contributions, Catch-up
Contributions and Qualified Employer Profit Sharing
Contributions
	 	 	48	 
	7.02	 	 	Employer Profit Sharing Contributions
	 	 	48	 
	7.03	 	 	Re-Employment After a One-Year Period of Severance
	 	 	49	 
	7.04	 	 	Termination and Re-Employment Before a One-Year Period
of Severance
	 	 	50	 
	Article VIII
	Distributions
	8.01	 	 	Time of Distribution
	 	 	51	 
	8.02	 	 	Methods of Distribution
	 	 	51	 
	8.03	 	 	Valuation of Distribution
	 	 	51	 
	8.04	 	 	Distributions After Death
	 	 	52	 
	8.05	 	 	Required Commencement of Benefits
	 	 	52	 
	8.06	 	 	Distribution of Accounts Greater than $5,000
	 	 	53	 
	8.07	 	 	Alternate Payees Under Qualified Domestic Relations Orders
	 	 	54	 
	8.08	 	 	Deemed Distributions
	 	 	55	 



 






 




	 	 	 	 	 	 	 	 	 
	Section	 	 	 	Page
	Article IX
	Beneficiaries
	9.01	 	 	Designation of Beneficiary
	 	 	56	 
	9.02	 	 	Change in Designation: Married Participant
	 	 	56	 
	Article X
	Withdrawals
	10.01	 	 	Withdrawals from Compensation Reduction Contribution
Account, Employer Matching Contribution Account and
Qualified Employer Profit Sharing Contribution Account
	 	 	58	 
	10.02	 	 	Hardship Withdrawals: Compensation Reduction Contributions
	 	 	58	 
	10.03	 	 	Withdrawals: Participant’s Rollover Account
	 	 	60	 
	10.04	 	 	Withdrawals: Employee After-tax Contributions
	 	 	60	 
	10.05	 	 	Attainment
of Age 591⁄2 by Participant
	 	 	60	 
	10.06	 	 	Limitation on Number of Withdrawals
	 	 	61	 
	Article XI
	Rollovers
	11.01	 	 	Rollover Contributions
	 	 	62	 
	11.02	 	 	Mistaken Rollovers
	 	 	64	 
	Article XII
	Loans
	12.01	 	 	Availability of Loans
	 	 	65	 
	12.02	 	 	General Requirements
	 	 	65	 
	12.03	 	 	Specific Requirements
	 	 	65	 
	12.04	 	 	Collateral, Interest and Repayment
	 	 	66	 
	Article XIII
	Amendment, Termination or Merger
	13.01	 	 	Amendment of Plan
	 	 	70	 
	13.02	 	 	Termination of Plan
	 	 	71	 
	13.03	 	 	Merger, Consolidation or Transfer
	 	 	72	 



 






 




	 	 	 	 	 	 	 	 	 
	Section	 	 	 	Page
	Article XIV
	Top Heavy Provisions
	14.01	 	 	Applicability of Top Heavy Provisions
	 	 	73	 
	14.02	 	 	Definitions
	 	 	73	 
	14.03	 	 	Minimum Benefit Requirements
	 	 	76	 
	14.04	 	 	General
	 	 	77	 
	14.05	 	 	Accelerated Vesting
	 	 	78	 
	Article XV
	Administration of the Plan
	15.01	 	 	Authority
	 	 	80	 
	15.02	 	 	Appointment of the Administrative Committee
	 	 	80	 
	15.03	 	 	Conduct of Committee Business
	 	 	81	 
	15.04	 	 	Committee Officers, Subcommittees and Agents
	 	 	81	 
	15.05	 	 	Expenses of the Committee and Plan Costs
	 	 	82	 
	15.06	 	 	Records of the Committee
	 	 	82	 
	15.07	 	 	Committee’s Right to Administer and Interpret the Plan
	 	 	82	 
	15.08	 	 	Claims Procedure
	 	 	82	 
	15.09	 	 	Responsibility and Authority of the Committee
	 	 	84	 
	15.10	 	 	Trust Fund
	 	 	85	 
	Article XVI
	Miscellaneous Provisions
	16.01	 	 	Employees’ Plan
	 	 	86	 
	16.02	 	 	Additional Limitations on Liability
	 	 	86	 
	16.03	 	 	General Undertaking of All Parties
	 	 	86	 
	16.04	 	 	Agreement to Bind Heirs, Etc.
	 	 	86	 
	16.05	 	 	Assignment of Benefits
	 	 	86	 
	16.06	 	 	Invalidity of Certain Provisions
	 	 	87	 
	16.07	 	 	Right to Employment
	 	 	87	 
	16.08	 	 	Incapacity
	 	 	87	 
	16.09	 	 	Permissible Purchase of Annuity Contracts
	 	 	87	 
	16.10	 	 	Governing Law
	 	 	88	 
	16.11	 	 	Tax Qualification
	 	 	88	 
	16.12	 	 	Number of Counterparts
	 	 	88	 
	16.13	 	 	Masculine, Feminine, Singular and Plural
	 	 	88	 
	16.14	 	 	Withholding Taxes
	 	 	89	 
	16.15	 	 	Prevention of Escheat
	 	 	89	 



 






 



	 	 	 	 	 	 	 	 	 
	Section	 	 	 	Page
	16.16	 	Direct Rollovers of Eligible Distributions
	 	89	 
	16.17	 	USERRA
	 	91	 
	APPENDIX A	 	 
	 	93	 
	APPENDIX B	 	 
	 	95	 



 






 



Article I


Name, Effective Date and Purpose



Section 1.01 — Name



     The name of the Plan is the “GXS Investment and Savings Plan,” hereinafter
referred to as the “Plan.”



Section 1.02 — Effective Date



     The effective date of the Plan is November 18, 2002.



Section 1.03 — Purpose



     The purpose of the Plan is to establish a systematic tax-qualified program
for encouraging savings by eligible Employees of the Employer in order to
provide for future contingencies and/or as a supplemental source of retirement
income.



Section 1.04 — Type of Plan



     This Plan is intended to qualify as a profit sharing plan under Section
401(a) of the Code and includes a salary reduction feature intended to comply
with the requirements of Section 401(k) of the Code, an employer matching
feature and employee after-tax feature that are intended to comply with the
requirements of Section 401(m) of the Code, and a catch-up contribution feature
that is intended to comply with Section 414(v) of the Code. Further, the Plan
is designed to be a “safe harbor” plan that is intended to comply with Section
401(k)(12) of the Code.


1






 


Article II


Definitions



     The following words or phrases whenever used in this Plan shall have the
following meanings unless the context clearly demands otherwise:



Section 2.01 — Account or Participant’s Account



     Shall mean the sum of all the Participant’s individual Sub Accounts,
including earnings and losses thereon, plus the balance of any outstanding
loans.



Section 2.02 — Actual Retirement Date



     Shall mean the Participant’s Normal or Postponed Retirement Date.



Section 2.03 — Adjustment Factor



     Shall mean the cost-of-living adjustment factor prescribed by the
Secretary of the Treasury under Section 415(d) of the Code for years beginning
after December 31, 1987, as applied to such items and in such manner as the
Secretary shall provide.



Section 2.04 — Affiliated Employer



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


2






 


Section 2.05 — Annuity Starting Date



     Shall mean the first day of the first period for which an amount is
payable as an annuity or, in the case of a benefit not payable in the form of
an annuity, the first day on which all events have occurred which entitle the
Participant to such benefit.



Section 2.06 — Appropriate Request



     Shall mean a request by a Participant in the form and manner provided by
the Committee that is appropriate for the intended purpose. If the Committee
and the Plan’s recordkeeper so agree, an Appropriate Request may be executed
over the telephone or internet. To constitute an Appropriate Request, such
request must be completed correctly and, if required to be in writing, duly
executed and delivered to the Committee or its designated representative.



Section 2.07 — Beneficiary



     Shall mean the Beneficiary or Beneficiaries entitled to any benefits under
a Participant’s Account, as described in Section 9.01, upon the death of a
Participant or a Beneficiary.



Section 2.08 — Board



     Shall mean the Board of Directors of the Sponsoring Employer.



Section 2.09 — Code



     Shall mean the Internal Revenue Code of 1986, as amended from time to
time.



Section 2.10 — Catch-up Contributions



     Shall mean the amount contributed to the Plan pursuant to Section 4.01(e).



Section 2.11 — Committee



     Shall mean the Committee established under the provisions of Article XV.


3






 


Section 2.12 — Compensation



     Shall mean all salary and wages paid to an Employee by the Employer
through the last day paid as recorded on the Employer’s payroll system for a
Plan Year, as reported on Internal Revenue Form W-2, as illustrated at Appendix
A, plus any amount which is contributed by the Employer pursuant to a salary
reduction agreement and which is not includable in the gross income of the
Employee under Sections 125, 132(f) and 401(k) of the Code.



     Appendix B identifies the paycodes if applicable and forms of compensation
which are excluded from the definition of Compensation above.



     For purposes of Sections 4.02, 6.03, and Section 6.06, Compensation shall
be considered for the period an Employee is eligible to participate in the Plan
without regard to Section 10.02.



     This Plan shall not consider a Participant’s Compensation for any Plan
Year in excess of the Section 401(a)(17) Limitation.



Section 2.13 — Compensation Reduction Contributions



     Shall mean the amount contributed to the Plan pursuant to Section 4.01(a).



Section 2.14 — Date of Employment



     Shall mean the first date on which an Employee performs an Hour of Service
for the Employer.



Section 2.15 — Disability



     Shall mean the Participant’s qualification for disability benefits under
the Employer’s long-term disability plan.



Section 2.16 — Employee


     Shall mean any person who is receiving compensation for personal services
rendered in the employment of the Employer and shall include Leased Employees
within the meaning of Section


4






 


414(n)(2) of the Code. Notwithstanding the
foregoing, if such Leased Employees constitute less than twenty percent of the
Employer’s non-highly compensated work force within the meaning of Section
414(n)(1)(C)(ii) of the Code, the term Employee shall not include those Leased
Employees covered by a plan described in Section 414(n)(5)(B) of the Code.



Section 2.17 — Employee After-tax Contributions



     Shall mean the amount contributed to the Plan pursuant to Section 4.01(f).



Section 2.18 — Employer



     Shall mean Global eXchange Services, Inc., any Affiliated Employer and any
employer who is not an Affiliated Employer, but who is owned in part by the
Sponsoring Employer or an Affiliated Employer which, with the approval of the
Board of Directors of the Sponsoring Employer and subject to such consideration
as the Board of Directors may impose, adopts this Plan and any successor or
successors of any of these entities by merger, purchase or otherwise which
shall adopt this Plan.


     In determining service for purposes of determining an Employee’s
eligibility to participate under the Plan, for vesting of benefits, in
determining whether the Plan is Top-Heavy under Section 416 of the Code, in
determining highly compensated employees under Section 414(q) of the Code, and
in determining the limitation on annual additions under Section 415 of the
Code, the term Employer shall include any Affiliated Employer. For all
purposes under the Plan, an entity shall be included in the definition of
Employer only during those periods when it was required to be classified as an
Affiliated Employer under
the Code unless it is treated differently by explicit reference elsewhere in
the Plan. In applying the limitations of Section 415 of the Code, the
definition of Affiliated Employer (and accordingly the definition of Employer)
shall be modified by Section 415(h) of the Code.


5






 


Section 2.19 — Employer Matching Contributions



     Shall mean the amount contributed by the Employer pursuant to Section
4.01(b).



Section 2.20 — Employer Profit Sharing Contribution



     Shall mean contributions made in accordance with Section 4.01(c).



Section 2.21 — Employment Year



     Shall mean a twelve (12) month period commencing with the Employee’s most
recent Date of Employment with the Employer or any anniversary thereof.



Section 2.22 — Entry Date



     Shall have the following meaning:




	 	(a)	 	For a Full Time Employee, it shall be his date of hire; and
	 
	 	(b)	 	For a Part Time Employee, it shall be the first day
immediately after following a Period of Service of one hundred and
eighty (180) days. For purposes of computing the one hundred and
eighty (180) days, service with GE Information Services, Inc. and
any of its Affiliated Employers will be counted solely if the
Employee is employed on the date that the payroll system changes
from GE Information Services, Inc. to the Sponsoring Employer.




Section 2.23 — ERISA



     Shall mean the Employee Retirement Income Security Act of 1974, as amended
from time to time.



Section 2.24 — Excess Aggregate Contribution



     Shall mean with respect to any Plan Year the excess of the aggregate
amount of Employer Matching Contributions and Employee After-tax Contributions
actually made on behalf of Highly Compensated Employees for such Plan Year,
over the maximum amount of such contributions


6






 


permitted under the limitations
of Section 6.06 of the Plan determined by reducing Employer Matching
Contributions and Employee After-tax Contributions pursuant to Section 6.08(b)
of the Plan.



Section 2.25 — Excess Compensation Reduction Contribution



     Shall mean the excess of an individual’s elective deferrals for any
taxable year, as defined in Treasury Regulations Sections 1.402(g) — 1(b),
which exceeds the applicable limit under Section 402(g)(1) of the Code for the
taxable year.



Section 2.26 — Excess Contribution



     Shall mean with respect to any Plan Year the excess of the aggregate
amount of Compensation Reduction Contributions actually made on behalf of
Highly Compensated Employees for such Plan Year, over the maximum amount of
such contributions permitted under the limitations of Section 6.03 of the Plan
determined by reducing Compensation Reduction Contributions pursuant to Section
6.05(b) of the Plan.



Section 2.27 — Fiduciary



     Shall mean any person who: (a) exercises any discretionary authority or
discretionary control respecting management of the Plan or exercises any
authority or control respecting management or disposition of its assets; (b)
renders investment advice for
a fee or other compensation, direct or indirect, with respect to any moneys or
other property of the Plan or has any authority or responsibility to do so; or
(c) has any discretionary authority or discretionary responsibility in the
administration of the Plan, including, but not limited to, the Trustee, the
Employer, the Board, the Board of Directors of any Employer, the Plan
Administrator, the Committee, and the Investment Committee.


7






 


Section 2.28 — Fiscal Year



     Shall mean the twelve (12) month period commencing January 1 and ending on
the following December 31.



Section 2.29 — Forfeiture




	 	 	 	Shall mean that portion of a Participant’s Account that is not Vested, and
occurs on the earlier of:
	 
	 	(a)	 	the distribution of the entire Vested portion of a
Participant’s Account; or
	 
	 	(b)	 	the last day of the Plan Year in which the Participant incurs
five (5) consecutive One-Year Periods of Severance.




Section 2.30 — Former Participant



     Shall mean a person who has been a Participant but who ceased to be a
Participant for any reason.



Section 2.31 – Full Time Employee



     Shall mean an Employee who is scheduled to work thirty (30) or more Hours
per week.



Section 2.32 — Highly Compensated Employee



     Shall mean an Employee who is (a) a five percent (5%) owner (as described
in Section 416(i)(l)(B) of the Code) in either the current Plan Year or prior
Plan Year, or (b) received Testing Compensation from the Employer in excess of
$85,000, as indexed pursuant to Section 414(q)(l)(B) of the Code, in the prior
Plan Year. The Employer elects that the group of Employees determined to be
Highly Compensated Employees be limited to the top paid group.



     For purposes of this section, the top paid group shall mean the top twenty
percent (20%) of Employees who performed services for the Employer during the
applicable year, ranked according


8






 


to the amount of Compensation received from
the Employer during such year. For purposes of determining the top paid group,
if applicable, the following Employees should be excluded:



	 	(a)	 	Employees with less than six (6) months of service as of the
end of the Plan Year;
	 
	 	(b)	 	Employees who normally work less than seventeen and one-half
(171/2) hours per week;
	 
	 	(c)	 	Employees who normally work during less than six (6) months
during any year;
	 
	 	(d)	 	Employees who have not yet attained age twenty-one (21) as of
the end of the Plan Year; and
	 
	 	(e)	 	Employees who are non-resident aliens and who received no
earned income (within the meaning of Section 911(d)(2) of the Code)
from the Employer constituting United States source income within
the meaning of Section 861(a)(3) of the Code.




Section 2.33 — Hour or Hour of Service



     Shall mean each Hour for which an Employee is directly or indirectly paid
or entitled to payment for the performance of duties for an Employer (as
defined in Section 29 CFR 2530.200b-1 or such other regulations as may be
issued by the Department of Labor).



Section 2.34 — Investment Funds



     Shall mean the funds as described in Section 5.06.



Section 2.35 — Leased Employee



     Shall mean any person who provides services to the Employer if:



	 	(a)	 	such services are provided pursuant to an agreement between
the Employer and any other person;



9






 



	 	(b)	 	such person has performed such services for the Employer (or
the Employer and related persons) on a substantially full-time basis
for a period of at least one (1) year; and
	 
	 	(c)	 	such services are performed under the primary direction or
control of the Employer.



     Service as a Leased Employee shall count as service for purposes of
eligibility and vesting under the Plan.



Section 2.36 — Limitation Year



     Shall mean the Plan Year.



Section 2.37 — Married Participant



     Shall mean a Participant who is lawfully married to the same spouse for at
least one (1) year on the date Plan benefits are payable.



Section 2.38 — Non-highly Compensated Employee



     Shall mean an Employee who is not a Highly Compensated Employee.



Section 2.39 — Normal Retirement Age



     Shall mean a Participant’s sixty-fifth (65th) birthday. An Employee shall
be one hundred percent (100%) Vested in his Participant Account upon attainment
of his Normal Retirement Age.



Section 2.40 — Normal Retirement Date



     Shall mean the first day of the calendar month coincident with or next
following the Participant’s sixty-fifth (65th) birthday.



Section 2.41 — One-Year Period of Severance



     Shall mean a twelve (12) consecutive month period beginning on a Severance
From Service Date and ending on the first anniversary of such date, provided
the Employee is not credited with an Hour of Service for the performance of
duties for an Employer during such period.


10






 


Section 2.42 — Participant



     Shall mean any Employee who becomes a Participant pursuant to Article III
and continues to be entitled to any benefits under the Plan.



Section 2.43 — Part Time Employee



     Shall mean an Employee who is scheduled to work less than thirty (30)
Hours per week.



Section 2.44 — Participant’s Rollover Account



     Shall mean a Sub Account established pursuant to Section 11.01 of the
Plan.



Section 2.45 — Period of Service



     Shall mean a Period of Service commencing on an Employee’s Date of
Employment or Reemployment Commencement Date, whichever is applicable, and
ending on his Severance From Service Date. All Periods of Service shall be
aggregated on a uniform and consistent basis.


     If an Employee severs from service by reason of a quit, discharge, or
retirement and the Employee then performs an Hour of Service within twelve (12)
months of the Severance
From Service Date, then such period of severance shall be taken into account
for purposes of vesting.


     Notwithstanding the preceding paragraph of this section, if an Employee
severs from service by reason of a quit, discharge, or retirement during an
absence from service of twelve (12) months or less (such absence being for any
reason other than a quit, discharge, retirement, or death), and if such
Employee then performs an Hour of Service within twelve (12) months of the date
on which the Employee was first absent from service, then such Period of
Severance shall be taken into account for purposes of vesting.


11






 


Section 2.46 — Period of Severance



     The period of time commencing on an Employee’s Severance From Service Date
and ending on the date on which the Employee again performs an Hour of Service
for an Employer.



Section 2.47 — Plan



     Shall mean the GXS Investment and Savings Plan.



Section 2.48 — Plan Administrator



     Shall mean the individual or entity designated in Section 15.01 of the
Plan.



Section 2.49 — Plan Year



     Shall mean the twelve (12) month period commencing January 1 and ending on
the following December 31. The first Plan Year shall be a short Plan Year
commencing November 1, 2002 and ending December 31, 2002.



Section 2.50 — Postponed Retirement Date



     Shall mean the first day of any month coincident with or subsequent to a
Participant’s termination of employment after his Normal Retirement Date.



Section 2.51 — Qualified Employer Profit Sharing Contribution



     Shall mean a contribution made in accordance with Section 4.01(d);
allocated pursuant to Section 4.02(d); subject to the vesting rules of Section
7.01; subject to the withdrawal rules of Section 10.01; and meeting the
conditions of Treasury Regulations Section 1.401(k)-1(b)(5).



Section 2.52 — Re-Employment Commencement Date



     Shall mean the first day following a One-Year Period of Severance in which
an Employee is credited with an Hour of Service for the performance of duties
for an Employer.


12






 


Section 2.53 — Rollover Contributions



     Shall mean contributions made to the Plan in accordance with Article XI of
the Plan.



Section 2.54 — Safe Harbor Plan



     Shall mean a plan which:



	 	(a)	 	The Employer Matching Contributions on behalf of each
Employee who is not a Highly Compensated Employee meets the
requirements of Section 401(k)(12)(B)(i) of the Code;
	 
	 	(b)	 	The rate of Employer Matching Contributions with respect to
elective contributions to any Highly Compensated Employee is equal
to or less than the rate of Employer Matching Contributions of any
Non-highly Compensated Employee;
	 
	 	(c)	 	Employer Matching Contributions are always one hundred
percent (100%) vested;
	 
	 	(d)	 	Employer Matching Contributions are subject to the withdrawal
restrictions of Section 10.01 of the Plan; and
	 
	 	(e)	 	Each Employee eligible to participate in the Plan is
provided, within a reasonable period prior to any Plan Year, written
notice of the eligible Employee’s rights and obligations under the
Plan which is sufficiently accurate and comprehensive to inform the
eligible Employee of such rights and obligation and is written in a
manner calculated to be understood by the average eligible Employee.




Section 2.55 — Section 401(a)(17) Limitation



     Shall mean for the Plan Years beginning after December 31, 2001, $200,000
as indexed by Section 401(a)(17)(B) of the Code. The Section 401(a)(17)
Limitation shall be prorated for the short Plan Year beginning November 1, 2002
and ending December 31, 2002.


13






 


Section 2.56 — Severance From Service Date



     Shall mean the earlier of:



	 	  (a)	 	The date on which an Employee quits, retires, dies, or the
later of (i) discharge or (ii) expiration of the Service Protection
Benefit; or






	 	 	 	 	 	 	 
	(b)	 	 	 	(1)	 	The first anniversary of the first day of a period in
which an Employee remains absent from service (with or without pay)
with the Employer for any reason other than quit, retirement,
discharge or death, such as vacation, holiday, sickness, disability,
leave of absence or lay-off;
	 	 	 	 	 	 	 
	 	 	 	 	(2)	 	The second anniversary of the first day of a
period in which an Employee remains absent from service (with
or without pay) with an Employer by reason of pregnancy, the
birth of the Employee’s child, the placement of a child with
the Employee in connection with the adoption of such child by
such Employee, or the need to care for such Employee’s child
during the period immediately following such child’s birth or
placement.For a Participant who is absent from service on account of
pregnancy, the birth of the Employee’s child, child
placement or child care, the period between the first
anniversary of the first day of the absence and the second
anniversary of the first day of the absence is neither a
Period of Service nor a Period of Severance.




Section 2.57 — Sponsoring Employer



	 
	Shall mean Global eXchange Services, Inc.



14






 



Section 2.58 — Sub Account



     Shall mean any of the following Accounts: Catch-up Contribution Account;
Compensation Reduction Contribution Account; Employer Matching Contribution
Account; Qualified Employer Profit Sharing Contribution Account; Employer
Profit Sharing Contribution Account; Employee After-tax Contribution Matched
Account; Employee After-tax Contribution Unmatched Account; and Participant’s
Rollover Account.



Section 2.59 — Testing Compensation



     Shall mean the total compensation paid to an Employee by the Employer
during any calendar year as reported on Internal Revenue Service Form W-2,
Box-1 or such successor box which describes “wages, tips, other compensation”
plus any amount contributed by the Employer pursuant to a salary reduction
agreement and which is not includable in the gross income of the Employee under
Sections 125, 132(f), 401(k), 401(h) and 132(f) of the Code.



     For purpose of Sections 6.03 and 6.06, Testing Compensation shall be
considered for the period an Employee is eligible to participate in the Plan
without regard for Section 10.02 of the Plan.



     For each Plan Year, Testing Compensation shall be limited by the Section
401(a)(17) Limitation.



Section 2.60 — Trust



     Shall mean the legal entity resulting from the trust agreement between the
Employer and the Trustees who receive the contributions of the Employer and
hold, invest and disburse funds to or for the benefit of the Participants and
their Beneficiaries.


15






 


Section 2.61 — Trust Fund


     Shall mean the total of contributions made by the Employer to the Trust
pursuant to the Plan, increased by profits, gains, income and recoveries
received and decreased by losses, depreciation, benefits paid and expenses
incurred in the administration of the Trust and Plan. The Trust Fund shall
include all assets acquired by investment and reinvestment which are held in
the Trust by the Trustees.`


Section 2.62 — Trustees


     Shall mean the party or parties, individual or corporate, named in the
trust agreement executed by the Employer and the Trustees and any duly
appointed additional or successor Trustee or Trustees acting hereunder.


Section 2.63 — USERRA


     Shall mean the Uniformed Service Employment and Reemployment Rights Act of
1994.


Section 2.64 — Valuation Date


     Shall mean each business day of the Plan Year.


Section 2.65 — Vested


     Shall mean the portion of a Participant’s Account which is
non-forfeitable.


Section 2.66 — Vesting Service


     Shall mean the sum of the Employee’s Periods of Service and any Period of
Severance of a duration of less than twelve (12) months. For this purpose,
twelve (12) months shall equal one (1) year of Vesting Service and any
remainder of less than twelve (12) months shall be disregarded for determining
Vesting Service.


     Vesting Service will be computed based on employment with the Employer and
prior service with any other entity will not be so credited.


16






 


Article III


Eligibility, Enrollment and Participation



Section 3.01 — Eligibility


     Each Employee of the Employer shall automatically become a Participant of
the Plan for all purposes on his Entry Date. An Employee shall participate for
purposes of Compensation Reduction Contributions, Catch-up Contributions and
After-tax Contributions as of the payroll period which is administratively
practicable following the Entry Date.


Section 3.02 — Employees Ineligible to Participate


     The following Employees shall not be eligible to participate in the Plan:



	 	(a)	 	Leased Employees;
	 
	 	(b)	 	Employees who are included in a unit of Employees covered by
an agreement which the Secretary of Labor finds to be collectively
bargained between employee representatives and one or more
Employers, if there is evidence that retirement benefits were the
subject of good faith bargaining between such employee
representatives and such Employer or Employers. Notwithstanding,
such employee representatives may bargain for participation of
collectively bargained employees in this Plan and the participation
of any such unit shall be evidenced by the collectively bargained
agreement and by Plan amendment to Section 3.01;
	 
	 	(c)	 	Employees who are nonresident aliens who receive no earned
income (within the meaning of Section 911(d)(2) of the Code) from
the Employer which constitutes income from sources within the United
States;



17






 







	 	(d)	 	Individuals who have employment contracts which exclude
participation in the Plan; and
	 
	 	(e)	 	Individuals who are classified as “independent contractors,”
“consultants” or “leased employees” or any other individual not
classified as an Employee by the Employer, regardless of such
individuals’ classification by the Internal Revenue Service for tax
withholding purposes or by any other person for any other purpose.



Section 3.03 — Enrollment and Participation


     The Employer shall notify in writing each Employee who is eligible to join
the Plan and shall explain the rights, privileges, and duties of a Participant
of the Plan.


     To participate in the Plan for purposes of making a Compensation Reduction
Contribution or After-tax Contribution, an Employee must submit an Appropriate
Request to the Employer. An Employee who fails to initially enroll in the Plan
may enroll by submitting an Appropriate Request to the Employer at any later
date. Compensation Reduction Contributions or After-tax Contributions will
commence by salary reduction or salary deduction as soon as administratively
practicable after the Employer receives an Appropriate Request.


     An Employee who does not elect to make a Compensation Reduction
Contribution or After-tax Contribution will be eligible to receive a Qualified
Employer Profit Sharing
Contribution or a Employer Profit Sharing Contribution if the Employer elects
to make such a contribution.


Section 3.04 — Termination of Participation


     Each person who becomes a Participant shall remain a Participant so long
as he remains an active Employee or maintains an Account balance. If a
Participant terminates employment with no balance in his Account, he shall
cease being a Participant upon his termination of employment.


18






 


Section 3.05 — Re-Employment After Termination of Participation


     An Employee who had satisfied the eligibility requirements for
participation in the Plan prior to termination of employment will become a
Participant on the date he again becomes an Employee.


Section 3.06 — Change in Eligibility Classification


     In the event a Participant is no longer a member of an eligible class of
Employees and becomes ineligible to participate, such Employee will participate
immediately upon returning to an eligible class of Employees.


     In the event an Employee who is not a member of an eligible class of
Employees becomes a member of the eligible class of Employees, such Employee
will participate in the Plan on the earlier of (a) upon becoming a member of
the eligible class of Employees if such Employee satisfied the eligibility
requirements of Section 3.01 of the Plan and would have otherwise previously
become a Participant or (b) upon meeting the eligibility requirements of
Section 3.01 of the Plan. If the Employee met the eligibility requirements
while in an ineligible class, participation shall be immediate upon becoming a
member of the eligible class.



19










 



Article IV



Contributions and Allocations




	 	 	 
	Section 4.01 —	 	
Contributions



     Contributions to the Plan shall consist of the following:



	 	(a)	 	Compensation Reduction Contributions which shall be any
contribution made through payroll reduction by the Employee to a
Participant’s Account pursuant to a Compensation Reduction Election
other than a Catch-up Contribution;
	 
	 	(b)	 	Employer Matching Contributions which shall be discretionary
contributions to a Participant’s Account based on an Employee’s
Compensation Reduction Contributions and/or After-tax Contributions;
	 
	 	(c)	 	Employer Profit Sharing Contributions which shall be a
discretionary contribution made to a Participant’s Account
regardless of whether a Participant made Compensation Reduction
Contributions;
	 
	 	(d)	 	Qualified Employer Profit Sharing Contributions which shall
be a discretionary contribution made to the Participant’s Account of
a Non-Highly Compensated Employee regardless of whether a
Participant made Compensation Reduction Contributions;

	 
	 	(e)	 	Catch-up Contributions which shall be any contribution to the
Plan made through payroll reduction other than a Compensation
Reduction Contribution by a Participant who is eligible by reason of
Section 4.05(a) of the Plan. Catch-up Contributions will first be
effective January 1, 2003; and



20






 







	 	(f)	 	After-tax Contributions which shall be any contribution made
to the Plan through a payroll deduction by the Participant.




	 	 	 
	Section 4.02 —	 	
Allocation of Contribution



     The recordkeeper shall establish and maintain the appropriate Sub Accounts
in the name of each Participant to which the recordkeeper shall credit all
amounts allocated to each Participant as hereafter set forth:



	 	(a)	 	To each Participant’s Compensation Reduction Contribution
Account, an amount equal to the amount of each Participant’s
Compensation Reduction Contributions;
	 
	 	(b)	 	To each Participant’s Employer Matching Contribution Account,
an amount equal to one hundred percent (100%) of his Compensation
Reduction Contributions and/or After-tax Contributions up to the
first three percent (3%) of the Participant’s Compensation and an
amount equal to fifty percent (50%) of his Compensation Reduction
Contributions and/or After-tax Contributions up to the next percent
(2%) of the Participant’s Compensation. Employer Matching
Contributions shall be remitted to the Trustee on a payroll basis in
the same manner and timing as Compensation Reduction Contributions;
	 
	 	(c)	 	To each Participant’s Employer Profit Sharing Account, an
amount in the same proportion that each Participant’s Compensation
for the Plan Year bears to the total Compensation of all such
Participants for the Plan Year;
	 
	 	(d)	 	To each Qualified Employer Profit Sharing Account of a
Participant who is a Non-highly Compensated Employee an amount in
the same proportion that each such Non-highly Compensated Employee’s
Compensation for the Plan Year bears to the



21






 





	 	 	 	total Compensation of all such Non-highly Compensated Employees for
such Plan Year;
	 
	 	(e)	 	To each Participant’s Catch-up Contribution Account, an
amount equal to such Participant’s Catch-up Contribution; and
	 
	 	(f)	 	To each Participant’s After-tax Contribution Account, an
amount equal to such Participant’s After-tax Contribution.



However, a Participant whose IEA benefit has expired prior to the last day of
the Plan Year shall not share in the allocation of Employer Profit Sharing
Contributions or the Qualified Employer Profit Sharing Contributions.



	 	 	 
	Section 4.03 —	 	
Regulations for Compensation Reduction Contributions




	 	(a)	 	Each Employee who is eligible pursuant to Section 3.01 may
elect to make a Compensation Reduction Contribution election by
giving an Appropriate Request to the Employer which shall be in even
dollar amounts but not less than one percent (1%) or greater than
fifty percent (50%) of the Participant’s Compensation. The 50%
shall be reduced by any of the Participant’s After-tax
Contributions.
	 
	 	(b)	 	By delivering an Appropriate Request to the Employer, a
Participant may increase or decrease his Compensation Reduction
Contribution election within the limits established by the preceding
paragraph. The change will be effective as soon as administratively
practicable following the date the Appropriate Request was received
by the Employer.
	 
	 	(c)	 	A Participant may cease his Compensation Reduction
Contributions to the Plan by delivering an Appropriate Request to
the Employer at any time. The Employer will cease making payroll
reductions effective as soon as administratively possible after



22






 





	 	 	 	receipt of the Appropriate Request. The Participant may execute a
new Compensation Reduction Contribution election at any time
following the cessation of his Compensation Reduction Contribution.
Any new Compensation Reduction Contribution election shall be
effective as soon as administratively practicable following the
date the Appropriate Request was received by the Employer.
	 
	 	(d)	 	When a Participant reaches the contribution limit described
in Section 6.01 of the Plan, his Compensation Reduction Contribution
election will automatically switch to After-tax Contributions until
the earlier of (i) the end of the calendar year, or (ii) the date
the election is changed pursuant to an Appropriate Request.




	 	 	 
	Section 4.04 —	 	
Regulations for After-tax Contributions




	 	(a)	 	Each Employee who is eligible pursuant to Section 3.01 may
elect to make an After-tax Contribution election by giving an
Appropriate Request to the Employer which shall be in even dollar
amounts but not less than one percent (1%) or greater than fifty
percent (50%) of the Participant’s Compensation. The 50% shall be
reduced by any of the Participant’s Compensation Reduction
Contribution.
	 
	 	(b)	 	By delivering an Appropriate Request to the Employer, a
Participant may increase or decrease his After-tax Contribution
within the limits established by the preceding paragraph. The
change will be effective as soon as administratively practicable
following the date the Appropriate Request was received by the
Employer.
	 
	 	(c)	 	A Participant may cease his After-tax Contributions to the
Plan by delivering an Appropriate Request to the Employer at any
time. The Employer will cease making payroll deductions effective
as soon as administratively possible after receipt of the
Appropriate Request. The Participant may execute a new After-tax
Contribution



23






 





	 	 	 	election at any time following the cessation of his After-tax
Contribution. Any new After-tax Contribution election shall be
effective as soon as administratively practicable following the
date the Appropriate Request was received by the Employer.




	 	 	 
	Section 4.05 —	 	
Regulations for Catch-up Contributions




	 	(a)	 	All Participants who will attain age fifty (50) during a
calendar year will be eligible to make Catch-up Contributions
effective as of the first day of such calendar year. Catch-up
Contributions shall be made in accordance with and subject to the
limitations of Section 414(v) of the Code;
	 
	 	(b)	 	Such Catch-up Contributions shall not be taken into account
for purposes of the Plan implementing the required limitations of
Section 402(g) and 415 of the Code. The Plan shall not be treated
as failing to satisfy the provisions of the Plan implementing the
requirements of Section 401(k)(3), 401(k)(11), 401(k)(12), 410(b) or
416 of the Code, as applicable, by reason of the making of such
Catch-up Contributions;
	 
	 	(c)	 	Each Participant who is eligible pursuant to Section 4.05(a)
may elect to make a Catch-up Contribution election by giving the
Appropriate Request to the Employer which shall be in dollar amounts
not greater than fifty (50%) of the Participant’s Compensation;
	 
	 	(d)	 	By delivering an Appropriate Request to the Employer, a
Participant may increase or decrease his Catch-up Contribution
election within the limits established by the preceding paragraph.
The change will be effective as soon as administratively



24






 





	 	 	 	practicable following the date the Appropriate Request was received
by the Employer; and
	 
	 	(e)	 	A Participant may cease his Catch-up Contributions to the
Plan by delivering an Appropriate Request to the Employer at any
time. The Employer will cease making payroll reductions effective
as soon as administratively possible after receipt of the
Appropriate Request. The Participant may execute a new Catch-up
Contribution election at any time following the cessation of his
Catch-up Contribution. Any new Catch-up Contribution election shall
be effective as soon as administratively practicable following the
date the Appropriate Request was received by the Employer.




	 	 	 
	Section 4.06 —	 	
Time of Payment of Compensation Reduction Contributions,
Catch-up Contributions, After-tax Contributions and Qualified Employer
Profit Sharing Contributions



     The Employer shall pay to the Trustee its Compensation Reduction
Contributions, Catch-up Contributions and After-tax Contributions no later than
fifteen (15) days following the month in which such collective contributions
would have been payable to the Participant as compensation and shall pay its
Qualified Employer Profit Sharing Contributions to the Trustee for each Fiscal
Year not later than the end of the twelve-month period immediately following
the Plan Year to which the contribution relates (or within the time prescribed
by regulations issued by the Secretary of the Treasury).



	 	 	 
	Section 4.07 —	 	
Time of Payment of Employer Matching Contributions and Employer
Profit Sharing Contributions



     The Employer shall pay to the Trustee its Employer Matching Contributions
and Employer Profit Sharing Contributions to the Plan for each Fiscal Year no
later than the time prescribed by


25






 




law, including extensions of time, for the filing of the Employer’s federal
income tax return for the Fiscal Year.



	 	 	 
	Section 4.08 —	 	
Prohibition Against Assets Returning to Employer



     Except as provided in the following Paragraphs (a), (b) and (c), the
assets of the Plan shall never inure to the benefit of an Employer, and shall
be held for the exclusive purposes of providing benefits to Participants and/or
their joint annuitants and Beneficiaries, and for defraying the reasonable
expenses of administering the Plan:



	 	(a)	 	In the case of an Employer contribution which in the sole
opinion of the Committee is made by virtue of a mistake of fact,
this section shall not prohibit the return of such contribution to
the Employer within one (1) year after the payment of the
contribution;
	 
	 	(b)	 	An Employer contribution under this Plan is automatically
conditioned upon the deductibility of the contribution under Section
404 of the Code, or any successor provision thereto, then to the
extent such contribution is disallowed, this section shall require
the return to the Employer of such contribution (to the extent
disallowed) within one (1) year after such disallowance of the
deduction; and
	 
	 	(c)	 	If an Employer contribution is conditioned upon initial
qualification of the Plan under Section 401(a) of the Code, or any
successor provision thereto, and if the Plan does not so qualify,
then this section shall not prohibit the return of such contribution
to the Employer within one (1) year after the date of denial of
qualification of the Plan, but only if application for qualification
is made by the time prescribed by law for filing the Employer’s
return for the taxable year in which the Plan is adopted, or such
later date as the Secretary of Treasury may prescribe.



26






 





	 	 	 
	Section 4.09 —	 	
Profits Not Required



     Employer contributions to this Plan shall not be precluded because the
Employer does not have current or accumulated earnings. Notwithstanding the
existence of current or accumulated earnings, the Employer may determine in its
sole discretion that no Employer Matching Contribution, Qualified Employer
Profit Sharing Contribution or Employer Profit Sharing Contribution shall be
made for such Plan Year or portion thereof.



	 	 	 
	Section 4.10 —	 	
Forfeiture



     Forfeitures shall be utilized to reduce the Employer Matching
Contribution, fund an Employer Profit Sharing Contribution or defray Plan
administrative expense. Forfeitures shall be first utilized by the Employer in
the Plan year in which the Forfeiture occurs or is deemed to occur.


27






 


Article V



Participant Accounts




	 	 	 
	Section 5.01 —	 	
Separate Accounts



     The recordkeeper shall maintain a separate Account for each Participant,
which Account shall reflect his interest in the Trust. Each separate account
shall be comprised of the Participant’s Sub Accounts as described in Section
2.58 of the Plan.



	 	 	 
	Section 5.02 —	 	
Valuation of Separate Accounts



     As of each Valuation Date, the Trustees shall adjust the previous
Valuation Date’s Account balance for Contributions under Section 4.01 of the
Plan, earnings, gains or losses, withdrawals, expenses, Participant loans, and
additions to any other Sub Accounts in order to obtain a new Account balance.



	 	 	 
	Section 5.03 —	 	
Assumption of Risk by Participant



     Each Participant (or his Beneficiary) assumes the risk in connection with
any decrease in value of his separate Account, and such Account shall be the
sole source of payments to be made to each Participant (or his Beneficiary)
under the Plan.



	 	 	 
	Section 5.04 —	 	
Election of Investment Fund



     Each Contribution source in Section 4.01 of the Plan shall be subject to a
separate investment election.


     Each Participant shall have the exclusive authority to direct the
investment of his Account among the Investment Funds designated by the
Employer. The Participant shall elect, by an Appropriate Request to the
Employer, to have a minimum of one percent (1%) of such amounts invested in one
of such Investment Funds with the balance invested, in multiples of one percent

28






 



(1%), among the other such Investment Funds, such that the total of each
Participant’s investment choices as allocated hereunder shall add up to one
hundred percent (100%).


     The Participant by an Appropriate Request shall notify the Trustee of the
Participant’s initial investment selection. If a Participant fails to
designate an Investment Fund, all contributions allocable to his Account shall
be placed in the Stable Value Fund.



	 	 	 
	Section 5.05 —	 	
Change in Investment Election



     A Participant shall be permitted to change the amount of his Account
balance to be invested in a particular Investment Fund or Investment Funds at
any time subject to the following conditions:



	 	(a)	 	The Participant shall have sole responsibility for change in
investment elections. The Participant shall make such change
utilizing an Appropriate Request.
	 
	 	(b)	 	The Appropriate Request shall specify in multiples of one
percent (1%) or even dollar amounts the Investment Fund or
Investment Funds from which the withdrawal is to be made and the
Investment Fund or Investment Funds which shall receive the
transfer.
	 
	 	(c)	 	The change shall be effective as soon as practicable after
receipt of an Appropriate Request.



     Notwithstanding any other provision of this Plan, the change in the
investment of a Participant’s Account shall be subject to the rules of the
Investment Funds in which the Participant’s Account is invested or is to be
invested.



	 	 	 
	Section 5.06 —	 	
Investment Funds



     The Employer may select and change investment vehicles as it sees
advisable.


29






 


Article VI







Limitation on Contributions




	 	 	 
	Section 6.01 —	 	
Maximum Amount of Compensation Reduction Contributions



     An Employee shall not be permitted to have Compensation Reduction
Contributions or other elective deferrals, as defined in Treasury Regulations
Section 1.402(g)-1(b), made under this Plan or in combination with any plan
maintained by the Employer or an Affiliated Employer during any taxable year in
excess of $11,000 multiplied by the Adjustment Factor as provided by the
Secretary of the Treasury.



	 	 	 
	Section 6.02 —	 	
Distribution of Excess Compensation Reduction Contributions



     Notwithstanding any other provision of the Plan, Excess Compensation
Reduction Contributions and income allocable thereto shall be distributed no
later than each April 15 to Participants who have incurred Excess Compensation
Reduction Contributions for the preceding taxable year. The Participant must
make an Appropriate Request by March 1 that an Excess Compensation Reduction
Contribution has been made and that he is allocating to this Plan an Excess
Compensation Reduction Contribution of a specified amount. To the extent a
Participant has made Excess Compensation Reduction Contributions for the
taxable year, taking into account this Plan and all plans maintained by the
Employer and Affiliated Employers, such Participant shall be deemed to have
notified the Plan of such Excess Compensation Reduction Contributions. Any
distribution of Excess Compensation Reduction Contributions under this Section
shall be so designated to the Participant as a distribution of Excess
Compensation Reduction Contributions.


     A Participant who has made an Excess Compensation Reduction Contribution
may receive a corrective distribution during the same taxable year if he makes
an Appropriate Request that an

30






 




Excess Compensation Reduction Contribution was made on his behalf and requests
a distribution, or such Excess Compensation Reduction Contribution is made to
this Plan or all plans maintained by the Employer and Affiliated Employers. If
the Excess Compensation Reduction Contribution was made to only plans sponsored
by the Employer and Affiliated Employers, then such Participant shall be deemed
to have notified the Plan of such Excess Compensation Reduction Contribution.
The corrective distribution shall be made after the date on which the Plan
received the Excess Compensation Reduction Contribution.


     The amount of Excess Compensation Reduction Contribution that may be
distributed with respect to a Participant for a taxable year shall be reduced
by any Excess Contribution previously distributed with respect to the
Participant for the Plan Year beginning with or within the taxable year.


     The Excess Compensation Reduction Contribution shall be adjusted for
income or loss. The income or loss allocable to the Excess Compensation
Reduction Contribution for the Participant’s taxable year shall be determined
by multiplying such income or loss by a fraction of which the numerator is
equal to the Excess Compensation Reduction Contributions for the taxable year
and the denominator is equal to the sum of the total Account balance of the
Participant attributable to Compensation Reduction Contributions at the
beginning of the Participant’s taxable year plus the Compensation Reduction
Contributions made for the taxable year.


     In the alternative, the Plan may utilize any reasonable method for
computing income or loss allocable to Excess Compensation Reduction
Contributions, provided:



	 	(a)	 	Such method does not violate Section 401(a)(4) of the Code;
	 
	 	(b)	 	Such method is used consistently for all Participants and for
all corrective distributions under the Plan for a Plan Year; and



31






 





	 	(c)	 	Such method is utilized by the Plan for allocating income to
Participant’s Accounts.




	 	 	 
	Section 6.03 —	 	
Average Actual Deferral Percentage Test



     The Average Actual Deferral Percentage Test shall be deemed to be passed
for all Plan Years during which this Plan is a Safe Harbor Plan.


     At such intervals as it shall deem proper, the Committee shall review each
Participant’s Compensation Reduction Election in order to determine that the
Compensation Reduction Contributions, with respect to all Participants, satisfy
one of the tests as described in either (a) or (b), below, as of the last day
of the Plan Year.



	 	 	 	 	 	 	 	 	 
	 	 	
(a)
	 	 	(1	)	 	The Average Actual Deferral Percentage for eligible
Participants who are Highly Compensated Employees for the Plan Year
shall not exceed the Average Actual Deferral Percentage for eligible
Participants who are Non-highly Compensated Employees for the Plan
Year multiplied by 1.25; or
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	(2	)	 	The Average Actual Deferral Percentage for
eligible Participants who are Highly Compensated Employees for
the Plan Year shall not exceed the Average Actual Deferral
Percentage for eligible Participants who are Non-highly
Compensated Employees for the Plan Year multiplied by 2,
provided that the Average Actual Deferral Percentage for
eligible Participants who are Highly Compensated Employees
does not exceed the Average Actual Deferral Percentage for
eligible Participants who are Non-highly Compensated Employees
by more than two (2) percentage points or such lesser amount
as the Secretary of the Treasury shall prescribe to prevent
the multiple use of this alternative limitation with respect
to any Highly Compensated Employee.



32






 




	 	 	 	 	 	 	 	 	 
	 	 	
(b)
	 	 	(1	)	 	The Average Actual Deferral Percentage for eligible
Participants who are Highly Compensated Employees for the Plan Year
shall not exceed the Prior Plan Year Average Actual Deferral
Percentage multiplied by 1.25; or
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	(2	)	 	The Average Actual Deferral Percentage for
eligible Participants who are Highly Compensated Employees for
the Plan Year shall not exceed the Prior Plan Year Average
Actual Deferral Percentage multiplied by 2, provided that the
Average Actual Deferral Percentage for eligible Participants
who are Highly Compensated Employees does not exceed the Prior
Plan Year Average Actual Deferral Percentage by more than two
(2) percentage points or such lesser amount as the Secretary
of the Treasury shall prescribe to prevent the multiple use of
this alternative limitation with respect to any Highly
Compensated Employee.



     Prior Plan Year Average Actual Deferral Percentage shall mean the Average
Actual Deferral Percentage for Non-highly Compensated Employees calculated for
the Plan Year ending immediately prior to the applicable Plan Year and without
regard to whether such Employees continue as Employees, Non-highly Compensated
Employees or Participants in the applicable Plan Year.


     Actual Deferral Percentage shall mean the ratio (expressed as a
percentage) of the Compensation Reduction Contributions and Qualified Employer
Profit Sharing Contributions made on behalf of the eligible Participant for the
Plan Year to the eligible Participant’s Testing Compensation for the Plan Year.


     Average Actual Deferral Percentage shall mean the average (expressed as a
percentage) of the Actual Deferral Percentages of the eligible Participants in
the group.


33






 


     The Employer shall use the current year method in (a) above, unless it
elects to change to the prior year method in (b) above pursuant to IRS Notice
98-1.



	 	 	 
	Section 6.04 —	 	
Special Rules: Actual Deferral Percentage and Prior Plan Year
Average Actual Deferral Percentage




	 	(a)	 	For purposes of this Article VI, the Actual Deferral
Percentage for any Participant who is a Highly Compensated Employee
for the Plan Year and who is eligible to have Compensation Reduction
Contributions or Qualified Employer Profit Sharing Contributions
allocated to his Account under two or more plans or arrangements
described in Section 401(k) of the Code that are maintained by the
Employer or an Affiliated Employer shall be determined as if all
such Compensation Reduction Contributions and Qualified Employer
Profit Sharing Contributions were made under a single arrangement.
If a Highly Compensated Employee participates in two or more plans
or arrangements described in Section 401(k) of the Code that have

different Plan Years, all such arrangements ending with or within
the same calendar year shall be treated as a single arrangement.
	 
	 	(b)	 	In the event that this Plan satisfied the requirements of
Sections 401(k), 401(a)(4), or 410(b) of the Code only if aggregated
with one or more other plans, or if one or more plans satisfy the
requirements of such section of the Code only if aggregated with
this Plan, then this section will be applied by determining the
Actual Deferral Percentage of Participants as if all such plans were
a single plan. Plans may be aggregated in order to satisfy Section
401(k) of the Code only if they have the same Plan Year.



34






 







	 	(c)	 	In order for Compensation Reduction Contributions made to the
Plan after the end of the Plan Year but on or before the end of the
next Plan Year be utilized for the Average Actual Deferral
Percentage Test for the preceding Plan Year, the following
requirements must be met:




	 	(1)	 	The contributions must be allocated to the
Participant’s Account for the previous Plan Year;
	 
	 	(2)	 	The allocation is not contingent upon the
Employee’s participation in the Plan or performance of
services on any date after the allocation date; and
	 
	 	(3)	 	The elective contributions are related to
Compensation that either:




	 	(A)	 	would have been received by the
Employee in the Plan Year but for the Employee’s
election to make a Compensation Reduction Contribution;
or
	 
	 	(B)	 	is attributable to services performed
by the Employee in the Plan Year, and but for the
Employee’s election to make a deferral, would have been
received by the Employee within two and one-half
(21/2) months after the close of the Plan Year.




	 	(d)	 	If the Employer elects the testing methodology of Section
6.03(a)(1) or 6.03(a)(2), then the Employer may change to the
testing methodology of Section 6.03(b)(1) or (2) only as described
in IRS Notice 98-1.
	 
	 	(e)	 	The determination and treatment of the Actual Deferral
Percentage of any Participant shall satisfy such other requirements
as may be prescribed by the Secretary of the Treasury.



35






 





	 	 	 
	Section 6.05 —	 	
Action to Be Taken if Tests Are Not Satisfied




	 	(a)	 	In the event the Committee determines that one of the tests
set forth in Section 6.03 is not satisfied at the time of its review
hereunder, it may require that one or more Participants adjust their
Compensation Reduction Contribution election as of the first pay
period in the month next following receipt of the test results, in
order that one of the tests set forth in Section 6.03(a) or (b)
above is thereafter satisfied or, to the extent permitted by law,
the Committee shall have the power and authority to return all or
any part of the Compensation Reduction Contributions of one or more
Participants in cash within seventy-five (75) days after the end of
the Plan Year but in no instance later than the last day of the Plan
Year following the Plan Year for which the Excess Contribution was
made solely to the extent necessary to satisfy one of the tests set
forth in Section 6.03(a) or (b).
	 
	 	(b)	 	If, at the end of the Plan Year, it has been determined that
neither of the tests in Section 6.03(a) or (b) have been passed, the
Committee shall distribute the Excess Contributions and income
attributable thereto, in the following manner, so that one of the
tests in Section 6.03(a) or (b) are passed:




	 	(1)	 	First, the total dollar amount of Excess
Contributions to be returned shall be calculated. The total
dollar amount of Excess Contributions to be returned shall be
the amount by which the Actual Deferral Percentage of the
Highly Compensated Employee with the highest Actual Deferral
Percentage must be reduced to (A) enable the arrangement to
satisfy one of the tests described in Section 6.03(a) or (b),
or (B) cause such Highly Compensated Employee’s Actual
Deferral Percentage to equal the ratio of the Highly
Compensated



36






 







	 	 	 	Employee with the next highest Actual Deferral Percentage.
This procedure shall be repeated until the Plan would satisfy
one of the tests described in Section 6.03(a) or (b), and the
total dollar amount of Excess Contributions to be returned
shall be the cumulative amount of such reductions above.




	 	(2)	 	Second, the total dollar amount of Excess
Contributions shall be returned by reducing and returning the
Compensation Reduction Contributions of the Highly Compensated
Employees. For this purpose, the Compensation Reduction
Contributions of the Highly Compensated Employee with the
highest dollar amount of Compensation Reduction Contributions
shall be reduced by the amount required to cause that Highly
Compensated Employee’s Compensation Reduction Contributions to
equal the dollar amount of Compensation Reduction
Contributions of the Highly Compensated Employee with the next
highest dollar amount of Compensation Reduction Contribution.
This dollar amount shall then be distributed to the Highly
Compensated Employee with the highest dollar amount. However,
if a lesser reduction, when added to the total dollar amount
already distributed would equal the total dollar amount of
Excess Contributions, the lesser amount shall be distributed.
This procedure shall be repeated until the total dollar amount
of Excess Contributions as calculated in (1) above is
distributed.




	 	(c)	 	Excess Contributions that are to be distributed shall be
reduced by any Excess Compensation Reduction Contributions
previously distributed to such Highly



37






 







	 	 	 	Compensated Employee for the taxable year of the Highly Compensated
Employee ending with or within such Plan Year.
	 
	 	(d)	 	The Excess Contributions that are to be distributed shall be
adjusted for income or loss. The income allocable to such Excess
Contributions shall be equal to the allocable gain or loss for the
Plan Year. The income or loss allocable to Excess Contributions
shall be determined by multiplying the income or loss allocable to
the Participant’s Compensation Reduction Contributions and Qualified
Employer Profit Sharing Contributions, if applicable, for the Plan
Year by a fraction, of which the numerator is equal to the Excess
Contributions for the Participant for the Plan Year and the
denominator is equal to the sum of the total Account balance
attributable to Compensation Reduction Contributions and Qualified
Employer Profit Sharing Contributions, if applicable, as of the
beginning of the Plan Year plus the Participant’s Compensation
Reduction Contribution and any Qualified Employer Profit Sharing
Contribution made for the Plan Year.
	 
	 	 	 	In the alternative, the Plan may utilize any reasonable method for
computing income allocable to Excess Contributions provided:




	 	(1)	 	Such method does not violate Section 401(a)(4) of
the Code;
	 
	 	(2)	 	Such method is used consistently for all
Participants and for all corrective distributions under the
Plan; and
	 
	 	(3)	 	Such method is utilized by the Plan for
allocating income to Participant’s Accounts.




	 	(e)	 	If Excess Contributions are returned to the Participant in
accordance with this Section, the Participant shall immediately
forfeit any Employer Matching



38






 







	 	 	 	Contribution that were made
pursuant to Section 4.02(b) to match such returned Excess Contributions.




	 	 	 
	Section 6.06 —	 	
Average Contribution Percentage Test and Prior Plan
Year Average Contribution Percentage



     The Average Contribution Percentage Test, solely with respect to Employer
Matching Contributions, shall be deemed to be passed for all Plan Years during
which this Plan is a Safe Harbor Plan. Notwithstanding, the Employer may elect
not to utilize the Safe Harbor Plan exception for purposes of the Average
Contribution Percentage Test and elect to test both Employee After-tax
Contributions and Employer Matching Contributions together when performing such
test.


     At such intervals as it shall deem proper, the Committee shall review each
Participant’s Employee After-tax Contribution and the Employer Matching
Contributions in order to determine that the sum of the Employee After-tax
Contributions and the Employer Matching Contributions satisfy one of the tests
as described in either (a) or (b), below, as of the last day of the Plan Year:



	 	 	 	 	 	 	 	 	 
	 	 	
(a)
	 	 	(1	)	 	The Average Contribution Percentage for eligible
Participants who are Highly Compensated Employees for the Plan Year
shall not exceed the Average Contribution Percentage for eligible
Participants who are Non-highly Compensated Employees for the Plan
Year multiplied by 1.25; or
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	(2	)	 	The Average Contribution Percentage for eligible
Participants who are Highly Compensated Employees for the Plan
Year shall not exceed the Average Contribution Percentage for
Participants who are eligible Non-highly Compensated Employees
for the Plan Year multiplied by 2, provided that the Average
Contribution Percentage for eligible Participants who are



39






 




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Highly Compensated Employees does not exceed the Average Contribution
Percentage for Participants who are eligible Non-highly Compensated Employees
by more than two (2) percentage points or such lesser amount as the Secretary
of the Treasury shall prescribe to prevent the multiple use of this alternative
limitation with respect to any Highly Compensated Employee.
	 	 	 	 	 	 	 	 	 
	 	 	
(b)
	 	 	(1	)	 	The Average Contribution Percentage for
eligible Participants who are Highly
Compensated Employees for the Plan Year
shall not exceed the Prior Plan Year Average
Contribution Percentage multiplied by 1.25;
or
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	(2	)	 	The Average Contribution Percentage for eligible
Participants who are Highly Compensated Employees for the Plan
Year shall not exceed the Prior Plan Year Average Contribution
Percentage multiplied by 2, provided that the Average
Contribution Percentage for eligible Participants who are
Highly Compensated Employees does not exceed the Prior Plan
Year Average Contribution Percentage for Participants by more
than two (2) percentage points or such lesser amount as the
Secretary of the Treasury shall prescribe to prevent the
multiple use of this alternative limitation with respect to
any Highly Compensated Employee.



     Prior Plan Year Average Contribution Percentage shall mean the Average
Contribution Percentage of Non-highly Compensated Employees calculated for the
Plan Year ending immediately prior to the applicable Plan Year and without
regard to whether such Employees continue as Employees, Non-highly Compensated
Employees or Participants in the applicable Plan Year.


40






 


     Contribution Percentage shall mean the ratio (expressed as a percentage)
of the sum of the Employee After-tax Contributions and Employer Matching
Contributions under the Plan on behalf of the eligible Participant for the Plan
Year to the eligible Participant’s Testing Compensation for the Plan Year.


     Average Contribution Percentage shall mean the average (expressed as
percentage) of the Contribution Percentages of the eligible Participants in a
group.


     The Employer shall use the current year method in (a) above, unless it
elects to change to the prior year method in (b) above pursuant to IRS Notice
98-1.



	 	 	 
	Section 6.07 —	 	
Special Rules: Contribution Percentage




	 	(a)	 	For purposes of this Article VI, the Contribution Percentage
for any Participant who is a Highly Compensated Employee for the
Plan Year and who is eligible to make Employee After-tax
Contributions or to receive Employer Matching Contributions,
allocated to his account under two or more plans described in
Section 401(a) of the Code or arrangements described in Section
401(m) of the Code that are maintained by the Employer or an
Affiliated Employer shall be determined as if all such Employee
After-tax Contributions and Employer Matching Contributions were
made under a single plan.
	 
	 	(b)	 	In the event that this Plan satisfies the requirements of
Section 401(m), 401(a)(4) or 410(b) of the Code only if aggregated
with one or more other plans, or if one or more other plans satisfy
the requirements of Section 401(m), 401(a)(4) or 410(b) of the Code
only if aggregated with this Plan, then this Section 6.07 shall be
applied by determining the Contribution Percentages of Participants
as if all such plans were a single plan.



41






 





	 	(c)	 	For purposes of determining the Contribution Percentage,
Employee After-tax Contributions are considered to be made in the
Plan Year in which contributed to the Trust.
	 
	 	(d)	 	In order that an Employer Matching Contribution may be
utilized for the Average Contribution Percentage Test, the following
requirements must be met:




	 	(1)	 	Such contribution is allocated to the
Participant’s Account by the end of the Plan Year;
	 
	 	(2)	 	Such contribution is paid to the Trust no later
than twelve (12) months after the close of the Plan Year; and
	 
	 	(3)	 	Such contribution is made on behalf of a
Participant on account of the Participant’s Compensation
Reduction Contributions or Employee After-tax Contribution for
the Plan Year.




	 	(e)	 	If the Employer elects the methodology of Section 6.06(a)(1)
or (2), then the Employer may change to the testing methodology of
Section 6.06(b)(1) or (2) as only described in IRS Notice 98-1.
	 
	 	(f)	 	The determination and treatment of the Contribution
Percentage of any Participant shall satisfy such other requirements
as may be prescribed by the Secretary of the Treasury.




	 	 	 
	Section 6.08 —	 	
Excess Aggregate Contributions: Action to be Taken if Tests are
Not Satisfied




	 	(a)	 	In the event the Committee determines that one of the tests
set forth in Section 6.06 is not satisfied at the time of its review
hereunder, it may require that one or more Participants adjust their
After-tax Contribution election as of the first pay period in the
month next following receipt of the test results, in order that one
of the tests set



42






 





	 	 	 	forth in Section 6.06(a) or (b) above is thereafter satisfied or,
to the extent permitted by law, the Committee shall have the power
and authority to return all or any part of the After-tax
Contribution and Employer Matching Contributions of one or more
Participants in cash within seventy-five (75) days after the end of
the Plan Year but in no instance later than the last day of the
Plan Year following the Plan Year for which the Excess Aggregate
Contribution was made solely to the extent to satisfy one of the
tests set forth in Section 6.06(a) or (b).
	 
	 	(b)	 	If at the end of the Plan Year, it has been determined that
neither of the tests in Sections 6.06(a) or (b) have been passed,
the Committee shall take the following actions. Excess Aggregate
Contributions, plus any income and minus any loss allocable thereto
through the last day of the Plan Year, shall be forfeited, if
forfeitable, or if not forfeitable, distributed in cash to Highly
Compensated Employees so that one of the tests in 6.06(a) or (b) is
passed.




	 	(1)	 	First, the total dollar amount of Excess
Aggregate Contributions to be returned shall be calculated.
The total dollar amount of Excess Aggregate Contributions to
be returned shall be the amount by which the Contribution
Percentage of the Highly Compensated Employee with the highest
contribution percentage must be reduced to (A) enable the
arrangement to satisfy one of the tests described in Section
6.06(a) or (b), or (B) cause such Highly Compensated
Employee’s Contribution Percentage to equal the ratio of the
Highly Compensated Employee with the next highest Contribution
Percentage. This procedure shall be repeated until the Plan
would satisfy one of the tests described in Section 6.06(a) or
(b), and the total dollar



43






 





	 	 	 	amount of Excess Aggregate Contributions to be returned shall
be the cumulative amount of such reductions above.
	 
	 	(2)	 	Second, the total dollar amount of Excess
Aggregate Contributions calculated in accordance with (1)
above shall be reduced by returning the Excess Aggregate
Contributions of Highly Compensated Employees. For this
purpose, the dollar allocations which relate to the
Contribution Percentage of the Highly Compensated Employee
with the highest dollar allocations which relate to the
Contribution Percentage shall be reduced by the amount
required to cause that Highly Compensated Employee’s dollar
allocations which relate to the Contribution Percentage to
equal the dollar amount of the Highly Compensated Employee
with the highest dollar amount of allocation which relate to
the Contribution Percentage. This dollar amount shall then be
distributed to the Highly Compensated Employee with the
highest dollar amount of allocations that relate to the
Contribution Percentage. However, if a lesser reduction, when
added to the total dollar amount already distributed, would
equal the total dollar amount of Excess Aggregate
Contributions, the lesser dollar amount shall be distributed.
This procedure shall be repeated until the total dollar amount
of Excess Aggregate Contribution is distributed.
	 
	 	(3)	 	A Highly Compensated Employee who has an Excess
Aggregate Contribution shall have the reduction taken in the
following order:




	 	(A)	 	Unmatched Employee After-tax
Contributions; and



44






 





	 	(B)	 	Matched Employee After-tax
Contributions so that for every dollar of matched
Employee After-tax Contributions that is received, fifty
cents of Employer Matching Contribution shall also be
reduced. If there are no matched Employee After-tax
Contributions then Employer Matching Contributions shall
be returned.




	 	(c)	 	The Excess Aggregate Contributions that are to be distributed
shall be adjusted for income or loss. The income allocable to such
Excess Aggregate Contributions shall be equal to the sum of the
allocable gain or loss for the Plan Year. The income or loss
allocable to Excess Aggregate Contributions shall be determined by
multiplying the income or loss allocable to the sum of the
Participant’s Employee After-tax Contributions and Employer Matching
Contributions and amounts treated as matching contributions for the
Plan Year by a fraction, the numerator of which is the Excess
Aggregate Contributions on behalf of the Participant for the Plan
Year and the denominator of which is the sum of the Participant’s
Account balance attributable to Employee After-tax Contributions,
Employer Matching Contributions and amounts treated as matching
contributions as of the first day of the Plan year plus the Employee
After-tax Contributions, Employer Matching Contributions and amounts
treated as matching contributions for the Plan Year.


In the alternative, the Plan may utilize any reasonable method for
computing income allocable to Excess Aggregate Contributions
provided:




	 	(1)	 	Such method does not violate Section 401(a)(4) of
the Code;
	 
	 	(2)	 	Such method is used consistently for all
Participants and for all corrective distributions under the
Plan; and



45






 





	 	(3)	 	Such method is utilized by the Plan for
allocating income to Participant’s Accounts.




	 	 	 
	Section 6.09 —	 	
Annual Addition Limitation




	 	(a)	 	Notwithstanding any provisions of the Plan, the Annual
Additions to which a Participant is entitled under the Plan shall
not, in any Limitation Year, exceed the applicable limitations of
Section 415 of the Code. Such Section is hereby incorporated by
reference.
	 
	 	(b)	 	If the Annual Addition allocable under this Plan (but for
this Section) would exceed the limitations of Section 415(f) of the
Code, the Annual Additions under any other defined contribution plan
shall be reduced prior to the reduction of any Annual Additions
under this Plan.
	 
	 	(c)	 	If the Annual Addition allocable under this Plan (but for
this Section) would exceed the limitations of Section 415(c) of the
Code, the excess Annual Addition under this Plan shall be allocated
pursuant to Treasury Regulation Section 1.415-6(b)(6)(iii).
Notwithstanding, Employee After-tax Contributions and Compensation
Reduction Contributions in excess of the limitations of Section
415(c) of the Code shall be returned with earnings to the extent the
return reduces the excess amounts in the Participant’s Account.
Employee After-tax Contributions shall be returned before
Compensation Reduction Contributions.
	 
	 	(d)	 	For purposes of this Section, Annual Addition shall mean:




	 	(1)	 	Employer contributions;
	 
	 	(2)	 	Employee After-tax Contributions;
	 
	 	(3)	 	Forfeitures;



46






 







	 	(4)	 	Amounts allocated to individual medical accounts
as described in Section 415(1)(1) of the Code which is part of
a defined benefit plan maintained by the Employer; and
	 
	 	(5)	 	Amounts derived from contributions paid or
accrued, which are attributable to post-retirement medical
benefits allocated to the separate account of a key employee
under Section 419(A)(d)(2) of the Code in a welfare benefit
plan maintained by the Employer.




47







 



Article VII


Vesting




	 	 
	Section 7.01
— 	
Compensation Reduction Contributions, Employer Matching
Contributions, Employer After-tax Contributions, Catch-up Contributions
and Qualified Employer Profit Sharing Contributions



     A Participant shall at all times have a one hundred percent (100%)
non-forfeitable interest in the value of his Account attributable to
Compensation Reduction Contributions, Employer Matching Contribution, Employer
After-tax Contributions, Catch-up Contributions and Qualified Employer Profit
Sharing Contributions.



	 	 
	Section 7.02 — 	
Employer Profit Sharing Contributions





	 	(a)	 	A Participant shall have a non-forfeitable interest in the
value of his Account attributable to Employer Profit Sharing
Contributions made pursuant to Article IV in accordance with the
following schedule based on Vesting Service:




	 	 	 	 	 
	Years of Vesting	 	Non-Forfeitable
	Service	 	Percentage
	
	 	

	1
	 	 	33	 
	2
	 	 	66	 
	3
	 	 	100	 




	 	 	 	If a Participant’s employment is terminated due to death or
Disability he shall have a one hundred percent (100%)
non-forfeitable interest in his entire Account.
	 
	 	(b)	 	If a Participant’s employment is terminated and he receives a
distribution of his Vested interest, any portion of his Account in
which the Participant does not have a non-forfeitable interest shall
be forfeited, and the amount so forfeited shall be first



48






 





	 	 	 	applied to
reduce Employer Matching Contributions, fund Employer Profit
Sharing Contributions or pay Plan expenses in the current Plan
Year.
	 
	 	 	 	         If such a Participant subsequently returns to employment prior
to incurring five (5) consecutive One-Year Periods of Severance,
the portion of his Account that was forfeited upon his earlier
termination of employment shall be recredited to his Account
provided the Participant repays the entire amount of his
distribution attributable to his Employer Profit Sharing Account
balance to the Trustees by the earlier of the completion of a
period of five (5) consecutive One-year Periods of Severance, or
five (5) years after the date on which the Participant is
subsequently re-employed. Such repayment shall be contributed to
his Account and the Participant shall be 100% vested in such
amount. The portion of the Account that was forfeited shall be
contributed to his Account by the Employer as of the Entry Date
immediately following the date on which payment is completed.

	 
	 	(c)	 	A Participant whose employment is terminated and who elects
not to receive a distribution of his Vested interest will forfeit
the unvested portion of his Account on the last day of the Plan Year
in which he incurs five (5) consecutive One-Year Periods of
Severance.



Section 7.03 — Re-Employment After One-Year Period of Severance


     A former Employee who incurred a One-Year Period of Severance, and who
again becomes an Employee, shall have all Periods of Service credited to his
behalf at the time of his earlier Severance from Service Date.


49






 



     After five (5) consecutive One-Year Periods of Severance, a terminated
Participant’s Vested Account balance attributable to Employer Profit Sharing
Contributions which are attributable to pre-break service shall not be
increased as a result of post-break service.


Section 7.04 — Termination and Re-Employment Before a One-Year Period of
Severance


     If any terminated Participant shall be reemployed before a One-Year Period
of Severance occurs, he shall continue to be eligible to participate in the
Plan in the same manner as if termination had not occurred.


50






 


Article VIII


Distributions



Section 8.01 — Time of Distribution


     Distribution of a Participant’s Account shall begin no later than the
sixtieth (60th) day after the close of the Plan Year in which occurs the
earlier of a Participant’s termination of employment, death, Disability or
Actual Retirement Date. If the value of a Participant’s Account is greater
than $5,000, the Participant or his Beneficiary must by an Appropriate Request
ask that a distribution commence prior to the Participant’s Normal Retirement
Age.


Section 8.02 — Methods of Distribution


     A lump sum is the sole distribution method under the Plan.


Section 8.03 — Valuation of Distribution


     A Participant or Beneficiary whose Account value is $5,000 or less shall
receive a distribution as soon as practicable after the Participant’s
termination of employment. The distribution shall be valued as of the
Valuation Date on which the Plan’s recordkeeper issues a check for the
Participant’s or Beneficiary’s Account balance.


     A Participant or Beneficiary, subject to Sections 8.04, 8.05 and 8.06,
whose Account value is greater than $5,000, shall receive a distribution as
soon as practicable after his request for such distribution. The distribution
shall be valued as of the Valuation Date on which the Plan’s recordkeeper
issues a check for the Participant’s or Beneficiary’s Account balance.


     For purposes of determining the $5,000 threshold, the valuation of the
Participant’s Rollover Contribution Account shall be excluded.


51






 


Section 8.04 — Distributions After Death


     If the distribution of a Participant’s interest has begun in accordance
with a method selected in Section 8.02 and the Participant dies before his
entire interest has been distributed to him, the remaining portion of such
interest shall be distributed at least as rapidly as under the method of
distribution selected pursuant to Section 8.02 as of his date of death.


     If a Participant dies before he has begun to receive any distributions of
his interest under the Plan, his death benefit shall be distributed to his
beneficiaries no later than December 31 of the calendar year which contains the
fifth anniversary of the Participant’s death. However, the five-year
distribution requirement shall not apply to any portion of the deceased
Participant’s interest which is payable to or for the benefit of a designated
Beneficiary. In such event, such portion may be distributed over the life of
such designated Beneficiary (or over a period not extending beyond the life
expectancy of such designated Beneficiary) provided such distribution begins
not later than the end of the calendar year immediately following the calendar
year in which the Participant died.


     In the event the Participant’s spouse is his sole Beneficiary the
requirement that distributions commence within one year of a Participant’s
death shall not apply. In lieu thereof, the spouse may elect that such
distribution must commence no later than December 31 of the calendar year in
which the deceased Participant would have attained age seventy and one-half
(701/2). If the surviving spouse dies before the distributions to such spouse
begin, then the five-year distribution requirement shall apply as if the spouse
were the Participant.


Section 8.05 — Required Commencement of Benefits


     Unless a Participant elects otherwise, distribution of a Participant’s
Account shall begin no later than the sixtieth (60th) day after the later of
the close of the Plan Year in which the following occurs:

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	 	(a)	 	the Participant attains his Normal Retirement Age;
	 
	 	(b)	 	the termination of the Participant’s service with the
Employer;
	 
	 	(c)	 	the tenth (10th) anniversary of the year in which the
Participant commenced participation in the Plan; or
	 
	 	(d)	 	the date on which the Participant submits a written
application for benefits to the Committee.



     Distributions must commence no later than April 1 of the calendar year
following the later of (a) the calendar year in which the Participant attains
age seventy and one-half (70 1/2) or (b) the calendar year in which the
Participant retires. If a Participant is a five percent (5%) owner (as defined
in Section 416 of the Code) with respect to the Plan Year ending in the
calendar year in which the Participant attains age seventy and one-half
(70 1/2), distributions must commence pursuant to (a) above.


     Notwithstanding any other provision of the Plan to the contrary,
distributions from this Plan will be made in accordance with Section 401(a)(9)
of the Code (which is hereby incorporated herein) and regulations issued
thereunder including Treasury Regulations Section 1.401(a)(9). Any Plan
provision reflecting Section 401(a)(9) of the Code shall override any Plan
provision inconsistent with Section 401(a)(9) of the Code.


Section 8.06 — Distributions of Accounts Greater Than $5,000


     Any distribution to a Participant who has an Account balance which exceeds
$5,000 shall require such Participant’s consent if such distribution commences
prior to the Participant’s Normal Retirement Age.



	 	(a)	 	In order for the consent to be valid, the following must
occur:



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	 	(1)	 	The Participant must receive a general
description of the material features and an explanation of the
relative values of any optional form of benefits available
under the Plan;
	 
	 	(2)	 	The Participant must be informed of the right to
defer the distribution until Normal Retirement Age;
	 
	 	(3)	 	The notice, as described above, must be provided
to the Participant no less than thirty (30) nor more than
ninety (90) days before the Annuity Starting Date; and
	 
	 	(4)	 	Written consent cannot be made more than ninety
(90) days before the Annuity Starting Date.
	 


	 	(b)	 	Notwithstanding the above, if the distribution is one to
which Sections 401(a)(11) and 417 of the Code do not apply, such
distribution may commence less than thirty (30) days after the
notice is required to be given, provided that:




	 	(1)	 	The Plan Administrator clearly informs the
Participant that the Participant has the right for a period of
at least thirty (30) days after receiving the notice to
consider the decisions of whether or not to elect a
distribution (and, if applicable, a particular distribution
option); and
	 
	 	(2)	 	The Participant, after receiving the notice,
affirmatively elects a distribution.



Section 8.07 — Alternate Payees Under Qualified Domestic Relations Orders


     Notwithstanding anything in the Plan to the contrary, if a Domestic
Relations Order directs the Plan to make a lump sum distribution to an
alternate payee prior to the Participant’s earliest retirement age as defined
in Section 414(p)(4) of the Code, upon acceptance of the Domestic

54






 




Relations Order as a Qualified Domestic Relations Order (“QDRO”) by the Plan
Administrator, the Plan shall comply with such QDRO.


Section 8.08 — Deemed Distributions


     If a Participant’s employment is terminated and he does not have a Vested
interest in his Section 7.02 Sub Accounts, a distribution in the amount of $0
shall be deemed to have been made by the Plan on the date of his termination of
employment. If such Participant resumes employment with the Employer prior to
incurring five (5) consecutive One-Year Periods of Severance, any amounts so
forfeited shall be deemed repaid and his vesting service shall be restored upon
his reemployment.


55






 


Article IX


Beneficiaries



Section 9.01 — Designation of Beneficiary


     Each Participant, by making an Appropriate Request, may designate a
Beneficiary to receive benefits under the Plan upon the Participant’s death.
The spouse of a Married Participant shall automatically be his Beneficiary
unless the Participant designates another Beneficiary pursuant to Section 9.02.
The estate of a single Participant shall automatically be his Beneficiary
unless the single Participant has designated a Beneficiary. A Participant may
revoke or change such Beneficiary designation by making an Appropriate Request
without the consent of the Beneficiary. However, a Married Participant shall
change his Beneficiary designation only in accordance with Section 9.02


     If there is any doubt as to the right of any Beneficiary to receive any
amount, the Employer may retain such amount until the rights to the amount are
determined, or it may pay such amount into any court of appropriate
jurisdiction, in either of which events neither the Employer nor the Trustees
shall be liable for any interest on such amount, or shall be under any
liability to any person in respect of such amount. In the event that such
amount is retained by the Employer, the entire amount shall be invested in the
Investment Fund described in Section 5.06(b) pending resolution of the dispute.


Section 9.02 — Change in Designation: Married Participant


     In the case of a Married Participant, any designation of a Beneficiary or
any revocation or change in Beneficiary under Section 9.01 which has the effect
of designating a person as


56






 




Beneficiary who is not such Married Participant’s
spouse will not be valid unless the spouse consents in writing to such
designation, revocation, or change.


     The terms of such consent must acknowledge the effect of the consent and
the consent must be witnessed by a notary public. The designation of a
non-spouse Beneficiary must specify whether the spouse consents to a
designation of a Beneficiary that can be changed without further consent on the
part of the spouse or the spouse is only consenting to a designation of a
specific Beneficiary that cannot be changed without the spouse’s consent. A
consent that permits designations by the Participant without any requirements
of further consent by the spouse must acknowledge that the spouse has the right
to limit consent to a specific Beneficiary and the spouse voluntarily
relinquishes said right. The provisions of this section shall not be
applicable if the Employer is satisfied that the required consent cannot be
obtained because the Participant does not have a spouse, because the spouse
cannot be located, or because of such other circumstances as the Secretary of
the Treasury may prescribe by regulations.


     Any consent by a spouse, or the establishment that the consent of a spouse
cannot be obtained, shall be effective only with respect to such spouse.


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Article X


Withdrawals




	 	 
	Section 10.01 — 	
Withdrawals from Compensation Reduction Contribution Account,
Employer Matching Contribution Account and Qualified Employer Profit
Sharing Contribution Account



     A withdrawal cannot be made from the Compensation Reduction Contribution
Account, the Employer Matching Contribution Account, or the Qualified Employer
Profit Sharing Contribution Account by a Participant or his Beneficiary prior
to:



	 	(a)	 	severance from employment by the Participant;
	 
	 	(b)	 	death of the Participant;
	 
	 	(c)	 	Disability of the Participant;
	 
	 	(d)	 	attainment of age 59 1/2 by the Participant;
	 
	 	(e)	 	financial hardship in the case of a Participant’s
Compensation Reduction Contribution Account; or
	 
	 	(f)	 	termination of the Plan without establishment or maintenance
of a successor defined contribution plan (other than an employee
stock ownership plan as defined in Section 4975(e)(7) of the Code)
as defined in Treasury Regulations Section 1.401(k)-1(d)(3).



     For purposes of (f) above, the distribution must be in the form of a lump
sum as described in Section 401(k)(10)(B)(ii) of the Code.


Section 10.02 — Hardship Withdrawals: Compensation Reduction Contributions


     Upon making an Appropriate Request, a Participant may withdraw principal
from his Compensation Reduction Contribution Account in order to meet a
financial hardship. A financial


58






 




 hardship is one in which the Participant has an
immediate and pressing need for funds. The following
reasons qualify, until the Commissioner of the Internal Revenue Service
publishes additional examples, as the only reasons for obtaining a hardship
withdrawal:



	 	(a)	 	Expenses for medical care described in Section 213(d) of the
Code, previously incurred by the Participant, the Participant’s
spouse, or any dependents of the Participant or amounts necessary
for these persons to obtain medical care described in Section 213(d)
of the Code;
	 
	 	(b)	 	Purchase (excluding mortgage payments) of a principal
residence of the Participant;
	 
	 	(c)	 	Tuition payment and related educational fees for the next
twelve months of post secondary education for the Participant or a
dependent in his immediate family;
	 
	 	(d)	 	The need to prevent eviction of the Participant from his
primary residence or the foreclosure of the mortgage on the
Participant’s primary residence; and
	 
	 	(e)	 	Funeral expenses of an immediate family member, parent or
grandparent.




	 	Prior to obtaining a hardship withdrawal, a Participant must:
	 
	 	(a)	 	Obtain all distributions, other than hardship withdrawals
under this section, and all non-taxable loans currently available
under all plans maintained by the Employer or Affiliated Employer;
and
	 
	 	(b)	 	Document that the distribution is not in excess of the
immediate and pressing need for funds. Such need shall include all
taxes and penalties attributable to the distributions.



     If a Participant obtains a hardship withdrawal, then the Participant’s
Compensation Reduction Contribution and any Employee After-tax Contributions
under this Plan and any other qualified or nonqualified plans of deferred
compensation, other than the mandatory employee after-


59






 




tax contribution portion
of a defined benefit plan, of the Employer or Affiliated Employer will be
suspended for six (6) months after the receipt of the hardship withdrawal.


     The Committee shall approve or disapprove hardship withdrawals under this
section on a non-discriminatory basis, according to standards which are
uniformly and consistently applied.


Section 10.03 — Withdrawals: Participant’s Rollover Account


     Upon making an Appropriate Request to the Committee, a Participant may
elect to make a withdrawal of all or part of his Participant’s Rollover Account
at any time. Such withdrawal will be made as soon as practicable after receipt
of the Appropriate Request.


Section 10.04 — Withdrawals: Employee After-tax Contributions



	 	(a)	 	Upon an Appropriate Request to the Committee, a Participant
may elect to make a withdrawal of all or part of his Employee
After-tax Contribution Account at any time. Such withdrawal will be
made as soon as practicable after receipt of the Appropriate
Request.
	 
	 	(b)	 	If a Participant withdraws any Employee After-tax
Contributions which were matched by the Employer and which have been
held in the Trust for less than a two (2) year period, then he shall
not receive Employer Matching Contributions for a one hundred and
eighty (180) period measured from the date of the withdrawal of the
After-tax Contributions.



Section 10.05 — Attainment
of Age 59 1/2 by Participant


     Upon making an Appropriate Request any time on or after attainment of age
59 1/2, a Participant may elect to make a withdrawal of all or part of his
Vested Account balance. Such withdrawal will be made as soon as practicable
after receipt of the Appropriate Request.


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Section 10.06 – Limitation on Number of Withdrawals


     Unless a distribution is necessary as part of the requirement for
obtaining a hardship distribution under Section 10.02, the Participant is
limited to one withdrawal per month under this Article. Once a withdrawal is
made under any Section above, the Participant must wait until the first day of
the next month to make his next withdrawal.

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Article XI


Rollovers



Section 11.01 — Rollover Contributions


     The Plan will accept Rollover Contributions on behalf of Employees,
subject to the following regulations:



	 	(a)	 	The Employee must provide satisfactory documentation to the
Committee that the Rollover Contribution is made from a Qualified
Plan;
	 
	 	(b)	 	The Rollover Contribution must be in cash;
	 
	 	(c)	 	The Rollover Contribution will be credited to a separate book
account which shall be called the Participant’s Rollover
Contribution Account:




	 	(1)	 	The Employee will always be 100% vested in his
Participant’s Rollover Contribution Account; and
	 
	 	(2)	 	The Employee shall make a separate election as to
the investment mix of his Rollover Contribution.
	 


	 	(d)	 	The following Rollover Contributions will be accepted:





	 	(i)	 	The Plan will accept a direct rollover of an
eligible rollover distribution as described in Section
402(f)(2) of the Code from:




	 	(A)	 	A qualified plan described in
Sections 401(a) or 403(a) of the Code including
after-tax contributions;
	 
	 	(B)	 	An annuity contract described in
Section 403(b) of the Code excluding after-tax
contributions; and



62






 





	 	(C)	 	An eligible plan under Section 457(b)
of the Code which is maintained by a state, political
subdivision of a state, or any agency or instrumentality
of a state or political subdivision of a state.




	 	(ii)	 	The Plan will accept an Employee rollover
contribution of an eligible rollover distribution as described
in Section 402(f)(2) of the Code from;




	 	(A)	 	A qualified plan described in
Sections 401(a) or 403(a) of the Code;
	 
	 	(B)	 	An annuity contract as described in
Section 403(b) of the Code; and
	 
	 	(C)	 	An eligible plan under Section 457(b)
of the Code which is maintained by a state, political
subdivision of a state, or any agency or instrumentality
of a state or political subdivision of a state.




	 	(iii)	 	The Plan will accept an Employee rollover
contribution of the portion of a distribution from an
individual retirement account or annuity described in Sections
408(a) or 408(b) of the Code that is eligible to be rolled
over and would otherwise be includable in gross income as
described in Section 408(d)(3)(A)(ii) of the Code.




	 	(e)	 	For purposes of this Article, the following regulations
apply:




	 	(i)	 	An Employee rollover contribution pursuant to
(d)(ii) and (d)(iii) must be made by the Employee within sixty
(60) days from the date of distribution unless the Internal
Revenue Service waives such period for hardship.
	 
	 	(ii)	 	For purposes of (d)(i)(A), the Plan shall
separately account for amounts so transferred, including
separately accounting for the portion of such distribution
which is includable in gross income and the portion of such
distribution which is not.



63






 


Section 11.02 — Mistaken Rollovers


     If it is determined that a Participant’s Rollover Contribution did not
qualify under the Code for a tax free rollover, then as soon as reasonably
possible the balance in the Participant’s Rollover Account shall be:



	 	(a)	 	Segregated from all other Plan assets;
	 
	 	(b)	 	Treated as non-qualified trust established by and for the
benefit of the Participant; and
	 
	 	(c)	 	Distributed to the Participant.



Such a mistaken rollover contribution shall be deemed never to have been a part
of the Plan and shall not adversely affect the tax qualification of the Plan
under the Code.


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Article XII


Loans



Section 12.01 — Availability of Loans



	 	(a)	 	An active Participant or an inactive Participant who is a
party in interest as defined in Section 3(14) of ERISA may request a
loan from the Committee.
	 
	 	(b)	 	A Participant may execute one new loan per year.
	 
	 	(c)	 	Only two loans shall be permitted to be outstanding at any
one time
	 
	 	(d)	 	If the Participant has defaulted on a loan, no new loan will
be available while the loan is in default status.
	 
	 	(e)	 	Loans shall be available at any time by making an Appropriate
Request to the Committee. The loan will be available as soon as
practicable after receipt of an Appropriate Request.



Section 12.02 — General Requirements



	 	(a)	 	Loans shall be made available to all eligible Participants on
a reasonably equivalent basis.


	 
	 	(b)	 	Loans shall not be made available to Highly Compensated
Employees in an amount greater than the amount made available to
other Employees.


	 
	 	(c)	 	Loans must be adequately secured and bear a reasonable
interest rate.




Section 12.03 — Specific Requirements



	 	(a)	 	The minimum loan shall be $500. The maximum loan (inclusive
of the balance of all outstanding loans under the Plan) shall not
exceed the lesser of:
	 


	 	(1)	 	one-half (1⁄2) of the nonforfeitable portion of
the Participant’s Account; or



65






 





	 	(2)	 	$50,000 reduced by the excess (if any) of:




	 	(A)	 	the highest outstanding balance of
loans from the Plan during the one-year period ending on
the day before the date on which such loan was made;
over
	 
	 	(B)	 	the outstanding balance of loans from
the Plan on the date on which such loan was made.



	 
	 	For the purpose of the above limitation, all loans from all plans
sponsored by the Employer and any Affiliated Employer shall be
considered.
	 
	 	A loan that is deemed distributed under Section 72(p) of the Code
and any interest accruing thereunder shall be treated as
outstanding under this Section and also Section 12.01 unless repaid
in cash or by loan offset.
	 


	 	(b)	 	
Loans shall be available from all Sub Accounts. For purposes
of determining the maximum amount of loan, the Participant’s Account
balance will be valued as of the most recent figure provided to the
Committee by the Trustee.



Section 12.04 — Collateral, Interest and Repayment




	 	(a)	 	Loans shall be made available to all eligible Participants on
a reasonably equivalent basis; provided however, that the Committee
shall retain the power to approve or decline a loan and may make
reasonable distinctions based upon credit worthiness, other
obligations of the Participant, state laws affecting payroll
deductions, the validity of the documentation of loans for principal
residences, and any other factors that may adversely affect the
Employer’s ability to deduct loan repayments from a Participant’s
income.



66






 






	 	(b)	 	Each loan shall be made against collateral. Such collateral
will be the assignment of not more than fifty percent (50%) of the
borrower’s Vested right, title and interest in his Account,
supported by the borrower’s collateral promissory note for the
amount of the loan, including interest.
	 
	 	(c)	 	Any loan to an active Participant by its terms must be
required to be repaid through payroll deduction (principal and
interest to be amortized in level payments) over a period not to
exceed five (5) years, unless the loan is used to acquire or
construct any dwelling unit which is to be used (within a reasonable
time after the loan is made) as the principal residence of the
Participant, in which case the loan may not exceed fifteen (15)
years. The term of a loan is not required to be a whole year
period.
	 
	 	 	 	         The same regulations shall apply to a loan made to an inactive
party in interest except instead of payroll deduction, the payments
shall be due monthly. The Plan Committee may reduce or refuse a
requested loan where it determines that timely repayment of the
loan is not assured. The Committee may utilize different terms and
conditions when granting loans to an inactive party in interest.
The terms and conditions shall be based on the same factors a
commercial lending institution would make use of in a similar
situation.
	 
	 	(d)	 	The loan shall bear interest at one percent (1%) over the
prime rate as published in the Eastern Edition of the Wall Street
Journal as of the last day of the month preceding (i) the month in
which the paperwork for the loan is mailed to the Participant by the
Plan’s recordkeepers, if the loan is for a primary residence, or
(ii) the month in which the loan proceeds are mailed to the
Participant, if the loan is a



67






 





	 	 	 	paperless general purpose loan.
The interest rate at inception of the loan shall remain in effect
for the duration of the loan.
	 
	 	(e)	 	A loan to a Participant shall be considered an asset of such
Participant’s Account.
	 
	 	(f)	 	Loan funds shall be withdrawn from Sub Accounts in the
following order:




	 	(i)	 	Employer Matching Contribution Account;
	 
	 	(ii)	 	Employer Profit Sharing Contribution Account;
	 
	 	(iii)	 	Qualified Employer Profit Sharing Contribution Account;
	 
	 	(iv)	 	Compensation Reduction Contribution Account;
	 
	 	(v)	 	Catch-up Contribution Account;
	 
	 	(vi)	 	Employee After-tax Contribution Matched Account;
	 
	 	(vii)	 	Employee After-tax Contribution Unmatched Account; and
	 
	 	(viii)	 	Participant’s Rollover Account.




	 	(g)	 	Loans shall be recredited to the Sub Accounts from which they
were withdrawn and invested in accordance with the Participant’s
investment direction for Compensation Reduction Contributions, or if
no Compensation Reduction Contributions, Employee After-tax
Contributions.
	 
	 	(h)	 	Any outstanding loan may be repaid by the Participant in full
at any time.
	 
	 	(i)	 	In the event of default, foreclosure on the note and
attachment of security will not occur until a distributable event
occurs under the Plan. A default shall occur if any payment is not
made by the last day of the calendar quarter following the calendar
quarter in which the payment was due or if the borrower files for
relief under the United States Bankruptcy Code. Except for purposes
of Section 12.03 of the Plan, upon default the loan interest on the
outstanding balance will cease to accrue.



68






 





	 	(j)	 	Upon an active Participant’s separation from employment,
whether by reason of retirement, death, Disability or other
termination of employment, or in the case of an inactive party in
interest, upon the instance of a distributable event, any
outstanding loan balance shall be immediately due and payable and
shall be satisfied out of the Participant’s Account prior to
distribution unless satisfied by payment in full prior to such
distribution or an arrangement has been made with the Plan’s
recordkeeper to continue loan repayments by utilization of a loan
repayment kit.
	 
	 	(k)	 	If an Employee who has an outstanding loan incurs a leave of
absence, ceases loan repayment, and his rate of pay after income and
employment tax withholding is not sufficient to meet the required
repayment under the terms of the loan, then the Committee shall not
deem that a default has occurred for a period equal to the lesser of
(a) the leave of absence or (b) one (1) year. In this instance,
when the Employee returns from the leave of absence, his loan
payments shall be reamortized over the remaining period of his
scheduled repayments.
	 
	 	(l)	 	Loans shall be subject to such further rules and regulations
as the Committee shall from time to time prescribe.



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Article XIII


Amendment, Termination or Merger



Section 13.01 — Amendment of Plan


     The Board of the Sponsoring Employer (or otherwise permitted under duly
adopted resolutions by the Board) shall have the right to amend this Plan in
any and all respects at any time and from time to time; provided, however: (a)
that no amendment shall increase the duties or liabilities of the Trustees
without their written consent; (b) that no amendment shall deprive any
Participant of any of the accrued Vested benefits to which he is entitled under
this Plan; (c) that no amendment shall provide for the use of funds or assets
held by the Plan other than for the benefit of Participants and their
Beneficiaries and no funds held by the Plan shall ever revert to or be used or
enjoyed by the Employer prior to the satisfaction of all liabilities hereunder
to its Participants and their beneficiaries; (d) that no amendment may change
the vesting schedule with respect to the future accrual of benefits for any
Participant unless each Participant with three (3) or more years of Vesting
Service is permitted to elect to have the vesting schedule which was in effect
before the amendment used to determine his Vested benefit; and (e) any merger
or consolidation with, or transfer of assets or liabilities to, any other plan
will be valid only if each Participant in the Plan would (if the other plan
then terminated) receive a benefit immediately after the merger, consolidation
or transfer which is equal to or greater than the benefit he would have been
entitled to receive immediately before the merger, consolidation or transfer
(if the Plan had then terminated).


     The Committee by resolution shall have the authority to amend the Plan in
all instances except for any amendment which has the result of materially
increasing the Employer’s cost of funding the Plan.


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     Any such amendment shall be by resolution of the Board (except any
amendment necessary to initially qualify this amended Plan under Section 401(a)
of the Code), and a certified copy of such amendment shall be filed with the
Trustees. The Participants shall be notified if any provision of this Plan is
substantially changed by amendment. Any amendment shall be effective as of the
date specified therein.


     For purposes of this section, a Plan amendment which has the effect of:
(a) eliminating or reducing an early retirement benefit or a retirement-type
subsidy; or (b) eliminating an optional form of benefit with respect to
benefits attributable to service before the amendment shall be treated as
reducing accrued benefits. In the case of a retirement-type subsidy, the
preceding sentence shall apply only with respect to a Participant who satisfies
(either before or after the amendment) the preamendment conditions for the
subsidy. In general, a retirement-type subsidy is a subsidy that continues
after retirement, but does not include a qualified disability benefit, a
medical benefit, a Social Security supplement, a death benefit (including life
insurance), or a plant shutdown benefit (that does not continue after
retirement age). Furthermore, no amendment to the Plan shall have the effect of
decreasing a Participant’s Vested interest determined without regard to such
amendment as of the later of the date such amendment is adopted, or becomes
effective.


Section 13.02 — Termination of Plan


     Each Employer reserves the right to terminate its participation in this
Plan at any time. Such terminations shall be by a resolution of the Employer’s
Board of Directors and the resolution shall be delivered to the Sponsoring
Employer, the Trustees and the Employees of the Employer. The Plan shall also
terminate with respect to and upon the Employer’s complete discontinuance of
contributions to the Plan. Should such an event occur, the Employer shall give
notice of such termination to the parties indicated in the second sentence of
this section.


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     In the event of termination of the Plan or a partial termination of the
Plan or a complete discontinuance of contributions, the Accounts of affected
Participants shall become 100% Vested and shall not thereafter be subject to
forfeiture.


Section 13.03 — Merger, Consolidation or Transfer


     In the event of any merger or consolidation with, or transfer of assets or
liabilities to, any other plan, each Participant shall be entitled to receive a
benefit if the Plan were to terminate immediately after the merger,
consolidation, or transfer, which is not less than the benefit he would have
been entitled to receive if the Plan had terminated immediately before the
merger, consolidation, or transfer.


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Article XIV


Top Heavy Provisions



Section 14.01 — Applicability of Top Heavy Provisions


     The provisions of this Section shall supersede other related Plan sections
should this Plan become a Top Heavy Plan.


Section 14.02 — Definitions



	 	(a)	 	This Plan is a Top Heavy Plan for any year in which, as of
the Determination Date as defined in (e) below, if either: (i) the
present value of the cumulative accrued benefits of Key Employees as
defined in (f) below exceeds sixty percent (60%) of the present
value of the cumulative accrued benefits under the Plan of all
Employees, excluding the accrued benefits of Participants who have
not performed any service for the Employer during the preceding one
(1) year; or (ii) the Plan is part of a Top Heavy Group. The ratio
in (i) shall be computed in accordance with Section 416 of the Code
and the regulations thereunder.
	 
	 	 	 	        In the case of a defined benefit plan, the present value of
the cumulative accrued benefit for a Participant other than a Key
Employee shall be as determined using the single accrual method
used for all plans of the Employer and Affiliated Employers, or if
no single method exists, using a method which results in benefits
accruing not more rapidly than the slowest accrual rate permitted
under Section 411(b)(1)(C) of the Code.
	 
	 	(b)	 	A Top Heavy Group is an Aggregation Group under which, when
taken as a whole, the sum of the present value of cumulative accrued
benefits for Key Employees 



73






 





	 	 	 	under all defined benefit plans in the group, and the aggregate of the
accounts of Key Employees under all defined contribution plans in
the group, exceeds sixty percent (60%) of a similar sum determined
for all Employees.
	 
	 	(c)	 	An Aggregation Group consists of:




	 	(1)	 	each plan of the Employer in which a Key Employee
is a participant; and
	 
	 	(2)	 	each other plan of the Employer which enables any
plan described in clause (1) to meet the nondiscrimination or
participation requirements of Sections 401(a)(4) or 410 of the
Code.
	 
	 	The Employer may treat any plan not required to be included in an
Aggregation Group under clause (1) as being part of such group if
such group would continue to meet the nondiscrimination and
participation requirements of Sections 401(a)(4) or 410 of the Code
with such plan being taken into account. If the Aggregation Group
continues to be Top Heavy, no plan which was included in the
Aggregation Group on a voluntary basis will be deemed to be Top
Heavy.
	 



	 	(d)	 	The aggregate of the Accounts of all Employees shall be
determined as of the most recent valuation date which is within a
twelve (12) month period ending on the Determination Date. For
purposes of determining the amount of the Account of any Employee
(or the present value of cumulative accrued benefits), such amount
(or present value) shall be increased by the aggregate distributions
made with respect to such Employee under the Plan during the one (1)
year period ending on the Determination Date. The preceding
sentence shall also apply to distributions under a terminated plan
which, had it not been terminated, would have been aggregated with
the Plan under Section 416(g)(2)(A)(i) of the Code. In the case of
a 



74






 





	 	 	 	distribution made
for a reason other than separation from service, death, or
Disability, this provision shall be applied by substituting five
(5) year period for one (1) year period.
	 
	 	(e)	 	The Determination Date is that date on which the plan status
is determined to be Top Heavy or not Top Heavy. Such date shall be,
with respect to any Plan Year: (i) the last day of the preceding
Plan Year; or (ii) in the case of the first Plan Year, the last day
of such Plan Year.
	 
	 	(f)	 	A Key Employee is any Employee or former Employee (including
any deceased Employee) who at any time during the Plan Year that
includes the Determination Date was:
	 


	 	(1)	 	an officer of the Employer having Annual
Compensation greater than one hundred thirty thousand dollars
($130,000) (as adjusted under Section 416(i)(1) of the Code
for Plan Years beginning after December 31, 2002);
	 
	 	(2)	 	a five percent owner (5%) of the Employer; or
	 
	 	(3)	 	a one percent owner of the Employer having Annual
Compensation of more than one hundred fifty thousand dollars
($150,000).
	 
	 	         For purposes of (1), no more than fifty (50) Employees (or, if
lesser, the greater of three (3) or ten percent (10%) of the
Employees) shall be treated as officers. For this purpose, the
rules of Section 414(b), (c), (m) and (o) of the Code shall apply,
and Employees described in Section 414(q)(5) of the Code shall be
excluded.
	 
	 	         For purposes of (1) and (3), Annual Compensation means
compensation, within the meaning of Section 415(c)(3) of the Code.



75






 



	 	 	 	         The determination of who is a Key Employee will be made in
accordance with Section 416(i)(1) of the Code and applicable
regulations and other guidance of general applicability issued
thereunder.
	 
	 	(g)	 	A Non-Key Employee is any Employee (or Beneficiary upon the
Employee’s death) who is not a Key Employee.




Section 14.03 — Minimum Benefit Requirements




	 	(a)	 	Except as provided in (b) and (c) of this Section 14.03, for
any Plan Year for which this Plan is a Top Heavy Plan the Employer
shall contribute a “minimum amount” to the Account of each Employee
who is eligible to participate in this Plan (regardless of whether
the Employee actually participates) and who has not separated from
service at the end of such Plan Year. For purposes of this Section
14.03, the “minimum amount” is equal to a percent of the Employee’s
Compensation, such percent being equal to the lesser of three
percent (3%) and the highest percent contributed on behalf of a Key
Employee for such Plan Year. If the highest percent contributed on
behalf of a Key Employee is less than three percent (3%), amounts
contributed by the Key Employee under a salary reduction agreement
shall be included in determining the calculation of the contribution
made on behalf of the Key Employee.
	 
	 	(b)	 	If the Employer sponsors a defined benefit plan in addition
to this Plan and if any Employee is a participant in both plans, and
if both plans are Top Heavy Plans, the minimum benefit required by
law (five percent (5%) of the Employee’s Compensation) will be
provided in the defined contribution plan and will not be provided
in the defined benefit plan.



76






 





	 	(c)	 	Employer Matching Contributions shall be taken into account
for purposes of satisfying the minimum contribution requirements of
Section 416(c)(2) of the Code and the Plan. The preceding sentence
shall apply with respect to matching contributions under the Plan
or, if the Plan provides that the minimum contribution requirement
shall be met in another plan, such other plan. Employer 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
Section 401(m) of the Code.
	 
	 	(d)	 	For purposes of providing the minimum benefit under Section
416 of the Code, a Non-Key Employee who is a Participant and is
employed on the last day of the Plan Year shall be eligible for the
minimum benefit regardless of whether or not he has completed 1,000
Hours of Service or whether or not he has declined to make a
mandatory contribution to the Plan.
	 
	 	(e)	 	Compensation is the Participant’s 415(c)(3) compensation.




Section 14.04 — General



	 	(a)	 	Except to the extent provided in regulations, any rollover
contribution (or similar transfer) initiated by the Employee to a
plan shall not be taken into account with respect to the transferee
plan for purposes of determining whether such plan is a Top Heavy
Plan (or whether any Aggregation Group which includes such plan is a
Top Heavy Group).
	 
	 	(b)	 	If any individual is a Non-Key Employee with respect to any
plan for any plan year, but such individual was a Key Employee with
respect to such plan for any prior plan



77






 



	 	 	 	year,
the account of such Employee (and any accrued benefit for such
Employee, if applicable) shall not be taken into account.
	 
	 	(c)	 	The minimum benefit and accelerated vesting requirements
heretofore mentioned shall not apply with respect to any Employee
included in a unit of employees covered by an agreement which the
Secretary of Labor finds to be a collective bargaining agreement
between employee representatives and one or more employers if there
is evidence that retirement benefits were the subject of good faith
bargaining between such employee representatives and such Employer
or Employers.




Section 14.05 — Accelerated Vesting


     If the Plan is a Top Heavy plan in a Plan Year, a Non-Key Employee who is
credited with an Hour of Service in such Plan Year shall have the
nonforfeitable percentage of his account derived from Employer Matching
Contributions and Employer Profit Sharing Contributions, as provided in Section
7.02(a), for such Plan Year determined in accordance with the following
schedule:



	 	 	 	 	 
	Years of Vesting	 	Vested
	Service	 	Percentages
	
	 	

	0
	 	 	0	%
	1
	 	 	33	%
	2
	 	 	66	%
	3
	 	 	100	%




	 	(a)	 	A Participant’s Vesting Percentages shall not be less than
that determined as of the last day of the Plan Year in which the
Plan was a Top Heavy plan.
	 
	 	(b)	 	If the Plan ceases to be Top Heavy, each Participant with
three (3) or more years of Vesting Service (determined as of the
first day of the Plan Year in which the Plan ceases to be Top Heavy)
shall have his Vested Percentages determined in accor-



78






 





	 	 	 	dance with the
schedule contained in this Section 14.05. In no event, however,
will the
resulting Vesting Percentage be less than determined on the day the
Plan ceased to be Top Heavy.



79






 


Article XV


Administration of the Plan



Section 15.01 — Authority



     The Sponsoring Employer shall be designated as the “Plan Sponsor” and also
the “Plan Administrator” as those terms are defined in ERISA, as amended from
time to time. The Sponsoring Employer, the Employer, the Plan Administrator,
the Committee and the Trustees shall be the “Named Fiduciaries” as defined in
ERISA. Specific duties shall be delegated to fiduciaries including the
Committee and the Trustees. The Employer shall maintain, or cause to be
maintained, records on the employment and compensation history of each
Participant in sufficient detail to permit an accurate determination of any
benefits to which the Participant may be entitled under the Plan. The Named
Fiduciaries and any other Plan fiduciaries shall direct their duties with
respect to the Plan (a) solely in the interest of the Plan’s Participants and
Beneficiaries and (b) for the exclusive purpose of providing benefits to the
Plan’s Participants and Beneficiaries and defraying reasonable expenses of
administering the Plan.



Section 15.02 — Appointment of the Administrative Committee



     The day-to-day administration of the Plan, as provided herein, including
the supervision of the payment of all benefits to retired Participants and
Beneficiaries, shall be vested in and be the responsibility of the
Administrative Committee (also known as the “Committee”), which shall consist
of the individuals who hold the following positions: Vice President of Finance;
Vice President-Chief Legal Counsel; Vice President of Human Resources and
Compensation; Controller; and Manager of Compensation and Benefits.
Notwithstanding, the Sponsoring Employer may increase the size of the Committee
or remove members by resolution. Members of the Committee


80






 




shall serve at the
pleasure
of the Sponsoring Employer, without compensation unless otherwise determined by
the Sponsoring Employer.



Section 15.03 — Conduct of Committee Business



     The Committee shall conduct its business and hold meetings as determined
by it from time to time. A majority of the Committee shall have the power to
act, and the concurrence of any member may be by telephone, telegram or letter.
The Committee may delegate any one of its members to carry out specific duties
and to sign appropriate forms and authorizations. In carrying out its duties,
the Committee may, from time to time, employ an administrative organization and
agents and may delegate to them ministerial and limited discretionary duties as
it may see fit, and may consult with counsel, who may be counsel to the
Employer.



     The Committee shall delegate to the Manager of Compensation and Benefits
of the Employer its ministerial Plan administration duties. Notwithstanding
the preceding sentence, the Committee shall not delegate its authority to
interpret the Plan, its authority to adjudicate benefit claims or any other
duty herein specified reserved to the Committee.



Section 15.04 — Committee Officers, Subcommittees and Agents



     The Vice President of Human Resources and Compensation shall be the
Chairman of the Committee. The Manager of Compensation and Benefits shall
serve as Secretary. The Committee shall appoint such subcommittees as it shall
deem necessary and appropriate, and may authorize one or more of its number or
any agent to execute or deliver any instrument on its behalf and do any and all
other things necessary and proper in the administration of the Plan.


81






 


Section 15.05 — Expenses of the Committee and Plan Costs



     Plan expenses shall be paid from the Trust as permitted under ERISA. The
Employer shall pay all other expenses and may elect to pay expenses otherwise
payable from the Trust. The Employer may determine that certain expenses will
be borne by Participants.



Section 15.06 — Records of the Committee



     The Committee shall keep a record of all its proceedings, which shall be

open to inspection by the Employer and the Sponsoring Employer.



Section 15.07 — Committee’s Right to Administer and Interpret the Plan



     The Committee shall have the absolute power, authority and discretion to
administer and interpret the Plan and to adopt such rules and regulations as in
the opinion of the Committee are necessary or advisable to implement,
administer, and interpret the Plan, or to transact its business. Such rules
and regulations as are adopted by the Committee shall be binding upon any
persons having an interest in or under the Plan.



Section 15.08 — Claims Procedure



     The Committee shall receive all applications for benefits. Upon receipt
by the Committee of such an application, it shall determine all facts which are
necessary to establish the right of an applicant to benefits under the
provisions of the Plan and the amount thereof as herein provided. Upon
request, the Committee will afford the applicant the right of a hearing with
respect to any finding of fact or determination. The applicant shall be
notified in writing of any adverse decision with respect to his claim within
ninety (90) days after its submission. The notice shall be written in a manner
calculated to be understood by the applicant and shall include:



	 	(a)	 	the specific reason or reasons for the denial;
	 
	 	(b)	 	specific references to the pertinent Plan provisions on which the
denial is based;



82






 





	 	(c)	 	a description of any additional material or information
necessary for the applicant to perfect the claim and an explanation
why such material or information is necessary;
	 
	 	(d)	 	an explanation of the Plan’s claim review procedures; and
	 
	 	(e)	 	a statement of the applicant’s right to bring civil action under
ERISA.



     If special circumstances require an extension of time for processing the
initial claim, a written notice of the extension and the reason therefor shall
be furnished to the claimant before the end of the initial ninety (90) day
period. In no event shall such extension exceed ninety (90) days.


     In the event a claim for benefits is denied or if the applicant has had no
response to such claim within ninety (90) days of its submission (in which case
the claim for benefits shall be deemed to have been denied), the applicant, at
the applicant’s sole expense, may appeal the denial to the Committee within
sixty (60) days of the receipt of written notice of denial or sixty (60) days
from the date such claim is deemed to be denied. In pursuing such appeal the
applicant may:



	 	(f)	 	request in writing that the Committee review the denial;
	 
	 	(g)	 	review all relevant documents, records, and other information
relevant to the claim; and
	 
	 	(h)	 	submit issues and comments in writing.



     The decision on review shall be made within sixty (60) days of receipt of
the request for review, unless special circumstances require an extension of
time for processing, in which case a decision shall be rendered as soon as
possible, but not later than one hundred twenty (120) days after receipt of a
request for review. If such an extension of time is required, written notice
of the


83






 




extension shall be furnished to the claimant before the end of the
original sixty (60) day period
which explains the reasons for the extension and the date a decision is
expected. The decision on review shall be written in a manner calculated to be
understood by the applicant, and shall include:



	 	(i)	 	specific references to the pertinent Plan provisions on which such
denial is based;
	 
	 	(j)	 	a statement that applicants can receive free of charge copies
of all documents, records, and other information relevant to the
claim;
	 
	 	(k)	 	a statement describing the applicant’s right to bring civil action
under ERISA; and
	 
	 	(l)	 	a description of voluntary appeals procedures, if any, offered by the
Plan.



     If the decision on review is not furnished within the time specified
above, the claim shall be deemed denied on review.



Section 15.09 — Responsibility and Authority of the Committee



     The responsibility and authority of the Committee shall not exceed the
limitations of this Article XV. The Committee may direct the Trustee to pay to
Plan Participants and their Beneficiaries benefits as provided under the Plan
and to pay the expenses of the Committee, provided the Employer has directed
that such expenses be paid from the Trust Fund.


     The Committee shall be responsible for the preparation and implementation
of an investment policy. The investment policy shall establish selection
criteria for investment vehicles. The Committee shall be charged with
selecting investment vehicles which meet the criteria as established in the
investment policy.


     The Employer shall indemnify the Committee and its members for any claim
against the Committee or any member of the Committee for any action made in
good faith and without gross negligence. The Employer may purchase fiduciary
insurance to protect the Committee and its


84






 




 members, but the Employer’s
obligation to indemnify the Committee and its members shall not be limited by
such insurance policy.



Section 15.10 — Trust Fund



     All assets of the Plan shall be held in a Trust Fund. The Trustees,
subject to the trust agreement between the Trustees and the Employer, shall
have the responsibility for investment management of the assets of the Plan.
The Trustees, if a corporate trustee is appointed, or if an insurance company
is appointed as investment manager, will be permitted to commingle the assets
of the Trust Fund with its general account or one or more of its separate
accounts or one or more of its commingled accounts designed for the investment
of the assets of qualified retirement plans qualified under the Code. The
Trustees shall cause to be prepared, not less frequently than annually, a
report with respect to the value of the assets accumulated under the Plan and
the transactions of the Trust Fund. Copies of this report will be furnished to
the Employer and the Committee.


85






 


Article XVI


Miscellaneous Provisions



Section 16.01 — Employees’ Plan



     This Plan is created for the exclusive benefit of the Employees of the
Employer and shall be interpreted in a manner consistent with its being an
Employees’ plan as defined in Section 401(a) of the Code. Subject to Section
4.08, no funds contributed to this Plan nor any assets of this Plan shall ever
revert to or be used or enjoyed by the Employer, nor shall any such funds or
assets ever be used other than for the exclusive benefit of Employees of the
Employer and their Beneficiaries.



Section 16.02 — Additional Limitations on Liability



     Neither the Employer nor the Committee in any way guarantees this Plan
against loss or depreciation, nor do they guarantee the payment of any benefit
which may become due hereunder to any present or former Participant.



Section 16.03 — General Undertaking of All Parties



     All parties to this Plan and all persons claiming any interest whatsoever
hereunder agree to perform any and all acts and execute any and all documents
and papers which may be necessary or desirable for the carrying out of this
Plan or any of its provisions.



Section 16.04 — Agreement to Bind Heirs, Etc.



     This agreement shall be binding upon the heirs, executors, administrators,
successors and assigns, as such terms shall apply, of any and all parties
hereto present and future.



Section 16.05 — Assignment of Benefits



     No Employee shall have the right to assign, alienate, transfer, encumber,
or otherwise subject to lien any of the benefits provided under the Plan, and
the right of any Participant, Former


86






 


Participant,
Employee, or Beneficiary to any benefit or to any payment hereunder or to any
separate account shall not be subject to alienation, transfer, assignment, or
encumbrance or otherwise subject to lien, except to the extent provided for by:
(a) a Qualified Domestic Relations Order as defined in Section 414(p) of the
Code; or (b) by Sections 401(a)(13)(C) or (D) of the Code.



Section 16.06 — Invalidity of Certain Provisions



     If any provision of this Plan shall be held invalid or unenforceable, such
invalidity or unenforceability shall not affect any other provision hereof and
this Plan shall be construed and enforced as if such provision had not been
included.



Section 16.07 — Right to Employment



     Nothing contained in the Plan or any modification hereof, or the creation
of any fund or account for the payment of any benefit, shall be construed to
give any Employee, Participant or Beneficiary any right to employment or
continued employment with the Employer which he would not have had, had the
Plan not been created.



Section 16.08 — Incapacity



     In the event that any Participant is unable to care for his affairs
because of illness or accident, any payment due may be paid to the
Participant’s spouse, parent, brother, sister or other person deemed by the
Plan Administrator to have incurred expenses for the care of such Participant,
unless a duly qualified guardian or other legal representative has been
appointed.



Section 16.09 — Permissible Purchase of Annuity Contracts



     At the request of the Participant, the Plan Administrator may, in lieu of
paying the benefit to which a Participant is entitled directly from the Plan,
direct the Trustees to provide for the purchase of an annuity contract which
will provide retirement benefits in an amount identical to that to which the
retired Participant was entitled under this Plan. Upon the purchase of an
annuity contract for the


87






 




benefit of a retired Participant, such contract may either be retained by the
Plan for the benefit of the retired Participant or assigned to the retired
Participant. In the event of delivery to the retired Participant, such annuity
contract shall be endorsed as nontransferable.



Section 16.10 — Governing Law



     The Plan shall be construed, administered and enforced in accordance with
the laws of the State of Maryland other than such laws as are specifically
preempted by ERISA or other Federal law.



Section 16.11 — Tax Qualification



     This Plan has been adopted, based upon the condition precedent that it be
approved and qualified by the Internal Revenue Service as meeting the
requirements of the Code and regulations issued thereunder with respect to
qualified retirement plans. Notwithstanding any other provision in this Plan,
if the Commissioner of Internal Revenue or his delegate determines that the
Plan, or the Plan as it may be amended by the Employer in an effort to receive
such approval, does not qualify under the applicable provisions of the Code,
the Employer will make such changes required to so qualify the Plan.



Section 16.12 — Number of Counterparts



     This Plan may be executed in any number of counterparts, each of which
when duly executed by the Employer shall be deemed to be an original, but all
of which shall together constitute but one instrument, which may be evidenced
by any counterpart.



Section 16.13 — Masculine, Feminine, Singular and Plural


     The masculine shall include the feminine and the singular shall include
the plural and the plural the singular wherever the person or entity or context
shall plainly so require.


88






 


Section 16.14 — Withholding Taxes



     The Committee may make any appropriate arrangements to deduct from all
amounts paid under the Plan any taxes required to be withheld by any government
or government agency. Each Participant and/or Beneficiary shall bear all taxes
on amounts paid under the Plan to the extent that no taxes are withheld,
irrespective of whether withholding is required.



Section 16.15 — Prevention of Escheat



     If the Trustee is unable to make payment to any Participant or other
person to whom a payment is due under the Plan because it cannot ascertain the
identity or whereabouts of such Participant or other person after reasonable
efforts have been made to identify or locate such person (including a notice of
the payment so due mailed to the last known address of such Participant or
other person as shown on the records of the Employer), such payment and all
subsequent payments otherwise due to such Participant or other person shall be
treated as forfeited three (3) years after the date such payment first became
due; provided, however, that such payment and any subsequent payments shall be
reinstated retroactively no later than sixty (60) days after the date on which
the Participant or person is identified or located.



Section 16.16 — Direct Rollovers of Eligible Distributions




	 	(a)	 	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 Committee, to have any portion of an Eligible
Rollover Distribution paid directly to an Eligible Retirement Plan
specified by the Distributee in a Direct Rollover.



89






 





	 	(b)	 	For purposes of this Section, the following definitions
apply:




	 	(1)	 	Eligible Rollover Distribution — An Eligible
Rollover Distribution is any distribution of all or any
portion of the balance to the credit of the Distributee,
except that an Eligible Rollover Distribution does not
include: any distribution that is one of a series of
substantially equal periodic payment (not less frequently that
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;
any hardship distribution; a distribution for a specified
period of ten (10) years or more; any distribution to the
extent such distribution is required under Section 401(a)(9)
of the Code. A portion of the distribution shall not fail to
be an Eligible Rollover Distribution merely because the
portion consists of after tax contributions which were not
includable in gross income. However, such portion may only be
paid to an individual retirement account or annuity described
in Sections 408(a) or (b) of the Code or a qualified defined
contribution plan described in Sections 401(a) or 403(a) of
the Code that agrees to separately account for amounts so
transferred, including separately accounting for the portion
of such distribution which is includable in gross income and
the portion of such distribution which is not includable.
	 
	 	(2)	 	Eligible Retirement Plan — An Eligible Retirement
Plan is an individual retirement account described in Section
408(a) of the Code, an individual retirement annuity described
in Section 408(b) of the Code, an annuity plan described in
Section 403(a) of the Code, or a qualified trust described in



90






 



	 	 	 	Section 401(a) of the Code, an annuity contract described in
Section 403(b) of the Code and an eligible plan under Section
457(b) of the Code which is maintained by a state, political
subdivision of a state, or any agency or instrumentality of a
state or political subdivision of a state and which agrees to
separately account for amounts transferred into such plan
from this Plan and which 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 relation order, as
defined in Section 414(p) of the Code.
	 
	 	(3)	 	Distributee — A Distributee includes an Employee
or former Employee. In addition, the Employee’s or former
Employee’s surviving spouse and the Employee’s or former
Employee’s spouse or former spouse who is the alternate payee
under a Qualified Domestic Relations Order, as defined in
Section 414(p) of the Code, are Distributees with regard to
the interest of the spouse or former spouse.
	 
	 	(4)	 	Direct Rollover — A Direct Rollover is a payment
by the Plan to the Eligible Retirement Plan specified by the
Distributee.




Section 16.17 — USERRA


     Notwithstanding any provision of this Plan to the contrary, service
credits and contributions with respect to qualified military service will be
provided in accordance with Section 414(u) of the Code.


91






 


     In Witness Whereof, this document has been executed as of this        day
of      , 2002.



	 	 	 	 	 
	Attest:	 	 	Global eXchange Services, Inc.
	 	 	 	 	 
	By: 	 	By: 	  
	 	


	 	 	 

	 	 	 	 	 
	 	 	 	 	

	 	 	 	 	Title



92






 


APPENDIX A




	 	 	 
	REG	 	
Regular
	 	 	 
	HL	 	
Holiday
	 	 	 
	VA	 	
Vacation
	 	 	 
	ADJ	 	
Adjustment
	 	 	 
	PI	 	
Personal Illness
	 	 	 
	STOT	 	
Straight Time OT
	 	 	 
	PREM	 	
Premium OT
	 	 	 
	DT	 	
Premium OT
	 	 	 
	NSB	 	
Nightshift Bonus
	 	 	 
	SP54T	 	
Stand-By (Oncall)
	 	 	 
	DF	 	
Death in Family
	 	 	 
	HP	 	
Holiday-personal
	 	 	 
	JD	 	
Jury Duty
	 	 	 
	MD	 	
Military Duty
	 	 	 
	PB	 	
Personal Business
	 	 	 
	DB04T	 	
Salary Continuance
	 	 	 
	ED01T	 	
Executive Deferred
	 	 	 
	SP13T	 	
Pay in Lieu of Notice
	 	 	 
	SPS7T	 	
Base Salary Adjustment
	 	 	 
	SP51T	 	
Pay remaining PI
	 	 	 



93






 




	 	 	 
	SP67T	 	
Pay vacation remaining
	 	 	 
	SP89T	 	
Special Wage Payment
	 	 	 
	LB01T	 	
Lump Salary Increase
	 	 	 
	SP52T	 	
Sales Incentive-Ben



94






 




APPENDIX B




	 	 	 
	AW02T	 	
MGMT AWARD
	 	 	 
	AW25T	 	
CASH AWARD
	 	 	 
	AW33T	 	
NIGHT ON TOWN
	 	 	 
	CB01M	 	
TAXABLE TRSF
	 	 	 
	CB02T	 	
TAX ALLOW
	 	 	 
	CB03M	 	
TAXABLE ALLOW
	 	 	 
	CB03T	 	
TRANSFER ALLOW
	 	 	 
	CB06N	 	
NON TAX RELO
	 	 	 
	CB14T	 	
TAX LUMP SUM
	 	 	 
	DB01T	 	
STD STATE TX
	 	 	 
	DB02T	 	
STD BENEFITS
	 	 	 
	ID01T	 	
IDP REIMB
	 	 	 
	IE40T	 	
IEA LUMP SUM
	 	 	 
	IE43T	 	
IEA LUMP BAL
	 	 	 
	SP01T	 	
Appreciation Bonus
	 	 	 
	SP04T	 	
INSTR Fees
	 	 	 
	SP08T	 	
Tuition Fees
	 	 	 
	SP17T	 	
Sev/Term Pay
	 	 	 
	SP26T	 	
Health Facility Rebate
	 	 	 
	SP27T	 	
Retention/Hiring Bonus
	 	 	 



95






 




	 	 	 
	SP53T	 	
Sales Incentive – No Benefits
	 	 	 
	SPL1T	 	
Premium Leadership Life Insurance
	 	 	 
	SPT4T	 	
Economic Adjustment
	 	 	 
	SP62T	 	
Insurance Refund
	 	 	 
	AW28T	 	
Bonus
	 	 	 
	AW07T	 	
Sales Contest Award Payment
	 	 	 
	AW16T	 	
Gift Certificate Award
	 	 	 
	SP26T	 	
Health Club Payment
	 	 	 
	SP26M	 	
Health Club Update
	 	 	 
	AW06T	 	
Hiring Referral Bonus
	 	 	 
	SPM7T	 	
Settlement
	 	 	 
	YY01T	 	
Sys Tax Addr
	 	 	 
	TA20M	 	
Tax Earn Adj



Paycodes have not been assigned to the following categories of compensation
that are excluded from the definition of Compensation: variable compensation
other than non-executive bonuses; earned income under Section 911 of the Code;
non-qualified stock options taxable at time of grant or exercise; vesting in
Section 83 of the Code property; disqualifying disposition of qualified stock
options; bonuses paid under long-term compensation plans which are subject to
vesting.



96