exv10w1






EXHIBIT 10.1




ASTRONICS CORPORATION



RESTATED THRIFT AND PROFIT SHARING RETIREMENT PLAN



Vanguard Fiduciary Trust Company

Prototype Basic Plan Document

(as amended for EGTRRA)




1









 








	 	 	 	 	 
	TABLE OF CONTENTS
	 	 	 	 
	DEFINITIONS
	 	 	7	 
	ACP Test Safe Harbor Matching Contributions
	 	 	7	 
	Actual Contribution Percentage (ACP)
	 	 	7	 
	Actual Deferral Percentage (ADP)
	 	 	7	 
	Adopting Employer
	 	 	7	 
	Adoption Agreement
	 	 	7	 
	ADP Test Safe Harbor Contributions
	 	 	7	 
	Alternate Payee
	 	 	7	 
	Annual Additions
	 	 	7	 
	Annuity Starting Date
	 	 	8	 
	Basic Matching Contributions
	 	 	8	 
	Basic Plan Document
	 	 	8	 
	Beneficiary
	 	 	8	 
	Break in Eligibility Service
	 	 	8	 
	Break in Vesting Service
	 	 	8	 
	Catch-Up Contributions
	 	 	8	 
	Code
	 	 	8	 
	Compensation
	 	 	8	 
	Contributing Participant
	 	 	10	 
	Contribution Percentage
	 	 	10	 
	Contribution Percentage Amounts
	 	 	10	 
	Custodian
	 	 	10	 
	Deductible Employee Contributions
	 	 	10	 
	Defined Contribution Dollar Limitation
	 	 	10	 
	Designated Beneficiary
	 	 	10	 
	Determination Date
	 	 	11	 
	Determination Period
	 	 	11	 
	Direct Rollover
	 	 	11	 
	Directed Trustee
	 	 	11	 
	Disability
	 	 	11	 
	Discretionary Trustee
	 	 	11	 
	Distribution Calendar Year
	 	 	11	 
	Domestic Relations Order
	 	 	11	 
	Earliest Retirement Age
	 	 	11	 
	Early Retirement Age
	 	 	11	 
	Earned Income
	 	 	11	 
	Effective Date
	 	 	12	 
	Elapsed Time
	 	 	12	 
	Election Period
	 	 	12	 
	Elective Deferrals
	 	 	12	 
	Eligibility Computation Period
	 	 	13	 






2









 






	 	 	 	 	 
	Eligible Employee
	 	 	13	 
	Eligible Employer for SIMPLE 401(k) Plan
	 	 	13	 
	Eligible Participant
	 	 	13	 
	Eligible Retirement Plan
	 	 	13	 
	Eligible Rollover Distribution
	 	 	13	 
	Employee
	 	 	14	 
	Employer
	 	 	14	 
	Employer Contribution
	 	 	14	 
	Employer Money Purchase Pension Contribution
	 	 	14	 
	Employer Target Benefit Pension Contribution
	 	 	14	 
	Employer Profit Sharing Contribution
	 	 	14	 
	Employment Commencement Date
	 	 	14	 
	Enhanced Matching Contributions
	 	 	14	 
	Entry Dates
	 	 	14	 
	ERISA
	 	 	14	 
	Excess Aggregate Contributions
	 	 	15	 
	Excess Annual Additions
	 	 	15	 
	Excess Contributions
	 	 	15	 
	Excess Elective Deferrals
	 	 	15	 
	Fiduciary
	 	 	15	 
	Forfeiture
	 	 	15	 
	Fund
	 	 	15	 
	Highest Average Compensation
	 	 	15	 
	Highly Compensated Employee
	 	 	15	 
	Hours of Service
	 	 	16	 
	Indirect Rollover
	 	 	16	 
	Individual Account
	 	 	16	 
	Investment Fiduciary
	 	 	17	 
	Investment Fund
	 	 	17	 
	Key Employee
	 	 	17	 
	Leased Employee
	 	 	17	 
	Life Expectancy
	 	 	17	 
	Limitation Year
	 	 	17	 
	Master or Prototype Plan
	 	 	17	 
	Matching Contribution
	 	 	17	 
	Maximum Permissible Amount
	 	 	17	 
	Month of Eligibility Service
	 	 	18	 
	Nondeductible Employee Contributions
	 	 	18	 
	Normal Retirement Age
	 	 	18	 
	Owner-Employee
	 	 	18	 
	Participant
	 	 	18	 
	Participant’s Benefit
	 	 	18	 
	Permissive Aggregation Group
	 	 	18	 






3









 






	 	 	 	 	 
	Plan
	 	 	18	 
	Plan Administrator
	 	 	18	 
	Plan Sequence Number
	 	 	19	 
	Plan Year
	 	 	19	 
	Pre-Age 35 Waiver
	 	 	19	 
	Pre-Tax Elective Deferrals
	 	 	19	 
	Present Value
	 	 	19	 
	Prior Plan
	 	 	19	 
	Projected Annual Benefit
	 	 	19	 
	Prototype Sponsor
	 	 	19	 
	Qualified Domestic Relations Order
	 	 	19	 
	Qualified Election
	 	 	20	 
	Qualified Joint and Survivor Annuity
	 	 	20	 
	Qualified Matching Contributions
	 	 	20	 
	Qualified Nonelective Contributions
	 	 	20	 
	Qualified Preretirement Survivor Annuity
	 	 	21	 
	Qualifying Contributing Participant
	 	 	21	 
	Qualifying Employer Security(ies)
	 	 	21	 
	Qualifying Participant
	 	 	21	 
	Recipient
	 	 	21	 
	Required Aggregation Group
	 	 	21	 
	Required Beginning Date
	 	 	21	 
	Roth Elective Deferrals
	 	 	22	 
	Roth IRA
	 	 	22	 
	Safe Harbor CODA
	 	 	22	 
	Safe Harbor Nonelective Contributions
	 	 	22	 
	Self-Employed Individual
	 	 	22	 
	Separate Fund
	 	 	22	 
	Severance from Employment
	 	 	22	 
	SIMPLE 401(k) Year
	 	 	22	 
	SIMPLE IRA
	 	 	22	 
	Spouse
	 	 	22	 
	Straight Life Annuity
	 	 	22	 
	Taxable Wage Base
	 	 	22	 
	Termination of Employment
	 	 	23	 
	Top-Heavy Plan
	 	 	23	 
	Traditional IRA
	 	 	23	 
	Trustee
	 	 	23	 
	Valuation Date
	 	 	23	 
	Vested
	 	 	23	 
	Vested Account Balance
	 	 	23	 
	Year of Eligibility Service
	 	 	23	 
	Year of Vesting Service
	 	 	23	 






4









 






	 	 	 	 	 
	SECTION ONE: EFFECTIVE DATES
	 	 	23	 
	SECTION TWO: ELIGIBILITY REQUIREMENTS
	 	 	23	 
	201 Eligibility to Participate
	 	 	23	 
	202 Plan Entry
	 	 	24	 
	203 Transfer To or From Ineligible Class
	 	 	24	 
	204 Return as a Participant After Break in Eligibility Service
	 	 	24	 
	205 Determinations Under This Section
	 	 	25	 
	206 Terms of Employment
	 	 	25	 
	SECTION THREE: CONTRIBUTIONS
	 	 	25	 
	301 Elective Deferrals
	 	 	25	 
	302 Matching Contributions
	 	 	27	 
	303 Safe Harbor CODA
	 	 	28	 
	304 Employer Contributions
	 	 	28	 
	305 Qualified Nonelective Contributions
	 	 	35	 
	306 Qualified Matching Contributions
	 	 	36	 
	307 Rollover Contributions
	 	 	36	 
	308 Transfer Contributions
	 	 	36	 
	309 Deductible Employee Contributions
	 	 	37	 
	310 Nondeductible Employee Contributions
	 	 	37	 
	311 Other Limitations on SIMPLE 401(k) Contributions
	 	 	37	 
	312 Limitation on Allocations
	 	 	37	 
	313 Actual Deferral Percentage Test (ADP)
	 	 	39	 
	314 Actual Contribution Percentage Test (ACP)
	 	 	41	 
	SECTION FOUR: VESTING AND FORFEITURES
	 	 	42	 
	401 Determining the Vested Portion of Participant Individual
Accounts
	 	 	42	 
	402 100 Percent Vesting of Certain Contributions
	 	 	44	 
	403 Forfeitures and Vesting of Matching Contributions
	 	 	44	 
	SECTION FIVE: DISTRIBUTIONS AND LOANS TO PARTICIPANTS
	 	 	44	 
	501 Distributions
	 	 	44	 
	502 Form of Distribution to a Participant
	 	 	48	 
	503 Distributions Upon the Death of a Participant
	 	 	48	 
	504 Form of Distribution to Beneficiaries
	 	 	49	 
	505 Required Minimum Distribution Requirements
	 	 	49	 
	506 Annuity Contracts
	 	 	52	 
	507 Distributions in-Kind
	 	 	52	 
	508 Procedure for Missing Participants or Beneficiaries
	 	 	52	 
	509 Claims Procedures
	 	 	52	 
	510 Joint and Survivor Annuity Requirements
	 	 	53	 
	511 Liability for Withholding on Distributions
	 	 	54	 
	512 Distribution of Excess Elective Deferrals
	 	 	54	 
	513 Distribution of Excess Contributions
	 	 	55	 
	514 Distribution of Excess Aggregate Contributions
	 	 	55	 
	515 Recharacterization
	 	 	56	 






5









 






	 	 	 	 	 
	516 Loans To Participants
	 	 	56	 
	SECTION SIX: DEFINITIONS
	 	 	57	 
	SECTION SEVEN: MISCELLANEOUS
	 	 	58	 
	701 The Fund
	 	 	58	 
	702 Individual Accounts
	 	 	58	 
	703 Powers and Duties of the Plan Administrator
	 	 	59	 
	704 Expenses and Compensation
	 	 	59	 
	705 Information from Employer
	 	 	60	 
	706 Plan Amendments
	 	 	60	 
	707 Plan Merger or Consolidation
	 	 	61	 
	708 Permanency
	 	 	61	 
	709 Method and Procedure for Termination
	 	 	61	 
	710 Continuance of Plan by Successor Employer
	 	 	62	 
	711 Failure of Plan Qualification
	 	 	62	 
	712 Governing Laws and Provisions
	 	 	62	 
	713 State Community Property Laws
	 	 	62	 
	714 Headings
	 	 	62	 
	715 Gender and Number
	 	 	62	 
	716 Standard of Fiduciary Conduct
	 	 	62	 
	717 General Undertaking of all Parties
	 	 	62	 
	718 Agreement Binds Heirs, Etc
	 	 	62	 
	719 Determination of Top-Heavy Status
	 	 	62	 
	720 Inalienability of Benefits
	 	 	63	 
	721 Bonding
	 	 	64	 
	722 Investment Authority
	 	 	64	 
	723 Procedures and Other Matters Regarding Domestic Relations
Orders
	 	 	66	 
	724 Indemnification of Prototype Sponsor
	 	 	67	 
	725 Military Service
	 	 	67	 
	SECTION EIGHT: TRUSTEE AND CUSTODIAN
	 	 	67	 
	801 Financial Organization as Custodian
	 	 	67	 
	802 Trustee
	 	 	68	 
	803 Compensation and Expenses
	 	 	72	 
	804 No Obligation to Question Data
	 	 	72	 
	805 Resignation
	 	 	72	 
	SECTION NINE: ADOPTING EMPLOYER SIGNATURE
	 	 	73	 






6









 






QUALIFIED RETIREMENT PLAN AND TRUST




Defined Contribution Basic Plan Document 01




DEFINITIONS




When used in the Plan with initial capital letters, the following words and phrases have the
meanings set forth below unless the context indicates that other meanings are intended.




ACP TEST SAFE HARBOR MATCHING CONTRIBUTIONS




Means Matching Contributions described in Plan Section 3.03(B).




ACTUAL CONTRIBUTION PERCENTAGE (ACP)




Means the average of the Contribution Percentages of the Eligible Participants in a group of either
Highly Compensated Employees or non-Highly Compensated Employees.




ACTUAL DEFERRAL PERCENTAGE (ADP)




Means, for a specified group of Participants (either Highly Compensated Employees or non-Highly
Compensated Employees) for a Plan Year, the average of the ratios (calculated separately for each
Participant in such group) of (1) the amount of Employer Contributions actually paid to the Fund on
behalf of such Participant for the Plan Year to (2) the Participant’s Compensation for such Plan
Year. For purposes of calculating the ADP, Employer Contributions on behalf of any Participant
shall include: (1) any Elective Deferrals (other than Catch-up Contributions) made pursuant to the
Participant’s salary deferral election or pursuant to automatic Elective Deferral enrollment, if
applicable (including Excess Elective Deferrals of Highly Compensated Employees), but excluding (a)
Excess Elective Deferrals of Participants who are non-Highly Compensated Employees that arise
solely from Elective Deferrals made under the Plan or plans of this Employer and (b) Elective
Deferrals that are taken into account in the Actual Contribution Percentage test (provided the ADP
test is satisfied both before and after exclusion of these Elective Deferrals); and (2) if elected
by the Employer, Qualified Nonelective Contributions and/or Qualified Matching Contributions. For
purposes of computing Actual Deferral Percentages, an Employee who would be a Participant but for
the failure to make Elective Deferrals shall be treated as a Participant on whose behalf no
Elective Deferrals are made.




ADOPTING EMPLOYER




Means any corporation, sole proprietor, or other entity named in the Adoption Agreement and any
successor who by merger, consolidation, purchase, or otherwise assumes the obligations of the Plan.
The Adopting Employer shall be a named fiduciary for purposes of ERISA Section 402(a).




ADOPTION AGREEMENT




Means the document executed by the Adopting Employer through which it adopts the Plan and trust and
thereby agrees to be bound by all terms and conditions of the Plan and trust.




ADP TEST SAFE HARBOR CONTRIBUTIONS




Means any Basic Matching Contributions, Enhanced Matching Contributions, and Safe Harbor
Nonelective Contributions.




ALTERNATE PAYEE




Means any Spouse, former Spouse, child, or other dependent of a Participant who is recognized by a
Domestic Relations Order as having a right to receive all, or a portion of, the benefits payable
under the Plan with respect to such Participant.




ANNUAL ADDITIONS




Means the sum of the following amounts credited to a Participant for the Limitation Year:





a. Employer Contributions,




b. Nondeductible Employee Contributions,




c. Forfeitures,




d. amounts allocated to an individual medical account, as defined in Code Section 415(l)(2),
which is part of a pension or annuity plan maintained by the Employer. Also amounts derived
from contributions paid or accrued which are attributable to post-retirement medical
benefits, allocated to the separate account of a key employee (as defined in Code Section
419A(d)(3)), under a welfare benefit fund (as defined in Code Section 419(e)), maintained by
the Employer,




e. amounts allocated under a simplified employee pension plan,




f. Excess Contributions (including amounts recharacterized), and




g. Excess Aggregate Contributions.



7









 





For this purpose, any Excess Annual Additions applied in Plan Section 3.12(A)(4) or 3.12(B)(6) in
the Limitation Year to reduce Employer Contributions will be considered Annual Additions for such
Limitation Year.




ANNUITY STARTING DATE




Means the first day of the first period for which an amount is paid as an annuity or any other
form.




BASIC MATCHING CONTRIBUTIONS




Means Matching Contributions made pursuant to the Safe Harbor CODA formula described in Section
Three of the Adoption Agreement, if
applicable.




BASIC PLAN DOCUMENT




Means this prototype Plan and trust document.




BENEFICIARY




Means the individual(s) or entity(ies) designated pursuant to Plan Section Five.




BREAK IN ELIGIBILITY SERVICE




Means a 12-consecutive month period which coincides with an Eligibility Computation Period during
which an Employee fails to complete more than 500 Hours of Service (or such lesser number of Hours
of Service specified in the Adoption Agreement for this purpose) or such periods specified in the
Elapsed Time definition, if applicable.




BREAK IN VESTING SERVICE




Means a Plan Year (or other vesting computation period described in the definition of Year of
Vesting Service) during which an Employee fails to complete more than 500 Hours of Service (or such
lesser number of Hours of Service specified in the Adoption Agreement for this purpose) or such
period specified in the Elapsed Time definition, if applicable.




CATCH-UP CONTRIBUTIONS




Means Elective Deferrals made pursuant to Plan Section Three, that are in excess of an otherwise
applicable Plan limit and that are made by Participants who are age 50 or older by the end of their
taxable years. An otherwise applicable Plan limit is a limit in the Plan that applies to Elective
Deferrals without regard to Catch-up Contributions, such as the limits on Annual Additions, the
dollar limitation on Elective Deferrals under Code Section 402(g) (not counting Catch-up
Contributions), the limit imposed by the Actual Deferral Percentage (ADP) test under Code Section
401(k)(3), or any other allowable limit imposed by the Employer. Catch-up Contributions for a
Participant for a taxable year may not exceed (1) the dollar limit on Catch-up Contributions under
Code Section 414(v)(2)(B)(i) for the taxable year or (2) when added to other Elective Deferrals, an
amount that would enable the Employer to satisfy other statutory or regulatory requirements (e.g.,
income tax withholding, FICA and FUTA withholding, etc.). The dollar limit on Catch-up
Contributions in Code Section 414(v)(2)(B)(i) is $1,000 for taxable years beginning in 2002,
increasing by $1,000 for each year thereafter up to $5,000 for taxable years beginning in 2006 and
later years. After 2006, the $5,000 limit will be adjusted by the Secretary of the Treasury for
cost-of-living increases under Code Section 414(c)(2)(C). Any such adjustments will be in multiples
of $500. Different limits apply to Catch-up Contributions under SIMPLE 401(k) Plans.




CODE




Means the Internal Revenue Code of 1986 as amended from time to time.




COMPENSATION




A. General Definition




The following definition of Compensation shall apply.




As elected by the Adopting Employer in the Adoption Agreement (and if no election is made, W-2
wages will apply), Compensation shall mean one of the following:




1. W-2 wages — Compensation is defined as information required to be reported under Code Sections
6041, 6051, and 6052 (wages, tips, and other compensation as reported on Form W-2). Compensation is
further defined as wages within the meaning of Code Section 3401(a) and all other payments of
compensation to an Employee by the Employer (in the course of the Employer’s trade or business) for
which the Employer is required to furnish the Employee a written statement under Code Sections
6041(d), 6051(a)(3), and 6052. Compensation must be determined without regard to any rules in Code
Section 3401(a) that limit the remuneration included in wages based on the nature or location of
the employment or the services performed (such as the exception for agricultural labor in Code
Section 3401(a)(2)).




2. Section 3401(a) wages — Compensation is defined as wages within the meaning of Code Section
3401(a), for the purposes of income tax withholding at the source but determined without regard to
any rules that limit the remuneration included in wages based on the nature or location of the
employment or the services performed (such as the exception for agricultural labor in Code Section
3401(a)(2)).




3. 415 safe-harbor compensation — Compensation is defined as wages, salaries, and fees for
professional services and other amounts received (without regard to whether or not an amount is
paid in cash) for personal services actually rendered in the course of




8









 








employment with the Employer
maintaining the Plan to the extent that the amounts are includible in gross income (including, but
not limited to, commissions paid to salespersons, compensation for services on the basis of a
percentage of profits, commissions on
insurance premiums, tips, bonuses, fringe benefits, and reimbursements or other expense allowances
under a nonaccountable plan (as described in Treasury Regulation 1.62-2(c)), and excluding the
following:





a. Employer contributions to a plan of deferred compensation which are not includible in the
Employee’s gross income for the taxable year in which contributed, or employer contributions
under a simplified employee pension plan to the extent such contributions are deductible by
the Employee, or any distributions from a plan of deferred compensation;




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




c. Amounts realized from the sale, exchange, or other disposition of stock acquired under a
qualified stock option; and




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



For any Self-Employed Individual covered under the Plan, Compensation will mean Earned Income.




B. Determination Period And Other Rules




Unless otherwise indicated in the Adoption Agreement or required by law or regulation, where an
Employee becomes an Eligible Participant on any date subsequent to the first day of the applicable
Determination Period, Compensation shall include only that Compensation paid to the Employee during
the portion of the Determination Period they were an Eligible Participant, unless otherwise
required by either the Code or ERISA (e.g., full year compensation used in the calculation of the
minimum allocation in a Top-Heavy Plan). Except as otherwise provided in this Plan (e.g., continued
coverage of disabled Participants), Compensation received by an Employee during a Determination
Period in which the Employee does not perform services for the Employer will be disregarded. Unless
otherwise indicated in the Adoption Agreement, Compensation shall include (a) any amount which is
contributed by the Employer pursuant to a salary reduction agreement and which is not includible in
the gross income of the Employee under Code Sections 125, 132(f)(4), 402(e)(3), 402(h)(1)(B),
403(b); (b) compensation deferred under an eligible deferred compensation plan within the meaning
of Code Section 457(b) (deferred compensation plans of state and local governments and tax-exempt
organizations); and (c) employee contributions (under government plans) described in Code Section
414(h)(2) but shall not include deemed Code Section 125 compensation. For purposes of applying the
limitations of Plan Section 3.12, Compensation for a Limitation Year is the Compensation actually
paid or made available in gross income during such Limitation Year. Notwithstanding the preceding
sentence, Compensation for a defined contribution plan Participant who is permanently and totally
disabled (as defined in Code Section 22(e)(3)) is the Compensation such Participant would have
received for the Limitation Year if the Participant had been paid at the rate of Compensation paid
immediately before becoming permanently and totally disabled. Compensation paid or made available
during such Limitation Year shall include any elective deferral (as defined in Code Section
402(g)(3)) and any amount which is contributed or deferred by the Employer at the election of the
Employee and which is not includible in the gross income of the Employee by reason of Code Section
125, 132(f), or 457. If elected by the Employer in the Adoption Agreement, amounts under Code
Section 125 include any amounts not available to a Participant in cash in lieu of group health
coverage (deemed Code Section 125 compensation). An amount will be treated as an amount under Code
Section 125 only if the Employer does not request or collect information regarding the
Participants’ other health coverage as part of the enrollment process for the health plan. For
Limitation Years beginning after 2004, except as otherwise elected in the Adoption Agreement,
payments made within 21/2 months after Severance from Employment will be Compensation within the
meaning of Code Section 415(c)(3) if they are payments that, absent a Severance from Employment,
would have been paid to the Employee if the Employee continued in employment with the Employer and
are regular compensation for services during the Employee’s regular working hours, compensation for
services outside the Employee’s regular working hours (such as overtime or shift differential),
commissions, bonuses, or other similar compensation. For Limitation Years beginning after 2004,
except as otherwise elected in the Adoption Agreement, payments made within 21/2 months after
Severance from Employment will not be Compensation within the meaning of Code Section 415(c)(3) if
they are payments for accrued bona fide sick, vacation, or other leave, but only if the Employee
would have been able to use the leave if employment had continued. Any payments not described above
are not considered Compensation if paid after Severance from Employment, even if they are paid
within 21/2 months following Severance from Employment, except for payments to an individual who does not currently perform services for the
Employer by reason of qualified military service (within the meaning of Code Section 414(u)(1)) to
the extent these payments do not exceed the amounts the individual would have received if the
individual had continued to perform services for the Employer rather than entering qualified
military service.




C. Compensation for ADP, ACP and Code Section 401(a)(4) Testing




Compensation for purposes of ADP, ACP and Code Section 401(a)(4) testing will be W-2 wages unless
another definition of Compensation is elected on the Adoption Agreement for allocation and other
general purposes or another definition is required by law or regulation. Notwithstanding the
foregoing, a Plan Administrator has the option from year to year to use a different definition of
Compensation for testing purposes provided the definition of Compensation satisfies Code Section
414(s) and the regulations thereunder.




D. Limits On Compensation




The annual Compensation of each Participant taken into account in determining allocations shall not
exceed $200,000, as adjusted for cost-of-living increases in accordance with Code Section
401(a)(17)(B). Annual Compensation means Compensation during the Plan Year or such other
consecutive 12-month period over which Compensation is otherwise determined under the Plan
(Determination Period). The cost-of-living adjustment in effect for the calendar year applies to annual
Compensation for the Determination Period that begins with or within such calendar year.




9









 








If a Determination Period consists of fewer than 12 months, the annual Compensation limit is an
amount equal to the otherwise applicable annual Compensation limit multiplied by a fraction, the
numerator of which is the number of months in the short Determination Period, and the denominator
of which is 12.




If Compensation for any prior Determination Period is taken into account in determining an
Employee’s allocations or benefits for the
current Determination Period, the Compensation for such prior Determination Period is subject to
the applicable annual compensation limit in effect for that prior period.




E. SIMPLE 401(k) Rules




Notwithstanding anything in this Plan to the contrary, if an Eligible Employer has established a
SIMPLE 401(k) plan, Compensation means, for purposes of the definition of Eligible Employer and for
purposes of Plan Sections 3.01(H) and 3.02, the sum of the wages, tips, and other compensation from
the Employer subject to federal income tax withholding (as described in Code Section 6051(a)(3))
and the Employee’s Elective Deferral contributions made under this or any other 401(k) plan, and,
if applicable, elective deferrals under a Section 408(p) SIMPLE IRA plan, a SARSEP plan, or a
Section 403(b) annuity contract and compensation deferred under a Code Section 457 plan, required
to be reported by the Employer on Form W-2 (as described in Code Section 6051(a)(8)). Compensation
also includes amounts paid for domestic service (as described in Code Section 3401(a)(3)). For
Self-Employed Individuals, Compensation means net earnings from self-employment determined under
Code Section 1402(a) before subtracting any contributions made under this Plan on behalf of the
individual. The provisions of the Plan implementing the limit on Compensation under Code Section
401(a)(17) apply to the Compensation in Plan Sections 3.01(H) and 3.02.




F. Safe Harbor CODA Rules




Notwithstanding anything in this Plan to the contrary, if an Adopting Employer has elected in the
Adoption Agreement to apply the Safe Harbor CODA provisions to this Plan, Compensation means
Compensation as defined in this Definitions Section of the Plan and, if applicable, the definition
of Compensation for allocation and other general purposes selected in the Adoption Agreement,
except, for purposes of Section 3.03, no dollar limit, other than the limit imposed by Code Section
401(a)(17), applies to the Compensation of a non-Highly Compensated Employee. However, solely for
purposes of determining the Compensation subject to a Participant’s salary reduction agreement, the
Employer may use an alternative definition to the one described in the preceding sentence, provided
such alternative definition is a reasonable definition within the meaning of Treasury Regulation
1.414(s)-1(d)(2) and permits each Participant to elect sufficient Elective Deferrals to receive the
maximum amount of Matching Contributions (determined using the definition of Compensation described
in the preceding sentence) available to the Participant under the Plan.




CONTRIBUTING PARTICIPANT




Means a Participant who has enrolled as a Contributing Participant pursuant to either Plan Sections
3.01 or 3.10 and on whose behalf the Employer is contributing Elective Deferrals to the Plan (or is
making Nondeductible Employee Contributions).




CONTRIBUTION PERCENTAGE




Means the ratio (expressed as a percentage) of the Participant’s Contribution Percentage Amounts to
the Participant’s Compensation for the Plan Year.




CONTRIBUTION PERCENTAGE AMOUNTS




Means the sum of the Nondeductible Employee Contributions, Matching Contributions, and Qualified
Matching Contributions (to the extent not taken into account for purposes of the ADP test) made
under the Plan on behalf of the Participant for the Plan Year. Such Contribution Percentage Amounts
shall not include Matching Contributions that are forfeited either to correct Excess Aggregate
Contributions or because the contributions to which they relate are Excess Deferrals, Excess
Contributions, Excess Aggregate Contributions, or Excess Annual Additions which are distributed
pursuant to Plan Section 3.12(A)(4)(c). The Employer may elect, in a uniform and nondiscriminatory
manner, to use either Qualified Nonelective Contributions or Elective Deferrals, or both, in the
Contribution Percentage Amounts. Elective Deferrals may only be included in the Contribution
Percentage Amounts if the Plan passes the ADP test both before and after the exclusion of such
Elective Deferrals.




CUSTODIAN




Means an entity appointed in the Adoption Agreement (or, if applicable, in a separate custodial
agreement) by the Adopting Employer to hold the assets of the trust as Custodian or any duly
appointed successor as provided in Plan Section 8.05.




DEDUCTIBLE EMPLOYEE CONTRIBUTIONS




Means any qualified voluntary employee contributions (as defined in Code Section 219(e)(2) made
after December 31, 1981, in a taxable year beginning after such date and made for a taxable year
beginning before January 1, 1987, and allowable as a deduction under Code Section 219(a) for such
taxable year.




DEFINED CONTRIBUTION DOLLAR LIMITATION




Means $40,000, as adjusted under Code Section 415(d).




DESIGNATED BENEFICIARY




Means the individual who is designated by the Participant as the Beneficiary of the Participant’s
interest under the Plan and who is the designated Beneficiary under Code Section 401(a)(9) and
Treasury Regulation 1.401(a)(9)-4.




10









 








DETERMINATION DATE




Means for any Plan Year after the first Plan Year, the last day of the preceding Plan Year. For the
first Plan Year of the Plan, Determination Date means the last day of that year.




DETERMINATION PERIOD




Means, except as provided elsewhere in this Plan, the Plan Year unless the Adopting Employer has
selected another period in the Adoption Agreement.




DIRECT ROLLOVER




Means a payment by the Plan to the Eligible Retirement Plan specified by the Recipient (or, if
necessary pursuant to Plan Section 5.01(B)(1), an individual retirement account (IRA) under Code
Sections 408(a), 408(b), or 408A (for Roth Elective Deferrals), as selected by the Adopting
Employer in the Adoption Agreement).




DIRECTED TRUSTEE




Means the Trustee that is designated as the Directed Trustee in the Adoption Agreement. The
Directed Trustee shall be responsible for investing the Fund and performing the responsibilities of
the Trustee set forth in the Plan in accordance with specific instructions provided by the Adopting
Employer or the Plan Administrator (or Participant or Beneficiary) in accordance with instructions
(either in writing or in any other form permitted by rules promulgated by the IRS or DOL) from one
of the foregoing.




DISABILITY




Unless the Adopting Employer has elected a different definition in the Adoption Agreement or as
otherwise provided in the Plan, Disability means the inability to engage in any substantial,
gainful activity by reason of any medically determinable physical or mental impairment that can be
expected to result in death or which has lasted or can be expected to last for a continuous period
of not less than 12 months. The permanence and degree of such impairment shall be supported by
medical evidence satisfactory to the Plan Administrator.




DISCRETIONARY TRUSTEE




Means a Trustee that is designated as a Discretionary Trustee in the Adoption Agreement and enters
into an agreement with the Adopting Employer whereby the Trustee and not the Adopting Employer will
select the appropriate investments for the Fund in accordance with the Plan’s funding policy
statement or will perform such other tasks identified in such agreement between the Trustee and
Adopting Employer.




DISTRIBUTION CALENDAR YEAR




Means a calendar year for which a minimum distribution is required. For distributions beginning
before the Participant’s death, the first Distribution Calendar Year is the calendar year
immediately preceding the calendar year which contains the Participant’s Required Beginning Date.
For distributions beginning after the Participant’s death, the first Distribution Calendar Year is
the calendar year in which distributions are required to begin pursuant to Plan Section 5.05(D).
The required minimum distribution for the Participant’s first Distribution Calendar Year will be
made on or before the Participant’s Required Beginning Date. The required minimum distribution for
other Distribution Calendar Years, including the required minimum distribution for the Distribution
Calendar Year in which the Participant’s Required Beginning Date occurs, will be made on or before
December 31 of that Distribution Calendar Year.




DOMESTIC RELATIONS ORDER




Means any judgment, decree, or order (including approval of a property settlement agreement) that:





a. relates to the provision of child support, alimony payments, or marital property rights to
a spouse, former spouse, child, or other dependent of a Participant, and




b. is made pursuant to state domestic relations law (including applicable community property
laws).



EARLIEST RETIREMENT AGE




Means, for purposes of the Qualified Joint and Survivor Annuity provisions of the Plan, the
earliest date on which, under the Plan, the Participant could elect to receive retirement benefits.




EARLY RETIREMENT AGE




Means the age specified in the Adoption Agreement. The Plan will not have an Early Retirement Age
if none is specified in the Adoption Agreement.




EARNED INCOME




Means the net earnings from self-employment in the trade or business with respect to which the Plan
is established, for which personal services of the individual are a material income-producing
factor. Net earnings will be determined without regard to items not included in gross income and the deductions allocable to such items. Net earnings are reduced by contributions
by the Employer to a qualified plan to the extent deductible under Code Section 404. Net earnings
shall be determined with regard to the deduction allowed to the Employer by Code Section 164(f).




11









 








EFFECTIVE DATE




Means the date the Plan or amendment or restatement of the Plan becomes effective as indicated in
the Adoption Agreement. Notwithstanding the foregoing, unless otherwise provided in this Basic Plan
Document, the Effective Date of mandatory Plan changes resulting from the Economic Growth and Tax
Relief Reconciliation Act of 2001 (EGTRRA) and the Job Creation and Worker Assistance Act of 2002
(JCWAA) shall be the later of the original Effective Date of the Plan or the first day of the Plan
Year in which the legislative or regulatory change became effective. For optional changes made
available by EGTRRA, the Effective Date shall be the date the plan began to operate in accordance
with such optional change, as indicated by a Plan amendment if a written amendment was required for
such change.




ELAPSED TIME — Means




A. Special Rules Where Elapsed Time Method is Being Used




If elected by the Adopting Employer in the Adoption Agreement, the following definition of Elapsed
Time shall apply for purposes of
determining service. When this definition applies, the definitions of break in service and hour of
service in the Elapsed Time definition will replace the definitions of Break in Eligibility
Service, Break in Vesting Service, and Hours of Service found in the Definitions Section of the
Plan.




For purposes of determining an Employee’s initial or continued eligibility to participate in the
Plan or the Vested interest in the Participant’s Individual Account balance derived from Employer
Contributions, an Employee will receive credit for the aggregate of all time periods commencing
with the Employee’s first day of employment or reemployment and ending on the date a break in
service begins. The first day of employment or reemployment is the first day the Employee performs
an hour of service. An Employee will also receive credit for any period of severance of less than
12 consecutive months. Fractional periods of a year will be expressed in terms of months or days.




For purposes of this definition, hour of service will mean each hour for which an Employee is paid
or entitled to payment for the
performance of duties for the Employer. Break in service is a period of severance of at least 12
consecutive months. Period of severance is a continuous period of time during which the Employee is
not employed by the Employer. Such period begins on the date the Employee retires, quits, or is
discharged, or if earlier, the 12-month anniversary of the date on which the Employee was otherwise
first absent from service.




In the case of an individual who is absent from work for maternity or paternity reasons, the
12-consecutive month period beginning on the first anniversary of the first date of such absence
shall not constitute a break in service. For purposes of this Elapsed Time definition, an absence
from work for maternity or paternity reasons means an absence 1) by reason of the pregnancy of the
individual, 2) by reason of the birth of a child of the individual, 3) by reason of the placement
of a child with the individual in connection with the adoption of such child by such individual, or
4) for purposes of caring for such child for a period beginning immediately following such birth or
placement.




Each Employee will share in Employer Contributions for the period beginning on the date the
Employee commences participation under the Plan and ending on the date on which such Employee
severs employment with the Employer or is no longer a member of an eligible class of Employees. If
the Employer is a member of an affiliated service group (under Code Section 414(m)), a controlled
group of corporations (under Code Section 414(b)), a group of trades or businesses under common
control (under Code Section 414(c)), or any other entity required to be aggregated with the
Employer pursuant to Code Section 414(o), service will be credited for any employment for any
period of time for any other member of such group. Service will also be credited for any individual
required under Code Section 414(n) or Code Section 414(o) to be considered an Employee of any
Employer aggregated under Code Section 414(b), (c), or (m).




B. Changes In Methods of Crediting Service




The Plan may be amended to change the method of crediting service between the general rules
discussed in this Elapsed Time definition and the Hours of Service method discussed in the Hours of
Service definition provided each Employee with respect to whom the method of crediting service is
changed is afforded the protection described in Treasury Regulation 1.410(a)-7(g) and other
applicable rules promulgated by the IRS.




ELECTION PERIOD




Means the period which begins on the first day of the Plan Year in which the Participant attains
age 35 and ends on the date of the Participant’s death. If a Participant separates from service
before the first day of the Plan Year in which age 35 is attained, with respect to the account
balance as of the date of separation, the Election Period shall begin on the date of separation.




ELECTIVE DEFERRALS




Means any Employer Contributions made either as a Pre-Tax Elective Deferral or, effective on or
after January 1, 2006, as a Roth Elective Deferral to the Plan at the election of the Participant
or pursuant to automatic Elective Deferral enrollment, in lieu of cash
compensation, and shall include contributions made pursuant to a salary reduction agreement. With
respect to any taxable year, a Participant’s Elective Deferrals are the sum of all Employer
contributions made on behalf of such Participant pursuant to an election to defer under any
qualified cash or deferred arrangement as described in Code Section 401(k), any simplified employee
pension plan





12









 








cash or deferred arrangement as described in Code Section 408(k)(6), any SIMPLE IRA
Plan described in Code Section 408(p), any plan as described under Code Section 501(c)(18), any
Employer contributions made on the behalf of a Participant for the purchase of an annuity contract
under Code Section 403(b) pursuant to a salary reduction agreement. Elective Deferrals shall not
include any deferrals properly distributed as Excess Annual Additions.




No Participant shall be permitted to have Elective Deferrals made under this Plan, or any other
qualified plan maintained by the Employer, during any taxable year of the Participant, in excess of
the dollar limitation contained in Code Section 402(g) in effect at the beginning of such taxable
year. In the case of a Participant age 50 or over by the end of the taxable year, the dollar
limitation described in the preceding sentence is increased by the amount of Elective Deferrals
that can be Catch-up Contributions. The dollar limitation contained in Code Section 402(g) is
$10,500 for taxable years beginning in 2000 and 2001 increasing to $11,000 for taxable years
beginning in 2002 and increasing by $1000 for each year thereafter up to $15,000 for taxable years
beginning in 2006 and later years. After 2006, the $15,000 limit will be adjusted by the Secretary
of the Treasury for cost-of-living increases under Code Section 402(g)(4). Any adjustments will be
in multiples of $500.




ELIGIBILITY COMPUTATION PERIOD




Means, with respect to an Employee’s initial Eligibility Computation Period, the 12-consecutive
month period commencing on the Employee’s Employment Commencement Date. Unless otherwise specified
in the Adoption Agreement, the Employee’s subsequent Eligibility Computation Periods shall be the
Plan Year commencing with the Plan Year beginning during the Employee’s initial Eligibility
Computation Period. An Employee shall not be credited with a Year of Eligibility Service before the
end of the 12-consecutive month period regardless of when during such period the Employee completes
the required number of Hours of Service.




ELIGIBLE EMPLOYEE




Means, if the Employer has adopted a SIMPLE 401(k) Plan, any Employee who is entitled to make
Elective Deferrals under the terms of the Plan. Notwithstanding the foregoing, if the Employer has
elected to apply the Safe Harbor CODA provisions of Plan Section 3.03, Eligible Employee means an
Employee eligible to make Elective Deferrals under the Plan for any part of the Plan Year or who
would be eligible to make Elective Deferrals but for a suspension due to a hardship distribution
described in Plan Section 5.01(C)(2) or to statutory limitations, such as Code Sections 402(g) and
415.




ELIGIBLE EMPLOYER FOR SIMPLE 401(k) PLAN




Means, with respect to any SIMPLE 401(k) Year, an Employer that had no more than 100 Employees who
received at least $5,000 of Compensation, or such lesser amount indicated in the Adoption
Agreement, from the Employer for the preceding SIMPLE 401(k) Year and is therefore eligible to
establish a SIMPLE 401(k) Plan. In applying the preceding sentence, all Employees of controlled
groups of corporations under Code Section 414(b), all Employees of trades or businesses (whether
incorporated or not) under common control under Code Section 414(c), all Employees of affiliated
service groups under Code Section 414(m), and Leased Employees required to be treated as the
Employer’s Employees under Code Section 414(n), are taken into account. An Eligible Employer that
adopts a SIMPLE 401(k) and that fails to be an Eligible Employer for any subsequent SIMPLE 401(k)
Year, is treated as an Eligible Employer for the two SIMPLE 401(k) Years following the last SIMPLE
401(k) Year the Employer was an Eligible Employer. If the failure is due to any acquisition,
disposition, or similar transaction involving an Eligible Employer, the preceding sentence applies
only if the provisions of Code Section 410(b)(6)(C)(i) are satisfied.




ELIGIBLE PARTICIPANT




Means any Employee who is eligible to make a Nondeductible Employee Contribution or an Elective
Deferral (if the Employer takes such contributions into account in the calculation of the
Contribution Percentages), or to receive a Matching Contribution (including Forfeitures) or a
Qualified Matching Contribution. If a Nondeductible Employee Contribution is required as a
condition of participation in the Plan, any Employee who would be a Participant in the Plan if such
Employee made such a contribution shall be treated as an Eligible Participant on behalf of whom no
Nondeductible Employee Contributions are made.




ELIGIBLE RETIREMENT PLAN




Means, for purposes of the Direct Rollover provisions of the Plan, an individual retirement account
described in Code Sections 408(a) or 408A, an individual retirement annuity described in Code
Section 408(b), an annuity plan described in Code Section 403(a), an annuity contract described in
Code Section 403(b), an eligible plan under Code Section 457(b) which is maintained by a state,
political subdivision of a state, or an 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), or a qualified trust described in Code Section 401(a) that accepts the
Recipient’s Eligible Rollover Distribution. The definition of Eligible Retirement Plan shall also
apply in the case of a distribution to a surviving Spouse, or to a Spouse or former Spouse who is
the Alternate Payee under a Qualified Domestic Relations Order, as defined in Code Section 414(p).
If any portion of an Eligible Rollover Distribution is attributable to payments or distributions
from a designated Roth account, an Eligible Retirement Plan with respect to such portion shall
include only another designated Roth account of the individual from whose account the payments or
distributions were made, or a Roth IRA of such individual.




ELIGIBLE ROLLOVER DISTRIBUTION




Means any distribution of all or any portion of the balance to the credit of the Recipient, except
that an Eligible Rollover Distribution does not include




13









 









a. any distribution that is one of a series of substantially equal periodic payments (paid at
least annually) made for the life (or Life Expectancy) of the Recipient or the joint lives
(or joint life expectancies) of the Recipient and the Recipient’s Designated Beneficiary, or
for a specified period of ten years or more;




b. any distribution to the extent such distribution is required under Code Section 401(a)(9);




c. the portion of any other distribution that is not includible in gross income (determined
without regard to the exclusion for net unrealized appreciation with respect to employer
securities);




d. any hardship distribution described in Plan Section 5.01(C)(2); and




e. any other distribution(s) that is reasonably expected to total less than $200 during a
year.



For distributions made after December 31, 2001, a portion of a distribution shall not fail to be an
Eligible Rollover Distribution merely because the portion consists of after-tax employee
contributions which are not includible in gross income. However, such portion may be transferred
only to an individual retirement account or annuity described in Code Section 408(a) or (b), or to
a qualified defined contribution plan described in Code Section 401(a) or 403(a) that agrees to
separately account for amounts so transferred, including separately accounting for the portion of
such distribution which is includible in gross income and the portion of such distribution which is
not so includible.




EMPLOYEE




Means any person employed by an Employer maintaining the Plan or by any other employer required to
be aggregated with such Employer under Code Sections 414(b), (c), (m) or (o). The term Employee
shall also include any Leased Employee deemed to be an Employee of any Employer described in the
previous paragraph as provided in Code Sections 414(n) or (o).




EMPLOYER




Means the Adopting Employer, and, unless otherwise provided in the Adoption Agreement, all members
of a controlled group of corporations (as defined in Code Section 414(b) as modified by Code
Section 415(h)), all commonly controlled trades or businesses (as defined in Code Section 414(c) as
modified by Code Section 415(h)) or affiliated service groups (as defined in Code Section 414(m))
of which the Adopting Employer is a part, and any other entity required to be aggregated with the
Employer pursuant to Treasury regulations under Code Section 414(o). A partnership is considered to
be the Employer of each of the partners and a sole proprietorship is considered to be the Employer
of a sole proprietor.




EMPLOYER CONTRIBUTION




Means the amount contributed by the Employer each year as determined under this Plan. The term
Employer Contribution shall include Elective Deferrals made to the Plan unless such contributions
are intended to be excluded for purposes of either the Plan or any act under the Code, ERISA, or
any additional rules, regulations, or other pronouncements promulgated by either the IRS or DOL.




EMPLOYER MONEY PURCHASE PENSION CONTRIBUTION




Means an Employer Contribution made pursuant to the section of the Money Purchase Pension Plan
Adoption Agreement titled “Employer Money Purchase Pension Contributions.” The Employer must make
Employer Money Purchase Pension Contributions without regard to current or accumulated earnings or
profits.




EMPLOYER TARGET BENEFIT PENSION CONTRIBUTION




Means an Employer Contribution made pursuant to the section of the Target Benefit Pension Plan
Adoption Agreement titled “Employer Target Benefit Pension Contributions.” The Employer must make
Employer Target Benefit Pension Contributions without regard to current or accumulated earnings or
profits.




EMPLOYER PROFIT SHARING CONTRIBUTION




Means an Employer Contribution made pursuant to the section of the Adoption Agreement titled
“Employer Profit Sharing Contributions.” The Employer may make Employer Profit Sharing
Contributions without regard to current or accumulated earnings or profits, unless otherwise
indicated in the Adoption Agreement.




EMPLOYMENT COMMENCEMENT DATE




Means, with respect to an Employee, the date such Employee first performs an Hour of Service for
the Employer.




ENHANCED MATCHING CONTRIBUTIONS




Means Matching Contributions described in Code Section 401(k)(12)(B)(iii) and made pursuant to the
Safe Harbor CODA formula elected by the Employer in the Adoption Agreement.




ENTRY DATES




Means the first day of the Plan Year and the first day of the seventh month of the Plan Year,
unless the Adopting Employer has specified different dates in the Adoption Agreement.




ERISA




Means the Employee Retirement Income Security Act of 1974 as amended from time to time.





14









 








EXCESS AGGREGATE CONTRIBUTIONS




Means, with respect to any Plan Year, the excess of





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




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



Such determination shall be made after first determining Excess Elective Deferrals pursuant to the
definition provided herein and then determining Excess Contributions pursuant to the definition
provided herein.




EXCESS ANNUAL ADDITIONS




Means the excess of the Participant’s Annual Additions for the Limitation Year over the Maximum
Permissible Amount.




EXCESS CONTRIBUTIONS




Means, with respect to any Plan Year, the excess of a. the aggregate amount of Employer
Contributions actually taken into account in computing the ADP of Highly Compensated Employees for
such Plan Year, over b. the maximum amount of such contributions permitted by the ADP test
(determined by hypothetically reducing contributions made on behalf of Highly Compensated Employees
in order of the ADPs, beginning with the highest of such percentages).




EXCESS ELECTIVE DEFERRALS




Means those Elective Deferrals that either (1) are made during the Participant’s taxable year and
exceed the dollar limitation under Code Section 402(g) (increased, if applicable, by the dollar
limitation on Catch-up Contributions defined in Code Section 414(v)) for such year; or (2) are made
during a calendar year and exceed the dollar limitation under Code Section 402(g) (increased, if
applicable, by the dollar limitation on Catch-up Contributions defined in Code Section 414(v)) for
the Participant’s taxable year beginning in such calendar year, counting only Elective Deferrals
made under this Plan and any other plan, contract or arrangement maintained by the Employer. Excess
Elective Deferrals shall be treated as Annual Additions under the Plan, unless such amounts are
distributed no later than the first April 15 following the close of the Participant’s taxable year.




FIDUCIARY




Means a person who exercises any discretionary authority or control with respect to management of
the Plan, renders investment advice as defined in ERISA Section 3(21) or has any discretionary
authority or responsibility regarding the administration of the Plan. The Employer and such other
individuals either appointed by the Employer or deemed to be fiduciaries as a result of their
actions shall serve as Fiduciaries under this Plan and fulfill the fiduciary responsibilities
described in Part 4, Title I of ERISA.




FORFEITURE




Means that portion of a Participant’s Individual Account derived from Employer Contributions that
the Participant is not entitled to receive (i.e., the nonvested portion).




FUND




Means the Plan assets received and held by the Trustee for which it serves as Trustee (or
Custodian, if applicable) for the Participants’ exclusive benefit.




HIGHEST AVERAGE COMPENSATION




Means the average compensation for the three consecutive years of service with the Employer that
produces the highest average.




HIGHLY COMPENSATED EMPLOYEE




Means any Employee who 1) was a five-percent owner at any time during the year or the preceding
year, or 2) for the preceding year had Compensation from the Employer in excess of $80,000 and, if
elected by the Adopting Employer in the Adoption Agreement, was in the top-paid group for the
preceding year. The $80,000 amount is adjusted at the same time and in the same manner as under
Code Section 415(d), except that the base period is the calendar quarter ending September 30, 1996.




For this purpose the applicable year of the Plan for which a determination is being made is called
a determination year and the preceding 12-month period is called a look-back year unless the
Adopting Employer has made a calendar year data election in the Adoption Agreement. If a calendar
year data election is made, the look-back year shall be the calendar year ending within the Plan
Year for purposes of determining who is a Highly Compensated Employee (other than as a five-percent
owner).




A highly compensated former employee is based on the rules applicable to determining Highly
Compensated Employee status as in effect for that determination year, in accordance with Treasury
Regulation 1.414(q)-1T, A-4, Notice 97-45 and any subsequent guidance issued by the IRS. The
determination of who is a Highly Compensated Employee, including, but not limited to, the
determinations of the number and identity of Employees in the top-paid group and the Compensation
that is considered, will be made in accordance with Code Section 414(q) and the regulations
thereunder.




15









 








HOURS OF SERVICE — Means




A. General Rules for Crediting Hours of Service





1. Each hour for which an Employee is paid, or entitled to payment, for the performance of
duties for the Employer. These hours will be credited to the Employee for the computation
period in which the duties are performed; and




2. Each hour for which an Employee is paid, or entitled to payment, by the Employer on
account of a period of time during which no duties are performed (irrespective of whether the
employment relationship has terminated) due to vacation, holiday, illness, incapacity
(including Disability), layoff, jury duty, military duty or leave of absence. No more than
501 Hours of Service will be credited under this paragraph for any single continuous period
(whether or not such period occurs in a single computation period). Hours under this
paragraph shall be calculated and credited pursuant to Labor Regulation Section 2530.200b-2
which is incorporated herein by this reference.




3. Each hour for which back pay, irrespective of mitigation of damages, is either awarded or
agreed to by the Employer. The same Hours of Service will not be credited both under
paragraph (1) or paragraph (2), as the case may be, and under this paragraph (3). These hours
will be credited to the Employee for the computation period or periods to which the award or
agreement pertains rather than the computation period in which the award, agreement, or
payment is made.




4. Solely for purposes of determining whether a Break in Eligibility Service or a Break in
Vesting Service has occurred in a computation period (the computation period for purposes of
determining whether a Break in Vesting Service has occurred is the Plan Year or other vesting
computation period described in the definition of a Year of Vesting Service), an individual
who is absent from work for maternity or paternity reasons shall receive credit for the Hours
of Service which would otherwise have been credited to such individual but for such absence,
or in any case in which such hours cannot be determined, eight Hours of Service per day of
such absence. For purposes of this paragraph, an absence from work for maternity or paternity
reasons means an absence




1) by reason of the pregnancy of the individual,




2) by reason of a birth of a child of the individual,




3) by reason of the placement of a child with the individual in connection with the
adoption of such child by such individual, or




4) for purposes of caring for such child for a period beginning immediately following
such birth or placement. The Hours of Service credited under this paragraph shall be
credited




1) in the Eligibility Computation Period or Plan Year or other vesting
computation period described in the definition of a Year of Service in which
the absence begins if the crediting is necessary to prevent a Break in
Eligibility Service or a Break in Vesting Service in the applicable period, or




2) in all other cases, in the following Eligibility Computation Period or Plan
Year or other vesting computation period described in the definition of a Year
of Service.




5. Hours of Service will be credited for employment with other members of an affiliated
service group (under Code Section 414(m)), a controlled group of corporations (under Code
Section 414(b)), or a group of trades or businesses under common control (under Code Section
414(c)) of which the Adopting Employer is a member, and any other entity required to be
aggregated with the Employer pursuant to Code Section 414(o) and the regulations thereunder.
Hours of Service will also be credited for any individual considered an Employee for purposes
of this Plan under Code Sections 414(n) or 414(o) and the regulations thereunder.




6. Where the Employer maintains the plan of a predecessor employer, service for such
predecessor employer shall be treated as service for the Employer. If the Employer does not
maintain the plan of a predecessor employer, service for such predecessor employer will not
be treated as service for the Employer unless specifically elected in the Adoption Agreement.




7. The above method for determining Hours of Service may be altered as specified in the
Adoption Agreement.




8. Hours of Service shall apply unless the Adopting Employer has indicated in the Adoption
Agreement that a method other than Hours of Service will be used for determining service.



B. Changes In Methods of Crediting Service




The Plan may be amended to change the method of crediting service between the general rules
discussed in paragraph (A) and the Elapsed Time method discussed in the Elapsed Time definition
provided each Employee with respect to whom the method of crediting service is changed is afforded
the protection described in Treasury Regulation 1.410(a)-7(g) and other applicable rules
promulgated by the IRS.




INDIRECT ROLLOVER




Means a rollover contribution received by this Plan from an Employee that previously received a
distribution from another plan rather than having such amount directly rolled over to this Plan
from the distributing plan.




INDIVIDUAL ACCOUNT




Means the account established and maintained under this Plan for each Participant in accordance
with Plan Section 7.02(A).




16









 








INVESTMENT FIDUCIARY




Means the Employer, a Trustee with full trust powers, any Individual Trustee(s), or any investment
manager, as applicable, that under the terms of the Plan is vested with the responsibility and
authority to select investment options for the Plan and to direct the investment of the assets of
the Fund. In no event shall a Custodian or a Directed Trustee be an Investment Fiduciary for any
purpose whatsoever.




INVESTMENT FUND




Means a subdivision of the Fund established pursuant to Plan Section 7.01(B).




KEY EMPLOYEE




Means, for Plan Years beginning after December 31, 2001, any Employee or former Employee (including
any deceased Employee) who at any time during the Plan Year that includes the Determination Date is
an officer of the Employer and whose annual compensation is greater than $130,000 (as adjusted
under Code Section 416(i)(1) for Plan Years beginning after December 31, 2002), a five percent
owner of the Employer, or a one percent owner of the Employer who has annual compensation of more
than $150,000. For Plan Years beginning on or after January 1, 2001, except as otherwise provided
in the Adoption Agreement, Compensation shall also include elective amounts that are not includible
in the gross income of the Employee by reason of Code Section 132(f)(4).




In determining whether a plan is top-heavy for Plan Years beginning before January 1, 2002, Key
Employee means any Employee or former Employee (including any deceased Employee) who at any time
during the five-year period ending on the Determination Date, is an officer of the Employer having
annual compensation that exceeds 50 percent of the dollar limitation under Code Section
415(b)(1)(A), an owner (or considered an owner under Code Section 318) of one of the ten largest
interests in the Employer if such Participant’s compensation exceeds 100 percent of the dollar
limitation under Code Section 415(c)(1)(A), a five-percent owner of the Employer, or a one-percent
owner of the Employer who has annual compensation of more than $150,000. Annual compensation means
compensation as defined in Code Section 415(c)(3), but including amounts contributed by the
Employer pursuant to a salary reduction agreement which are excludable from the Employee’s gross
income in Code Sections 125, 402(e)(3), 402(h)(1)(B) 403(b). The determination period is the Plan
Year containing the Determination Date and the four preceding Plan Years. The determination of who
is a Key Employee will be made in accordance with Code Section 416(i)(1) and the Treasury
Regulations thereunder.




LEASED EMPLOYEE




Means, any person (other than an Employee of the recipient Employer) who, pursuant to an agreement
between the recipient Employer and any other person (“leasing organization”), has performed
services for the recipient Employer (or for the recipient Employer and related persons determined
in accordance with Code Section 414(n)(6)) on a substantially full time basis for a period of at
least one year, and such services are performed under primary direction or control by the recipient
Employer. Contributions or benefits provided to a Leased Employee by the leasing organization which
are attributable to services performed for the recipient Employer shall be treated as provided by
the recipient Employer. A Leased Employee shall not be considered an Employee of the recipient if:
(1) such Leased Employee is covered by a money purchase pension plan providing a) a nonintegrated
employer contribution rate of at least 10 percent of compensation, as defined in Code Section
415(c)(3), but including amounts contributed pursuant to a salary reduction agreement, which are
excludable from the Leased Employee’s gross income under Code Sections 125, 402(e)(3), 402(h)(1)(B)
or 403(b), b) immediate participation, and c) full and immediate vesting; and (2) Leased Employees
do not constitute more than 20 percent of the recipient’s non-Highly compensated work force.




LIFE EXPECTANCY




Means life expectancy as computed by using the Single Life Table in Treasury Regulation
1.401(a)(9)-9, Q&A-1.




LIMITATION YEAR




Means the Plan Year, unless the Adopting Employer has selected another 12-consecutive month period
in the Adoption Agreement. All qualified plans maintained by the Employer must use the same
Limitation Year. If the Limitation Year is amended to a different 12-consecutive month period, the
new Limitation Year must begin on a date within the Limitation Year in which the amendment is made.




MASTER OR PROTOTYPE PLAN




Means a plan, the form of which is the subject of a favorable opinion letter from the IRS.




MATCHING CONTRIBUTION




Means an Employer Contribution made to this or any other defined contribution plan on behalf of a
Participant on account of an Elective Deferral or a Nondeductible Employee Contribution made by
such Participant under a plan maintained by the Employer.




MAXIMUM PERMISSIBLE AMOUNT




Means the maximum Annual Addition that may be contributed or allocated to a Participant’s
Individual Account under the Plan for any Limitation Year.




For Limitation Years beginning before January 1, 2002, the Maximum Permissible Amount shall not
exceed the lesser of





a. the Defined Contribution Dollar Limitation, or




b. 25 percent of the Participant’s Compensation for the Limitation Year.



17









 





For Limitation Years beginning on or after January 1, 2002, except for Catch-up Contributions, the
Maximum Permissible Amount shall not exceed the lesser of





a. $40,000, as adjusted for increases in the cost-of-living under Code Section 415(d), or




b. 100 percent of the Participant’s Compensation (within the meaning of Code Section
415(c)(3)) for the Limitation Year.



The compensation limitation referred to in (b) shall not apply to any contribution for medical
benefits after separation from service (within the meaning of Code Section 401(h) or Section
419A(f)(2)) which is otherwise treated as an Annual Addition. If a short Limitation Year is created
because of an amendment changing the Limitation Year to a different 12-consecutive month period,
the Maximum Permissible Amount will not exceed the Defined Contribution Dollar Limitation multiplied by
the following fraction:
Number of months in the short Limitation Year/12




MONTH OF ELIGIBILITY SERVICE




Means the calendar month during which the Employee completes the number of Hours of Service
designated in the Adoption Agreement. If the Adoption Agreement indicates a specific number of
Months of Eligibility Service and no Hours of Service requirement is selected, the Employee will be
deemed to be required to complete 83 Hours of Service if actual hours are used to determine
eligibility. If an Hours of Service requirement is designated per month, that number when
multiplied by the number of Months of Eligibility Service indicated in the Adoption Agreement
cannot exceed 1000. Employees not meeting the hours requirement within the initial number of months
indicated in the Adoption Agreement will satisfy the Month of Eligibility Service requirement when
they complete 1,000 Hours of Service within the Eligibility Computation Period.




NONDEDUCTIBLE EMPLOYEE CONTRIBUTIONS




Means any contribution, other than Roth Elective Deferrals, made to the Plan by or on behalf of a
Participant that is included in the Participant’s gross income in the year in which made and that
is maintained under a separate account to which earnings and losses are allocated.




NORMAL RETIREMENT AGE




Means the age specified in the Adoption Agreement. If the Employer enforces a mandatory retirement
age, the Normal Retirement Age is the lesser of that mandatory age or the age specified in the
Adoption Agreement. If no age is specified in the Adoption Agreement, the Normal Retirement Age
shall be age 591/2.




OWNER—EMPLOYEE




Means an individual who is a sole proprietor, or who is a partner owning more than 10 percent of
either the capital or the profits interest of the partnership.




PARTICIPANT




Means any Employee or former Employee of the Employer who has met the Plan’s age and service
requirements, has entered the Plan, and who is or may become eligible to receive a benefit of any
type from this Plan or whose Beneficiary may be eligible to receive any such benefit.




PARTICIPANT’S BENEFIT




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




PERMISSIVE AGGREGATION GROUP




Means the Required Aggregation Group of plans plus any other plan or plans of the Employer which,
when considered as a group with the Required Aggregation Group, would continue to satisfy the
requirements of Code Sections 401(a)(4) and 410.




PLAN




Means the prototype defined contribution plan adopted by the Employer that is intended to satisfy
the requirements of Code Section 401 and ERISA Section 501. The Plan consists of this Basic Plan
Document plus the corresponding Adoption Agreement as completed and signed by the Adopting
Employer.




PLAN ADMINISTRATOR




The Adopting Employer shall be the Plan Administrator unless the managing body of the Adopting
Employer designates a person or persons other than the Adopting Employer as the Plan Administrator
and so notifies the Trustee (or Custodian, if applicable). The Adopting Employer shall also be the
Plan Administrator if the person or persons so designated ceases to be the Plan Administrator.
The Adopting Employer may establish an administrative committee that will carry out the Plan
Administrator’s duties. Members of the administrative committee may allocate the Plan
Administrator’s duties among themselves. If the managing body of the Adopting Employer designates a
person or persons other than the Adopting Employer as Plan Administrator, such person or persons
shall serve




18









 








at the pleasure of the Adopting Employer and shall serve pursuant to such procedures as
such managing body may provide. Each such person shall be bonded as may be required by law. The
term Plan Administrator shall include any person authorized to perform the duties of the Plan
Administrator and properly identified to the Trustee or Custodian as such. The Prototype Sponsor
shall in no case be designated as the Plan Administrator. The Plan Administrator shall be a named
Fiduciary of the Plan for purposes of ERISA Section 402(a).




PLAN SEQUENCE NUMBER




Means the three digit number the Adopting Employer assigned to the Plan in the Adoption Agreement.
The Plan Sequence Number identifies the number of qualified retirement plans the Employer maintains
or has maintained. The Plan Sequence Number is 001 for the Employers first qualified retirement
plan, 002 for the second, etc.




PLAN YEAR




Means the 12-consecutive month period which coincides with the Adopting Employer’s tax year or such
other 12-consecutive month period as is designated in the Adoption Agreement. Notwithstanding the
foregoing, a Plan Year may be a period less than 12 months, as defined in the Adoption Agreement.




PRE-AGE 35 WAIVER




A Participant who will not yet attain age 35 as of the end of any current Plan Year may make a
special Qualified Election to waive the Qualified Preretirement Survivor Annuity for the period
beginning on the date of such election and ending on the first day of the Plan Year in which the
Participant will attain age 35. Such election shall not be valid unless the Participant receives an
explanation of the Qualified Preretirement Survivor Annuity in such terms as are comparable to the
explanation required in Plan Section 5.10(D)(1). Qualified Preretirement Survivor Annuity coverage
will be automatically reinstated as of the first day of the Plan Year in which the Participant
attains age 35. Any new waiver on or after such date shall be subject to the full requirements of
Plan Section 5.10.




PRE-TAX ELECTIVE DEFERRALS




Means Elective Deferrals that are not included in a Participant’s gross income at the time
deferred. Elective Deferrals will be characterized as Pre-Tax Elective Deferrals unless the Roth
Elective Deferral option is selected in the Adoption Agreement and, if the Plan permits Roth
Elective Deferrals in addition to Pre-Tax Elective Deferrals, the Qualifying Participant also
designates the deferral as a Roth Elective Deferral.




PRESENT VALUE




Unless otherwise indicated in the Adoption Agreement, for purposes of establishing the Present
Value of benefits under a defined benefit plan to compute the top-heavy ratio, any benefit shall be
discounted only for mortality and interest based on the interest rate and mortality table specified
for this purpose in the defined benefit plan.




PRIOR PLAN




Means a plan that was replaced by adoption of this Plan document as indicated in the Adoption
Agreement.




PROJECTED ANNUAL BENEFIT




Means the annual retirement benefit (adjusted to an actuarially equivalent Straight Life Annuity if
such benefit is expressed in a form other than a Straight Life Annuity or Qualified Joint and
Survivor Annuity) to which the Participant would be entitled under the terms of the Plan, assuming
that





a. the Participant will continue employment until Normal Retirement Age under the Plan (or
current age, if later), and




b. the Participant’s Compensation for the current Limitation Year and all other relevant
factors used to determine benefits under the Plan will remain constant for all future
Limitation Years.



PROTOTYPE SPONSOR




Means the entity specified in the Adoption Agreement that makes this prototype Plan available to
employers for adoption.




QUALIFIED DOMESTIC RELATIONS ORDER




A. In General




Means a Domestic Relations Order





1. that creates or recognizes the existence of an Alternate Payee’s rights to, or assigns to
an Alternate Payee the right to, receive all or a portion of the benefits payable with
respect to a Participant under the Plan, and




2. with respect to which the requirements described in the remainder of this section are met.



B. Specification of Facts




A Domestic Relations Order shall be a Qualified Domestic Relations Order only if the order clearly
specifies





1. the name and last known mailing address (if any) of the Participant and the name and
mailing address of each Alternate Payee covered by the order,



19









 






2. the amount or percentage of the Participant’s benefits to be paid by the Plan to each such
Alternate Payee, or the manner in which such amount or percentage is to be determined,




3. the number of payments or period to which such order applies, and




4. each plan to which such order applies.



C. Additional Requirements




In addition to paragraph (B) above, a Domestic Relations Order shall be considered a Qualified
Domestic Relations Order only if such order





1. does not require the Plan to provide any type or form of benefit, or any option not
otherwise provided under the Plan,




2. does not require the Plan to provide increased benefits, and




3. does not require benefit to an Alternate Payee that are required to be paid to another
Alternate Payee under another order previously determined to be a Qualified Domestic
Relations Order.



D. Exception for Certain Payments




A Domestic Relations Order shall not be treated as failing to meet the requirements above solely
because such order requires that payment of benefits be made to an Alternate Payee





1. on or after the date on which the Participant attains (or would have attained) the
earliest retirement age as defined in Code Section 414(p)(4)(B),




2. as if the Participant had retired on the date on which such payment is to begin under such
order, and




3. in any form in which such benefits may be paid under the Plan to the Participant (other
than in a Qualified Joint and Survivor Annuity) with respect to the Alternate Payee and their
subsequent spouse.



QUALIFIED ELECTION




Means a waiver of a Qualified Joint and Survivor Annuity or a Qualified Preretirement Survivor
Annuity. Any waiver of a Qualified Joint and Survivor Annuity or a Qualified Preretirement Survivor
Annuity shall not be effective unless





a) the Participant’s Spouse consents to the election (either in writing or in any other form
permitted under rules promulgated by the IRS and DOL),




b) the election designates a specific Beneficiary, including any class of beneficiaries or
any contingent beneficiaries, which may not be changed without spousal consent (or the Spouse
expressly permits designations by the Participant without any further spousal consent),




c) the Spouse’s consent acknowledges the effect of the election, and




d) the Spouse’s consent is witnessed by a Plan representative or notary public.



Additionally, a Participant’s waiver of the Qualified Joint and Survivor Annuity shall not be
effective unless the election designates a form of benefit payment which may not be changed without
spousal consent (or the Spouse expressly permits designations by the Participant without any
further spousal consent). If it is established to the satisfaction of a Plan representative that
there is no Spouse or that the Spouse cannot be located, a waiver by the Participant will be deemed
a Qualified Election. In addition, if the Spouse is legally incompetent to give consent, the
Spouse’s legal guardian, even if the guardian is the Participant, may give consent. If the Participant is legally separated or the Participant has been abandoned (within the meaning
of local law) and the Participant has a court order to such effect, spousal consent is not required
unless a Qualified Domestic Relations Order provides otherwise. Any consent by a Spouse obtained under this provision (or establishment that the consent of a
Spouse may not be obtained) shall be effective only with respect to such Spouse. A consent that
permits designations by the Participant without any requirement of further consent by such Spouse
must acknowledge that the Spouse has the right to limit consent to a specific Beneficiary, and a
specific form of benefit where applicable, and that the Spouse voluntarily elects to relinquish
either or both of such rights. A revocation of a prior waiver may be made by a Participant without
the consent of the Spouse at any time before the commencement of benefits. The number of
revocations shall not be limited. No consent obtained under this provision shall be valid unless
the Participant has received notice as provided in Plan Section 5.10(D).




QUALIFIED JOINT AND SURVIVOR ANNUITY




Means an immediate annuity for the life of the Participant with a survivor annuity for the life of
the Spouse which is not less than 50 percent and not more than 100 percent of the amount of the
annuity which is payable during the joint lives of the Participant and the Spouse and which is the
amount of benefit which can be purchased with the Participant’s vested account balance. The
percentage of the survivor annuity under the Plan shall be 50 percent, unless a different
percentage is elected by the Adopting Employer in the Adoption Agreement.




QUALIFIED MATCHING CONTRIBUTIONS




Means Matching Contributions that are nonforfeitable when made to the Plan and that are
distributable only in accordance with the distribution provisions (other than for hardships)
applicable to Elective Deferrals.




QUALIFIED NONELECTIVE CONTRIBUTIONS




Means Employer Contributions (other than Matching Contributions, Qualified Matching Contributions,
or Employer Profit Sharing




20









 








Contributions) allocated to Participants’ Individual Accounts that the Participants may not elect
to receive in cash until distributed from the Plan; that are nonforfeitable when made to the Plan;
and that are distributable only in accordance with the distribution provisions (other than
hardships) that are applicable to Elective Deferrals.




QUALIFIED PRERETIREMENT SURVIVOR ANNUITY




Means a survivor annuity for the life of the surviving Spouse of the Participant if the payments
are not less than the amounts which would be payable as a survivor annuity under the Qualified
Joint and Survivor Annuity under the Plan in accordance with Code Section 417(c).




QUALIFYING CONTRIBUTING PARTICIPANT




Means a Contributing Participant who satisfies the requirements described in Plan Section 3.02 to
be entitled to receive a Matching Contribution (and Forfeitures, if applicable) for a Plan Year.




QUALIFYING EMPLOYER SECURITY(IES)




Means stock that is issued by the Employer and transferred to this Plan and that is subject to the
requirements of ERISA Section 407 and meets the requirements of ERISA Section 407(d)(5).




QUALIFYING PARTICIPANT




A Participant is a Qualifying Participant and is entitled to share in the Employer Contribution for
any Plan Year if the Participant was a Participant on at least one day during the Plan Year and
satisfies any additional conditions specified in the Adoption Agreement. If this Plan is a
standardized plan, unless the Employer specifies more favorable conditions in the Adoption
Agreement, a Participant will be a Qualifying Participant for a Plan Year if the Participant either
completes more than 500 Hours of Service (three consecutive calendar months if the Elapsed Time
method of determining service applies) during the Plan Year or is employed on the last day of the
Plan Year. The determination of whether a Participant is entitled to share in the Employer
Contribution shall be made as of the last day of each Plan Year. If the Elapsed Time method of
determining service applies, each Employee will share in Employer Contributions for the period
beginning on the date the Employee commences participation under the Plan and ending on the date on
which such Employee severs employment with the Employer or is no longer a member of an eligible
class of Employees.




RECIPIENT




A Recipient 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 Code Section 414(p),
are Recipients with regard to the interest of the Spouse or former Spouse.




REQUIRED AGGREGATION GROUP




Means (a) each qualified plan of the Employer in which at least one Key Employee participates or
participated at any time during the Plan Year containing the Determination Date or any of the four
preceding Plan Years (regardless of whether the Plan has terminated), and (b) any other qualified
plan of the Employer which enables a plan described in (a) to meet the requirements of Code Section
401(a)(4) or 410.




REQUIRED BEGINNING DATE




Means April 1 of the calendar year following the calendar year in which the Participant attains age
701/2 or retires, whichever is later, except that benefit distributions to a five-percent owner must
commence by the April 1 of the calendar year following the calendar year in which the Participant
attains age 701/2. Notwithstanding the foregoing, the Required Beginning Date is one of the following
as selected by the Adopting Employer in the Adoption Agreement:





(a) the Required Beginning Date of a Participant is April 1 of the calendar year following
the calendar year in which the Participant attains age 701/2;




(b) the Required Beginning Date of a Participant is April 1 of the calendar year following
the calendar year in which the Participant attains age 701/2, except that benefit distributions
to a Participant (other than a five-percent owner) with respect to benefits accrued after the
later of the adoption or effective date of an amendment to the Plan that implements the
changes to the Required Minimum Distribution rules of this Definition must commence by the
later of the April 1 of the calendar year following the calendar year in which the
Participant attains age 701/2 or retires; or




(c) the Required Beginning Date of a Participant is April 1 of the calendar year following
the later of the calendar year in which the Participant attains age 701/2 or the calendar year
in which the Participant retires except that benefit distributions to a five-percent owner
must commence by the April 1 of the calendar year following the calendar year in which the
Participant attains age 701/2;




(1) any Participant (other than a five-percent owner) attaining age 701/2 after 1995
may
elect by the April 1 of the calendar year following the year in which the Participant
attained age 701/2, (or by December 31, 1997, in the case of a Participant attaining age
701/2 in 1996) to defer distributions until the calendar year following the calendar
year in which the Participant retires. If no such election is made the Participant
will begin receiving distributions by April 1 of



21









 






the calendar year following the year in which the Participant attained age 701/2 (or by
December 31, 1997, in the case of a Participant attaining age 701/2 in 1996);




(2) any Participant (other than a five-percent owner) attaining age 701/2 before 1997
may elect to stop distributions and recommence by April 1 of the calendar year
following the year in which the Participant retires. To satisfy the Joint and Survivor
Annuity Requirements described in Section 5.10, the requirements in Notice 97-75,
Q&A-8, must be satisfied for any Participant who elects to stop distributions. There
is either (as elected by the Employer in the Adoption Agreement)




a) a new annuity starting date upon recommencement, or




b) no new annuity starting date upon recommencement.



A Participant is treated as a five-percent owner for purposes of this section if such Participant
is a five-percent owner as defined in Code Section 416 at any time during the Plan Year ending with
or within the calendar year in which such owner attains age 701/2.
Once distributions have begun to a five-percent owner under this section, they must continue to be
distributed, even if the Participant ceases to be a five-percent owner in a subsequent year.




ROTH ELECTIVE DEFERRALS




Means Elective Deferrals that are includible in a Participant’s gross income at the time deferred
and have been irrevocably designated as Roth Elective Deferrals by the Participant in their
deferral election.




ROTH IRA




Means an individual retirement account as defined in Code Section 408A.




SAFE HARBOR CODA




Means a Plan that has elected to make contributions in accordance with Plan Section 3.03.




SAFE HARBOR NONELECTIVE CONTRIBUTIONS




Means Employer Contributions made in an amount equal to at least three percent of each
Participant’s Compensation on behalf of each Eligible Employee, unless otherwise specified in the
Adoption Agreement. Such contributions shall be made without regard to whether a Participant makes
an Elective Deferral or a Nondeductible Employee Contribution.




SELF-EMPLOYED INDIVIDUAL




Means an individual who has Earned Income for the taxable year from the trade or business for which
the Plan is established, including an individual who would have had Earned Income but for the fact
that the trade or business had no net profits for the taxable year.




SEPARATE FUND




Means a subdivision of the Fund held in the name of a particular Participant or Beneficiary
representing certain assets held for that Participant or Beneficiary. The assets that comprise a
Participant’s Separate Fund are those assets earmarked for the Participant and those assets subject
to the Participant’s individual direction pursuant to Plan Section 7.22(B).




SEVERANCE FROM EMPLOYMENT




Means an Employee ceases to be an Employee of the Employer maintaining the Plan. An Employee does
not have a Severance from Employment if, in connection with a change of employment, the employee’s
new employer maintains such plan with respect to the employee.




SIMPLE 401(k) YEAR




Means the calendar year and is applicable only if the Employer has adopted a SIMPLE 401(k) Plan.




SIMPLE IRA




Means an individual retirement account that satisfies the requirements of Code Sections 408(p) and
408(a).




SPOUSE




Means the Spouse or surviving Spouse of the Participant, provided that a former Spouse will be
treated as the Spouse or surviving Spouse and a current Spouse will not be treated as the Spouse or
surviving Spouse to the extent provided under a Qualified Domestic Relations Order.




STRAIGHT LIFE ANNUITY




Means an annuity payable in equal installments for the life of the Participant, that terminates
upon the Participant’s death.




TAXABLE WAGE BASE




Means, with respect to any taxable year, the contribution and benefit base in effect in Section 230
of the Social Security Act at the beginning of the Plan Year.




22









 








TERMINATION OF EMPLOYMENT




Means that the employment status of an Employee ceases for any reason other than death. An Employee
who does not return to work for the Employer on or before the expiration of an authorized leave of
absence from such Employer shall be deemed to have incurred a Termination of Employment when such
leave ends.




TOP-HEAVY PLAN




Means a Plan determined to be a Top-Heavy Plan for any Plan Year pursuant to Plan Section 7.19.




TRADITIONAL IRA




Means an individual retirement account as defined in Code section 408(a).




TRUSTEE




Means, if applicable, an individual, individuals, or corporation specified in the Adoption
Agreement as Trustee or any duly appointed successor as provided in Plan Section 8.05. A corporate
Trustee must be a bank, trust company, broker, dealer or clearing agency as defined in Labor
Regulation 2550.403(a)-1(b).




VALUATION DATE




Means the valuation date or dates as specified in the Adoption Agreement. If no date is specified
in the Adoption Agreement, the Valuation Date shall be the last day of the Plan Year and each
additional date designated by the Plan Administrator which is selected in a uniform and
nondiscriminatory manner when the assets of the Fund are valued at their then fair market value.
Notwithstanding the foregoing, for purposes of calculating the top heavy ratio, the Valuation Date
shall be the last day of the initial Plan Year and the last day of the preceding Plan Year for each
subsequent Plan Year.




VESTED




Means nonforfeitable, that is, an unconditional and legally enforceable claim against the Plan that
is obtained by a Participant or the Participant’s Beneficiary to that part of an immediate or
deferred benefit under the Plan that arises from a Participant’s Years of Vesting Service.




VESTED ACCOUNT BALANCE




Means the aggregate value of the Participant’s Vested account balances derived from Employer and
Nondeductible Employee Contributions (including rollovers), whether Vested before or upon death,
including the proceeds of insurance contracts, if any, on the Participant’s life. This definition
shall apply to a Participant who is vested in amounts attributable to Employer Contributions,
Nondeductible Employee Contributions, or both at the time of death or distribution.




YEAR OF ELIGIBILITY SERVICE




Means a 12-consecutive month period which coincides with an Eligibility Computation Period during
which an Employee completes at least 1,000 Hours of Service (or such lesser number of Hours of
Service specified in the Adoption Agreement). An Employee does not complete a Year of Eligibility
Service before the end of the 12-consecutive month period regardless of when during such period the
Employee completes the required number of Hours of Service.




YEAR OF VESTING SERVICE




Means a Plan Year during which an Employee completes at least 1,000 Hours of Service (or such
lesser number of Hours of Service specified in the Adoption Agreement for this purpose).
Notwithstanding the preceding sentence, if the Adopting Employer so indicates in the Adoption
Agreement, vesting shall be computed by reference to the 12-consecutive month period beginning with
the Employee’s Employment Commencement Date and each successive 12-month period commencing on the
anniversaries thereof, or some other 12-consecutive month period.




Years of Vesting Service shall not include any period of time excluded from Years of Vesting
Service in the Adoption Agreement. However, if an Employee becomes ineligible to participate in the
Plan because they are no longer a member of an eligible class of Employees, but has not incurred a
Break in Vesting Service, such Employee shall continue to accumulate Years of Vesting Service.
In the event the Plan Year is changed to a new 12-month period, Employees shall receive credit for
Years of Vesting Service, in accordance with the preceding provisions of this definition, for each
of the Plan Years (the old and new Plan Years) that overlap as a result of such change.




SECTION ONE: EFFECTIVE DATES




Pursuant to the Definitions section of the Plan, the Effective Date means the date the Plan becomes
effective as indicated in the Adoption Agreement. However, certain provisions of the Plan may have
effective dates different from the Plan Effective Date, if, for example, the Plan is amended
subsequent to the Effective Date.




SECTION TWO: ELIGIBILITY REQUIREMENTS




2.01 ELIGIBILITY TO PARTICIPATE




23









 





Each Employee, except an Employee who belongs to a class of Employees excluded from participation
as indicated in the Adoption
Agreement, shall be eligible to participate in this Plan upon satisfying the age and Years of
Eligibility Service requirements specified in the Adoption Agreement. If no age is specified in the
Adoption Agreement, there will not be an age requirement. If no option for Years of Eligibility
Service is selected, no Years of Eligibility Service will be required. Notwithstanding the
preceding paragraph, if the Adoption Agreement does not permit Employers to restrict participation
of certain classes of Employees, the following Employees will be excluded from participation in the
Plan.




A. Union Employees — Employees included in a unit of Employees covered by a collective bargaining
agreement between the
Employer and Employee representatives, if retirement benefits were the subject of good faith
bargaining and if two percent or less of
the Employees who are covered pursuant to that agreement are professionals as defined in Treasury
Regulation 1.410(b)-9. For this
purpose, the term “Employee representatives” does not include any organization in which more than
half of the members are
Employees who are owners, officers, or executives of the Employer.




B. Non-resident Aliens — Employees who are non-resident aliens (within the meaning of Code Section
7701(b)(1)(B)) who received
no earned income (within the meaning of Code Section 911(d)(2)) from the Employer which constitutes
income from sources
within the United States (within the meaning of Code Section 861(a)(3)).




C. Acquired Employees — Employees who became Employees as the result of certain acquisitions or
dispositions as described under Code Section 410(b)(6)(C). Such Employees will be excluded from
participation during the transition period beginning on the date of the change in the members of
the group and ending on the last day of the first Plan Year beginning after the date of the change.
A transaction under Code Section 410(b)(6)(C) is an asset or stock acquisition, merger, or similar
transaction involving a change in the employer of the employees of a trade or business.
Notwithstanding the preceding, Employees who are not eligible to participate in the Plan because of
their classification as “part-time, seasonal or temporary employees, or any other employment
classification that is directly or indirectly based on the number of Hours of Service that an
Employee is customarily scheduled to work, will become eligible to participate in the Plan as of
the Entry Date coincident with or next following such Employee’s satisfaction of 1,000 Hours of
Service in an Eligibility Computation Period.




2.02 PLAN ENTRY




A. Plan Restatement — If this Plan is an amendment or restatement of a Prior Plan, each Employee
who was a Participant in the Prior Plan before the Effective Date shall continue to be a
Participant in this Plan.




B. Effective Date — An Employee will become a Participant in the Plan as of the Effective Date if
the Employee has met the
eligibility requirements of Plan Section 2.01 as of such date. After the Effective Date, each
Employee will become a Participant on
the first Entry Date coinciding with or following the date the Employee satisfies the eligibility
requirements of Plan Section 2.01,
unless the Adopting Employer selects retroactive Entry Dates in the Adoption Agreement.




C. Notification — The Plan Administrator shall notify each Employee who becomes eligible to be a
Participant under this Plan and
shall furnish the Employee with the enrollment forms or other documents which are required of
Participants. Such notification
shall be in writing (or in any other form permitted under rules promulgated by the IRS or DOL). The
eligible Employee shall
execute such forms or documents and make available such information as may be required in the
administration of the Plan.




2.03 TRANSFER TO OR FROM INELIGIBLE CLASS




If an Employee who had been a Participant becomes ineligible to participate because they are no
longer a member of an eligible class of Employees, but has not incurred a Break in Eligibility
Service, such Employee shall participate immediately following the date of reemployment upon their
return to an eligible class of Employees. If such Employee incurs a Break in Eligibility Service,
their
eligibility to participate shall be determined by Plan Section 2.04. An Employee who is not a
member of the eligible class of Employees will become a Participant immediately upon becoming a
member of the eligible class, provided such Employee has satisfied the age and Years of Eligibility
Service requirements. If such Employee has not satisfied the age and Years of Eligibility Service
requirements as of the date they become a member of the eligible class, such Employee shall become
a Participant on the first Entry Date coinciding with or following the date they satisfy those
requirements, unless otherwise indicated in the Adoption Agreement.




2.04 RETURN AS A PARTICIPANT AFTER BREAK IN ELIGIBILITY SERVICE




A. Employee Not A Participant Before Break — If an Employee incurs a Break in Eligibility Service
before satisfying the Plan’s
eligibility requirements, such Employee’s Years of Eligibility Service before such Break in
Eligibility Service will not be taken
into account.




B. Employee A Participant Before Break — If a Participant incurs a Break in Eligibility Service,
such Participant shall continue to
participate in the Plan, or, if terminated, shall participate immediately following the date of
reemployment, except as set forth in Plan Section 2.04(C).




24









 











2.05 DETERMINATIONS UNDER THIS SECTION




The Plan Administrator shall determine the eligibility of each Employee to be a Participant. This
determination shall be conclusive and binding upon all persons except as otherwise provided herein
or by law.




2.06 TERMS OF EMPLOYMENT




Nothing with respect to the establishment of the Plan and trust or any action taken with respect to
the Plan, nor the fact that a common law Employee has become a Participant shall give to that
Employee any right to employment or continued employment or to grant any other rights except as
specifically set forth in this Plan document, ERISA, or other applicable law; nor shall the Plan or
trust limit the right of the Employer to discharge an Employee or to otherwise deal with an
Employee without regard to the effect such treatment may have upon the Employee’s rights under the
Plan.




SECTION THREE: CONTRIBUTIONS




3.01 ELECTIVE DEFERRALS




Each Employee who satisfies the eligibility requirements specified in the Adoption Agreement for
making Pre-Tax Elective Deferrals
and/or Roth Elective Deferrals, if applicable, may begin making such Elective Deferrals to the Plan
by enrolling as a Contributing
Participant.




A. Requirements To Enroll As A Contributing Participant — Each Employee who satisfies the
eligibility requirements specified in
the Adoption Agreement for Elective Deferrals may enroll as a Contributing Participant on the first
Entry Date coinciding with or
following the date the Employee satisfies the eligibility requirements, or if applicable, the first
Entry Date following the date on
which the Employee returns to the eligible class of Employees pursuant to Plan Section 2.03. A
Participant who wishes to enroll
as a Contributing Participant must deliver (either in writing or in any other form permitted by the
IRS and the DOL) a salary
reduction agreement (or agreement to make Nondeductible Employee Contributions) to the Plan
Administrator except as set forth
in Plan Section 3.01(E) below. Except for occasional, bona fide administrative considerations as
set forth in the Treasury
Regulations, contributions made pursuant to such election cannot precede the earlier of 1) the date
on which services relating to
the contribution are performed, and 2) the date on which the Compensation that is subject to the
election would be payable to the
Employee in the absence of an election to defer. Any limits on Elective Deferrals designated by the
Employer in Adoption
Agreement Section Three may be determined either periodically throughout the Plan Year (e.g., each
payroll period) or at the end
of the Plan Year so long as the determination is made in a uniform and nondiscriminatory manner.




Notwithstanding the dates set forth in Plan Section 3.01(A) as of which a Participant may enroll as
a Contributing Participant, the
Plan Administrator shall have the authority to designate, in a nondiscriminatory manner, additional
enrollment dates during the
12-month period beginning on the Effective Date (or the date that Elective Deferrals may commence,
if later) in order that an
orderly first enrollment might be completed. In addition, if the Adopting Employer has indicated in
the Adoption Agreement that
Participants may make separate deferral elections with respect to bonuses, Participants shall be
afforded a reasonable period of
time before the issuance of such bonuses to elect to defer all or part of them into the Plan. Such
an election to defer all or part of a
bonus shall be independent of any other salary reduction agreement and shall not constitute a
modification to any pre-existing
salary reduction agreement. If a Plan permits both Pre-Tax and Roth Elective Deferrals and the
Participant fails to designate
whether their Elective Deferrals are Pre-Tax or Roth Elective Deferrals, the Participant will be
deemed to have designated the
Elective Deferral as Pre-Tax.




Notwithstanding anything in this Plan to the contrary, if this Plan is subject to ERISA, the
Employer shall deliver Elective
Deferrals to the Trustee (or Custodian, if applicable) as soon as such contributions can reasonably
be segregated from the general
assets of the Employer. In no event, however, shall Elective Deferrals be deposited with the
Trustee (or Custodian, if applicable)
later than the 15th business day of the month following the month in which the Elective
Deferrals would otherwise have been
payable to a Participant in cash or by such other deadline determined under rules promulgated by
the DOL. If this Plan is not
subject to ERISA, the Employer shall deposit Elective Deferrals with the Trustee (or Custodian, if
applicable) as of such time as is
required by the IRS and DOL.




B. Ceasing Elective Deferrals — Except as otherwise provided in the Adoption Agreement, a
Participant may cease Elective
Deferrals (or Nondeductible Employee Contributions) and thus withdraw as a Contributing Participant
as of any such times
established by the Plan Administrator in a uniform and nondiscriminatory manner by revoking the
authorization to the Employer
to make Elective Deferrals (or Nondeductible Employee Contributions) on their behalf. A Participant
who desires to withdraw as a
Contributing Participant shall give notice of withdrawal to the Plan Administrator at least 30 days
(or such shorter period as the
Plan Administrator shall permit in a uniform and nondiscriminatory manner) before the effective
date of withdrawal. A Participant
shall cease to be a Contributing Participant upon their Termination of Employment, or on account of
termination of the Plan.




25









 








Notwithstanding anything in this Plan to the contrary, each Employee who has entered into a salary
reduction agreement under a
SIMPLE 401(k) Plan may terminate such agreement at any time during the year.




C. Return As A Contributing Participant After Ceasing Elective Deferrals — Except as otherwise
provided in the Adoption
Agreement, a Participant who has withdrawn as a Contributing Participant in Plan Section 3.01(B)
(or because the Participant has
taken a hardship distribution pursuant to Plan Section 5.01(C)(2)(b)) may not again become a
Contributing Participant until the
first day of the Plan Year and the first day of the seventh month of the Plan Year following such
withdrawal, unless the Plan
Administrator, in a uniform and nondiscriminatory manner, permits withdrawing Participants to
resume their status as
Contributing Participants sooner (provided that Participants who take withdrawals pursuant to Plan
Section 5.01(C)(2)(b) shall be
subject to the conditions of that Section).




D. Changing Elective Deferral Amounts — A Contributing Participant or a Participant who has met
the eligibility requirements in the Adoption Agreement but who is not currently making Elective
Deferrals (or Nondeductible Employee Contributions), may modify
their salary reduction agreement (or agreement to make Nondeductible Employee Contributions) to
increase or decrease (within the
limits placed on Elective Deferrals or Nondeductible Employee Contributions in the Adoption
Agreement) the amount of their
Compensation deferred into the Plan or change the type of their future Elective Deferrals (Roth or
Pre-Tax), if applicable. Except as
otherwise provided in the Adoption Agreement, such modification may be made as of such times
established by the Plan
Administrator in a uniform and nondiscriminatory manner. A Contributing Participant who desires to
make such a modification shall
complete and deliver (either in writing or in any other form permitted by the IRS and the DOL) a
new salary reduction agreement (or
agreement to make Nondeductible Employee Contributions to the Plan Administrator). The Plan
Administrator may prescribe such
uniform and nondiscriminatory rules it deems appropriate to carry out the terms of this Plan
Section 3.01(D).




E. Automatic Elective Deferrals and Automatic Elective Deferral Increases




1. Automatic Elective Deferrals — Each Employee who satisfies the eligibility requirements
specified in the Adoption Agreement
for Elective Deferrals will be given a reasonable opportunity to enroll as a Contributing
Participant. Notwithstanding the
foregoing, if the Adopting Employer so elected in the Adoption Agreement, eligible Employees who
fail to provide the
Employer a salary reduction agreement indicating either 1) their desire not to make Elective
Deferrals, or 2) the amount or
percentage of Compensation to be deferred, will automatically have the amount or percentage of
Compensation listed in the
Adoption Agreement withheld from their Compensation and contributed as an Elective Deferral.
Elective Deferrals for such
Contributing Participants shall continue at the rate specified in the Adoption Agreement until 1)
the Contributing Participant
provides the Employer a salary reduction agreement (either in writing or in any other form
permitted under rules promulgated by
the IRS and the DOL) to the contrary, or unless 2) the Employer reduces or ceases Elective
Deferrals for such Participant
pursuant to Plan Section 3.13(B)(8), or 3) Elective Deferrals are increased in accordance with Plan
Section 3.01(E)(2).
Contributions made pursuant to this Plan Section 3.01(E) will be characterized as Pre-Tax Elective
Deferrals unless designated
as Roth Elective Deferrals in the Adoption Agreement and will not be characterized as Nondeductible
Employee Contributions.
An Employer who adopts automatic Elective Deferrals as described in this Plan Section 3.01(E)(1)
shall establish uniform
and nondiscriminatory procedures designed to ensure that each eligible Employee is provided an
effective opportunity to
make a salary deferral election. Such procedures shall include, but are not limited to, the means
by which notice will be
provided to each eligible Employee of their right to complete a salary reduction agreement
specifying a different amount or
percentage of Compensation (including no Compensation) to be contributed to the Plan and a
reasonable period of time for
completing such a salary reduction agreement.




2. Automatic Elective Deferral Increases — If the Adopting Employer so elects in the Adoption
Agreement, the Elective Deferral
percentage or amount for Contributing Participants will be adjusted automatically by the Employer
in the increments and time
periods stated in the Adoption Agreement. Automatic Elective Deferral increases will be initiated
by the Adopting Employer
only for those Contributing Participants who fail to provide the Employer a salary reduction
agreement on or before the date
indicated in the Adoption Agreement and who are automatically enrolled pursuant to this Plan
Section 3.01(E)(1) unless
otherwise elected on the Adoption Agreement. In addition to the foregoing, the Plan Administrator,
in a uniform and
nondiscriminatory manner, may establish operational procedures to enable all Contributing
Participants, including those who
were not automatically enrolled as Contributing Participants pursuant to Plan Section 3.01(E)(1),
to elect to have their Elective
Deferrals automatically increased.




An Employer who adopts the automatic Elective Deferral increase feature described in this Plan
Section 3.01(E)(2) shall
establish uniform and nondiscriminatory procedures designed to ensure that each Contributing
Participant is provided an
effective opportunity to make and modify their salary deferral election such that automatic
Elective Deferral increases will
not apply to such Participant. Such procedures shall include, but are not limited to, the means by
which notice will be
provided to each Contributing Participant of their right to complete a salary reduction agreement
discontinuing automatic
Elective Deferral increases and a reasonable period of time for completing such a salary reduction
agreement.




F. Pre-Tax vs. Roth Elective Deferrals — If the Adopting Employer so elects in the Adoption
Agreement, each Employee who
enrolls as a Contributing Participant may specify whether their Elective Deferrals are to be
characterized as Pre-Tax Elective
Deferrals, Roth Elective Deferrals, or a specified combination. A Contributing Participant’s
election will remain in effect until




26









 








superseded by another election. Elective Deferrals contributed to the Plan as one type, either Roth
or Pre-Tax, may not later be
reclassified as the other type. A Contributing Participant’s Roth Elective Deferrals will be
deposited in the Contributing
Participant’s Roth Elective Deferral subaccount in the Plan. No contributions other than Roth
Elective Deferrals and properly
attributable earnings will be credited to each Contributing Participant’s Roth Elective Deferral
account, and gains, losses, and
other credits or charges will be allocated on a reasonable and consistent basis to such subaccount.




G. Catch-up Contributions — Unless elected otherwise in the Adoption Agreement, all Employees who
are eligible to make Elective
Deferrals under this Plan and who are age 50 or older by the end of their taxable year will be
eligible to make Catch-up
Contributions. Catch-up Contributions are not subject to the limits on Annual Additions under Code
Section 415, are not counted
in the ADP test, and are not counted in determining the minimum allocation under Code Section 416
(but Catch-up Contributions
made in prior years are counted in determining whether the Plan is top-heavy). Provisions in the
Plan relating to Catch-up
Contributions apply to Elective Deferrals made after 2001.




H. Elective Deferrals to a SIMPLE 401(k) Plan — Notwithstanding anything in this Plan to the
contrary, if the Employer is an Eligible Employer for SIMPLE 401(k) Plans and has established a
SIMPLE 401(k) Plan, each Eligible Employee may deliver (either in writing or in any other form
permitted by the IRS and the DOL) a salary reduction election and have their Compensation reduced
for the SIMPLE 401(k) Year in any amount selected by the Employee subject to the limitation
described below. The Employer will make Elective Deferral contributions to this Plan in the amount
by which the Employee’s Compensation has been reduced.




The total Elective Deferrals to a SIMPLE 401(k) for any Eligible Employee cannot exceed the
limitation on Elective Deferrals in effect for the SIMPLE 401(k)Year. The limitation on Elective
Deferrals to a SIMPLE 401(k) Plan is $6,000 for 2000, $6,500 for 2001,
$7,000 for 2002 and increased by $1,000 for each SIMPLE 401(k) Year thereafter up to $10,000 for
2005 and later years. After 2005, the $10,000 limit will be adjusted by the Secretary of the
Treasury for cost-of-living increases under Code Section 408(p)(2)(E). Any such adjustments will be
in multiples of $500. Beginning in 2002, the amount of an Eligible Employee’s Elective Deferrals
permitted for a SIMPLE 401(k) Year is increased for Employees age 50 or older by the end of the
SIMPLE 401(k) Year by the amount of allowable Catch-up Contributions. The amount of allowable
Catch-up Contributions is $500 for 2002, increasing by $500 for each year thereafter up to $2,500
for 2006. After 2006, the $2,500 limit will be adjusted by the Secretary of the Treasury for the
cost-of-living increases under Code Section 414(v)(2)(C). Catch-up Contributions are otherwise
treated the same as other Elective Deferrals.




In addition to any other election periods provided under the Plan, each Eligible Employee in a
SIMPLE 401(k) Plan may make or
modify a salary reduction agreement during the 60-day period immediately preceding each January 1.



For the SIMPLE 401(k) Year an Employee becomes eligible to make Elective Deferral contributions
under a SIMPLE 401(k)
Plan, the 60-day election period requirement described above is deemed satisfied if the Employee
may make or modify a salary
reduction agreement during a 60-day period that includes either the date the Employee becomes
eligible or the day before.




I. SIMPLE 401(k) Notice Requirements — The Employer will notify each Eligible Employee before the
60-day election period
described in Plan Section 3.01(H) that they can complete a salary reduction agreement or modify a
prior salary reduction
agreement during that period. The notification must indicate whether the Employer will provide the
three-percent Matching
Contribution or a two-percent nonelective contribution described in Plan Section 3.02.




3.02 MATCHING CONTRIBUTIONS




The Employer may elect to make Matching Contributions under the Plan on behalf of Qualifying
Contributing Participants as provided in the Adoption Agreement. To be a Qualifying Contributing
Participant for a Plan Year, the Participant must make Elective Deferrals (or Nondeductible
Employee Contributions, if the Employer has agreed to match such contributions) for the Plan Year,
satisfy any age and Years of Eligibility Service and other requirements that are specified for
Matching Contributions in the Adoption Agreement, and also satisfy any additional conditions set
forth in the Adoption Agreement for this purpose. The Employer may make Matching Contributions at
the same time as it contributes Elective Deferrals or at any other time as permitted by law and
regulation. The proper Matching Contribution amount may be determined by the Employer at any time
during a Plan Year, including, but not limited to, such time as Matching Contributions are
delivered to the Trustee (or Custodian, if applicable) or at the end of the Plan Year so long as
the amount of Matching Contributions is determined in a uniform and nondiscriminatory manner.




For Plan Years beginning in 2006 (or such earlier date on which the final regulations under
Treasury Regulation Section 1.401(k) and 1.401(m) became effective), Matching Contributions with
respect to a non-Highly Compensated Employee taken into account under the Actual Contribution
Percentage (ACP) test cannot exceed the greatest of 1) 5 percent of Compensation, 2) the amount of
the Qualifying Contributing Participant’s Elective Deferrals, and 3) the product of two times the
plan’s representative matching rate and the Qualifying Contributing Participant’s Elective
Deferrals for a year. The “representative matching rate,” for this purpose, is the
lowest matching rate for any eligible non-Highly Compensated Employee among a group of eligible
non-Highly Compensated Employees that consists of one half of all non-Highly Compensated Employees for the Plan Year who
make Elective Deferrals for the Plan Year (or if greater, the lowest matching rate for all eligible
non-Highly Compensated Employees in the Plan who are employed by the Employer on the last day of
the Plan Year and who make Elective Deferrals for the Plan Year). The “matching rate” is generally
the Matching Contribution made for a Qualifying Contributing Participant, divided by their Elective
Deferrals for the year. If the matching rate is not the same for all levels of Elective Deferrals,
the matching rate is determined assuming that a Qualifying Contributing Participant’s Elective
Deferrals are equal to six percent of Compensation.




27









 








Notwithstanding the foregoing, if an Eligible Employer has established a SIMPLE 401(k) Plan, the
Employer will contribute a
Matching Contribution to the Plan on behalf of each Employee who makes an Elective Deferral
contribution as set forth in Plan Section 3.01(H). The amount of the Matching Contribution will be
equal to the Employee’s Elective Deferral contribution up to a limit of three percent of the
Employee’s Compensation for the entire SIMPLE 401(k) Year. For any year, instead of a Matching
Contribution to a SIMPLE 401(k) Plan, however, the Employer may elect to contribute a nonelective
contribution of two percent of Compensation for the full SIMPLE 401(k) Year for each Eligible
Employee who received at least $5,000 of Compensation (or such lesser amount as elected by the
Employer in the Adoption Agreement) for the SIMPLE 401(k) Year.




3.03 SAFE HARBOR CODA




If the Adopting Employer has elected the Safe Harbor CODA option in the Adoption Agreement, and if
the provisions of this Plan
Section 3.03 are followed for the Plan Year, then any provisions relating to the ADP Test described
in Code Section 401(k)(3) or the
ACP Test described in Code Section 401(m)(2) shall not apply. To the extent that any other
provision of the Plan is inconsistent with
the provisions of this Plan Section 3.03, the provisions of this Section shall apply.




A. ADP Test Safe Harbor Contributions — The Employer will make the ADP Test Safe Harbor
Contributions, if any, indicated in the Adoption Agreement on behalf of each Eligible Employee
unless such contributions are otherwise limited in the Adoption Agreement. If the Adopting Employer
so provides in the Adoption Agreement, the ADP Test Safe Harbor Contributions will be made to the
defined contribution plan indicated in the Adoption Agreement and not to this Plan. However, even
though another plan is listed in the Adoption Agreement, such contributions will be made to this
Plan unless 1) each Eligible Employee under this Plan is also eligible under the other plan, and 2)
the other plan has the same Plan Year as this Plan. The Employer may make ADP Test Safe Harbor
Contributions at the same time as it contributes Elective Deferrals or at any other time as
permitted by law and regulation. The proper ADP Test Safe Harbor Contribution amount may be
determined by the Employer at any time during a Plan Year, including, but not limited to, such time
as ADP Test Safe Harbor Contributions are delivered to the Trustee (or Custodian, if applicable))
or at the end of the Plan Year so long as the amount of ADP Test Safe Harbor Contributions is
determined in a uniform and nondiscriminatory manner. In addition, such contributions cannot be
made with regard to permitted disparity rules under Code Section 401(l).




B. ACP Test Safe Harbor Matching Contributions — In addition to the ADP Test Safe Harbor
Contributions described in the Definition Section of the Plan, the Employer will make the ACP Test
Safe Harbor Matching Contributions, if any, indicated in the Adoption Agreement on behalf of each
Eligible Employee for the Plan Year. The Employer may make ACP Test Safe Harbor Contributions at
the same time as it contributes Elective Deferrals or at any other time as permitted by law and
regulation. The proper ACP Test Safe Harbor Contribution amount may be determined by the Employer
at any time during a Plan Year, including, but not limited to, such time as ACP Test Safe Harbor
Contributions are delivered to the Trustee (or Custodian, if applicable) or at the end of the Plan
Year so long as the amount of ACP Test Safe Harbor Contributions is determined in a uniform and
nondiscriminatory manner.




C. Notice Requirement — At least 30 days, but not more than 90 days, or any other reasonable
period before the beginning of the
Plan Year (or such other times if permitted by the IRS), the Employer will provide each Eligible
Employee a comprehensive
notice of the Employee’s rights and obligations under the Plan, written in a manner calculated to
be understood by the average
Eligible Employee. If an Employee becomes eligible after the 90th day before the beginning of the
Plan Year and does not receive
the notice for that reason, the notice must be provided no more than 90 days before the Employee
becomes eligible but not later
than the date the Employee becomes eligible. Notwithstanding the foregoing, the Employer may change
this notice requirement pursuant to rules promulgated by the IRS.




Notwithstanding the foregoing, the Employer will also satisfy the notice requirements of this Plan
Section 3.03(C) if the Employer
provides a contingent notice that would otherwise satisfy the requirements in the preceding
paragraph except that in lieu of
specifying the amount of the ADP Test Safe Harbor Contribution, the notice states that the Employer
will determine during the
Plan Year whether to make a Safe Harbor Nonelective Contribution. If a contingent notice is
provided and the Employer decides
to make a Safe Harbor Nonelective Contribution, the Employer must deliver a follow-up notice to
each Eligible Employee no later
than 30 days or any other reasonable period before the last day of the Plan Year notifying them of
the Safe Harbor Nonelective
Contribution and must execute all necessary Plan amendments. If an Employer fails to provide a
follow-up notice, no Safe Harbor
Nonelective Contribution will be required and the Plan will not qualify as a Safe Harbor CODA for
that year. The Plan may
qualify as a Safe Harbor CODA for subsequent years following proper notice and contributions.




D. Election Periods — In addition to any other election periods provided under the Plan, each
Eligible Employee may make or
modify a deferral election during the 30-day period immediately following receipt of the notice
described in Plan Section 3.03(C)
above. Notwithstanding the foregoing, the Employer may change the election periods described above
pursuant to rules
promulgated by the IRS.




3.04 EMPLOYER CONTRIBUTIONS




A. Obligation to Contribute — Except as otherwise indicated in the Adoption Agreement, the
Employer may contribute an amount
to be determined from year to year. If this Plan is a profit sharing plan, the Employer may, in its
sole discretion, make




28









 








contributions without regard to current or accumulated earnings or profits unless otherwise
indicated in the Adoption Agreement.




B. Allocation Formula and the Right to Share in the Employer Contribution




1. General — Except as otherwise indicated in the Adoption Agreement, Employer Profit Sharing
Contributions shall be
allocated to all Qualifying Participants using a pro rata allocation formula. Under the pro rata
allocation formula, Employer
Profit Sharing Contributions shall be allocated to the Individual Accounts of Qualifying
Participants in the ratio that each
Qualifying Participant’s Compensation for the Plan Year bears to the total Compensation of all
Qualifying Participants for
the Plan Year. The Employer Contribution for any Plan Year will be deemed allocated to each
Participant’s Individual
Account as of the last day of that Plan Year. Notwithstanding the foregoing, Employer Profit
Sharing Contributions,
Employer Money Purchase Pension Contributions, and Employer Target Benefit Pension Contributions
shall be allocated to
the Plan on behalf of each Participant who has incurred a Disability and who is a non-Highly
Compensated Employee if so
specified in the Adoption Agreement. Any Employer Contribution for a Plan Year must satisfy Code
Section 401(a)(4) and the Treasury Regulations thereunder for such Plan Year.




2. Special Rules for Integrated Plans —





a. Excess Integrated Allocation Formula — If the Adopting Employer has selected the excess
integrated allocation formula in the Adoption Agreement, subject to the overall permitted disparity limits, Employer Profit
Sharing Contributions shall be allocated as follows (the Employer may start with Step 3 if this Plan is not
top-heavy).




Step 1. Employer Profit Sharing Contributions shall first be allocated pro rata to
Qualifying Participants in the manner described in Plan Section 3.04(B)(1). The
percent so allocated under Step 1 shall not exceed three percent of each Qualifying
Participant’s Compensation.




Step 2. Any Employer Profit Sharing Contributions remaining after the allocation in
Step 1 shall be allocated to each Qualifying Participant’s Individual Account in the
ratio that each Qualifying Participant’s Compensation for
the Plan Year in excess of the integration level bears to all Qualifying Participants’
Compensation in excess of
the integration level, but not in excess of three percent of each Qualifying
Participant’s Compensation. For
purposes of this Step 2, in the case of any Qualifying Participant who has exceeded
the cumulative permitted
disparity limit described below, such Qualifying Participant’s total compensation for
the Plan Year will be
taken into account.




Step 3. Any Employer Profit Sharing Contributions remaining after the allocation in
Step 2 shall be allocated to each Qualifying Participant’s Individual Account in the
ratio that the sum of each Qualifying Participant’s total
Compensation and Compensation in excess of the integration level bears to the sum of
all Qualifying
Participants’ total Compensation and Compensation in excess of the integration level,
but not in excess of the
applicable profit sharing maximum disparity rate as described below. For purposes of
this Step 3, in the case
of any Qualifying Participant who has exceeded the cumulative permitted disparity
limit described below, two
times such Qualifying Participant’s total compensation for the Plan Year will be taken
into account.




Step 4. Any Employer Profit Sharing Contributions remaining after the allocation in
Step 3 shall be allocated pro rata to Qualifying Participants in the manner described
in Plan Section 3.04(B)(1).




b. Base Integrated Allocation Formula — If the Adopting Employer has selected the base
integrated allocation formula in
the Adoption Agreement, subject to the overall permitted disparity limits, Employer Profit
Sharing Contributions shall
be allocated as follows. The Base Integrated Allocation Formula is not available for years in
which the Plan is top
heavy.




Step 1. Employer Profit Sharing Contributions shall first be allocated to each
Qualifying Participant’s Individual
Account in the ratio that the sum of each Qualifying Participant’s total Compensation
and Compensation in
excess of the integration level bears to the sum of all Qualifying Participants’ total
Compensation and
Compensation in excess of the integration level, but not in excess of the non-top
heavy profit sharing
maximum disparity rate as described below.




Step 2. Any Employer Profit Sharing Contributions remaining after the allocation in
Step 1 shall be allocated pro rata to Qualifying Participants in the manner described
in Plan Section 3.04(B)(1).




c. Maximum Disparity Rate — If the Adopting Employer has selected the integrated
contribution or allocation formula in
the Adoption Agreement, the integration level shall be defined in the Adoption Agreement. If
the Adopting Employer
has selected the integrated contribution or allocation formula and no integration level is
selected in the Adoption
Agreement, the Taxable Wage Base will be the integration level. The maximum disparity rate
shall be determined in
accordance with the following table.




MAXIMUM DISPARITY RATE




Top-Heavy Integration Level Money Purchase Profit Sharing Non-Top-Heavy Profit Sharing




Taxable Wage Base (TWB) 5.7% 2.7% 5.7%




More than $0 but not more than 20 percent of TWB 5.7% 2.7% 5.7%




More than 20 percent of TWB but not more than 80 percent of TWB 4.3% 1.3% 4.3%




More than 80 percent of TWB but less than TWB 5.4% 2.4% 5.4%




d. Annual overall permitted disparity limit: Notwithstanding the preceding paragraphs, for
any Plan Year this Plan benefits
any Participant who benefits under another qualified plan or simplified employee pension, as
defined in Code Section



29









 






408(k), maintained by the Employer that provides for permitted disparity (or imputes
disparity), if this is a profit sharing
plan, Employer Profit Sharing Contributions and forfeitures shall be allocated to the account
of each Qualifying
Participant in the ratio that such Qualifying Participant’s total Compensation bears to the
total Compensation of all
Qualifying Participants. If this Plan is a money purchase pension plan, Employer Money
Purchase Pension
Contributions shall be made to the account of each Qualifying Participant in an amount equal
to the excess contribution
percentage multiplied by the Participant’s total Compensation.




e. Cumulative permitted disparity limit: Effective for Plan Years beginning on or after
January 1, 1995, the cumulative
permitted disparity limit for a Participant is 35 total cumulative permitted disparity years.
Total cumulative permitted
years means the number of years credited to the Participant for allocation or accrual
purposes under this Plan, any other
qualified plan or simplified employee pension plan (whether or not terminated) ever
maintained by the Employer. For
purposes of determining the Participant’s cumulative permitted disparity limit, all years
ending in the same calendar
year are treated as the same year. If the Participant has not benefited under a defined
benefit or target benefit plan for
any year beginning on or after January 1, 1994, the Participant has no cumulative disparity
limit.




Compensation shall mean compensation as defined in the Definition section of the Plan,
without regard to any exclusions
selected in Section Six of the Adoption Agreement.



3. Special Rules for Government Contract Plans — If this is a nonstandardized Plan and the
Employer so elects in the Adoption
Agreement, for each Hour of Service of covered employment under a government contract, the Employer
shall contribute to
the Plan such amounts for each Qualifying Participant as determined by the hourly rate designated
for each Qualifying
Participant’s work classification on the wage determination sheet, or part thereof, as determined
by the Employer pursuant to
the terms of the contracts to which the Employer is a party and which are subject to the provisions
of any federal, state, or
municipal prevailing wage law to which the Employer is a party.




4. Minimum Coverage Test — This paragraph shall apply to any nonstandardized Plan if, for any Plan
Year, the Plan fails to
satisfy the ratio percentage test described in Code Section 410(b)(1) as of the last day of any
such Plan Year. The ratio
percentage test is satisfied if, on the last day of the Plan Year, taking into account all
Employees, or former Employees who
were employed by the Employer on any day during the Plan Year, either the Plan benefits at least 70
percent of Employees
who are not Highly Compensated Employees or the Plan benefits a percentage of Employees who are not
Highly
Compensated Employees which is at least 70 percent of the percentage of Highly Compensated
Employees benefiting under
the Plan. A Participant is treated as benefiting under the Plan for any Plan Year during which the
Participant received or is
deemed to receive an allocation in accordance with Code Section 1.410(b)-3(a). If the Plan fails
the ratio percentage test, the
Employer Contribution for the Plan Year will be allocated to Participants in the first class of
Participants set forth below. If
the Plan still fails, then the Employer Contribution will also be allocated to Participants in the
next class and each succeeding
class until the Plan satisfies the minimum coverage requirements. A class shall be covered only if
necessary to satisfy those
requirements. The classes, in order of priority, are as follows.





a. Participants who are still employed on the last day of the Plan Year who have completed 90
percent of the number of
Hours of Service to otherwise be a Qualifying Participant or Qualifying Contributing
Participant, if applicable;




b. Participants who are still employed on the last day of the Plan Year who have completed 80
percent of the number of
Hours of Service to otherwise be a Qualifying Participant or Qualifying Contributing
Participant, if applicable;




c. Participants who are still employed on the last day of the Plan Year who have completed 70
percent of the number of
Hours of Service to otherwise be a Qualifying Participant or Qualifying Contributing
Participant, if applicable;




d. Participants who are still employed on the last day of the Plan Year who have completed 60
percent of the number of
Hours of Service to otherwise be a Qualifying Participant or Qualifying Contributing
Participant, if applicable;




e. Participants who are still employed on the last day of the Plan Year who have completed 50
percent of the number of
Hours of Service to otherwise be a Qualifying Participant or Qualifying Contributing
Participant, if applicable;




f. Any Participant still employed on the last day of the Plan Year;




g. Participants who are not employed on the last day of the Plan Year because the Participant
has died, incurred a
Disability, or attained Normal Retirement Age;




h. Participants who are not employed on the last day of the Plan Year who have completed at
least 1,000 Hours of Service
during the Plan Year;




i. Participants who are not employed on the last day of the Plan Year who have completed at
least 750 Hours of Service
for the Plan Year;




j. Participants who are not employed on the last day of the Plan Year who have completed at
least 500 Hours of Service
for the Plan Year.



If the minimum coverage test is performed after any Employer Contribution has been allocated and
the Plan fails the
minimum coverage test, the Employer shall make an additional contribution to the Plan on behalf of
those Participants that
are entitled thereto pursuant to items (a) through (j) above. The amount of the contribution for
such Participants shall be determined pursuant to the Plan’s allocation formula.




Notwithstanding the foregoing, an Employer may utilize the average benefits test in lieu of the
ratio percentage test and the
correction option described above, to satisfy minimum coverage.




30









 








5. Special Rule for Owner-Employees — If this Plan provides contributions or benefits for one or
more Owner-Employees,
contributions on behalf of any Owner-Employee may be made only with respect to the Earned Income of
such Owner-
Employee.




6. Inclusion of Ineligible Employees — If any Employee who is not a Qualifying Participant is
erroneously treated as a
Qualifying Participant during a Plan Year, then, except as otherwise provided in Plan Section
3.04(F), the Employer will not
be eligible to receive any portion of the contribution erroneously allocated to the Individual
Account of the ineligible
Employee. The Employer must correct the inclusion of ineligible employees using any method
permitted under the Employee
Plans Compliance Resolution System (EPCRS) or allowed by the IRS or DOL under regulations or other
guidance. The
EPCRS is currently described in IRS Revenue Procedure 2006-27.




7. Exclusion of Eligible Participant — If the Plan is a profit sharing plan, and if in any Plan
Year, any Participant is erroneously
excluded and discovery of such exclusion is not made until after the Employer Contribution has been
made and allocated,
then the Employer must contribute for the excluded Participant the amount, including earnings
thereon, which the Employer
would have contributed for the Employee. The Employer must correct the exclusion of eligible
employees using any method
permitted under the Employee Plans Compliance Resolution System (EPCRS) or allowed by the IRS or
DOL under
regulations or other guidance. The EPCRS is currently described in IRS Revenue Procedure 2006-27.




8. Cross-Tested Allocation Formula — If elected by the Adopting Employer in the Adoption
Agreement, the Employer will
determine the total amount of Employer Profit Sharing Contributions for each Plan Year and either
(1) allocate such total
amount to Participant groups (the “participant group allocation method”), or (2) allocate such
total amount using age
weighted allocation rates (the “age weighted allocation method”). Employer Profit Sharing
Contributions will be allocated to
each Qualifying Participant.




a. Participant Group Allocation (New Comparability) Method — If the Employer has elected the
Participant group
allocation method in the Adoption Agreement, either each Participant will constitute a
“separate allocation group” for
purposes of allocating Employer Profit Sharing Contributions or Participants will be divided
into groups specified on the
Adoption Agreement. Only a limited number of allocation rates (defined below) is permitted,
and the number of
allocation rates cannot be greater than the maximum allowable number of allocation rates. The
maximum allowable
number of allocation rates is equal to the sum of the allowable number of allocation rates
for eligible non-Highly
Compensated Employees and the allowable number of allocation rates for eligible Highly
Compensated Employees. The
allowable number of allocation rates for eligible Highly Compensated Employees is equal to
the number of eligible
Highly Compensated Employees, limited to 25. The allowable number of non-Highly Compensated
Employee
allocation rates depends on the number of eligible non-Highly Compensated Employees, limited
to 25.




The allocation will be made as follows: First, the total amount of Employer Profit Sharing
Contributions is allocated
among the deemed aggregated allocation groups in portions determined by the Employer. A
deemed aggregated
allocation group consists of all of the separate allocation groups that have the same
allocation rate. Second, within each
deemed aggregated allocation group, the allocated portion is allocated to each Qualifying
Participant in the ratio that
such Qualifying Participant’s Compensation bears to the total Compensation of all Qualifying
Participants in the group.
An allocation rate is the amount of Employer Profit Sharing Contributions allocated to a
Qualifying Participant for a
year, expressed as a percentage of Compensation. The number of eligible non-Highly
Compensated Employees to which
a particular allocation rate applies must reflect a reasonable classification of Employees,
and no Employee can be
assigned to more than one deemed aggregated allocation group for a Plan Year.





For a Plan with only one or two eligible non-Highly Compensated Employees, the allowable
number of non-Highly Compensated Employee allocation rates is one.




For a Plan with 3 to 8 eligible non-Highly Compensated Employees, the allowable number of
non-Highly Compensated Employee allocation rates cannot exceed two.




For a Plan with 9 to 11 eligible non-Highly Compensated Employees, the allowable number of
non-Highly Compensated Employee allocation rates cannot exceed three.




For a Plan with 12 to 19 eligible non-Highly Compensated Employees, the allowable number of
non-Highly Compensated Employee allocation rates cannot exceed four.




For a Plan with 20 to 29 eligible non-Highly Compensated Employees, the allowable number of
non-Highly Compensated Employee allocation rates cannot exceed five.




For a Plan with 30 or more eligible non-Highly Compensated Employees, the allowable number of
non-Highly Compensated Employee allocation rates cannot exceed the number of eligible non-Highly
Compensated Employees divided by five (rounded down to the next whole number if the result of dividing is not a
whole number), but shall not
exceed 25.




b. Age Weighted Allocation Method — If the age weighted allocation method is elected in the
Adoption Agreement, the
total Employer Profit Sharing Contribution will be allocated to each Qualifying Participant
such that the equivalent
benefit accrual rate for each Qualifying Participant is identical. The equivalent benefit
accrual rate is the annual annuity



31









 






commencing at the Qualifying Participant’s testing age, expressed as a percentage of the
Qualifying Participant’s
Compensation which is provided from the allocation of Employer Profit Sharing Contributions
and forfeitures for the
Plan Year, using standardized actuarial assumptions that satisfy Treasury Regulation
1.401(a)(4)-12. The Qualifying
Participant’s testing age is the later of Normal Retirement Age, or the Qualifying
Participant’s current age.




i. If the age-weighted formula for allocations and the safe harbor requirements of
Section 1.401(a)(4)-2(b)(3) of the
Income Tax Regulations are selected in the Adoption Agreement, then, to the extent
necessary, the following steps shall be taken:




(a) Identify the Employees of the Employer who are not Highly Compensated
Employees of such Employer who participate in the Plan and determine the
average allocation rate for such group of Employees.




(b) Identify the Employees of the Employer who are Highly Compensated Employees
of such Employer who participate in the Plan and determine the average
allocation rate for such group of Employees.




(c) As of the date of allocation, determine that amount by which the average
allocation rate for the group of Participants who are not Highly Compensated
Employees is less than the average allocation rate of the group of the
Participants who are Highly Compensated Employees.




(d) Lower the aggregate allocation to all of the Highly Compensated Employees
by the amount necessary to cause the average allocation rate of the
Participants who are not Highly Compensated Employees (as determined after
including the amount by which the Highly Compensated Employees’ allocation is
lowered and that is subsequently allocated to the Participants who are not
Highly Compensated) to equal the average allocation rate of the Participants
who are Highly Compensated Employees (as determined after the Highly
Compensated Employees’ allocation has been lowered).




(e) Reallocate the aggregate amount of the contributions after the reduction in
(d) above to the Participants who are Highly Compensated Employees using the
allocation formula in the Adoption Agreement; provided that for purposes of
this allocation, “Qualifying Participants” shall mean only those Participants
who are Highly Compensated Employees and “Employer Profit Sharing
Contributions” shall mean only those contributions allocated to Participants
who are Highly Compensated Employees.




(f) Reallocate the aggregate amount of the contributions after the increase in
(d) above to the Participants who are not Highly Compensated Employees using
the allocation formula in the Adoption Agreement; provided that for purposes of
this allocation, “Qualifying Participants” shall mean only those Participants
who are not Highly Compensated Employees and “Employer Profit Sharing
Contributions” shall mean only those contributions allocated to Participants
who are not Highly Compensated Employees.




ii. If the age-weighted formula for allocations and the general test requirements of
Section 1.401(a)(4)-2(c) of the
Income Tax Regulations are selected in the Adoption Agreement, then, to the extent
necessary, the following steps shall be taken for each rate group of the Employer
which fails to satisfy the rules of that Section:




(a) Identify the Employees of the Employer who are not Highly Compensated
Employees of such Employer who participate in the Plan and who are not part of
the applicable rate group because their allocation rates are too low and
arrange them in order of their allocation rates from the highest to the lowest.




(b) Identify the Highly Compensated Employees who participate in the Plan and
are in the rate group and arrange them in order of their allocation rates from
the highest to the lowest.




(c) As of the date of allocation, lower the allocation of the Highly
Compensated Employee with the highest allocation rate determined in (b) above.
The reduction shall equal the amount which when added to the Individual Account
of the individual in (a) above who has the highest allocation rate will cause
that rate to be increased to equal that of the Highly Compensated Employee with
respect to whom the rate group is constructed. As of the date of allocation,
that reduction shall be added to such individual’s Individual Account.




(d) Repeat (c) above with respect to the individual in (a) above who has the
next highest equivalent accrual rate and continue that process with the other
individuals described in (a) above in the order of their allocation rates from
the highest to the lowest until such rules are satisfied for the rate group. If
the allocation rate of a Highly Compensated Employee is lowered under (c) above
or this clause (d) to the point where it is equal to that of one or more other
Highly Compensated Employees in the rate group, then any further reductions in
allocations shall be apportioned between the former and latter Highly
Compensated Employees in a manner that causes their allocation rates to be
reduced by the same amount.



9. Minimum Gateway Requirements for New Comparability Plans — If a new comparability allocation
formula is selected in the
Adoption Agreement, the benefit provided under the allocation method of that formula must satisfy
one of the following
gateway tests by making the appropriate selections in the Adoption Agreement:





a. The Plan must provide an allocation that uses broadly available allocation rates. The Plan
will have broadly available
allocation rates for the Plan Year if each allocation rate under the Plan is currently
available during the Plan Year to a
group of Employees that satisfies the requirements under Code Section 410(b) (without regard
to the average benefit
percentage test of Treasury Regulation 1.410(b)-5) and as otherwise specified in Treasury
Regulation 1.401(a)(4)-
8(b)(1)(iii).




b. The Plan satisfies a minimum allocation gateway for a plan that is not a combination of
permissively aggregated defined
contribution and defined benefit plans, or a plan in which the aggregated plan is not
considered primarily defined benefit
in character, if it otherwise satisfies Treasury Regulation 1.401(a)(4)-8(b)(1)(vi). The Plan
will satisfy such gateway if:



32









 






i. each non-Highly Compensated Employee who is eligible to participate has an
allocation rate that is at least one third of the allocation rate of the Highly
Compensated Employee with the highest allocation rate; or




ii. each non-Highly Compensated Employee who is eligible to participate receives an
allocation of at least 5% of such Employee’s Compensation, as defined in Code Section
415(c)(3), for the period during which the non-Highly
Compensated Employee is eligible to receive an allocation under this Section.




For purposes of determining the allocation rate in (i) above, such allocation rate shall
equal the quotient of the Employer
Profit Sharing Contribution allocated to a Participant divided by the Participant’s
Compensation.
The Employer must make additional contributions to a Participant who is a non-Highly
Compensated Employee and who
receives only a top-heavy minimum contribution or a Safe Harbor Nonelective Contribution, in
order to satisfy the
minimum allocation gateway. The amount of such additional contribution shall be equal to the
difference between the
amount required to satisfy the minimum allocation gateway and the top-heavy minimum or Safe
Harbor Nonelective
Contribution received by such Employee, whichever is applicable.




Notwithstanding the foregoing, this Plan document cannot be used if this Plan is a
combination of permissively
aggregated defined contribution and defined benefit plans, in which the aggregated plan is
considered primarily defined
benefit in character, as defined in Treasury Regulation 1.401(a)(4)-9(b)(2)(v)(B).



10. Minimum Allocation Gateway for New Comparability — One-Third Approach — If a selection is
made in the Adoption
Agreement to satisfy a minimum allocation gateway for new comparability purposes and to reallocate
contributions from
Highly Compensated Employees to non-Highly Compensated Employees in order to provide each a
non-Highly
Compensated Employee with an allocation rate which is equal to at least one-third of the allocation
rate of the Highly
Compensated Employee with the highest allocation rate, then, to the extent necessary, the following
steps shall be taken:





a. Identify the Employees of the Employer who participate in the Plan who are non-Highly
Compensated Employees of
such Employer and arrange them in order of their allocation rates from the highest to the
lowest.




b. Identify the Highly Compensated Employees of the Employer who participate in the Plan and
arrange them in order of
their allocation rates from the highest to the lowest.




c. As of the date of allocation, lower the allocation to the Highly Compensated Employee with
the highest allocation rate
determined in (b) above. The reduction shall equal the lesser of (i) the amount necessary so
that the non-Highly
Compensated Employee with the lowest allocation rate receives an allocation equal to
one-third of the allocation rate of
the Highly Compensated Employee with the highest allocation rate, or (ii) the amount which
would cause such Highly
Compensated Employee’s allocation rate to equal the allocation rate of the Highly Compensated
Employee with the next
highest allocation rate. As of the date of allocation, that reduction shall be added to the
Individual Account of the non-
Highly Compensated Employee described in (i) above.




d. Repeat the procedures in (c) above until all non-Highly Compensated Employees have an
allocation rate equal to at least one-third of the allocation rate of the Highly Compensated
Employee with the highest allocation rate. If the allocation
rate of a Highly Compensated Employee is lowered under (c) above or this clause (d) to the
point where it is equal to
that of the Highly Compensated Employees with the next highest allocation rate, then any
further reductions in
allocations shall be apportioned between the former and latter Highly Compensated Employees
in a manner that causes
their equivalent allocation rates to be reduced by the same amount.




e. Participants whose sole allocation for a Plan Year consists of either a minimum allocation
made pursuant to Plan Section
3.04(E) or a Safe Harbor Nonelective Contribution are considered benefiting for purposes of
the minimum allocation
gateway. Allocation rates shall include such contributions when determining whether the
minimum gateway allocation
has been satisfied.



11. Minimum Allocation Gateway for New Comparability — Five Percent Approach — If a selection is
made in the Adoption
Agreement to satisfy a minimum allocation gateway under new comparability and to reallocate
contributions from Highly
Compensated Employees to non-Highly Compensated Employees in order to provide each non-Highly
Compensated
Employee with an allocation of at least 5% of such Employee’s Compensation, as defined in Code
Section 415(c)(3), for the
period during which the non-Highly Compensated Employee is eligible to receive an allocation under
this Section, then, to
the extent necessary, the following steps shall be taken.





a. Identify the Employees of the Employer who participate in the Plan who are non-Highly
Compensated Employees of
such Employer and arrange them in order of their allocation rates from the highest to the
lowest.




b. Identify the Highly Compensated Employees of the Employer who participate in the Plan and
arrange them in order of
their allocation rates from the highest to the lowest.




c. As of the date of allocation, lower the allocation to the Highly Compensated Employee with
the highest allocation rate
determined in (b) above. The reduction shall equal the lesser of (i) the amount necessary so
that the non-Highly
Compensated Employee with the lowest allocation rate receives an allocation equal to 5% of
such Employee’s
Compensation, as defined in Code Section 415(c)(3), for the period during which the
non-Highly Compensated
Employee is eligible to receive an allocation under this Section, or (ii) the amount which
would cause such Highly
Compensated Employee’s allocation rate to equal the allocation rate of the Highly Compensated
Employee with the next
highest allocation rate. As of the date of allocation, that reduction shall be added to the
Individual Account of the non-
Highly Compensated Employee described in (i) above.




d. Repeat the procedures in (c) above until all Employees of the non-Highly Compensated
Employees have an allocation
rate equal to at least 5% of such Employee’s Compensation, as defined in Code Section
415(c)(3), for the period during which the each of the non-Highly Compensated Employees are eligible to receive an allocation
under this Section. If the



33












 






allocation rate of a Highly Compensated Employee is lowered under (c) above or this clause
(d) to the point where it is
equal to that of the Highly Compensated Employees with the next highest allocation rate, then
any further reductions in
allocations shall be apportioned between the former and latter Highly Compensated Employees
in a manner that causes
their equivalent allocation rates to be reduced by the same amount.




e. If the allocation rate of the Highly Compensated Employees are less than 5%, either before
any reallocation pursuant to
this (11), or as a result of any reallocation pursuant to this (11), then for that Plan Year,
the Employer Profit Sharing
Contributions shall be allocated as if the Employer had elected a pro rata allocation formula
(as described in Adoption
Agreement Section Three).




f. Participants whose sole allocation for a Plan Year consists of either a minimum allocation
made pursuant to Plan Section
3.04(E) or a Safe Harbor Nonelective Contribution are considered benefiting for purposes of
the minimum allocation
gateway. Allocation rates shall include such contributions when determining whether the
minimum gateway allocation
has been satisfied.


C. Allocation of Forfeitures — Forfeitures may be, at the Employer’s discretion, applied first to
the payment of the Plan’s
administrative expenses in accordance with Plan Section 7.04 or applied to the restoration of
Participants’ Individual Accounts
pursuant to Plan Section 4.01(C)(3). Any remaining Forfeitures shall be allocated as follows:





1. Profit Sharing Plan — If this is a profit sharing plan, unless the Adoption Agreement
indicates otherwise, Forfeitures will be used to reduce Employer Contributions.
Notwithstanding the foregoing, Forfeitures arising under Plan Section 3.12 (Excess Annual
Additions) may be allocated to Qualifying Participants in accordance with Plan Section
3.04(B).




2. 401(k) Profit Sharing Plan — If this is a 401(k) profit sharing plan, unless the Adoption
Agreement indicates otherwise,
Forfeitures of Employer Profit Sharing Contributions, Matching Contributions, ACP Test Safe
Harbor Matching
Contributions, and Excess Aggregate Contributions shall be used to reduce Employer
Contributions. Notwithstanding the
foregoing, Forfeitures arising under Plan Section 3.12 (Excess Annual Additions) may be
allocated to Qualifying Participants in accordance with Plan Section 3.04(B).




3. Money Purchase Pension Plan and Target Benefit Pension Plan — If this Plan is a money
purchase pension plan or a target benefit pension plan, unless the Adoption Agreement
indicates otherwise, Forfeitures shall be used to reduce Employer Money Purchase Pension
Contributions or Employer Target Benefit Pension Contributions to the Plan. Notwithstanding
the foregoing, Forfeitures arising under Plan Section 3.12 (Excess Annual Additions), other
than forfeitures arising under a target benefit plan, may be allocated to Qualifying
Participants in accordance with Plan Section 3.04(B).


Forfeitures must be applied as of the last day of the Plan Year in which the Forfeitures arose or,
if necessary, any subsequent Plan
Year following the Plan Year in which the Forfeiture arose. Notwithstanding the foregoing,
Forfeitures must be applied in a
uniform and nondiscriminatory manner if applied either to the payment of the Plan’s administrative
expenses or to the restoration
of Participants’ Individual Accounts pursuant to Plan Section 4.01(C)(3). Forfeitures that are
reallocated to Participants’
Individual Accounts need not be reallocated to the same contribution source from which they were
forfeited.



D. Timing of Employer Contribution — Unless otherwise specified in the Plan or permitted by law or
regulation, the Employer
Contribution made by an Employer for each Plan Year shall be deposited with the Trustee (or
Custodian, if applicable) not later than
the due date for filing the Employer’s income tax return for its tax year in which the Plan Year
ends, including extensions thereof.
Notwithstanding the foregoing, Employer Contributions may be deposited during the Plan Year for
which they are being made.



E. Minimum Allocation for Top-Heavy Plans — The contribution and allocation provisions of this Plan
Section 3.04(E) shall apply
for any Plan Year with respect to which this Plan is a Top-Heavy Plan and shall supersede any
conflicting provisions in the Plan
or Adoption Agreement.





1. Except as otherwise provided in (3) and (4) below, the Employer Contributions and
Forfeitures allocated on behalf of any
Participant who is not a Key Employee shall not be less than the lesser of three percent of
such Participant’s Compensation or (in the case where the Employer does not maintain a
defined benefit plan in addition to this Plan which designates this Plan to satisfy Code
Section 401, the largest percentage of Employer Contributions and Forfeitures, as a
percentage of the Key Employee’s Compensation, as limited by Code Section 401(a)(17),
allocated on behalf of any Key Employee for that year. The minimum allocation is determined
without regard to any Social Security contribution. Unless the Adopting Employer, in the
Adoption Agreement, elects to allocate a top-heavy contribution to Participants who are Key
Employees, only Participants who are not Key Employees will be entitled to receive the
minimum allocation. Notwithstanding the foregoing, if the Employer maintains a defined
benefit plan in addition to this Plan and specifies in the Adoption Agreement that the
minimum allocation will be made to this Plan, then except as provided in (3) and (4) below,
Employer Contributions and Forfeitures allocated on behalf of any Participant who is not a
Key Employee shall not be less than five percent of such Participant’s Compensation. For
purposes of the preceding sentences, the largest percentage of Employer Contributions and
Forfeitures as a percentage of each Key Employee’s Compensation shall be determined by
treating Elective Deferrals as Employer Contributions. This minimum allocation shall be made
even though under other Plan provisions, the Participant would not otherwise be entitled to
receive an allocation, or would have received a lesser allocation for the year because of




	 	1)	 	the Participant’s failure to complete 1,000 Hours of Service (or any
comparable period provided in the Plan), or
	 
	 	2)	 	the Participant’s failure to make mandatory Nondeductible Employee
Contributions to the Plan, or
	 
	 	3)	 	Compensation less than a stated amount.





34









 






2. For purposes of computing the minimum allocation, Compensation shall mean Compensation as
provided in the Definitions Section of the Plan as limited by Code Section 401(a)(17) and
shall include any amounts contributed by the Employer pursuant to a salary reduction
agreement and which is not includible in gross income under Code Sections 402(g), 125,
132(f)(4), or 457. Compensation for the full Determination Year will be used in calculating
the minimum allocation.




3. The provision in (1) above shall not apply to any Participant who was not employed by the
Employer on the last day of the Plan Year.




4. The provision in (1) above shall not apply to any Participant to the extent the
Participant is covered under any other plan or plans of the Employer and the Adopting
Employer has provided in the Adoption Agreement that the minimum allocation or benefit
requirement applicable to Top-Heavy Plans will be met in the other plan or plans.




5. The minimum allocation required under this Section 3.04(E) (to the extent required to be
nonforfeitable under Code Section 416(b)) may not be forfeited under Code Section
411(a)(3)(B) or 411(a)(3)(D).




6. Elective Deferrals (and for Plan Years beginning before 2002, Matching Contributions) may
not be taken into account for
purposes of satisfying the minimum allocation requirement applicable to Top-Heavy Plans
described in Plan Section
3.04(E)(1). Qualified Nonelective Contributions may, however, be taken into account for such
purposes.


F. Return of the Employer Contribution to the Employer Under Special Circumstances — Any
contribution made by the
Employer because of a mistake of fact must be returned to the Employer within one year of the
contribution.



In the event that the Commissioner of Internal Revenue determines that the Plan is not initially
qualified under the Code, any
contributions made incident to that initial qualification by the Employer must be returned to the
Employer within one year after
the date the initial qualification is denied, but only if the 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 the Treasury
may prescribe.



In the event that a contribution made by the Employer under this Plan is conditioned on
deductibility and is not deductible under
Code Section 404, the contribution, to the extent of the amount disallowed, must be returned to the
Employer within one year after
the deduction is disallowed.



If applicable, no contract will be purchased under the Plan unless such contract or a separate
definite written agreement between
the Employer and the insurer provides that no value under contracts providing benefits under the
Plan or credits determined by the
insurer (on account of dividends, earnings, or other experience rating credits, or surrender or
cancellation credits) with respect to
such contracts may be paid or returned to the Employer or diverted to or used for other than the
exclusive benefit of the
Participants or their Beneficiaries. However, any contribution made by the Employer because of a
mistake of fact must be returned
to the Employer within one year of the contribution.




3.05 QUALIFIED NONELECTIVE CONTRIBUTIONS



The Employer may elect to make Qualified Nonelective Contributions under the Plan. The amount of
such contribution, if any, to the
Plan for each Plan Year, shall be determined by the Employer.



A. Qualified Nonelective Contributions Used to Satisfy Testing Requirements — Unless another
allocation formula is specified in the Adoption Agreement, or in the situation in which an Employer
wishes to allocate a Qualified Nonelective Contribution in
addition to the allocation formula in the Adoption Agreement, Qualified Nonelective Contributions
will be allocated to the
Individual Accounts of non-Highly Compensated Employees who are eligible Participants following any
allocation formula
permitted under the law or regulation for purpose of satisfying the Actual Deferral Percentage
test, the Actual Contribution
Percentage test, or both. Notwithstanding the foregoing, no allocation shall be required in excess
of the amount required to satisfy
the Actual Deferral Percentage test, the Actual Contribution Percentage test, or both. Qualified
Nonelective Contributions may be
made during the Plan Year for which they are being made; however, the Employer must follow the
allocation requirements set
forth in this Section 3.05 and must adhere to the eligibility requirements applicable to Elective
Deferrals, including a forfeiture of
allocations where such eligibility requirements are not satisfied.



For Plan Years beginning in 2006 (or such earlier date on which the final regulations under
Treasury Regulation 1.401(k) and
1.401(m) became effective), Qualified Nonelective Contributions taken into account under the Actual
Deferral Percentage (ADP)
test cannot exceed the product of the non-Highly Compensated Employee’s Compensation and the
greater of i) 5 percent (10
percent if the Qualified Nonelective Contribution is made in connection with an Employer’s
obligation to pay prevailing wages
under the Davis-Bacon Act plan) or ii) two times the Plan’s representative contribution rate. The
“representative contribution
rate,” for this purpose, is the lowest applicable contribution rate of any eligible non-Highly
Compensated Employee among a
group of eligible non-Highly Compensated Employees that consists of one half of all non-Highly
Compensated Employees for the
Plan Year (or if greater, the lowest applicable percentage contribution rate of any eligible
non-Highly Compensated Employee in
the group of all eligible non-Highly Compensated Employees for the Plan Year and who is employed by
the Employer on the last
day of the Plan Year). The “applicable contribution rate” for these purposes is the sum of the
Qualified Matching Contributions
taken into account for the ADP test for the eligible non-Highly Compensated Employees for the Plan
Year and the Qualified
Nonelective Contributions made for the eligible non-Highly Compensated Employee for the Plan Year,
divided by the eligible
non-Highly compensated Employee’s Compensation for the same period.



If the current year testing rules apply to the Plan, in lieu of distributing Excess Contributions
or Excess Aggregate Contributions
as provided in Plan Sections 5.13 and 5.14, the Employer may, if permitted in the Adoption
Agreement, use all or any portion of




35









 




the Qualified Nonelective Contributions to satisfy either the Actual Deferral Percentage test, the
Actual Contribution Percentage
test, or both. The option to use all or any portion of the Qualified Nonelective Contributions to
satisfy either the Actual Deferral
Percentage test or the Actual Contribution Percentage test is not available if prior year testing
rules apply to the Plan



B. Special Rules for Government Contract Plans — If the Employer so elects in the Adoption
Agreement, for each Hour of Service
of covered employment under a government contract, the Employer shall contribute to the Plan such
Qualified Nonelective
Contribution amounts for each eligible Participant as determined by the hourly rate designated for
each eligible Participant’s work
classification on the wage determination sheet, or part thereof, as determined by the Employer
pursuant to the terms of the
contracts to which the Employer is a party and which are subject to the provisions of any federal,
state, or municipal prevailing
wage law to which the Employer is a party. In addition to any Qualified Nonelective Contribution
made under this Plan Section
3.05(B), the Employer may contribute additional Qualified Nonelective Contributions to be allocated
to the Individual Accounts
of non-Highly Compensated Employees who are eligible Participants following any allocation formula
permitted under the law or
regulation for the purpose of satisfying the Actual Deferral Percentage test, the Actual
Contribution Percentage test, or both, as set
forth in Plan Section 3.05(A). Such additional Qualified Nonelective Contributions can be taken
into account for a Plan Year for a
non-Highly Compensation Employee only to the extent such contributions do not exceed 10 percent of
that non-Highly
Compensated Employee’s Compensation.




3.06 QUALIFIED MATCHING CONTRIBUTIONS



The Employer may elect to make Qualified Matching Contributions under the Plan. Unless specified
otherwise in the Adoption
Agreement, the amount of such contribution, if any, to the Plan for each Plan Year, shall be
determined by the Employer. In addition,
in lieu of distributing Excess Contributions or Excess Aggregate Contributions as provided in Plan
Sections 5.13 and 5.14, the
Employer may use Qualified Matching Contributions to satisfy either the Actual Deferral Percentage
test, the Actual Contribution
Percentage test, or both, pursuant to Treasury Regulations under Code Sections 401(k) and 401(m).



Unless another allocation formula is specified in the Adoption Agreement, Qualified Matching
Contributions, if made, shall be in an
amount equal to that percentage of the Elective Deferrals (and Nondeductible Employee
Contributions) of each non-Highly
Compensated Employee that would be sufficient to cause the Plan to satisfy the Actual Contribution
Percentage test, the Actual
Deferral Percentage test, or both. For Plan Years beginning in 2006 (or such earlier date on which
the final regulations under Treasury
Regulation 1.401(k) and 1.401(m) became effective), if Qualified Matching Contributions exceed 100
percent of a Qualifying
Contributing Participant’s Elective Deferrals, the additional ACP testing restrictions listed in
Plan Section 3.02 will apply.



Notwithstanding anything in this Section to the contrary, all or any portion of the Qualified
Matching Contributions may be included in
the ADP and ACP tests if the Employer has elected to use the current year testing rules.




3.07 ROLLOVER CONTRIBUTIONS



Unless otherwise indicated in the Adoption Agreement, an Employee may make Indirect Rollover and/or
Direct Rollover contributions to the Plan from distributions made from plans described in Code
Sections 401(a), 403(a), 403(b), 408, and 457(b) (if maintained by a governmental entity)
(excluding Nondeductible Employee Contributions and Roth Elective Deferrals except as otherwise
indicated in the Adoption Agreement) unless an Employee is either an Employee of a related employer
that does not participate in this Plan or a member of any excluded class in Adoption Agreement
Section Two and Plan Section 2.01. The Plan Administrator may require the Employee to certify,
either in writing or in any other form permitted under rules promulgated by the IRS and DOL, that
the contribution qualifies as a rollover contribution under the applicable provisions of the Code.
If it is later determined that all or part of a rollover contribution was ineligible to be
contributed to the Plan, the Plan Administrator shall direct that any ineligible amounts, plus
earnings or losses attributable thereto (determined in the manner described in Plan Section
7.02(B)), be distributed from the Plan to the Employee as soon as administratively feasible.



A separate account shall be maintained by the Plan Administrator for each Employee’s rollover
contributions, which will be
nonforfeitable at all times. Such account will share in the income and gains and losses of the Fund
in the manner described in Plan
Section 7.02(B). Where the Adoption Agreement does not permit Employer designation with respect to
rollover contributions, the
Employer may, in a uniform and nondiscriminatory manner, allow only Employees who have become
Participants in the Plan to make rollover contributions.




3.08 TRANSFER CONTRIBUTIONS



Unless otherwise indicated in the Adoption Agreement, the Trustee (or Custodian, if applicable) may
receive any amounts transferred to it in the name of an Employee from the trustee or custodian of
another plan qualified under Code Section 401(a), unless an Employee is either employed by a
related employer that does not participate in this Plan or a member of any excluded class in
Adoption Agreement Section Two and Plan Section 2.01. Whether any particular transfer may be
accepted by the Plan, and the procedures for the receipt of such transfers by the Plan, will be
determined by the requirements of Treasury Regulation 1.411(d)-4, Q&A-3 and other rules promulgated
by the IRS. Nothing in this Plan prohibits the Plan Administrator from permitting (or prohibiting)
Participants to transfer their Individual Accounts to other eligible plans, provided such transfers
are permitted (or prohibited) in a uniform and nondiscriminatory manner. If it is later determined
that all or part of a transfer contribution was ineligible to be transferred into the Plan, the
Plan Administrator shall direct that any ineligible amounts, plus earnings or losses attributable
thereto (determined in the manner






36









 







described in Plan Section 7.02(B)), be distributed from the Plan to the Employee as soon as
administratively feasible. Notwithstanding the foregoing, the Employer may, at its discretion, also
return the amount transferred to the transferor plan or correct the ineligible transfer using any
other method permitted by the IRS under regulation or other guidance.



A separate account shall be maintained by the Plan Administrator for each Employee’s transfer
contributions, which will, if applicable, be nonforfeitable at all times. Such account will share
in the income and gains and losses of the Fund in the manner described in Plan Section 7.02(B).
Where the Adoption Agreement does not permit Employer designation with respect to transfer
contributions, the Employer may, in a uniform and nondiscriminatory manner, allow only Employees
who have become Participants in the Plan to make transfer contributions. Notwithstanding the
foregoing, an Employee’s separate account established solely on account of an event described in
Code Section 414(l) shall continue to be subject to the Plan’s vesting schedule except as otherwise
provided therein. If transfers are associated with distributable events and the Employees are
eligible to receive single sum distributions consisting entirely of Eligible Rollover
Contributions, the transfers will be considered Direct Rollovers.




3.09 DEDUCTIBLE EMPLOYEE CONTRIBUTIONS



The Plan Administrator will not accept Deductible Employee Contributions that are made for a
taxable year beginning after December 31, 1986. Contributions made before that date will be
maintained in a separate account, which will be nonforfeitable at all times. The account will share
in the gains and losses of the Fund in the same manner as described in Plan Section 7.02(B). No
part of the Deductible Employee Contributions account will be used to purchase life insurance.
Subject to Plan Section 5.10 (if applicable), the Participant may withdraw any part of the
Deductible Employee Contribution account by making a written application to the Plan Administrator.




3.10 NONDEDUCTIBLE EMPLOYEE CONTRIBUTIONS



If this Plan is subject to Code Section 401(k) and the Adopting Employer so allows in the Adoption
Agreement, a Participant may
contribute Nondeductible Employee Contributions to the Plan by enrolling as a Contributing
Participant pursuant to the applicable
provisions of Plan Section 3.01. The Employer shall establish uniform and nondiscriminatory rules
and procedures for Nondeductible Employee Contributions as it deems necessary and advisable
including, but not limited to, rules describing any amounts or percentages of Compensation
Participants may or must contribute to the Plan. Nondeductible Employee Contributions for Plan
Years beginning after December 31, 1986, together with any Matching Contributions, will be limited
so as to satisfy the Actual Contribution Percentage test in Plan Section 3.14. Notwithstanding the
foregoing, contributions made to the Plan on an after-tax basis (e.g., to repay defaulted loans or
to buy back previously forfeited amounts as described in Plan Section 4.01(C)(3)) do not constitute
Nondeductible Employee Contributions and will not, therefore, be subject to the nondiscrimination
test of Code Section 401(m) or the Annual Additions limits of Code Section 415. A separate account
will be maintained by the Plan Administrator for the Nondeductible Employee Contributions of each
Participant.




3.11 OTHER LIMITATIONS ON SIMPLE 401(K) CONTRIBUTIONS



If the Employer has established a SIMPLE 401(k) Plan, no Employer or Employee contributions may be
made to this Plan for the
SIMPLE 401(k) Year other than Elective Deferrals described in Plan Section 3.01(H), Matching or
nonelective contributions described in Plan Section 3.02, and rollover contributions described in
Plan Section 3.07.




3.12 LIMITATION ON ALLOCATIONS



A. If the Participant does not participate in, and has never participated in another qualified plan
maintained by the Employer, a
welfare benefit fund (as defined in Code Section 419(e)) maintained by the Employer, an individual
medical account (as defined
in Code Section 415(l)(2)) maintained by the Employer, or a simplified employee pension plan (as
defined in Code Section
408(k)) maintained by the Employer, which provides an Annual Addition as defined in the Definitions
Section of the Plan, the
following rules shall apply.





1. The amount of Annual Additions which may be credited to the Participant’s Individual
Account for any Limitation Year will
not exceed the lesser of the Maximum Permissible Amount or any other limitation contained in
this Plan. If the Employer
Contribution that would otherwise be contributed or allocated to the Participant’s Individual
Account would cause the Annual Additions for the Limitation Year to exceed the Maximum
Permissible Amount, the amount contributed or allocated may be reduced so that the Annual
Additions for the Limitation Year will equal the Maximum Permissible Amount.




2. Before determining the Participant’s actual Compensation for the Limitation Year, the
Employer may determine the
Maximum Permissible Amount for a Participant on the basis of a reasonable estimate of the
Participant’s Compensation for
the Limitation Year, uniformly determined for all Participants similarly situated.




3. As soon as is administratively feasible after the end of the Limitation Year, the Maximum
Permissible Amount for the
Limitation Year will be determined on the basis of the Participant’s actual Compensation for
the Limitation Year.




4. If, pursuant to Plan Section 3.12(A)(3) or as a result of the allocation of Forfeitures or
a reasonable error in determining a
Participant’s maximum Elective Deferral or any other circumstance permitted under rules
promulgated by the IRS, there is an Excess Annual Addition, the excess will be disposed of as
follows.




a. Profit Sharing Plan — If this Plan is a profit sharing plan, the Excess Annual
Additions shall be deemed Forfeitures and shall be allocated in accordance with Plan
Section 3.04(C) to all Qualifying Participants that have not reached



37









 







their Annual Additions limit. If all Qualifying Participants have reached their Annual
Additions limit before all Excess Annual Additions have been allocated, the remaining
amount will be held unallocated in a suspense account. The suspense account will be
applied to reduce future Employer Contributions (including allocation of any
Forfeitures) for all remaining Participants in the next Limitation Year and each
succeeding Limitation Year, if necessary.




b. Money Purchase Pension Plan or Target Benefit Plan — If this Plan is either a money
purchase pension plan or a target benefit plan, Excess Annual Additions shall be held
unallocated in a suspense account. The suspense account shall be used to reduce future
Employer Contributions made to Qualifying Participants in the next Limitation Year and
succeeding Limitation Years, if necessary.




c. 401(k) Profit Sharing Plan — If this Plan is a 401(k) profit sharing plan, any
Nondeductible Employee Contributions and Elective Deferrals, plus any income allocable
thereto, shall be distributed to the Participant to the extent this would reduce the
Excess Annual Additions. Income allocable to such Excess Annual Additions shall be
computed in a manner consistent with the manner described in Plan Section 7.02(B)
(i.e., the usual manner used by the Plan Administrator for allocating income or loss
to Participants’ Individual Accounts).


If, after distributing Nondeductible Employee Contributions (including any earnings thereon) and
Elective Deferrals
(including any earnings thereon), Excess Annual Additions still exist, the Excess Annual Additions
attributable to
Employer Profit Sharing Contributions shall be deemed Forfeitures and shall be allocated in
accordance with Plan
Section 3.04(C) to all Qualifying Participants who have not reached their Annual Additions limit.
If all Qualifying
Participants have reached their Annual Additions limit before all Excess Annual Additions have been
allocated, the
remaining amount will be held unallocated in a suspense account. The suspense account will be
applied to reduce future
Employer Contributions (including allocation of any Forfeitures) for all Qualifying Participants in
the next Limitation
Year and each succeeding Limitation Year, if necessary.



If a suspense account is in existence at any time during a Limitation Year pursuant to this Plan
Section 3.12, it will participate
in the allocation of the Fund’s investment gains and losses. If a suspense account is in existence
at any time during a
particular Limitation Year, all amounts in the suspense account must be allocated and reallocated
to Participants’ Individual
Accounts before any Employer Contributions or any Nondeductible Employee Contributions may be made
to the Plan for
that Limitation Year. Excess Annual Additions may not be distributed to Participants or former
Participants.



B. If, in addition to this Plan, the Participant is covered under another qualified master or
prototype defined contribution plan
maintained by the Employer, a welfare benefit fund maintained by the Employer, an individual
medical account maintained by the
Employer, or a simplified employee pension plan maintained by the Employer that provides an Annual
Addition as defined in the
Definitions Section of the Plan during any Limitation Year, the following rules apply.





1. The Annual Additions which may be credited to a Participant’s Individual Account under
this Plan for any such Limitation
Year will not exceed the Maximum Permissible Amount, reduced by the Annual Additions credited
to a Participant under the other qualified Master or Prototype Plans, welfare benefit funds,
individual medical account, and simplified employee
pension plans for the same Limitation Year. If the Annual Additions with respect to the
Participant under other qualified
Master or Prototype defined contribution plans, welfare benefit funds, individual medical
accounts, and simplified employee
pension plans maintained by the Employer are less than the Maximum Permissible Amount, and
the Employer Contribution
that would otherwise be contributed or allocated to the Participant’s Individual Account
under this Plan would cause the
Annual Additions for the Limitation Year to exceed this limitation, the amount contributed or
allocated may be reduced so
that the Annual Additions under all such plans and funds for the Limitation Year will equal
the Maximum Permissible
Amount. If the Annual Additions with respect to the Participant under such other qualified
Master or Prototype defined
contribution plans, welfare benefit funds, individual medical accounts, and simplified
employee pension plans in the
aggregate are equal to or greater than the Maximum Permissible Amount, no amount will be
contributed or allocated to the
Participant’s Individual Account under this Plan for the Limitation Year.




2. Before determining the Participant’s actual Compensation for the Limitation Year, the
Employer may determine the
Maximum Permissible Amount for a Participant in the manner described in Plan Section
3.12(A)(2).




3. As soon as is administratively feasible after the end of the Limitation Year, the Maximum
Permissible Amount for the
Limitation Year will be determined on the basis of the Participant’s actual Compensation for
the Limitation Year.




4. If, pursuant to Plan Section 3.12(B)(3) or as a result of the allocation of Forfeitures or
a reasonable error in determining a
Participant’s Elective Deferral or any other circumstance permitted under rules promulgated
by the IRS, a Participant’s
Annual Additions under this Plan and such other plans would result in Excess Annual Additions
for a Limitation Year, the
Excess Annual Additions will be deemed to consist of the Annual Additions last allocated,
except that Annual Additions
attributable to a simplified employee pension plan will be deemed to have been allocated
first, followed by Annual Additions
to a welfare benefit fund or individual medical account, regardless of the actual allocation
date.




5. If Excess Annual Additions were allocated to a Participant on an allocation date of this
Plan which coincides with an
allocation date of another plan, the Excess Annual Additions attributed to this Plan will be
the product of




(i) the total Excess Annual Additions allocated as of such date, multiplied by




(ii) the ratio of (a) the Annual Additions allocated to the Participant for the
Limitation Year as of such date under this Plan to (b) the total Annual Additions
allocated to the Participant for the Limitation Year as of such date under this and
all the other qualified prototype defined contribution plans.




6. Any Excess Annual Additions attributed to this Plan will be disposed of in the manner
described in Plan Section 3.12(A)(4).



38









 










7. If the Participant is covered under another qualified defined contribution plan maintained
by the Employer, other than a
Master or Prototype Plan, the provisions of Plan Section 3.12(B)(1) through 3.12(B)(6) will
apply as if the other plan were a
Master or Prototype Plan. In the event this method cannot be administered because of
conflicting language in the other plan, the Employer must provide, through a written
attachment to the Plan, the method under which the plans will limit total
Annual Additions to the Maximum Permissible Amount, and will properly reduce any Excess
Annual Additions in a manner
that precludes Employer discretion.


C. The provisions of this Plan Section 3.12 shall apply to SIMPLE 401(k) contributions made
pursuant to Plan Sections 3.01(H) and
3.02.



D. Adoption Agreement elections to include or exclude items from Compensation that are inconsistent
with Code Section 415 and the corresponding regulations will be disregarded for purposes
determining a Participant’s Annual Additions limit.



3.13 ACTUAL DEFERRAL PERCENTAGE TEST (ADP)



A. Limits on Highly Compensated Employees — The Actual Deferral Percentage (hereinafter “ADP”) for
a Plan Year for
Participants who are Highly Compensated Employees for each Plan Year and the ADP for Participants
who are non-Highly
Compensated Employees for the same Plan Year must satisfy one of the following tests.





1. The ADP for Participants who are Highly Compensated Employees for the Plan Year shall not
exceed the ADP for
Participants who are non-Highly Compensated Employees for the same Plan Year multiplied by
1.25; or




2. The ADP for Participants who are Highly Compensated Employees for the Plan Year shall not
exceed the ADP for
Participants who are non-Highly Compensated Employees for the same Plan Year multiplied by
2.0 provided that the ADP
for Participants who are Highly Compensated Employees does not exceed the ADP for
Participants who are non-Highly
Compensated Employees by more than two percentage points.




The Plan must satisfy the ADP test using either the prior year testing or current year
testing requirements described below.
Notwithstanding the foregoing, the prior year testing method described below will apply to
this Plan unless otherwise elected by the Employer.




3. Prior Year Testing — The ADP for a Plan Year for Participants who are Highly Compensated
Employees for each Plan Year and the prior year’s ADP for Participants who were non-Highly
Compensated Employees for the prior Plan Year must satisfy one of the following tests.




a. The ADP for a Plan Year for Participants who are Highly Compensated Employees for
the Plan Year shall not exceed the prior year’s ADP for Participants who were
non-Highly Compensated Employees for the prior Plan Year multiplied by 1.25; or




b. The ADP for a Plan Year for Participants who are Highly Compensated Employees for
the Plan Year shall not exceed the prior year’s ADP for Participants who were
non-Highly Compensated Employees for the prior Plan Year multiplied by 2.0, provided
that the ADP for Participants who are Highly Compensated Employees does not exceed the
ADP for Participants who were non-Highly Compensated Employees in the prior Plan Year
by more than two percentage points. For the first Plan Year the Plan permits any
Participant to make Elective Deferrals and this is not a successor Plan, for purposes
of the foregoing tests, the prior year’s non-Highly Compensated Employees’ ADP shall
be three percent unless the Adopting Employer has elected in the Adoption Agreement to
use the actual Plan Year’s ADP for these Participants. Notwithstanding the foregoing,
if the Adopting Employer has elected the Safe Harbor CODA option in the Adoption
Agreement, the current year testing provisions described in Plan Section 3.13(A)(4)
will apply.




4. Current Year Testing — If elected by the Employer in the Adoption Agreement, the ADP tests
in this Plan Section 3.13(A)(1) and (2) above will be applied by comparing the current Plan
Year’s ADP for Participants who are Highly Compensated Employees with the current Plan Year’s
ADP for Participants who are non-Highly Compensated Employees. Once a current year testing
election is made, the Employer can elect prior year testing for a Plan Year only if the Plan
has used current year testing for each of the preceding five Plan Years (or if less, the
number of Plan Years the Plan has been in existence) or if, as a result of a merger or
acquisition described in Code Section 410(b)(6)(C)(i), the Employer maintains both a plan
using prior year testing and a plan using current year testing and the change is made within
the transition period described in Code Section 410(b)(6)(C)(ii).


Notwithstanding the foregoing, the Plan shall be treated as meeting the ADP test if, within a
reasonable period before any Plan
Year, each Participant eligible to participate is given a notice (either in writing or in any other
form permitted by Treasury
Regulations or other rules promulgated by the IRS) which satisfies the requirements of Code Section
401(k)(12)(D) and the
Employer makes ADP Test Safe Harbor Contributions pursuant to Code Sections 401(k)(12)(B) and (C)
respectively.




B. Special Rules



1. A Participant is a Highly Compensated Employee for a particular Plan Year if they meet the
definition of a Highly
Compensated Employee in effect for that Plan Year. Similarly, a Participant is a non-Highly
Compensated Employee for a






39









 







particular Plan Year if they do not meet the definition of a Highly Compensated Employee in effect
for that Plan Year.



2. The ADP for any Participant who is a Highly Compensated Employee for the Plan Year and who is
eligible to have Elective
Deferrals (and Qualified Nonelective Contributions or Qualified Matching Contributions, or both, if
treated as Elective
Deferrals for purposes of the ADP test) allocated to their Individual Accounts under two or more
arrangements described in
Code Section 401(k) that are maintained by the Employer, shall be determined as if such Elective
Deferrals (and, if
applicable, such Qualified Nonelective Contributions or Qualified Matching Contributions, or both)
were made under a
single arrangement. If a Highly Compensated Employee participates in two or more cash or deferred
arrangements that have
different Plan Years, all Elective Deferrals made during the Plan Year under all such arrangements
shall be aggregated. For
Plan Years beginning before 2006, cash or deferred arrangements ending with or within the same
calendar year shall be
treated as a single arrangement. Notwithstanding the foregoing, certain plans shall be treated as
separate if mandatorily
disaggregated under regulations under Code Section 401(k).



3. In the event that this Plan satisfies the requirements of Code Sections 401(k), 401(a)(4), or
410(b) only if aggregated with one
or more other plans, or if one or more other plans satisfy the requirements of such Code sections
only if aggregated with this
Plan, then this Plan Section 3.13(B)(3) shall be applied by determining the ADP of Participants as
if all such plans were a
single plan. If more than 10 percent of the Employer’s non-Highly Compensated Employees are
involved in a plan coverage
change as defined in Treasury Regulation 1.401(k)-2(c)(4), then any adjustments to the non-Highly
Compensated Employee
ADP for the prior year will be made in accordance with such regulations, unless the Adopting
Employer has elected in the
Adoption Agreement to use the current year testing method. Plans may be aggregated in order to
satisfy Code Section 401(k)
only if they have the same Plan Year and use the same ADP testing method.



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



5. The Employer shall maintain records sufficient to demonstrate satisfaction of the ADP test and
the amount of Qualified
Nonelective Contributions or Qualified Matching Contributions, or both, used in such test.



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



7. If the Employer elects to take Qualified Matching Contributions into account as Elective
Deferrals for purposes of the ADP
test, then (subject to such other requirements as may be prescribed by the Secretary of the
Treasury) the Employer may elect,
in a uniform and nondiscriminatory manner, to either include all Qualified Matching Contributions
in the ADP test or to
include only the amount of such Qualified Matching Contributions that are needed to meet the ADP
test.



8. In the event that the Plan Administrator determines that it is not likely that the ADP test will
be satisfied for a particular Plan
Year unless certain steps are taken before the end of such Plan Year, the Plan Administrator may
require Contributing
Participants who are Highly Compensated Employees to reduce or cease future Elective Deferrals for
such Plan Year in order
to satisfy that requirement. This reduction shall also be required by the Plan Administrator in the
event that the Plan
Administrator anticipates that the Employer will not be able to deduct all Employer Contributions
from its income for federal
income tax purposes. If the Plan Administrator requires Contributing Participants to reduce or
cease making Elective
Deferrals under this paragraph, the reduction or cessation shall begin with the Highly Compensated
Employee with either the
largest amount of Elective Deferrals or the highest Contribution Percentage for the Plan Year (on
the date on which it is
determined that the ADP test will not likely be satisfied), as elected by the Plan Administrator.
All remaining Highly
Compensated Employees’ Elective Deferrals for the Plan Year shall be limited to such amount.
Notwithstanding the
foregoing, if it is later determined that the ADP test for the Plan Year will be satisfied, Highly
Compensated Employees shall
be permitted to enroll again as Contributing Participants in accordance with the terms of the Plan.



9. Elective Deferrals that are treated as Catch-up Contributions because they exceed a Plan limit
or a statutory limit will be
excluded from ADP testing. Amounts which are characterized as Catch-up Contributions as a result of
the ADP test will
reduce the amount of Excess Contributions distributed or Qualified Nonelective Contributions or
Qualified Matching
Contributions contributed to the Plan to correct an Excess Contribution.



10. Special Rule for Early Participation — If the Plan provides that Employees are eligible to
become Contributing Participants
before they have completed the minimum age and service requirements in Code Section 410(a)(1)(A),
and if the Plan applies
Code Section 410(b)(4)(B) in determining whether the Plan satisfies the requirements in Code
Section 410(b)(1), then in
determining whether the Plan satisfies the ADP test, either:





a. pursuant to Code Section 401(k)(3)(F), the ADP test is performed under the Plan
(determined without regard to
disaggregation under Treasury Regulation 1.410(b)-7(c)(3)), using the ADP for all eligible
Highly Compensated
Employees for the Plan Year and the ADP of eligible non-Highly Compensated Employees for the
applicable year,
disregarding all non-Highly Compensated Employees who have not met the minimum age and
services requirements in
Code Section 410(a)(1)(A); or




b. pursuant to Treasury Regulation 1.401(k)-1(b)(4), the Plan is disaggregated into separate
plans and the ADP test is
performed separately for all eligible Participants who have completed the minimum age and
service requirements of
Code Section 410(a)(1)(A) and for all eligible Participants who have not completed the
minimum age and service
requirements in Code Section 410(a)(1)(A).


C. Notwithstanding the foregoing, the ADP test described above is treated as satisfied for any
SIMPLE 401(k) Year in which an
Eligible Employer maintains this Plan as a SIMPLE 401(k) Plan.







40









 







3.14 ACTUAL CONTRIBUTION PERCENTAGE TEST (ACP)



A. Limits on Highly Compensated Employees — The Actual Contribution Percentage (hereinafter “ACP”)
for Participants who are
Highly Compensated Employees for each Plan Year and the ACP for Participants who are non-Highly
Compensated Employees
for the same Plan Year must satisfy one of the following tests.





1. The ACP for Participants who are Highly Compensated Employees for the Plan Year shall not
exceed the ACP for
Participants who are non-Highly Compensated Employees for the same Plan Year multiplied by
1.25; or




2. The ACP for Participants who are Highly Compensated Employees for the Plan Year shall not
exceed the ACP for
Participants who are non-Highly Compensated Employees for the same Plan Year multiplied by
2.0, provided that the ACP
for the Participants who are Highly Compensated Employees does not exceed the ACP for
Participants who are non-Highly
Compensated Employees by more than two percentage points.

The Plan must satisfy the ACP test using either the prior year testing or current year
testing requirements described below.
Notwithstanding the foregoing, the prior year testing method described below will apply to
this Plan unless otherwise elected in the Adoption Agreement by the Adopting Employer.




3. Prior Year Testing — The ACP for a Plan Year for Participants who are Highly Compensated
Employees for each Plan Year and the prior year’s ACP for Participants who were non-Highly
Compensated Employees for the prior Plan Year must satisfy one of the following tests.




a. The ACP for a Plan Year for Participants who are Highly Compensated Employees for
the Plan Year shall not exceed the prior year’s ACP for Participants who were
non-Highly Compensated Employees for the prior Plan Year multiplied by 1.25; or




b. The ACP for a Plan Year for Participants who are Highly Compensated Employees for
the Plan Year shall not exceed the prior year’s ACP for Participants who were
non-Highly Compensated Employees for the prior Plan Year multiplied by 2.0, provided
that the ACP for Participants who are Highly Compensated Employees does not exceed the
ACP for Participants who were non-Highly Compensated Employees in the prior Plan Year
by more than two percentage points. For the first Plan Year, if this Plan permits any
Participant to make Nondeductible Employee Contributions, provides for Matching
Contributions or both, and this is not a successor Plan, for purposes of the foregoing
tests, the prior year’s non-Highly Compensated Employees’ ACP shall be three percent
unless the Employer has elected in the Adoption Agreement to use the Plan Year’s ACP
for these Participants.




Notwithstanding the foregoing, if the Adopting Employer has elected the Safe Harbor
CODA option in the Adoption Agreement, the current year testing provisions described
below will apply.




4. Current Year Testing — If elected by the Adopting Employer in the Adoption Agreement, the
ACP tests in this Plan Section 3.14(A)(1) and (2), above, will be applied by comparing the
current Plan Year’s ACP for Participants who are Highly Compensated Employees for each Plan
Year with the current Plan Year’s ACP for Participants who are non-Highly
Compensated Employees. Once an election to use current year testing is made, the Employer can
elect prior year testing for a Plan Year only if the Plan has used current year testing for
each of the preceding five Plan Years (or if lesser, the number of Plan Years the Plan has
been in existence) or if, as a result of the merger or acquisition described in Section
410(b)(6)(C)(i), the Employer maintains both a plan using prior year testing and a plan using
current year testing and the change is made within the transition period described in Code
Section 410(b)(6)(C)(ii).



B. Special Rules



1. A Participant is a Highly Compensated Employee for a particular Plan Year if they meet the
definition of a Highly
Compensated Employee in effect for that Plan Year. Similarly, a Participant is a non-Highly
Compensated Employee for a
particular Plan Year if they do not meet the definition of a Highly Compensated Employee in effect
for that Plan Year.



2. For purposes of this Plan Section 3.14, the Contribution Percentage for any Participant who is a
Highly Compensated
Employee and who is eligible to have Contribution Percentage Amounts allocated to their Individual
Account under two or
more plans described in Code Section 401(a), or arrangements described in Code Section 401(k) that
are maintained by the
Employer, shall be determined as if the total of such Contribution Percentage Amounts was made
under each plan. If a
Highly Compensated Employee participates in two or more such plans or arrangements that have
different plan years, all
Contribution Percentage Amounts made during the Plan Year under all such plans and arrangements
shall be aggregated. For
Plan Years beginning before 2006, all such plans and arrangements ending with or within the same
calendar year shall be
treated as a single plan or arrangement. Notwithstanding the foregoing, certain plans shall be
treated as separate if
mandatorily disaggregated under regulations under Code Section 401(m).



3. In the event that this Plan satisfies the requirements of Code Sections 401(m), 401(a)(4) or
410(b) only if aggregated with
one or more other plans, or if one or more other plans satisfy the requirements of such sections of
the Code only if aggregated
with this Plan, then this Plan Section 3.14(B)(3) shall be applied by determining the Contribution
Percentage of Employees as
if all such plans were a single plan. If more than 10 percent of the Employer’s non-Highly
Compensated Employees are
involved in a plan coverage change as defined in Treasury Regulation 1.401(m)-2(c)(4), then any
adjustments to the non-
Highly Compensated Employee ACP for the prior year will be made in accordance with such
regulations, unless the
Employer has elected in the Adoption Agreement to use the current-year testing method. Plans may be
aggregated in order to
satisfy Code Section 401(m) only if they have the same Plan Year and use the same ACP testing
method.



4. For purposes of determining the Actual Contribution Percentage test, Nondeductible Employee
Contributions are considered
to have been made in the Plan Year in which contributed to the Fund. Matching Contributions and
Qualified Nonelective
Contributions will be considered made for a Plan Year if made no later than the end of the 12-month
period beginning on the day after the close of the Plan Year.





41









 







5. The Employer shall maintain records sufficient to demonstrate satisfaction of the ACP test and
the amount of Qualified
Nonelective Contributions or Qualified Matching Contributions, or both, used in such test.



6. 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.



7. If the Employer elects to take Qualified Nonelective Contributions into account as Contribution
Percentage Amounts for
purposes of the ACP test, then (subject to such other requirements as may be prescribed by the
Secretary of the Treasury) the
Employer may elect, in a uniform and nondiscriminatory manner, either to include all Qualified
Nonelective Contributions in
the ACP test or to include only the amount of such Qualified Nonelective Contributions that are
needed to meet the ACP test.



8. If the Employer elects to take Elective Deferrals into account as Contribution Percentage
Amounts for purposes of the ACP
test, then (subject to such other requirements as may be prescribed by the Secretary of the
Treasury) the Employer may elect,
in a uniform and nondiscriminatory manner, either to include all Elective Deferrals in the ACP test
or to include only the
amount of such Elective Deferrals that are needed to meet the ACP test.



9. Special Rule for Early Participation — If the Plan provides for Matching Contributions or
Nondeductible Employee
Contributions and provides that Employees are eligible to participate with regard to such
contributions before they have
completed the minimum age and service requirements in Code Section 410(a)(1)(A), and if the Plan
applies Code Section
410(b)(4)(B) in determining whether the Plan meets the requirements in Code Section 410(b)(1), then
in determining whether
the Plan meets the ACP test, either:





a. pursuant to Code Section 401(m)(5)(C), the ACP test is performed under the Plan
(determined without regard to
disaggregation under Treasury Regulation 1.410(b)-7(c)(3)), using the ACP for all eligible
Highly Compensated
Employees for the Plan Year and the ACP of eligible non-Highly Compensated Employees for the
applicable year,
disregarding all non-Highly Compensated Employees who have not met the minimum age and
service requirements in
Code Section 410(a)(1)(A); or




b. pursuant to Treasury Regulation 1.401(m)-1(b)(4), the Plan is disaggregated into separate
plans and the ACP test is
performed separately for all eligible Participants who have completed the minimum age and
service requirements in
Code Section 410(a)(1)(A) and for all eligible Participants who have not completed the
minimum age and service
requirements in Code Section 410(a)(1)(A).


C. Notwithstanding the foregoing, the ACP test described above is treated as satisfied for any
SIMPLE 401(k) Year in which an
Eligible Employer maintains this Plan as a SIMPLE 401(k) Plan.



SECTION FOUR: VESTING AND FORFEITURES



4.01 DETERMINING THE VESTED PORTION OF PARTICIPANT INDIVIDUAL ACCOUNTS



A. Determining the Vested Portion — In determining the Vested portion of a Participant’s Individual
Account, the following rules
apply.





1. Employer Contributions — The Vested portion of a Participant’s Individual Account derived
from Employer Contributions
other than Elective Deferrals is determined by applying the vesting schedule(s) selected in
the Adoption Agreement (or the
vesting schedule(s) described in Plan Section 4.01(B) if the Plan is a Top-Heavy Plan). In
the event that there is not a vesting schedule option provided in the Adoption Agreement, a
Participant shall be fully Vested in their Individual Account at all times. Notwithstanding
the foregoing, a Participant with accrued benefits derived from Matching Contributions who
has not completed at least one Hour of Service under the Plan in a Plan Year beginning after
December 31, 2001, shall be subject to the vesting schedule in effect after January 1, 2002,
unless otherwise elected by the Employer in an amendment adopting provisions of the Economic
Growth and Tax Relief Reconciliation Act of 2001 (EGTRRA).




2. Other Contributions — A Participant is fully Vested in their rollover contributions and
transfer contributions (subject to the
exceptions provided in Plan Section 3.08), Elective Deferrals, Deductible Employee
Contributions, Nondeductible Employee Contributions, Qualified Matching Contributions, and
Qualified Nonelective Contributions and any earnings thereon. No Forfeiture will occur solely
as a result of an Employee’s withdrawal of such contributions. Separate accounts for such
contributions shall be maintained for each Employee, including separate accounts for Pre-Tax
Elective Deferrals and Roth Elective Deferrals. Each account will be credited with the
applicable contributions and earnings thereon.




3. Fully Vested Under Certain Circumstances — An Employee is fully Vested in their Individual
Account if any of the following occurs:




a. the Employee reaches Normal Retirement Age;




b. the Plan is terminated or partially terminated as defined by rules promulgated by
the IRS; or




c. there exists a complete discontinuance of contributions under the Plan.




Further, unless otherwise indicated in the Adoption Agreement, an Employee is fully Vested if
the Employee dies, incurs a
Disability, or satisfies the conditions for Early Retirement Age (if applicable).
Notwithstanding the foregoing, the portion of
an Employee’s Individual Account attributable to Employer Profit Sharing Contributions,
Employer Money Purchase
Pension Contributions, or Employer Target Benefit Pension Contributions that are made based
on their imputed
Compensation on account of incurring a Disability shall be fully Vested at all times. In the
case of a partial termination, only
those Employees who are affected by the partial termination of the Plan shall become fully
Vested.



42









 






4. Participants in a Prior Plan — If a Participant was a participant in a Prior Plan on the
Effective Date, their Vested percentage shall not be less than it would have been under such
Prior Plan as computed on the Effective Date.




5. SIMPLE 401(k) Exception — Notwithstanding anything in this Plan to the contrary, all
benefits attributable to contributions
described in Plan Section 3.01(H) are nonforfeitable at all times, and all previous
contributions made under the Plan are
nonforfeitable as of the beginning of the SIMPLE 401(k) Year in which the SIMPLE 401(k) Plan
is adopted.




6. ADP Test Safe Harbor Contribution Exception — Notwithstanding anything in this Plan to the
contrary, all benefits
attributable to ADP Test Safe Harbor Contributions shall be nonforfeitable at all times.




7. ACP Test Safe Harbor Matching Contributions — Notwithstanding anything in this Plan to the
contrary, ACP Test Safe
Harbor Matching Contributions will be Vested as indicated in the Matching Contributions
vesting schedule in the Adoption
Agreement, but, in any event, such contributions shall be fully Vested upon an Employee’s
attainment of Normal Retirement Age, upon the complete or partial termination of the Plan, or
upon the complete discontinuance of Employer Contributions.




8. Government Contract Contributions — Notwithstanding anything in this Plan to the contrary,
contributions made by an
Employer pursuant to Plan Section 3.04(B)(3) shall be nonforfeitable at all times.




A Participant shall not be fully Vested in their Individual Account solely on account of a
transaction described in Code Section 414(l), except as otherwise provided therein.


B. Minimum Vesting Schedule for Top-Heavy Plans — The following vesting provisions apply for any
Plan Year in which this
Plan is a Top-Heavy Plan. Notwithstanding the other provisions of this Plan Section 4.01 (unless
those provisions provide for more rapid vesting), the topheavy Vested portion of a Participant’s
Individual Account derived from Employer Contributions and Forfeitures is determined by applying
the vesting schedule(s) selected in the Adoption Agreement.



The vesting schedule(s) selected in the Adoption Agreement applies to all benefits within the
meaning of Code Section 411(a)(7),
except for those benefits which are nonforfeitable under the Code (e.g., Nondeductible Employee
Contributions, including
benefits accrued before the effective date of Code Section 416 and benefits accrued before the Plan
became a Top-Heavy Plan,
Elective Deferrals, Qualified Nonelective Contributions, Qualified Matching Contributions, and ADP
Test Safe Harbor
Contributions). Further, no decrease in a Participant’s Vested percentage may occur in the event
the Plan’s status as a Top-Heavy
Plan changes for any Plan Year. However, this Plan Section 4.01(B) does not apply to the Individual
Account of any Employee
who does not have an Hour of Service after the Plan has initially become a Top-Heavy Plan, and such
Employee’s Individual
Account attributable to Employer Contributions and Forfeitures will be determined without regard to
this Plan Section 4.01(B).



C. Termination of Employment — If a Participant incurs a Termination of Employment, any portion of
their Individual Account which
is not Vested shall be held in a suspense account. Such suspense account shall share in any
increase or decrease in the fair market
value of the assets of the Fund in accordance with Plan Section 7.02(B). The disposition of such
suspense account shall be as follows.





1. Cashout of Certain Terminated Participants — If the Vested value of a terminated
Participant’s Individual Account does not exceed $1,000 (or such other cashout level
specified in the Adoption Agreement) the Vested value of the Participant’s
Individual Account may be paid from the Plan pursuant to Plan Sections 5.01(B)(1) and
5.04(A), subject to a uniform and
non-discriminatory policy established by the Plan Administrator. The portion which is not
Vested shall be treated as a
Forfeiture and applied in accordance with Plan Section 3.04(C). If a Participant would have
received the Vested portion of
their Individual Account pursuant to the previous sentence but for the fact that the
Participant’s Vested Individual Account
exceeded the cashout amount when the Participant terminated service, and if at a later time
such Individual Account is
reduced such that it is not greater than the cashout level, the Vested portion of the
Participant’s Individual Account will be
paid from the Plan and the portion which is not Vested shall be treated as a Forfeiture and
applied in accordance with Plan
Section 3.04(C). For purposes of this Plan Section, if the value of the Vested portion of a
Participant’s Individual Account is
zero, the Participant shall be deemed to have received a distribution of such Vested
Individual Account.




2. Terminated Participants Who Elect to Receive Distributions — If such terminated
Participant elects to receive a distribution of the entire Vested portion of their Individual
Account in accordance with Plan Section 5.01(B)(2), the portion which is not Vested shall be
treated as a Forfeiture. Such Forfeiture shall be applied in accordance with
Plan Section 3.04(C). If such terminated Participant elects to receive a partial distribution
of their Vested Individual Account, no Forfeiture may occur until the Participant elects to
receive the remaining portion of their Vested Individual Account.




3. Reemployed Participants Who Received Distributions — If such Participant is deemed to
receive a distribution pursuant to Plan Section 4.01(C)(1) and the Participant subsequently
resumes employment before the date the Participant incurs five consecutive Breaks in Vesting
Service, upon the reemployment of such Participant, the Employer-derived Individual Account
balance will be restored to the amount on the date of the deemed distribution. If such
Participant receives a distribution pursuant to Plan Section 4.01(C)(1) or (2) and the
Participant subsequently resumes employment, the Participant’s Employer derived Individual
Account balance will be restored to the amount on the date of distribution if the Participant
repays to the Plan the full amount of the distribution before the earlier of




a. five years after the first date on which the Participant is subsequently
re-employed by the Employer, or




b. the date the Participant incurs five consecutive Breaks in Vesting Service
following the date of the distribution.




Any restoration of a Participant’s Individual Account pursuant to this Plan Section
4.01(C)(3) shall be made from other
Forfeitures, income or gain to the Fund, or contributions made by the Employer.




4. Reemployed Participants Who Did Not Receive Distributions — If such Participant neither
receives nor is deemed to receive a distribution pursuant to Plan Section 4.01(C)(1) or (2)
and the Participant returns to the service of the Employer before



43









 







incurring five consecutive Breaks in Vesting Service, there shall be no Forfeiture. Rather,
the amount in such suspense account shall be restored to such Participant’s Individual
Account.



D. Vesting Breaks in Service



1. Vesting of Pre-Break Accruals — Years of Vesting Service credited after a Participant incurs
five consecutive Breaks in
Vesting Service shall be disregarded in determining the Vested portion of such Participant’s
Individual Account that was
accrued before the five consecutive Breaks in Vesting Service. If a Participant who has neither
received a distribution nor has
been deemed to receive a distribution incurs five consecutive Breaks in Vesting Service, the
portion of the Participant’s
Individual Account which is not Vested shall be treated as a Forfeiture and applied in accordance
with Plan Section 3.04(C).



2. Vesting of Post-Break Accruals — Years of Vesting Service credited before a Break in Vesting
Service shall apply for
purposes of determining the Vested portion of a Participant’s Individual Account that is accrued
after such Break in Vesting
Service.




E. Distribution Before Full Vesting



If a distribution is made to a Participant who was not then fully Vested in their Individual
Account derived from Employer
Contributions, and if the Participant may increase their Vested percentage in their Individual
Account, then the following rules
shall apply:





1. a separate account will be established for the Participant’s interest in the Plan as of
the time of the distribution, and




2. at any relevant time, the Participant’s Vested portion of the separate account will be
equal to an amount (“X”) determined in
accordance with the standard formula described below unless the Employer chooses, in a
uniform and nondiscriminatory
manner, to apply the alternative formula.




Standard Formula: X=P (AB + (R x D)) – (R x D)




Alternative Formula: X= P (AB+D) – D




For purposes of the standard and alternative formulas described above, “P” is the Vested
percentage at the relevant time; “AB” is the separate account balance at the relevant time;
“D” is the amount of the distribution; and “R” is the ratio of the separate account balance
at the relevant time to the separate account balance after distribution.



4.02 100 PERCENT VESTING OF CERTAIN CONTRIBUTIONS



The Participant’s accrued benefit derived from Elective Deferrals, Qualified Nonelective
Contributions, ADP Test Safe Harbor
Contributions, Nondeductible Employee Contributions, and Qualified Matching Contributions is
nonforfeitable. Separate accounts for
Pre-Tax Elective Deferrals, Roth Elective Deferrals, Qualified Nonelective Contributions,
Nondeductible Employee Contributions,
Matching Contributions, and Qualified Matching Contributions will be maintained for each
Participant. Each account will be credited
with the applicable contributions and earnings thereon.




4.03 FORFEITURES AND VESTING OF MATCHING CONTRIBUTIONS



Matching Contributions, other than Qualified Matching Contributions, shall be Vested in accordance
with the vesting schedule for
Matching Contributions in the Adoption Agreement. In any event, an Employee’s Matching
Contributions shall be fully Vested at
Normal Retirement Age, upon the complete or partial termination of the Plan, or upon the complete
discontinuance of Employer
Contributions. Notwithstanding any other provisions of the Plan, Matching Contributions or
Qualified Matching Contributions must be
forfeited if the contributions to which they relate are Excess Elective Deferrals (unless the
Excess Elective Deferrals are for non-Highly Compensated Employees, in which event the Plan
Administrator shall have discretion as to whether such amounts will be forfeited), Excess
Contributions, Excess Aggregate Contributions or Excess Annual Additions which are distributed
pursuant to Plan Section 3.12(A)(4)(c). Such Forfeitures shall be allocated in accordance with Plan
Section 3.04(C). When a Participant incurs a Termination of Employment, whether a Forfeiture arises
with respect to Matching Contributions shall be determined in accordance with Plan Section 4.01(C).




SECTION FIVE: DISTRIBUTIONS AND LOANS TO PARTICIPANTS




5.01 DISTRIBUTIONS




A. Eligibility for Distributions



1. Entitlement to Distribution — The Vested portion of a Participant’s Individual Account
attributable to Employer Contributions
(including ACP Test Safe Harbor Matching Contributions) other than those described in Plan Section
5.01(A)(2) shall be
distributable to the Participant upon 1) the Participant satisfying the distribution eligibility
requirements specified in the
Adoption Agreement, 2) the Participant’s Termination of Employment after attaining Normal
Retirement Age, 3) the
termination of the Plan, and 4) if the Plan designates an Early Retirement Age, the Participant’s
Termination of Employment
after satisfying any Early Retirement Age conditions. If a Participant separates from service
before satisfying the Early
Retirement Age requirement, but has satisfied the service requirement, the Participant will be
entitled to elect an early
retirement benefit upon satisfying such age requirement. With respect to item 1) above, if the
Adoption Agreement does not
allow an Employer to specify distribution eligibility requirements, the Vested portion of a
Participant’s Individual Account






44









 







shall be distributable to the Participant upon the Participant’s Termination of Employment,
attainment of Normal Retirement
Age, Disability, attainment of age 591/2, or the termination of the Plan. If a Participant who is
entitled to a distribution is not
legally competent to request or consent to a distribution, the Participant’s court-appointed
guardian, an attorney in fact acting
under a valid power of attorney, or any other individual or entity authorized under state law to
act on behalf of the
Participant, may request and accept a distribution of the Vested portion of a Participant’s
Individual Account under this Plan
Section 5.01(A).



2. Special Requirements For Certain 401(k) Contributions — Elective Deferrals, Qualified
Nonelective Contributions, Qualified
Matching Contributions, and income allocable to each are not distributable to a Participant or
their Beneficiary or
Beneficiaries, in accordance with such Participant’s or Beneficiaries’ election, earlier than upon
the Participant’s Severance
from Employment (separation from service for Plan Years beginning before 2002), death, or
Disability, except as listed
below.



Such amounts may also be distributed upon any one of the following events:





a. termination of the Plan without the establishment of another defined contribution plan,
other than an employee stock
ownership plan (as defined in Code Section 4975(e) or Code Section 409), a simplified
employee pension plan (as
defined in Code Section 408(k)), a SIMPLE IRA Plan (as defined in Code Section 408(p)), a
plan or contract described
in Code Section 403(b), or a plan described in Code Section 457(b) or (f), at any time during
the period beginning on the
date of Plan termination and ending twelve months after all assets have been distributed from
the Plan;




b. for Plan Years before 2002, disposition by a corporation to an unrelated corporation of
substantially all of the assets
(within the meaning of Code Section 409(d)(2)) used in a trade or business of such
corporation if such corporation
continues to maintain this Plan after the disposition, but only with respect to Employees who
continue employment with
the corporation acquiring such assets;




c. for Plan Years before 2002, disposition by a corporation to an unrelated entity of such
corporation’s interest in a
subsidiary (within the meaning of Code Section 409(d)(3)) if such corporation continues to
maintain this Plan, but only
with respect to Employees who continue employment with such subsidiary;




d. attainment of age 591/2 in the case of a profit sharing plan, if elected in the
Adoption
Agreement. Notwithstanding the
foregoing, where no election is available in the Adoption Agreement, distribution of Elective
Deferrals shall be
permitted upon the attainment of age 591/2; or




e. existence of a hardship incurred by the Participant as described in Plan Section
5.01(C)(2)(b), if elected in the Adoption
Agreement. Notwithstanding the foregoing, where no election is available in the Adoption
Agreement, distribution of
Elective Deferrals shall be permitted upon the existence of a hardship as described in Plan
Section 5.01(C)(2)(b).




All distributions that may be made pursuant to one or more of the foregoing distribution
eligibility requirements are subject
to the spousal and Participant consent requirements (if applicable) contained in Code Section
401(a)(11) and 417. In addition,
distributions which are triggered by either a., b., or c. above must be made in a lump sum.


Notwithstanding the foregoing, ADP Test Safe Harbor Contributions may not be distributed earlier
than Severance from
Employment, death, Disability, an event described in Code Section 401(k)(10), or, in the case of a
profit sharing plan, the
attainment of age 591/2. For years beginning after 2005, if both Pre-Tax Elective Deferrals and Roth
Elective Deferrals were made for the year, the Plan Administrator, in a uniform and
nondiscriminatory manner, may establish operational procedures, including ordering rules as
permitted under the law and related regulations, which specify whether distributions, including
corrective
distributions of Excess Elective Deferrals, Excess Contributions, Excess Aggregate Contributions,
or Excess Annual
Additions, will consist of a Participant’s Pre-Tax Elective Deferrals, Roth Elective Deferrals, or
a combination of both, to the
extent such type of Elective Deferral was made for the year. The operational procedures may include
an option for
Participants to designate whether the distribution is being made from Pre-Tax or Roth Elective
Deferrals.



3. Distribution Request: When Distributed — A Participant or Beneficiary entitled to a distribution
who wishes to receive a
distribution must submit a request (either in writing or in any other form permitted under rules
promulgated by the IRS and
DOL) to the Plan Administrator. If required in writing, such request shall be made upon a form
provided or approved by the
Plan Administrator. Upon a valid request, the Plan Administrator shall direct the Trustee (or
Custodian, if applicable) to
commence distribution as soon as administratively feasible after the request is received, except as
otherwise provided in the
Adoption Agreement. Distributions will be made based on the value of the Vested portion of the
Individual Account available at the time of actual distribution. To the extent the distribution
request is for an amount greater than the Individual Account, the Trustee (or
Custodian, if applicable) shall be entitled to distribute the entire Vested portion of the
Individual Account.




B. Distributions Upon Termination Of Employment



1. Individual Account Balances Less Than or Equal to Cashout Level — If the value of the Vested
portion of a Participant’s
Individual Account does not exceed the cashout level, the following rules shall apply regarding
Plan Section 4.01(C)(1). If
the value of the Vested portion of a Participant’s Individual Account does not qualify as an
Eligible Rollover Distribution,
distribution from the Plan may be made to the Participant in a single lump sum in lieu of all other
forms of distribution under
the Plan following the Participant’s Termination of Employment in accordance with a uniform an
nondiscriminatory
operational schedule established by the Plan Administrator. If the value of the Vested portion of a
Participant’s Individual
Account does not exceed $1,000 and qualifies as an Eligible Rollover Distribution, and the
Participant does not elect to have
such distribution paid directly to an Eligible Retirement Plan specified by the Participant in a
Direct Rollover or to receive
the distribution in accordance with this Section Five of the Plan, distribution shall be made to
the Participant in a single lump
sum in lieu of all other forms of distribution under the Plan, unless specified otherwise in the
Adoption Agreement. If the





45









 







value of the Vested portion of a Participant’s Individual Account exceeds $1,000 and qualifies as
an Eligible Rollover
Distribution, and if the Participant does not elect to have such distribution paid directly to an
Eligible Retirement Plan
specified by the Participant in a Direct Rollover or to receive the distribution in accordance with
this Section Five of the Plan,
distribution shall be paid by the Plan Administrator in a Direct Rollover to an individual
retirement arrangement (as described
in Code Section 408(a), 408(b) or 408A) designated by the Plan Administrator. Notwithstanding the
foregoing, if the
Participant is reemployed by the Employer before the occurrence of the distribution, no
distribution will be made under this
paragraph. The value of the Participant’s Vested Individual Account for purposes of this paragraph
shall be determined by including
rollover contributions (and earnings allocable thereto) within the meaning of Code Sections 402(c),
403(a)(4), 403(b)(8),
408(d)(3)(a)(ii), and 457(e)(16).



2. Individual Account Balances Exceeding Cashout Level — If distribution in the form of a Qualified
Joint and Survivor Annuity
is required with respect to a Participant and either the value of the Participant’s Vested
Individual Account exceeds the
cashout level or there are remaining payments to be made with respect to a particular distribution
option that previously
commenced, and if the Individual Account is immediately distributable, the Participant must consent
to any distribution of
such Individual Account. If distribution in the form of a Qualified Joint and Survivor Annuity is
not required with respect to a Participant and the value of such Participant’s Vested Individual
Account exceeds $5,000, and if the Individual Account is immediately distributable, the Participant
must consent to any distribution of such Individual Account.



The consent of the Participant and the Participant’s Spouse shall be obtained (either in writing or
in any other form permitted
under rules promulgated by the IRS and DOL) within the 90-day period ending on the Annuity Starting
Date. The Plan
Administrator shall notify the Participant and the Participant’s Spouse of the right to defer any
distribution until the
Participant’s Individual Account is no longer immediately distributable. Such notification shall
include a general description
of the material features, and an explanation of the relative values of the optional forms of
benefit available under the Plan in a
manner that would satisfy the notice requirements of Code Section 417(a)(3), and shall be provided
no less than 30 days and
no more than 90 days before the Annuity Starting Date.



If a distribution is one to which Code Sections 401(a)(11) and 417 do not apply, such distribution
may commence less than
30 days after the notice required in Treasury Regulation 1.411(a)-11(c) is given, provided that:





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




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


Notwithstanding the foregoing, only the Participant need consent to the commencement of a
distribution which is either made in the form of a Qualified Joint and Survivor Annuity or is made
from a Plan which meets the Retirement Equity Act safe harbor rules of Plan Section 5.10(E), while
the Individual Account is immediately distributable. Neither the consent of the Participant nor the
Participant’s Spouse shall be required to the extent that a distribution is required to satisfy
Code Section 401(a)(9) or Code Section 415. In addition, upon termination of this Plan, if the Plan
does not offer an annuity option (purchased from a commercial provider), the Participant’s
Individual Account may, without the Participant’s consent, be distributed to the Participant or
transferred to another defined contribution plan (other than an employee stock ownership plan as
defined in Code Section 4975(e)(7)) within the same controlled group.



An Individual Account is immediately distributable if any part of the Individual Account could be
distributed to the
Participant (or surviving Spouse) before the Participant attains or would have attained (if not
deceased) the later of Normal
Retirement Age or age 62.



3. Distribution Before Attainment of Normal Retirement Age — A Participant who has incurred a
Termination of Employment
before attaining Normal Retirement Age may elect to receive a distribution with regard to Matching
Contributions, Employer
Profit Sharing Contributions, Employer Money Purchase Pension Contributions, and Employer Target
Benefit Pension
Contributions as applicable, unless specified otherwise in the Adoption Agreement. A Participant
who has incurred a
Severance from Employment before attaining Normal Retirement Age may elect to receive a
distribution with regard to
Qualified Matching Contributions, Elective Deferrals, Qualified Nonelective Contributions and ADP
Test Safe Harbor
Contributions unless specified otherwise in the Adoption Agreement.




C. Distributions During Employment



1. In-Service Withdrawals — If this is a profit sharing plan, unless the Adoption Agreement
provides otherwise, a Participant
who is not otherwise eligible to receive a distribution of their Individual Account may elect to
receive an in-service
distribution of all or part of the Vested portion of their Individual Account attributable to
Employer Contributions other than
those described in Plan Sections 5.01(A)(2) and 5.01(C)(2)(b), subject to the requirements of Plan
Section 5.10 and further
subject to the following limits.





a. Participant for five or more years — An Employee who has been a Participant in the Plan
for five or more years may
withdraw up to the entire Vested portion of their Individual Account.




b. Participant for less than five years — Except as otherwise provided in the Adoption
Agreement, an Employee who has
been a Participant in the Plan for less than five years may withdraw only the amount which
has been in their Individual
Account attributable to Employer Contributions for at least two full Plan Years, measured
from the date such
contributions were allocated.


2. Hardship Withdrawals



a. Hardship Withdrawals of Matching Contributions and Employer Profit Sharing Contributions — If
this is a profit sharing
plan, then notwithstanding Plan Section 5.01(C)(1) (unless the Adoption Agreement provides
otherwise) a Participant






46









 







may elect to receive a hardship distribution of all or part of the Vested portion of their
Individual Account attributable to
Employer Contributions other than those described in Plan Section 5.01(A)(2), subject to the
requirements of Plan
Section 5.10.



For purposes of this Section 5.01(C)(2)(a), hardship is defined as an immediate and heavy financial
need of the Participant
where such Participant lacks other available resources. Except as otherwise provided in the
Adoption Agreement, financial
needs considered immediate and heavy include, but are not limited to, 1) expenses incurred or
necessary for medical care,
described in Code Section 213(d), of the Employee, the Employee’s Spouse or dependents, 2) the
purchase (excluding
mortgage payments) of a principal residence for the Employee, 3) payment of tuition and related
educational fees for the
next 12 months of post-secondary education for the Employee, the Employee’s spouse, children or
dependents, 4) payment
to prevent the eviction of the Employee from, or a foreclosure on the mortgage of, the Employee’s
principal residence, 5)
for Plan Years after 2005, funeral or burial expenses for the Participant’s deceased parent,
Spouse, child or dependent, and
6) for Plan Years after 2005, payment to repair damage to the Employee’s principal residence that
would qualify for a
casualty loss deduction under Code Section 165 (determined without regard to whether the loss
exceeds 10 percent of
adjusted gross income).



A distribution will be considered necessary to satisfy an immediate and heavy financial need of the
Employee only if





(1) the Employee has obtained all distributions, other than hardship distributions, and all
nontaxable loans available
under all plans maintained by the Employer;




(2) the distribution is not in excess of the amount of an immediate and heavy financial need
(including amounts necessary
to pay any federal, state, or local income taxes or penalties reasonably anticipated to
result from the distribution).


b. Hardship Withdrawals of Elective Deferrals — Unless the Adopting Employer has elected otherwise
in the Adoption
Agreement, distribution of Elective Deferrals (including Qualified Nonelective Contributions and
Qualified Matching
Contributions that are treated as Elective Deferrals and any earnings credited to a Participant’s
account as of the later of
December 31, 1988, and the end of the last Plan Year ending before July 1, 1989) may be made to a
Participant in the
event of hardship. For the purposes of this Section 5.01(C)(2)(b), hardship is defined as an
immediate and heavy
financial need of the Employee where the distribution is needed to satisfy the immediate and heavy
financial need of
such Employee. Hardship distributions are subject to the spousal consent requirements contained in
Code Sections
401(a)(11) and 417, if applicable.



For purposes of determining whether a Participant has a hardship, rules similar to those described
in Plan Section
5.01(C)(2)(a) shall apply except that only the listed financial needs shall be considered. In
addition, a distribution will be
considered as necessary to satisfy an immediate and heavy financial need of the Employee only if





(1) all plans maintained by the Employer provide that the Employee’s Elective Deferrals (and
Nondeductible
Employee Contributions) will be suspended for six months (12 months for hardship
distributions before 2002) after
the receipt of the hardship distribution; and




(2) for hardship distributions before 2002, all plans maintained by the Employer provide that
the Employee may not
make Elective Deferrals for the Employee’s taxable year immediately following the taxable
year of the hardship
distribution in excess of the applicable limit under Code Section 402(g) for such taxable
year less the amount of
such Employee’s Elective Deferrals for the taxable year of the hardship distribution.



D. Miscellaneous Distribution Issues



1. Distribution of Rollover, Transfer, and Nondeductible Employee Contributions — The following
rules shall apply with respect
to entitlement to distribution of rollover and transfer contributions and Nondeductible Employee
Contributions.





a. Entitlement to Distribution — If no election is available in the Adoption Agreement,
rollover contributions (including rollovers of Nondeductible Employee Contributions) and
earnings thereon may be distributed at any time upon request. If the Adopting Employer
specifies in the Adoption Agreement that Rollover contributions may not be distributed at any
time, such contributions will be subject to the Plan’s provisions governing distributions of
either Employer Profit Sharing Contributions (if this Plan is a profit sharing plan),
Employer Money Purchase Pension Contributions (if this Plan is a money purchase pension
plan), or Employer Target Benefit Pension Contributions (if this Plan is a target benefit
pension plan). If the Adopting Employer specifies in the Adoption Agreement that transfer
contributions may be distributed at any time or if no election is available in the Adoption
Agreement, transfer contributions may be distributed at any time upon request subject to the
restrictions below and any other restrictions required by either the Code or applicable
regulations. If the Adopting Employer specifies in the Adoption Agreement that transfer
contributions may not be distributed at any time, such contributions will be subject to the
Plan’s provisions governing distributions of either Employer Profit Sharing Contributions (if
this is a profit sharing plan), Employer Money Purchase Pension Contributions (if this Plan
is a money purchase pension plan), or Employer Target Benefit Pension Contributions (if this
Plan is a target benefit pension plan). Notwithstanding the foregoing, to the extent that any
optional form of benefit under this Plan permits a distribution before the Employee’s
retirement, death, Disability, attainment of Normal Retirement Age, or Termination of
Employment, and before Plan termination, the optional form of benefit is not available with
respect to benefits attributable to assets (including the post-transfer earnings thereon) and
liabilities that are transferred (within the meaning of Code Section 414(l)) to this Plan
from a money purchase pension plan or a target benefit pension plan qualified under Code
Section 401(a) (other than any portion of those assets and liabilities attributable to
voluntary employee contributions). In addition, if such transfers consist of Elective
Deferrals or amounts treated as Elective Deferrals (including earnings thereon) from a 401(k)
plan, the assets transferred shall continue to be subject to the distribution restrictions
under Code Sections 401(k)(2) and 401(k)(10), unless otherwise provided in the Adoption
Agreement. A



47









 







Participant may at any time, and upon a request submitted to the Plan Administrator (either
in writing or in any other form permitted under rules promulgated by the IRS and DOL),
withdraw an amount from their Individual Account attributable to Nondeductible Employee
Contributions (including earnings thereon). In the event the portion of a Participant’s
Individual Account attributable to Nondeductible Employee Contributions experiences a loss
such that the amount remaining in such subaccount is less than the amount of Nondeductible
Employee Contributions made by the Participant, the maximum amount which the Participant may
withdraw is an amount equal to the remaining portion of the Participant’s Individual Account
attributable to Nondeductible Employee Contributions. Subject to Plan Section 5.10, Joint and
Survivor Annuity Requirements (if applicable), the Participant may withdraw any part of the
Deductible Employee Contribution account by delivering an application (either in writing or
in any other form permitted under rules promulgated by the IRS and DOL) to the Plan
Administrator.




b. Direct Rollovers of Eligible Rollover Distributions — Notwithstanding any provision of the
Plan to the contrary that would
otherwise limit a Recipient’s election under this Plan Section 5.01(D)(1)(b), a Recipient may
elect, at the time and in the
manner prescribed by the Plan Administrator, to have any portion of an Eligible Rollover
Distribution that is equal to at
least $500 (or such lesser amount if the Plan Administrator permits in a uniform and
nondiscriminatory manner) paid
directly to an Eligible Retirement Plan specified by the Recipient in a Direct Rollover.


2. Option to Limit Frequency of In-Service Distributions — If this is a profit sharing plan and the
Adopting Employer has elected
to limit the number of in-service distributions in the Adoption Agreement, then a Participant will
be permitted only the
number of in-service distributions indicated in the Adoption Agreement during the course of such
Participant’s employment
with the Employer. The amount which the Participant can withdraw will be limited to the lesser of
the amount determined
under the limits set forth in Plan Section 5.01(C) or the percentage of the Participant’s
Individual Account specified by the
Adopting Employer in the Adoption Agreement. Distributions under this Section 5.01(D)(2) will be
subject to the
requirements of Plan Section 5.10.



3. Commencement of Benefits — Notwithstanding any other provision, unless the Participant elects
otherwise, distribution of
benefits will begin no later than the 60th day after the latest of the close of the Plan Year in
which





a. the Participant attains age 65 (or Normal Retirement Age, if earlier),




b. the Participant reaches the 10th anniversary of the year in which the Participant
commenced participation in the Plan, or




c. the Participant incurs a Termination of Employment.


Notwithstanding the foregoing, the failure of a Participant (and Spouse, if applicable) to consent
to a distribution while a
benefit is immediately distributable, within the meaning of Plan Section 5.01(B)(2), shall be
deemed to be an election to defer
commencement of payment of any benefit sufficient to satisfy this Plan Section 5.01(D)(3).




5.02 FORM OF DISTRIBUTION TO A PARTICIPANT



If the value of the Vested portion of a Participant’s Individual Account exceeds $1,000 and the
Participant has properly waived the
Qualified Joint and Survivor Annuity (if applicable), as described in Plan Section 5.10, the
Participant may request (either in writing or in any other form permitted under rules promulgated
by the IRS and DOL) that the Vested portion of their Individual Account be paid to them in one or
more of the following forms of payment, unless specified otherwise in the Adoption Agreement: 1) in
a lump sum, 2) in a partial payment, 3) in installment payments over a period not to exceed the
Life Expectancy of the Participant or the joint and last survivor Life Expectancy of the
Participant and their designated Beneficiary, or 4) applied to the purchase of an annuity contract.
Notwithstanding anything in this Plan Section 5.02 to the contrary, a Participant cannot elect
payments in the form of a life annuity if
the Retirement Equity Act safe harbor rules of Plan Section 5.10(E) apply.



5.03 DISTRIBUTIONS UPON THE DEATH OF A PARTICIPANT



A. Designation of Beneficiary — Spousal Consent — Each Participant may designate, on a form
provided or approved by and delivered to the Plan Administrator, one or more primary and contingent
Beneficiaries to receive all or a specified portion of the Participant’s Individual Account in the
event of their death. A Participant may change or revoke such Beneficiary designation by completing
and delivering the proper form to the Plan Administrator. If the Participant designates a Spouse
Beneficiary and the individual later ceases to be a Spouse, such designation of the individual who
becomes an ex-spouse (other than by death) will be deemed void and the ex-spouse shall have no
rights as a Beneficiary unless redesignated as a Beneficiary by the Participant subsequent to
becoming an ex-spouse.



In the event that a Participant wishes to designate a primary Beneficiary who is not their Spouse,
their Spouse must consent (either in writing or in any other form permitted under rules promulgated
by the IRS and DOL) to such designation, and the Spouse’s consent must acknowledge the effect of
such designation and be witnessed by a notary public or plan representative. Notwithstanding this
consent requirement, if the Participant establishes to the satisfaction of the Plan Administrator
that such consent may not be obtained because there is no Spouse or the Spouse cannot be located,
no consent shall be required. In addition, if the Spouse is legally incompetent to give consent,
the Spouse’s legal guardian, even if the guardian is the Participant, may give consent. If the
Participant is legally separated or the Participant has been abandoned (within the meaning of local
law) and the Participant has a court order to such effect, spousal consent is not required unless a
Qualified Domestic Relations Order provides otherwise. Any change of Beneficiary will require a new
spousal consent to the extent required by the Code or Treasury Regulations.



B. Payment to Beneficiary — If a Participant dies before the Participant’s entire Individual
Account has been paid to them, such





48









 







deceased Participant’s Individual Account shall be payable to any surviving Beneficiary designated
by the Participant, or, if no
Beneficiary survives the Participant, to the Participant’s Spouse, or, where no Spouse exists, to
the Participant’s estate. If the
Beneficiary is a minor, distribution will be deemed to have been made to such Beneficiary if the
portion of the Participant’s
Individual Account to which the Beneficiary is entitled is paid to their legal guardian or, if
applicable, to their custodian under the
Uniform Gifts to Minors Act or the Uniform Transfers to Minors Act. If a Beneficiary is not a minor
but is not legally competent
to request or consent to a distribution, distributions will be deemed to have been made to such
Beneficiary if the portion of the
Participant’s Individual Account to which the Beneficiary is entitled is paid to the Participant’s
court-appointed guardian, an
attorney in fact acting under a valid power of attorney, or any other individual or entity
authorized under state law to act on behalf
of the Beneficiary.



C. Distribution Request: When Distributed — A Beneficiary of a deceased Participant entitled to a
distribution who wishes to
receive a distribution must submit a request (either in writing or in any other form permitted
under rules promulgated by the IRS
and DOL) to the Plan Administrator. If required in writing, such request shall be made on a form
provided or approved by the Plan
Administrator. Upon a valid request, the Plan Administrator shall direct the Trustee (or Custodian,
if applicable) to commence
distribution as soon as administratively feasible after the request is received, except as
otherwise provided in the Adoption
Agreement.




5.04 FORM OF DISTRIBUTION TO BENEFICIARIES



A. Value of Individual Account Does Not Exceed $5,000 — If the value of the Vested portion of a
Participant’s Individual Account
does not exceed $5,000, the value of the Vested portion of a Participant’s Individual Account may
be made to the Beneficiary in a
single lump sum in lieu of all other forms of distribution under the Plan, as soon as
administratively feasible.



The value of the Participant’s Vested Individual Account for purposes of this paragraph shall be
determined by including rollover
contributions (and earnings allocable thereto) within the meaning of Code Sections 402(c),
403(a)(4), 403(b)(8), 408(d)(3)(A)(ii)
and 457(e)(16).



B. Value of Individual Account Exceeds $5,000 — If the value of the Vested portion of a
Participant’s Individual Account exceeds
$5,000, the preretirement survivor annuity requirements of Plan Section 5.10 shall apply unless
waived in accordance with that
Plan Section 5.10 or unless the Retirement Equity Act safe harbor rules of Plan Section 5.10(E)
apply. However, a surviving
Spouse Beneficiary may elect any form of payment allowable under the Plan in lieu of the
preretirement survivor annuity. Any
such payment to the surviving Spouse must meet the requirements of Plan Section 5.05.



C. Other Forms of Distribution to Beneficiary — If the value of a Participant’s Individual Account
exceeds $5,000, and the
Participant has properly waived the preretirement survivor annuity, as described in Plan Section
5.10 (if applicable), or if the
Beneficiary is the Participant’s surviving Spouse, the Beneficiary may, subject to the requirements
of Plan Section 5.05, request
(either in writing or in any other form permitted under rules promulgated by the IRS and DOL) that
the Participant’s Individual
Account be paid in any form of distribution permitted to be taken by the Participant under this
Plan other than applying the
Individual Account toward the purchase of an annuity contract. Notwithstanding the foregoing,
installment payments to a
Beneficiary cannot be made over a period exceeding the Life Expectancy of such Beneficiary.




5.05 REQUIRED MINIMUM DISTRIBUTION REQUIREMENTS



A. General Rules



1. Subject to Plan Section 5.10, the requirements of this Section shall apply to any distribution
of a Participant’s interest and will
take precedence over any inconsistent provisions of this Plan. Unless otherwise specified, the
provisions of Plan Section 5.05
apply to calendar years beginning after December 31, 2002.



2. All distributions required under this Plan Section 5.05 shall be determined and made in
accordance with
Treasury Regulation 1.401(a)(9), including the minimum distribution incidental benefit requirement
of Code Section 401(a)(9)(G).



3. Limits on Distribution Periods — As of the first Distribution Calendar Year, distributions to a
Participant, if not made in a
single sum, may only be made over one of the following periods (or a combination thereof):





a. the life of the Participant,




b. the joint lives of the Participant and a designated Beneficiary,




c. a period certain not extending beyond the Life Expectancy of the Participant, or




d. a period certain not extending beyond the joint life and last survivor expectancy of the
Participant and a Designated
Beneficiary.



B. Time and Manner of Distribution



1. Required Beginning Date — The Participant’s entire interest will be distributed, or begin to be
distributed, to the Participant
no later than the Participant’s Required Beginning Date.



For purposes of this Plan Section 5.05(B) and Plan Section 5.05(D), unless Plan Section
5.05(D)(2)(a)(iii) applies,
distributions are considered to begin on the Participant’s Required Beginning Date. If Plan Section
5.05(D)(2)(a)(iii) applies,
distributions are considered to begin on the date distributions are required to begin to the
surviving Spouse under Plan




49









 




Section 5.05(D)(2)(a)(i). If distributions under an annuity purchased from an insurance company
irrevocably commence to
the Participant before the Participant’s Required Beginning Date (or to the Participant’s surviving
Spouse before the date
distributions are required to begin to the surviving Spouse in Plan Section 5.05(D)(2)(a)(i)), the
date distributions are
considered to begin is the date distributions actually commence.



Except as provided in the Adoption Agreement (or in a separate IRS model amendment, if applicable),
Participants or
Beneficiaries may elect on an individual basis whether the five-year rule or the life expectancy
rule in Plan Section 5.05(D)
applies to distributions after the death of a Participant who has a Designated Beneficiary. The
election must be made no later
than the earlier of September 30 of the calendar year in which distribution would be required to
begin in this Plan Section
5.05(B), or by September 30 of the calendar year which contains the fifth anniversary of the
Participant’s (or, if applicable,
surviving Spouse’s) death. If neither the Participant nor the Beneficiary makes an election under
this paragraph, distributions
will be made in accordance with this Plan Section 5.05(B) and Plan Section 5.05(D) and, if
applicable, the election in the
Adoption Agreement (or in a separate IRS model amendment, if applicable).



2. Forms of Distribution — Unless the Participant’s interest is distributed in the form of an
annuity purchased from an insurance
company or in a single sum on or before the Required Beginning Date, as of the first Distribution
Calendar Year distributions
will be made in accordance with Plan Section 5.05(C) and Plan Section 5.05(D). If the Participant’s
interest is distributed in
the form of an annuity purchased from an insurance company, distributions thereunder will be made
in accordance with the
requirements of Code Section 401(a)(9) and the related Treasury Regulations.




C. Required Minimum Distributions During Participant’s Lifetime



1. Amount of Required Minimum Distribution for Each Distribution Calendar Year — During the
Participant’s lifetime, the
minimum amount that will be distributed for each Distribution Calendar Year is the lesser of





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




b. if the Participant’s sole Designated Beneficiary for the Distribution Calendar Year is the
Participant’s Spouse, the
quotient obtained by dividing the Participant’s Benefit by the number in the Joint and Last
Survivor Table set forth in
Treasury Regulation 1.401(a)(9)-9, Q&A-3, using the Participant’s and Spouse’s attained ages
as of the Participant’s
and Spouse’s birthdays in the Distribution Calendar Year.


2. Lifetime Required Minimum Distributions Continue Through Year of Participant’s Death — Required
minimum distributions
will be determined under this Plan Section 5.05(C) beginning with the first Distribution Calendar
Year and up to and
including the Distribution Calendar Year that includes the Participant’s date of death.




D. Required Minimum Distributions After Participant’s Death



1. Death On or After Date Distributions Begin





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




i. The Participant’s remaining Life Expectancy is calculated using the age of the
Participant in the year of death,
reduced by one for each subsequent year.




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




iii. If the Participant’s surviving Spouse is not the Participant’s sole Designated
Beneficiary, the Designated
Beneficiary’s remaining Life Expectancy is calculated using the age of the Designated
Beneficiary in the year
following the year of the Participant’s death, reduced by one for each subsequent
year.




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


2. Death Before Date Distributions Begin





a. Participant Survived by Designated Beneficiary — Except as provided in the Adoption
Agreement (or in a separate IRS
model amendment, if applicable), if the Participant dies before the date distributions begin
and there is a Designated
Beneficiary, the minimum amount that will be distributed for each Distribution Calendar Year
after the year of the
Participant’s death is the quotient obtained by dividing the Participant’s benefit by the
remaining Life Expectancy of the
Participant’s Designated Beneficiary, determined as provided in Section 5.05(D)(1).



50









 






i. If the Participant’s surviving Spouse is the Participant’s sole Designated
Beneficiary, then, except as provided in the Adoption Agreement (or in a separate IRS
model amendment, if applicable), distributions to the surviving Spouse will begin by
December 31 of the calendar year immediately following the calendar year in which the
Participant died, or by December 31 of the calendar year in which the Participant
would have attained age 701/2, if later.




ii. If the Participant’s surviving Spouse is not the Participant’s sole Designated
Beneficiary, then, except as provided in the Adoption Agreement (or in a separate IRS
model amendment, if applicable), distributions to the Designated Beneficiary will
begin by December 31 of the calendar year immediately following the calendar year in
which the Participant died.




iii. If the Participant’s surviving Spouse is the Participant’s sole Designated
Beneficiary and the surviving Spouse dies after the Participant but before
distributions to the surviving Spouse are required to begin, this Plan Section
5.05(D)(2), other than Plan Section 5.05(D)(2)(a), will apply as if the surviving
Spouse were the Participant.




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


3. Election to Allow Designated Beneficiary Receiving Distributions Under 5-Year Rule to Elect Life
Expectancy Distributions
Unless specified otherwise in a separate IRS model amendment, a Designated Beneficiary who is
receiving payments under
the five-year rule may make a new election to receive payments under the life expectancy rule until
December 31, 2003,
provided that all amounts that would have been required to be distributed under the life expectancy
rule for all distribution
calendar years before 2004 are distributed by the earlier of December 31, 2003 or the end of the
five-year period.




E. TEFRA Section 242(b) Elections



1. Notwithstanding the other requirements of this Plan Section 5.05 and subject to the requirements
of Plan Section 5.10, Joint and
Survivor Annuity Requirements, distribution on behalf of any Employee (or former Employee),
including a five-percent owner,
who has made a designation in Section 242(b)(2) of the Tax Equity and Fiscal Responsibility Act (a
“Section 242(b)(2)
Election”) may be made in accordance with all of the following requirements (regardless of when
such distribution commences).





a. The distribution by the Fund is one which would not have qualified such Fund under Code
Section 401(a)(9) as in effect
before amendment by the Deficit Reduction Act of 1984.




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




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




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




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


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



3. If a designation is revoked, any subsequent distribution must satisfy the requirements of Code
Section 401(a)(9) and the
regulations thereunder. If a designation is revoked subsequent to the date distributions are
required to begin, the Plan must
distribute, by the end of the calendar year following the calendar year in which the revocation
occurs the total amount not yet
distributed which would have been required to have been distributed to satisfy Code Section
401(a)(9) and the regulations
thereunder, but for an election made in Section 242(b)(2) of the Tax Equity and Fiscal
Responsibility Act of 1982. For
calendar years beginning after December 31, 1988, such distributions must meet the minimum
distribution incidental benefit
requirements. Any changes in the designation will be considered to be a revocation of the
designation. However, the mere
substitution or addition of another Beneficiary (one not named in the designation) under the
designation will not be
considered to be a revocation of the designation, so long as such substitution or addition does not
alter the period over which
distributions are to be made under the designation, directly or indirectly (for example, by
altering the relevant measuring life).



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




F. Transition Rules



For plans in existence before 2003, required minimum distributions before 2003 were made pursuant
to Plan Section 5.05(E), if
applicable, and Sections 5.05(F)(1) through 5.05(F)(3) below.



1. 2000 and Before — Required minimum distributions for calendar years after 1984 and before 2001
were made in accordance
with Code Section 401(a)(9) and the Proposed Treasury Regulations thereunder published in the
Federal Register on July 27,
1987 (the “1987 Proposed Regulations”).



2. 2001 — Required minimum distributions for calendar year 2001 were made in accordance with Code
Section 401(a)(9) and
the Proposed Treasury Regulations in Section 401(a)(9) as published in the Federal Register on
January 17, 2001 (the “2001
Proposed Regulations”) unless a prior IRS model amendment provisions was adopted that stated that
the required minimum
distributions for 2001 were made pursuant to the 1987 Proposed Regulations. If distributions were
made in 2001 under the
1987 Proposed Regulations before the date in 2001 that the Plan began operating under the 2001
Proposed Regulations, the
special transition rule in Announcement 2001-82, 2001-2 C.B. 123, applied.





51









 







3. 2002 — Required minimum distributions for calendar year 2002 were made in accordance with Code
Section 401(a)(9) and
the 2001 Proposed Regulations unless the prior IRS model amendment, if applicable, provided either
a. or b. below applies.





a. Required minimum distributions for 2002 were made pursuant to the 1987 Proposed
Regulations.




b. Required minimum distributions for 2002 were made pursuant to the Final and Temporary
Treasury Regulations under
Code Section 401(a)(9) published in the Federal Register on April 17, 2002 (the “2002 Final
and Temporary
Regulations”) which are described in Plan Sections 5.05(B) through 5.05(E). If distributions
were made in 2002 under
either the 1987 Proposed Regulations or the 2001 Proposed Regulations before the date in 2002
that the Plan began
operating under the 2002 Final and Temporary Regulations, the special transition rule in
Section 1.2 of the model
amendment in Revenue Procedure 2002-29, 2002-1 C.B. 1176, applied.



5.06 ANNUITY CONTRACTS



Any annuity contract distributed under the Plan (if permitted or required by this Section Five)
must be nontransferable. The terms of
any annuity contract purchased and distributed by the Plan to a Participant or Spouse shall comply
with the requirements of the Plan.




5.07 DISTRIBUTIONS IN-KIND



The Plan Administrator may, but need not, cause any distribution under this Plan to be made either
in a form actually held in the Fund, or in cash by converting assets other than cash into cash, or
in any combination of the two foregoing methods. Assets other than cash, or other assets with a
readily ascertainable market value, must be subject to a third party appraisal before they may be
distributed from the Plan.




5.08 PROCEDURE FOR MISSING PARTICIPANTS OR BENEFICIARIES



The Plan Administrator must take reasonable steps to locate Participants or Beneficiaries who are
entitled to distributions from the
Plan. Such measures may include, checking records of other plans maintained by the Employer,
contacting the Participant’s
Beneficiaries, using internet search tools, commercial locator services, and credit reporting
agencies, using certified mail, or using a
governmental letter-forwarding service. The Plan Administrator should consider the cost of the
measures relative to the Individual
Account balance when determining which measures are used.



In the event that the Plan Administrator cannot locate a Participant or Beneficiary who is entitled
to a distribution from the Plan or to whom a distribution has been made but the distribution check
remains uncashed after taking all reasonable measures, the Plan Administrator may, consistent with
applicable laws, regulations, and other pronouncements under the Code and ERISA, use any reasonable
procedure to dispose of distributable Plan assets, including treating the amount distributable as a
Forfeiture and allocating it in accordance with the terms of the Plan, and if the Participant or
Beneficiary is later located, restore such benefit in the amount of the Forfeiture, unadjusted for
earnings and losses to the Plan.



In the event the Plan is terminated, payments must be made in a manner that protects the benefit
rights of a Participant or Beneficiary. Benefit rights shall be deemed to be protected if the
amount in a Participant’s or Beneficiary’s Individual Account is placed into an IRA, used to
purchase an annuity contract, or transferred to another qualified retirement plan. Benefit rights
need not, however, be protected if an Individual Account becomes subject to state escheat laws, or
if a payment is made to satisfy Code Section 401(a)(9), or if such other process is followed that
is consistent with applicable statutory or regulatory guidance.




5.09 CLAIMS PROCEDURES



A. Filing a Claim for Plan Distributions — A Participant or Beneficiary who has been denied a
request for a distribution or loan and
desires to make a claim for the Vested portion of the Participant’s Individual Account shall file a
request (either in writing or in
any other form permitted under rules promulgated by the IRS and DOL and acceptable to the Plan
Administrator) with the Plan
Administrator. If such request is required in writing, such request must be made on a form
furnished to them by the Plan
Administrator for such purpose. The request shall set forth the basis of the claim. The Plan
Administrator is authorized to conduct
such examinations as may be necessary to facilitate the payment of any benefits to which the
Participant or Beneficiary may be
entitled under the terms of the Plan.



B. Denial of a Claim — Whenever a claim for a Plan distribution or loan submitted in accordance
with this Section 5.09 by any
Participant or Beneficiary has been wholly or partially denied, the Plan Administrator must furnish
such Participant or Beneficiary
notice (either in writing or in any other form permitted under rules promulgated by the IRS and
DOL) of the denial within 90 days
of the date the original claim was filed. This notice shall set forth the specific reasons for the
denial, specific reference to pertinent
Plan provisions on which the denial is based, a description of any additional information or
material needed to perfect the claim,
an explanation of why such additional information or material is necessary, and an explanation of
the procedures for appeal.



C. Remedies Available — The Participant or Beneficiary shall have 60 days from receipt of the
denial notice in which to make
written application for review by the Plan Administrator. The Participant or Beneficiary may
request that the review be in the
nature of a hearing. The Participant or Beneficiary shall have the right to representation, to
review pertinent documents, and to
submit comments in writing (or in any other form permitted by the IRS or DOL). The Plan
Administrator shall issue a decision on






52









 







such review within 60 days after receipt of an application for review as provided for in this Plan
Section 5.09. Upon a decision
unfavorable to the Participant or Beneficiary, such Participant or Beneficiary shall be entitled to
bring such actions in law or
equity as may be necessary or appropriate to protect or clarify their right to benefits under this
Plan.




5.10 JOINT AND SURVIVOR ANNUITY REQUIREMENTS



A. Application — The provisions of this Section shall apply to any Participant who is credited with
at least one Hour of Service with
the Employer on or after August 23, 1984, and such other Participants as provided in Treasury
Regulations.



B. Qualified Joint and Survivor Annuity — Unless an optional form of benefit is selected pursuant
to a Qualified Election within
the 90-day period ending on the Annuity Starting Date, a married Participant’s Vested Account
Balance will be paid in the form of
a Qualified Joint and Survivor Annuity and an unmarried Participant’s Vested Account Balance will
be paid in the form of a life
annuity. The Participant may elect to have such annuity distributed upon attainment of the Earliest
Retirement Age under the Plan. In the case of a married Participant, the Qualified Joint and Survivor Annuity must be at least as
valuable as any other optional
form of benefit payable under the Plan at the same time.



C. Qualified Preretirement Survivor Annuity — Unless an optional form of benefit has been selected
within the Election Period
pursuant to a Qualified Election, if a Participant dies before the Annuity Starting Date then the
Participant’s Vested Account
Balance shall be applied toward the purchase of an annuity for the life of the surviving Spouse.
The surviving Spouse may elect to
have such annuity distributed within a reasonable period after the Participant’s death.



D. Notice Requirements



1. In the case of a Qualified Joint and Survivor Annuity, the Plan Administrator shall no less than
30 days and not more than 90
days before the Annuity Starting Date provide each Participant an explanation (either in writing or
in any other form
permitted under rules promulgated by the IRS and DOL) of





1) the terms and conditions of a Qualified Joint and Survivor
Annuity,




2) the Participant’s right to make and the effect of an election to waive the Qualified Joint
and Survivor Annuity
form of benefit,




3) the rights of a Participant’s Spouse, and




4) the right to make, and the effect of, a revocation of a previous election to waive the
Qualified Joint and Survivor Annuity.


The Annuity Starting Date for a distribution in a form other than a Qualified Joint and Survivor
Annuity may be less than 30
days after receipt of the explanation described in the preceding paragraph provided





1) the Participant has been provided with information that clearly indicates that the
Participant has at least 30 days to consider whether to waive the Qualified Joint and
Survivor Annuity and elect (with spousal consent) a form of distribution other than a
Qualified Joint and Survivor Annuity,




2) the Participant is permitted to revoke any affirmative distribution election at least
until the annuity starting date or, if later,
at any time before the expiration of the seven-day period that begins the day after the
explanation of the Qualified Joint and
Survivor Annuity is provided to the Participant, and




3) the annuity starting date is a date after the date that the explanation was provided to
the Participant.


2. In the case of a Qualified Preretirement Survivor Annuity as described in Plan Section 5.10(C),
the Plan Administrator shall
provide each Participant within the applicable period for such Participant an explanation (either
in writing or in any other
form permitted under rules promulgated by the IRS and DOL) of the Qualified Preretirement Survivor
Annuity in such terms
and in such manner as would be comparable to the explanation provided for meeting the requirements
of Plan
Section 5.10(D)(1) applicable to a Qualified Joint and Survivor Annuity.



The applicable period for a Participant is whichever of the following periods ends last: 1) the
period beginning with the first
day of the Plan Year in which the Participant attains age 32 and ending with the close of the Plan
Year preceding the Plan
Year in which the Participant attains age 35, 2) a reasonable period ending after the individual
becomes a Participant, 3) a
reasonable period ending after Plan Section 5.10(D)(3) ceases to apply to the Participant, and 4) a
reasonable period ending
after this Plan Section 5.10 first applies to the Participant. Notwithstanding the foregoing,
notice must be provided within a
reasonable period ending after separation from service in the case of a Participant who separates
from service before attaining
age 35.



For purposes of applying the preceding paragraph, a reasonable period ending after the enumerated
events described in 2), 3)
and 4) is the end of the two-year period beginning one year before the date the applicable event
occurs, and ending one year
after that date. In the case of a Participant who separates from service before the Plan Year in
which age 35 is attained, notice
shall be provided within the two-year period beginning one year before separation and ending one
year after separation. If
such a Participant thereafter returns to employment with the Employer, the applicable period for
such Participant shall be
redetermined.



3. Notwithstanding the other requirements of this Plan Section 5.10(D), the respective notices
prescribed by this Plan
Section 5.10(D), need not be given to a Participant if 1) the Plan “fully subsidizes” the costs of
a Qualified Joint and Survivor
Annuity or Qualified Preretirement Survivor Annuity, and 2) the Plan does not allow the Participant
to waive the Qualified
Joint and Survivor Annuity or Qualified Preretirement Survivor Annuity and does not allow a married
Participant to






53









 







designate a non-Spouse Beneficiary. For purposes of this Plan Section 5.10(D)(3), a plan fully
subsidizes the costs of a
benefit if no increase in cost, or decrease in benefits to the Participant may result from the
Participant’s failure to elect
another benefit.




E. Retirement Equity Act Safe Harbor Rules



1. Except as provided otherwise in the Adoption Agreement, the safe harbor provisions of this Plan
Section 5.10(E) shall apply
to a Participant in a profit sharing plan, and shall always apply to any distribution made on or
after the first day of the first
Plan Year beginning after December 31, 1988, from or under a separate account attributable solely
to accumulated deductible
employee contributions, as defined in Code Section 72(o)(5)(B), and maintained on behalf of a
Participant in a money
purchase pension plan, (including a target benefit pension plan) if the following conditions are
satisfied:





a. the Participant does not or cannot elect payments in the form of a life annuity; and




b. on the death of a Participant, the Participant’s Vested Account Balance will be paid to
the Participant’s surviving Spouse,
but if there is no surviving Spouse, or if the surviving Spouse has consented in a manner
conforming to a Qualified
Election, then to the Participant’s designated Beneficiary. The surviving Spouse may elect to
have distribution of the Vested Account Balance commence within the 90-day period following
the date of the Participant’s death. The Vested Account Balance shall be adjusted for gains
or losses occurring after the Participant’s death in accordance with the provisions of the
Plan governing the adjustment of account balances for other types of distributions. This Plan
Section 5.10(E) shall not apply to a Participant in a profit sharing plan if the plan is a
direct or indirect transferee of a defined benefit plan, money purchase pension plan, a
target benefit pension plan, stock bonus, or profit sharing plan which is subject to the
survivor annuity requirements of Code Section 401(a)(11) and Section 417. If this Plan
Section 5.10(E) applies, then no other provisions of this Plan Section 5.10 shall apply
except as provided in Treasury Regulations.


2. The Participant may waive the spousal death benefit described in this Plan Section 5.10(E) at
any time provided that no such
waiver shall be effective unless it is a Qualified Election (other than the notification
requirement referred to therein) that
would apply to the Participant’s waiver of the Qualified Preretirement Survivor Annuity.



3. For purposes of this Plan Section 5.10(E), Vested Account Balance shall mean, in the case of a
money purchase pension plan
or a target benefit pension plan, the Participant’s separate account balance attributable solely to
accumulated deductible
employee contributions within the meaning of Code Section 72(o)(5)(B). In the case of a profit
sharing plan, Vested Account
Balance shall have the same meaning as provided in the Definitions Section of this Plan.



4. In the event this Plan is a direct or indirect transferee of or a restatement of a plan
previously subject to the survivor annuity
requirements of Code Sections 401(a)(11) and 417 and the Employer has selected to have this Plan
Section 5.10(E) apply, the
provisions of this Plan Section 5.10(E) shall not apply to any benefits accrued (including
subsequent adjustments for earnings
and losses) before the adoption of these provisions. Such amounts shall be separately accounted for
in a manner consistent
with Plan Section 7.02 and administered in accordance with the general survivor annuity
requirements of Plan Section 5.10.




5.11 LIABILITY FOR WITHHOLDING ON DISTRIBUTIONS



The Plan Administrator shall be responsible for withholding federal income taxes from distributions
from the Plan, unless the
Participant (or Beneficiary, where applicable) elects not to have such taxes withheld. The Trustee
(or Custodian, if applicable) or other payor may act as agent for the Plan Administrator to
withhold such taxes and to make the appropriate distribution reports, provided the Plan
Administrator furnishes all the information to the Trustee (or Custodian, if applicable) or other
payor which such payor may need to properly perform withholding and reporting.




5.12 DISTRIBUTION OF EXCESS ELECTIVE DEFERRALS



A. General Rule — A Participant may assign to this Plan any Excess Elective Deferrals made during a
taxable year of the Participant
by notifying the Plan Administrator of the amount of the Excess Elective Deferrals to be assigned
to the Plan. Unless specified
otherwise in the Adoption Agreement, Participants who claim Excess Elective Deferrals for the
preceding calendar year must
submit their claims (either in writing or in any other form permitted under rules promulgated by
the IRS and DOL) to the Plan
Administrator by March 1. A Participant is deemed to notify the Plan Administrator of any Excess
Elective Deferrals that arise by
taking into account only those Elective Deferrals made to this Plan and any other plan, contract,
or arrangement of the Employer.
Notwithstanding any other provision of the Plan, Excess Elective Deferrals, plus any income and
minus any loss allocable thereto,
shall be distributed no later than April 15th to any Participant to whose Individual Account Excess
Elective Deferrals were
assigned for the preceding year and who claims Excess Elective Deferrals for such taxable year
except to the extent such Excess
Elective Deferrals were classified as Catch-up Contributions. For years beginning after 2005, the
Plan Administrator, in a uniform
and nondiscriminatory manner, will determine whether the distribution of Excess Elective Deferrals
for a year will be made first
from the Participant’s Pre-Tax Elective Deferral account or the Roth Elective Deferral account, or
a combination of both, to the
extent both Pre-Tax Elective Deferrals and Roth Elective Deferrals were made for the year, or may
allow Participants to specify
otherwise.



B. Determination of Income or Loss — Excess Elective Deferrals shall be adjusted for any income or
loss up to the date of the
distribution. The income or loss allocable to Excess Elective Deferrals is the sum of: 1) the
income or loss allocable to the
Participant’s Elective Deferral account for the taxable year multiplied by a fraction, the
numerator of which is such Participant’s






54









 







Excess Elective Deferrals for the year and the denominator of which is the Participant’s Individual
Account balance attributable to
Elective Deferrals without regard to any income or loss occurring during such taxable year, and 2)
10 percent of the amount
determined under 1) multiplied by the number of whole calendar months between the end of the
Participant’s taxable year and the
date of distribution, counting the month of distribution if distribution occurs after the 15th
day of such month. Notwithstanding the
preceding sentence, the Plan Administrator may compute the income or loss allocable to Excess
Elective Deferrals in the manner
described in Plan Section 7.02(B) (i.e., the usual manner used by the Plan for allocating income or
loss to Participants’ Individual
Accounts or any reasonable method), provided such method is used consistently for all Participants
and for all corrective
distributions under the Plan for the Plan Year. The Plan will not fail to use a reasonable method
for computing the income or loss
on Excess Elective Deferrals merely because the income allocable is based on a date that is no more
than seven days before the
distribution.




5.13 DISTRIBUTION OF EXCESS CONTRIBUTIONS



A. General Rule — Notwithstanding any other provision of this Plan, Excess Contributions, plus any
income and minus any loss
allocable thereto, shall be distributed no later than 12 months after a Plan Year to Participants
to whose Individual Accounts such
Excess Contributions were allocated for such Plan Year, except to the extent such Excess
Contributions were classified as Catchup
Contributions. Excess Contributions are allocated to the Highly Compensated Employees with the
largest amounts of Employer
Contributions taken into account in calculating the ADP test for the year in which the excess
arose, beginning with the Highly
Compensated Employee with the largest amount of such Employer Contributions and continuing in
descending order until all the
Excess Contributions have been allocated. Both the total amount of the Excess Contribution and, for
purposes of the preceding
sentence, the “largest amount” are determined after distribution of any Excess Deferrals. To the
extent a Highly Compensated
Employee has not reached their Catch-up Contribution limit under the Plan, Excess Contributions
allocated to such Highly
Compensated Employees as Catch-up Contributions will not be treated as Excess Contributions. If
such Excess Contributions are
distributed more than 21/2 months after the last day of the Plan Year in which such Contributions
arose, a 10 percent excise tax will
be imposed on the Employer maintaining the Plan with respect to such amounts. Excess Contributions
shall be treated as annual
additions under the Plan even if distributed.



B. Determination of Income or Loss — Excess Contributions shall be adjusted for any income or loss
up to the date of distribution.
The income or loss allocable to Excess Contributions allocated to each Participant is the sum of:
1) the income or loss allocable to
the Participant’s Elective Deferral account(s) (and, if applicable, the Qualified Nonelective
Contribution account or the Qualified
Matching Contributions account or both) for the Plan Year multiplied by a fraction, the numerator
of which is such Participant’s
Excess Contributions for the year and the denominator of which is the Participant’s Individual
Account balance attributable to
Elective Deferrals (and Qualified Nonelective Contributions or Qualified Matching Contributions, or
both, if any of such
contributions are included in the ADP test) without regard to any income or loss occurring during
such Plan Year, and 2) 10
percent of the amount determined under 1) multiplied by the number of whole calendar months between
the end of the Plan Year
and the date of distribution, counting the month of distribution if distribution occurs after the
15th day of such month.
Notwithstanding the preceding sentence, the Plan Administrator may compute the income or loss
allocable to Excess
Contributions in the manner described in Plan Section 7.02(B) (i.e., the usual manner used by the
Plan for allocating income or
loss to Participants’ Individual Accounts or any reasonable method), provided such method is used
consistently for all Participants
and for all corrective distributions under the Plan for the Plan Year. The Plan will not fail to
use a reasonable method for
computing the income or loss on Excess Contributions merely because the income allocable is based
on a date that is no more than
seven days before the distribution.



C. Accounting for Excess Contributions — Excess Contributions allocated to a Participant shall be
distributed from the Participant’s Elective Deferral account(s) and Qualified Matching Contribution
account (if applicable) in proportion to the Participant’s Elective Deferrals and Qualified
Matching Contributions (to the extent used in the ADP test) for the Plan Year. For years beginning
after 2005, the Plan Administrator, in a uniform and nondiscriminatory manner, will either
determine whether the
distribution of Excess Contributions for a year will be made first from the Participant’s Pre-Tax
Elective Deferral account or the
Roth Elective Deferral account, or a combination of both, to the extent both Pre-Tax Elective
Deferrals and Roth Elective
Deferrals were made for the year, or may allow Participants to specify otherwise. Excess
Contributions shall be distributed from
the Participant’s Qualified Nonelective Contribution account only to the extent that such Excess
Contributions exceed the balance
in the Participant’s Elective Deferral account(s) and Qualified Matching Contribution account.




5.14 DISTRIBUTION OF EXCESS AGGREGATE CONTRIBUTIONS



A. General Rule — Notwithstanding any other provision of this Plan, Excess Aggregate Contributions,
plus any income and minus
any loss allocable thereto, shall be forfeited, if forfeitable, or if not forfeitable, distributed
no later than 12 months after a Plan
Year to Participants to whose accounts such Excess Aggregate Contributions were allocated for such
Plan Year. Excess Aggregate
Contributions are allocated to the Highly Compensated Employees with the largest Contribution
Percentage Amounts taken into
account in calculating the ACP test for the year in which the excess arose, beginning with the
Highly Compensated Employee
with the largest amount of such Contribution Percentage Amounts and continuing in descending order
until all the Excess
Aggregate Contributions have been allocated. If such Excess Aggregate Contributions are distributed
more than 21/2 months after






55









 







the last day of the Plan Year in which such Excess Aggregate Contributions arose, a 10 percent
excise tax will be imposed on the
Employer maintaining the Plan with respect to those amounts. Excess Aggregate Contributions shall
be treated as annual additions
under the Plan even if distributed.



B. Determination of Income or Loss — Excess Aggregate Contributions shall be adjusted for any
income or loss up to the date of
distributions. The income or loss allocable to Excess Aggregate Contributions allocated to each
Participant is the sum of: 1) the
income or loss allocable to the Participant’s Nondeductible Employee Contribution account, Matching
Contribution account,
Qualified Matching Contributions account (if any, and if all amounts therein are not used in the
ADP test) and, if applicable,
Qualified Nonelective Contribution account and Elective Deferral account(s) for the Plan Year
multiplied by a fraction, the
numerator of which is such Participant’s Excess Aggregate Contributions for the year and the
denominator of which is the
Participant’s Individual Account balance(s) attributable to Contribution Percentage Amounts without
regard to any income or loss
occurring during such Plan Year; and 2) 10 percent of the amount determined under 1) multiplied by
the number of whole
calendar months between the end of the Plan Year and the date of distribution, counting the month
of distribution if distribution
occurs after the 15th day of such month. Notwithstanding the preceding sentence, the Plan
Administrator may compute the income
or loss allocable to Excess Aggregate Contributions in the manner described in Plan Section 7.02(B)
(i.e., the usual manner used
by the Plan for allocating income or loss to Participants’ Individual Accounts or any reasonable
method), provided such method is
used consistently for all Participants and for all corrective distributions under the Plan for the
Plan Year. The Plan will not fail to
use a reasonable method for computing the income or loss on Excess Aggregate Contributions merely
because the income
allocable is based on a date that is no more than seven days before the distribution.



C. Accounting for Excess Aggregate Contributions — Excess Aggregate Contributions allocated to a
Participant shall be forfeited, if forfeitable, or distributed on a pro rata basis from the
Participant’s Nondeductible Employee Contribution account, Matching Contribution account, and
Qualified Matching Contribution account (and, if applicable, the Participant’s Qualified
Nonelective Contribution account or Elective Deferral account, or both). For years beginning after
2005, the Plan Administrator, in a uniform and nondiscriminatory manner, will determine whether the
distribution of Elective Deferrals that are Excess Aggregate
Contributions for a year will be made first from the Participant’s Pre-Tax Elective Deferral
account or the Roth Elective Deferral
account, or a combination of both, to the extent both Pre-Tax Elective Deferrals and Roth Elective
Deferrals were made for the
year, or may allow Participants to specify otherwise.




5.15 RECHARACTERIZATION



Provided the Plan allows Participants to make Nondeductible Employee Contributions, the Plan
Administrator may, in a uniform and
nondiscriminatory manner, permit a Participant to elect to treat all or a portion of an Excess
Contribution allocated to them as an
amount distributed to the Participant and then contributed by the Participant to the Plan as a
Nondeductible Employee Contribution. Recharacterized amounts will remain nonforfeitable and subject to the same distribution
requirements as Elective Deferrals. Amounts may not be recharacterized by a Highly Compensated
Employee to the extent that such amount in combination with other
Nondeductible Employee Contributions made by that Employee would exceed any stated limit under the
Plan on Nondeductible
Employee Contributions.



Recharacterization must occur no later than 21/2 months after the last day of the Plan Year in which
such Excess Contributions arose
and is deemed to occur no earlier than the date the last Highly Compensated Employee is informed
(either in writing or in any other
form permitted under rules promulgated by the IRS and DOL) of the amount recharacterized and the
consequences thereof. Recharacterized amounts will be taxable to the Participant for the Participant’s tax year in which
the Participant would have received
them in cash.




5.16 LOANS TO PARTICIPANTS



If the Adoption Agreement so indicates, a Participant may receive a loan from the Fund, subject to
the following rules and the Plan’s
loan policy.



A. Loans shall be made available to all Participants on a reasonably equivalent basis.
Notwithstanding the foregoing, new loans shall not be available to Participants who cease to be
employed by the Employer, unless such Participants are parties-in-interest as
defined in ERISA Section 3(14). In addition, existing loans shall be considered due and payable at
such time as a Participant
ceases to be an Employee and the loan will be considered in default and the Participant’s
Individual Account will be reduced by
the outstanding amount of the loan unless otherwise specified in the loan policy statement or other
loan documentation.



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.



D. No Participant loan shall exceed the Present Value of the Vested portion of a Participant’s
Individual Account.







56









 







E. A Participant must obtain the consent of their Spouse, if any, to the use of the Individual
Account as security for the loan. Spousal
consent shall be obtained no earlier than the beginning of the 90 day period that ends on the date
on which the loan is to be so
secured. The consent must be in writing (or any other form permitted by the IRS and DOL), must
acknowledge the effect of the
loan, and must be witnessed by a notary public or plan representative. Such consent shall
thereafter be binding with respect to the
consenting Spouse or any subsequent Spouse with respect to that loan. A new consent shall be
required if the Individual Account
is used for renegotiation, extension, renewal, or other revision of the loan. Notwithstanding the
foregoing, no spousal consent is
necessary if, at the time the loan is secured, no consent would be required for a distribution
under Code Section 417(a)(2)(B). In
addition, spousal consent is not required if the Plan or the Participant is not subject to Code
Section 401(a)(11) at the time the
Individual Account is used as security, or if the total Individual Account subject to the security
is less than or equal to $5,000.



F. In the event of default, foreclosure on the note and attachment of security will not occur until
a distribution eligibility requirement
is met under the Plan.



G. For plan loans made before January 1, 2002, no loans will be made to any shareholder-employee or
Owner-Employee. For
purposes of this requirement, a shareholder-employee means an employee or officer of an electing
small business (Subchapter S)
corporation who owns (or is considered as owning within the meaning of Code Section 318(a)(1)), on
any day during the taxable
year of such corporation, more than five percent of the outstanding stock of the corporation.



H. Loan repayments will be suspended under the Plan as permitted under Code Section 414(u)(4)
(USERRA).



I. For years beginning after 2005, if the Participant’s Individual Account contains both Pre-Tax
Elective Deferrals and Roth Elective
Deferrals, the specific rules governing the loan program may also designate the extent to which
Pre-Tax Elective Deferrals, Roth
Elective Deferrals, or a combination of both will 1) be used to calculate the maximum amount
available for a loan, or 2) be
available as a source from which loan proceeds may be taken or which may be used as security for a
loan. To the extent permitted
by law and related regulations, the rules established by the Plan Sponsor may specify the ordering
rules to be applied in the event
of a defaulted loan.



If a valid spousal consent has been obtained in accordance with Plan Section 5.16(E), then,
notwithstanding any other provisions of this Plan, the portion of the Participant’s Vested
Individual Account used as a security interest held by the Plan by reason of a loan
outstanding to the Participant shall be taken into account for purposes of determining the amount
of the Individual Account payable at the time of death or distribution, but only if the reduction
is used as repayment of the loan. If less than 100 percent of the Participant’s Vested Individual
Account (determined without regard to the preceding sentence) is payable to the surviving Spouse,
then the Individual Account shall be adjusted by first reducing the Vested Individual Account by
the amount of the security used as repayment of the loan, and then determining the benefit payable
to the surviving Spouse.



To avoid taxation to the Participant, unless otherwise permitted by law or regulatory guidance, no
loan to any Participant or Beneficiary can be made to the extent that such loan, when added to the
outstanding balance of all other loans to the Participant, would exceed the lesser of 1) $50,000
reduced by the excess (if any) of the highest outstanding balance of loans during the one year
period ending on the day before the loan is made, over the outstanding balance of loans from the
Plan on the date the loan is made, or 2) 50 percent of the Present Value of the nonforfeitable
Individual Account of the Participant. For the purpose of the above limitation, all loans from all
plans of the Employer and other members of a group of employers described in Code Sections 414(b),
414(c), and 414(m) are aggregated. Furthermore, any loan shall by its terms require that repayment
(principal and interest) be amortized in level payments, not less frequently than quarterly, over a
period not extending beyond five years from the date of the loan, unless such loan is used to
acquire a dwelling unit which, within a reasonable time (determined at the time the loan is made),
will be used as the principal residence of the Participant. Notwithstanding the foregoing, a
Participant will suspend their loan repayments under this Plan as permitted under Code Section
414(u)(4). An assignment or pledge of any portion of the Participant’s interest in the Plan and a
loan, pledge, or assignment with respect to any insurance contract purchased under the Plan, will
be treated as a loan under this paragraph.



The Plan Administrator shall administer the loan program in accordance with specific rules that are
documented either in writing or in such other format as permitted by the IRS and the DOL. Such
rules shall include, at a minimum, the following: 1) the identity of the person or positions
authorized to administer the Participant loan program, 2) the procedure for applying for loans, 3)
the basis on which loans will be approved or denied, 4) limitations (if any) on the types and
amounts of loans offered, 5) the procedure under the program for determining a reasonable rate of
interest, 6) the types of collateral which may secure a Participant loan, and 7) the events
constituting default and the steps that will be taken to preserve Plan assets in the event of such
default.




SECTION SIX: DEFINITIONS



Unless modified in Section Six of the Adoption Agreement, words and phrases used in the Plan with
initial capital letters shall, for the purpose of this Plan, have the meanings set forth in the
portion of the Plan entitled “Definitions” unless the context indicates that other meanings are
intended.









57









 




SECTION SEVEN: MISCELLANEOUS




7.01 THE FUND





A. Establishment and Maintenance — By adopting this Plan, the Employer establishes the Fund, which
shall consist of the assets of the Plan received and held by the Trustee for which it serves as
Trustee (or Custodian, if applicable) pursuant to Section Eight. Assets within the Fund may be pooled on behalf of all Participants, earmarked on behalf of each
Participant or be a combination
of pooled and earmarked assets. To the extent that assets are earmarked for a particular
Participant, they will be held in a Separate
Fund for that Participant.



No part of the corpus or income of the Fund may be used for, or diverted to, purposes other than
for the exclusive benefit of
Participants or their Beneficiaries. The Fund will be valued each Valuation Date at fair market
value.



B. Division Of Fund Into Investment Funds — The Employer may direct the Trustee (or Custodian, if
applicable) to divide and
redivide the Fund into one or more Investment Funds. Such Investment Funds may include, but not be
limited to, Investment
Funds representing the assets under the control of an investment manager pursuant to Plan Section
7.22(C) and Investment Funds
representing investment options available for individual direction by Participants pursuant to Plan
Section 7.22(B). Upon each
division or redivision, the Employer may specify the part of the Fund to be allocated to each such
Investment Fund and the terms
and conditions, if any, under which the assets in such Investment Fund shall be invested.



7.02 INDIVIDUAL ACCOUNTS



A. Establishment and Maintenance — The Plan Administrator shall establish and maintain an
Individual Account in the name of
each Participant to reflect the total value of their interest in the Fund (including but not
limited to Employer Contributions and
earnings thereon). Each Individual Account established hereunder shall consist of such subaccounts
as may be needed for each
Participant, including:





1. a subaccount to reflect Employer Contributions and Forfeitures allocated on behalf of a
Participant;




2. a subaccount to reflect a Participant’s rollover contributions;




3. a subaccount to reflect a Participant’s transfer contributions;




4. a subaccount to reflect a Participant’s Nondeductible Employee Contributions;




5. a subaccount to reflect a Participant’s Pre-Tax Elective Deferrals; and




6. a subaccount to reflect a Participant’s Roth Elective Deferrals.


The Plan Administrator may establish additional accounts as it may deem necessary for the proper
administration of the Plan,
including, but not limited to, a suspense account for Forfeitures as required pursuant to Plan
Section 4.01(C) or (D).



If this Plan is funded by individual contracts that provide a Participant’s Benefit under the Plan,
such individual contracts shall
constitute the Participant’s Individual Account. If this Plan is funded by group contracts under
the group annuity or group
insurance contract, premiums or other consideration received by the insurance company must be
allocated to Participants’
Individual Accounts under the Plan.



B. Valuation Of Individual Accounts



1. Where all or a portion of the assets of a Participant’s Individual Account are invested in a
Separate Fund for the Participant,
then the value of that portion of such Participant’s Individual Account at any relevant time equals
the sum of the fair market
values of the assets in such Separate Fund, less any applicable charges or penalties.



2. The fair market value of the remainder of each Individual Account is determined in the following
manner:





a. Separate Fund — First, the portion of the Individual Account invested in each Investment
Fund as of the previous Valuation Date is determined. Each such portion is reduced by any
withdrawal made from the applicable Investment Fund to or for the benefit of a Participant or
the Participant’s Beneficiary, further reduced by any amounts forfeited by the Participant
pursuant to Plan Section 4.01(C) or (D), and further reduced by any transfer to another
Investment Fund since the previous Valuation Date, and is increased by any amount transferred
from another Investment Fund since the previous Valuation Date. The resulting amounts are the
net Individual Account portions invested in the Investment Funds.




b. No Separate Fund — Second, the net Individual Account portions invested in each Investment
Fund are adjusted upwards or downwards, pro rata (i.e., using the ratio of each net
Individual Account portion to the sum of all net Individual
Account portions) so that the sum of all the net Individual Account portions invested in an
Investment Fund will equal
the then fair market value of the Investment Fund. Notwithstanding the previous sentence, for
the first Plan Year only,
the net Individual Account portions shall be the sum of all contributions made to each
Participant’s Individual Account
during the first Plan Year.




c. Allocations — Third, any contributions to the Plan and Forfeitures are allocated in
accordance with the appropriate
allocation provisions of Section Three of the Plan. For purposes of this Section Seven of the
Plan, contributions made by
the Employer for any Plan Year but after that Plan Year will be considered to have been made
on the last day of that
Plan Year regardless of when paid to the Trustee (or Custodian, if applicable).
Amounts contributed between Valuation Dates will not be credited with investment gains or
losses until the next
following Valuation Date.




d. Aggregation of Portions — Finally, the portions of the Individual Account invested in each
Investment Fund (determined
in accordance with (a), (b) and (c) above) are added together.


C. Modification Of Method For Valuing Individual Accounts — If necessary or appropriate, the Plan
Administrator may establish
different or additional procedures (which shall be uniform and nondiscriminatory) for determining
the fair market value of the






58









 







Individual Accounts including, but not limited to, valuation on a daily basis pursuant to the
number of shares of each permissible
investment held on behalf of a Participant.




7.03 POWERS AND DUTIES OF THE PLAN ADMINISTRATOR



A. The Plan Administrator shall have the authority to control and manage the operation and
administration of the Plan. The Plan
Administrator shall administer the Plan for the exclusive benefit of the Participants and their
Beneficiaries in accordance with the
specific terms of the Plan.



B. The Plan Administrator may, by appointment, allocate the duties of the Plan Administrator among
several individuals or entities.
Such appointments shall not be effective until the party designated accepts such appointment in
writing.



C. The Plan Administrator shall be charged with the duties of the general administration of the
Plan, including, but not limited to, the
following:





1. To determine all questions of interpretation or policy in a manner consistent with the
Plan’s documents. The Plan
Administrator’s construction or determination in good faith shall be conclusive and binding
on all persons except as
otherwise provided herein or by law. Any interpretation or construction shall be done in a
nondiscriminatory manner and
shall be consistent with the intent that the Plan shall continue to be deemed a qualified
plan under the terms of Code Section 401(a), as amended from time to time, and shall comply
with the terms of ERISA, as amended from time to time;




2. To determine all questions relating to the eligibility of Employees to become or remain
Participants hereunder;




3. To compute the amounts necessary or desirable to be contributed to the Plan;




4. To compute the amount and kind of benefits to which a Participant or Beneficiary shall be
entitled under the Plan and to
direct the Trustee (or Custodian, if applicable) with respect to all disbursements under the
Plan, and, when requested by the Trustee (or Custodian, if applicable), to furnish the
Trustee (or Custodian, if applicable) with instructions, in writing, on
matters pertaining to the Plan and the Trustee (or Custodian, if applicable) may rely and act
thereon;




5. To maintain all records necessary for the administration of the Plan;




6. To prepare and file such disclosures and tax forms as may be required from time to time by
the Secretary of Labor or the
Secretary of the Treasury;




7. To furnish each Employee, Participant or Beneficiary such notices, information, and
reports under such circumstances as may be required by law;




8. To periodically review the performance of each Fiduciary and all other relevant parties to
ensure such individuals’
obligations under the Plan are performed in a manner that is acceptable under the Plan and
applicable law; and




9. To furnish a statement to each Participant or Beneficiary no later than 270 days after the
close of each Plan Year, indicating the Individual Account balances of such Participant as of
the last Valuation Date in such Plan Year.


D. The Plan Administrator shall have all of the powers necessary or appropriate to accomplish their
duties under the Plan, including,
but not limited to, the following:





1. To appoint and retain such persons as may be necessary to carry out the functions of the
Plan Administrator;




2. To appoint and retain counsel, specialists, or other persons as the Plan Administrator
deems necessary or advisable in the administration of the Plan;




3. To resolve all questions of administration of the Plan;




4. To establish such uniform and nondiscriminatory rules which it deems necessary to carry
out the terms of the Plan;




5. To make any adjustments in a uniform and nondiscriminatory manner which it deems necessary
to correct any arithmetical or accounting errors which may have been made for any Plan Year;




6. To correct any defect, supply any omission, or reconcile any inconsistency in such manner
and to such extent as shall be deemed necessary or advisable to carry out the purpose of the
Plan; and




7. If the Plan permits a form of distribution other than a lump sum, and a Participant elects
such form of distribution, the Plan Administrator may place that Participant’s Individual
Account into a segregated Investment Fund for the purpose of
maintaining the necessary liquidity to provide benefit installments on a periodic basis.



7.04 EXPENSES AND COMPENSATION



All reasonable expenses of administration, including, but not limited to, those involved in
retaining necessary professional assistance, may be paid from the assets of the Fund.
Alternatively, the Employer may, in its discretion, pay any or all such expenses. Pursuant to
uniform and nondiscriminatory rules that the Plan Administrator may establish from time to time,
administrative expenses and expenses unique to a particular Participant or group of Participants
may be charged to the Individual Account of such Participant or may be assessed against terminated
Participants even if not assessed against active Participants (subject to rules promulgated by the
IRS and the DOL), or the Plan Administrator may allow Participants to pay such fees outside of the
Plan. The Employer shall furnish the Plan Administrator with such clerical and other assistance as
the Plan Administrator may need in the performance of their duties.









59









 





7.05 INFORMATION FROM EMPLOYER




To enable the Plan Administrator to perform their duties, the Employer shall supply complete,
accurate, and timely information to the
Plan Administrator (or their designated agents) on all matters relating to the Compensation of all
Participants; their regular
employment; retirement, death, Disability, Severance from Employment or Termination of Employment;
and such other pertinent facts as the Plan Administrator (or their agents) may require. The Plan
Administrator shall advise the Trustee (or Custodian, if applicable) of such of the foregoing facts
as may be pertinent to the Trustee’s (or Custodian’s) duties under the Plan. The Plan Administrator
(or their agents) is entitled to rely on such information as is supplied by the Employer and shall
have no duty or responsibility to verify such information. Such information, including
authorizations and directions, may be exchanged among the Employer, the Plan Administrator, the
Trustee (or Custodian, if applicable), or their agents through electronic, telephonic, or other
means (including, for example, through the Internet) pursuant to applicable servicing arrangements
in effect for the Plan.




7.06 PLAN AMENDMENTS




A. Right Of Prototype Sponsor To Amend The Plan Or Terminate Sponsorship



1. The Employer, by adopting the Plan, expressly delegates to the Prototype Sponsor the power, but
not the duty, to amend the
Plan without any further action or consent of the Employer as the Prototype Sponsor deems either
necessary for the purpose
of adjusting the Plan to comply with all laws and regulations governing pension or profit sharing
plans or desirable to the
extent consistent with such laws and regulations. Specifically, it is understood that the
amendments may be made unilaterally
by the Prototype Sponsor. However, it shall be understood that the Prototype Sponsor shall be under
no obligation to amend
the Plan documents, and the Employer expressly waives any rights or claims against the Prototype
Sponsor for not exercising
this power to amend. For purposes of Prototype Sponsor amendments, the mass submitter shall
generally be recognized as the
agent of the Prototype Sponsor. If the Prototype Sponsor does not adopt IRS model amendments
adopted by the mass
submitter, the Plan will no longer be identical to or a minor modifier of the mass submitter plan
and will be considered an
individually designed plan. Notwithstanding the foregoing, the adoption of good faith IRS
amendments must be
accomplished pursuant to the rules for each such amendment as prescribed by the IRS.



2. An amendment by the Prototype Sponsor shall be accomplished by giving notice (either in writing
or in any other form
permitted under rules promulgated by the IRS and DOL) to the Adopting Employer of the amendment to
be made. The notice
shall set forth the text of such amendment and the date such amendment is to be effective. Such
amendment shall take effect
unless within the 30 day period after such notice is provided, or within such shorter period as the
notice may specify, the
Adopting Employer gives the Prototype Sponsor written notice of refusal to consent to the
amendment. Such written notice
of refusal shall have the effect of withdrawing the Plan as a prototype plan and shall cause the
Plan to be considered an
individually designed plan.



3. In addition to the amendment rights described above, the Prototype Sponsor shall have the right
to terminate its sponsorship
of this Plan by providing notice (either in writing or in any other form permitted under rules
promulgated by the IRS and
DOL) to the Adopting Employer of such termination. Such termination of sponsorship shall have the
effect of withdrawing
the Plan as a prototype plan and shall cause the Plan to be considered an individually designed
plan. The Prototype Sponsor
shall have the right to terminate its sponsorship of this Plan regardless of whether the Prototype
Sponsor has terminated
sponsorship with respect to other employers adopting its prototype Plan.



B. Right Of Adopting Employer To Amend The Plan — The Adopting Employer may amend the Plan to





1. change options previously selected in the Adoption Agreement;




2. add overriding language in the Adoption Agreement when such language is necessary to
satisfy Code Section 415 or Code Section 416 because of the required aggregation of multiple
plans;




3. amend administrative provisions of the trust or custodial document in the case of a
nonstandardized plan and make more limited amendments in the case of a standardized plan,
such as the name of the Plan, Employer, Trustee or Custodian, Plan Administrator and other
Fiduciaries, the trust year, and the name of pooled trust in which the Plan’s trust will
participate;




4. add certain sample and model amendments published by the IRS or other required good faith
amendments which specifically provide that their adoption will not cause the Plan to be
treated as individually designed; and




5. add or change provisions permitted under the Plan or specify or change the Effective Date
of a provision as permitted under the Plan and correct obvious and unambiguous typographical
errors or cross-references that merely correct a reference but that do not in any way change
the original intended meaning of the provisions.


An Adopting Employer that amends the Plan for any other reason, including a waiver of the minimum
funding requirement under
Code Section 412(d), will no longer participate in this prototype plan and will be considered to
have an individually designed plan.



An Adopting Employer who wishes to amend the Plan shall document the amendment in writing, executed
by a duly authorized
officer of the Adopting Employer. If the amendment is in the form of a restated Adoption Agreement,
the amendment shall
become effective on the date provided in the Adoption Agreement. Any other amendment shall become
effective as described
therein upon execution by the Adopting Employer and, if appropriate, the Trustee (or Custodian, if
applicable). A copy of a
restated Adoption Agreement or other amendment must be provided to the Prototype Sponsor and the
Trustee (or Custodian, if
applicable) before the effective date of the amendment.



The Adopting Employer further reserves the right to replace the Plan in its entirety by adopting
another retirement plan which the
Adopting Employer designates as a replacement plan.






60









 







C. Limitation On Power To Amend — No amendment to the Plan shall be effective to the extent that it
has the effect of decreasing a Participant’s accrued benefit. Notwithstanding the preceding
sentence, a Participant’s Individual Account may be reduced to the
extent permitted under Code Section 412(c)(8). For purposes of this paragraph, a Plan amendment
which has the effect of decreasing a Participant’s Individual Account with respect to benefits
attributable to service before the amendment shall be treated as reducing an accrued benefit. For
purposes of this paragraph, a Participant shall not accrue a right to an allocation of an Employer
Profit Sharing Contribution, Employer Money Purchase Pension Contribution or Target Benefit
Contribution for the current Plan Year until the last day of such Plan Year and after the
application of all amendments required or permitted by the IRS.



No amendment to the Plan shall be effective to eliminate or restrict an optional form of benefit.
The preceding sentence shall not
apply to a Plan amendment that eliminates or restricts the ability of a Participant to receive
payment of their Individual Account
under a particular optional form of benefit if the amendment provides a single-sum distribution
form. Where this Plan document is
being adopted to amend another plan that contains a protected benefit not provided for in this
document, the Employer must
complete Attachment A, “Protected Benefit and Prior Plan Provisions,” describing such protected
benefit which shall become part
of the Plan.



D. Amendment Of Vesting Schedule — If the vesting schedule of the Plan is amended, in the case of
an Employee who is a
Participant as of the later of the date such amendment is adopted or the date it becomes effective,
the Vested percentage
(determined as of such date) of such Employee’s Individual Account derived from Employer
Contributions will not be less than
the percentage computed under the Plan as of that date without regard to such amendment.
Furthermore, if the Plan’s vesting
schedule is amended, or the Plan is amended in any way that directly or indirectly affects the
computation of the Participant’s
Vested percentage, or if the Plan is deemed amended by an automatic change to or from a top-heavy
vesting schedule, each
Participant with at least three Years of Vesting Service with the Employer may elect, within the
time set forth below, to have the
Vested percentage computed under the Plan without regard to such amendment.

The period during which the election may be made shall commence with the date the amendment is
adopted or deemed to be made
and shall end the later of





1. 60 days after the amendment is adopted;




2. 60 days after the amendment becomes effective; or




3. 60 days after the Participant is issued a notice (either in writing or in any other form
permitted under rules promulgated by the IRS and DOL) of the amendment by the Employer or
Plan Administrator.



7.07 PLAN MERGER OR CONSOLIDATION



In the case of any merger or consolidation of the Plan with, or transfer of assets or liabilities
of such Plan to, any other plan, each
Participant shall be entitled to receive benefits immediately after the merger, consolidation, or
transfer (if the Plan had then terminated) which are equal to or greater than the benefits they
would have been entitled to receive immediately before the merger, consolidation, or transfer (if
the Plan had then terminated). The Trustee (or Custodian, if applicable) has the authority to enter
into merger agreements or agreements to directly transfer the assets of this Plan, but only if such
agreements are made with trustees or custodians of other retirement plans described in Code Section
401(a) or such other plans permitted by laws or regulations.




7.08 PERMANENCY



The Employer expects to continue this Plan and make the necessary contributions thereto
indefinitely, but such continuance and
payment is not assumed as a contractual obligation. Neither the Adoption Agreement nor the Plan nor
any amendment or modification thereof nor the making of contributions hereunder shall be construed
as giving any Participant or any other person any legal or equitable right against the Employer,
the Trustee (or Custodian, if applicable), the Plan Administrator, or the Prototype Sponsor except
as specifically provided herein, or as provided by law.




7.09 METHOD AND PROCEDURE FOR TERMINATION



The Plan may be terminated by the Adopting Employer at any time by appropriate action of its
managing body. Such termination shall be effective on the date specified by the Adopting Employer.
The Plan shall terminate, if required by either the IRS or the DOL, if the Adopting Employer is
dissolved or terminated. Written notice of the termination and effective date thereof shall be
given to the Trustee (or Custodian, if applicable), Plan Administrator, Prototype Sponsor, and the
Participants and Beneficiaries of deceased Participants. The required filings (such as the Form 5500 series and others) must be made by the Adopting
Employer with the IRS and any other
regulatory body as required by current laws and regulations. Until all of the assets have been
distributed from the Fund, the Adopting
Employer must keep the Plan in compliance with current laws and regulations by making appropriate
amendments to the Plan and by taking such other measures as may be required. If the Plan is
abandoned by the Adopting Employer, however, a qualified termination administrator (QTA) (or other
entity permitted by the IRS or DOL) may terminate the Plan according to rules promulgated by the
IRS and DOL.








61









 





7.10 CONTINUANCE OF PLAN BY SUCCESSOR EMPLOYER





Notwithstanding the preceding Plan Section 7.09, a successor of the Adopting Employer may continue
the Plan and be substituted in the place of the present Adopting Employer. The successor and the
present Adopting Employer (or, if deceased, the executor of the estate of a deceased Self-Employed
Individual who was the Adopting Employer) must execute a written instrument authorizing such
substitution, and the successor shall amend the Plan in accordance with Plan Section 7.06.




7.11 FAILURE OF PLAN QUALIFICATION



If the Plan fails to retain its qualified status, the Plan will no longer be considered to be part
of a prototype plan, and such Employer can no longer participate under this prototype. In such
event, the Plan will be considered an individually designed plan.




7.12 GOVERNING LAWS AND PROVISIONS



To the extent such laws are not preempted by federal law, the terms and conditions of this Plan
shall be governed by the laws of the
state in which the Prototype Sponsor is located, unless otherwise agreed to in writing by the
Prototype Sponsor and the Employer.



In the event of any conflict between the provisions of this Basic Plan Document and provisions of
the Adoption Agreement, the
summary plan description, or any related documents, the Basic Plan Document will control.




7.13 STATE COMMUNITY PROPERTY LAWS



The terms and conditions of this Plan shall be applicable without regard to the community property
laws of any state.




7.14 HEADINGS



The headings of the Plan have been inserted for convenience of reference only and are to be ignored
in any construction of the
provisions hereof.




7.15 GENDER AND NUMBER



Whenever any words are used herein in the masculine gender they shall be construed as though they
were also used in the feminine gender in all cases where they would so apply, and whenever any
words are used herein in the singular form they shall be construed as though they were also used in
the plural form in all cases where they would so apply.




7.16 STANDARD OF FIDUCIARY CONDUCT



The Employer, Plan Administrator, Trustee, and any other Fiduciary under this Plan shall discharge
their duties with respect to this
Plan solely in the interests of Participants and their Beneficiaries, and with the care, skill,
prudence, and diligence under the
circumstances then prevailing that a prudent person acting in like capacity and familiar with such
matters would use in the conduct of an enterprise of a like character and with like aims. No
Fiduciary shall cause the Plan to engage in any transaction known as a “nonexempt prohibited
transaction” under either the Code or ERISA.




7.17 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 and any of its provisions.



7.18 AGREEMENT BINDS HEIRS, ETC.



This Plan shall be binding upon the heirs, executors, administrators, successors, and assigns, as
those terms shall apply to any and all parties hereto, present and future.




7.19 DETERMINATION OF TOP-HEAVY STATUS



A. In General — Except as provided in Plan Section 7.19(B), this Plan is a Top-Heavy Plan if any of
the following conditions exist:





1. If the top-heavy ratio for this Plan exceeds 60 percent and this Plan is not part of any
Required Aggregation Group or
Permissive Aggregation Group of plans;




2. If this Plan is part of a Required Aggregation Group of plans but not part of a Permissive
Aggregation Group and the top-heavy ratio for the group of plans exceeds 60 percent; or




3. If this Plan is a part of a Required Aggregation Group and part of a Permissive
Aggregation Group of plans and the top-heavy ratio for the Permissive Aggregation Group
exceeds 60 percent.



B. Top-Heavy Ratio



1. If the Employer maintains one or more defined contribution plans (including any simplified
employee pension plan) and the
Employer has not maintained any defined benefit plan which during the five-year period ending on
the Determination Date(s)
has or has had accrued benefits, the top-heavy ratio for this Plan alone or for the Required or
Permissive Aggregation Group






62









 







as appropriate is a fraction, the numerator of which is the sum of the account balances of all Key
Employees as of the
Determination Date(s) (including any part of any account balance distributed in the one-year period
ending on the
Determination Date(s) (five-year period ending on the Determination Date in the case of a
distribution made for a reason
other than Severance from Employment, death, or Disability and in determining whether the Plan is
top-heavy for Plan Years
beginning before January 1, 2002)) and the denominator of which is the sum of all account balances
(including any part of
any account balance distributed in the one-year period ending on the Determination Date(s),
(five-year period ending on the
Determination Date in the case of a distribution made for a reason other than Severance from
Employment, death, or
Disability and in determining whether the Plan is top-heavy for Plan Years beginning before January
1, 2002)) both
computed in accordance with Code Section 416 and the regulations thereunder. Both the numerator and
the denominator of
the top-heavy ratio are increased to reflect any contribution not actually made as of the
Determination Date, but which is
required to be taken into account on that date under Code Section 416 and the regulations
thereunder.



2. If the Employer maintains one or more defined contribution plans (including any simplified
employee pension plan) and the
Employer maintains or has maintained one or more defined benefit plans which during the five-year
period ending on the
Determination Date(s) has or has had any accrued benefits, the top-heavy ratio for any Required or
Permissive Aggregation
Group, as appropriate, is a fraction, the numerator of which is the sum of account balances under
the aggregated defined
contribution plan or plans for all Key Employees, determined in accordance with 1) above, and the
Present Value of accrued
benefits under the aggregated defined benefit plan or plans for all Key Employees as of the
Determination Date(s), and the
denominator of which is the sum of the account balances under the aggregated defined contribution
plan or plans for all
Participants, determined in accordance with 1) above, and the Present Value of accrued benefits
under the defined benefit
plan or plans for all Participants as of the Determination Date(s), all determined in accordance
with Code Section 416 and the
regulations thereunder. The accrued benefits under a defined benefit plan in both the numerator and
denominator of the topheavy
ratio are increased for any distribution of an accrued benefit made in the one-year period ending
on the Determination
Date (five-year period ending on the Determination Date in the case of a distribution made for a
reason other than Severance
from Employment, death, or Disability and in determining whether the Plan is top-heavy for Plan
Years beginning before
January 1, 2002).



3. For purposes of (1) and (2) above, the value of account balances and the Present Value of
accrued benefits will be determined
as of the most recent Valuation Date that falls within or ends with the 12-month period ending on
the Determination Date,
except as provided in Code Section 416 and the regulations thereunder for the first and second plan
years of a defined benefit
plan. The account balances and accrued benefits of a Participant 1) who is not a Key Employee but
who was a Key Employee
in a prior year, or 2) who has not been credited with at least one Hour of Service with any
employer maintaining the plan at
any time during the one-year period (five-year period ending on the Determination Date in the case
of a distribution made for
a reason other than Severance from Employment, death, or Disability and in determining whether the
Plan is top-heavy for
Plan Years beginning before January 1, 2002) ending on the Determination Date will be disregarded.
The calculation of the
top-heavy ratio, and the extent to which distributions, rollovers, and transfers are taken into
account will be made in
accordance with Code Section 416 and the regulations thereunder. Deductible employee contributions
will not be taken into
account for purposes of computing the top-heavy ratio. When aggregating plans the value of account
balances and accrued
benefits will be calculated with reference to the Determination Dates that fall within the same
calendar year.



The accrued benefit of a Participant other than a Key Employee shall be determined under 1) the
method, if any, that
uniformly applies for accrual purposes under all defined benefit plans maintained by the Employer,
or 2) if there is no such
method, as if such benefit accrued not more rapidly than the slowest accrual rate permitted under
the fractional rule of Code
Section 411(b)(1)(C).



C. SIMPLE 401(k) Plan Exception — Notwithstanding Plan Section 7.19(A) above, the Plan is not
treated as a Top-Heavy Plan
under Code Section 416 for any Year for which an Eligible Employer maintains this Plan as a SIMPLE
401(k) Plan.



D. Safe Harbor 401(k) Plan Exception — Notwithstanding Plan Section 7.19(A) above, the Plan is not
treated as a Top-Heavy Plan
under Code Section 416 for any Year for which an Eligible Employer makes only those contributions
described in Code Sections
401(k)(12) and 401(m)(11) for any Plan Year. If any other contributions are made for a Plan Year
(e.g., Employer Profit Sharing
Contributions, forfeitures, etc.), the Top-Heavy rules describe in Code Section 416(g)(4)(H) will
apply for that Plan Year.




7.20 INALIENABILITY OF BENEFITS



No benefit or interest available under the Plan will be subject to assignment or alienation, either
voluntarily or involuntarily. The
preceding sentence shall not apply to judgments and settlements described in Code Section
401(a)(13)(C) and ERISA Section 206(d)(4). Such sentence shall, however, apply to the creation, assignment, or recognition of a
right to any benefit payable with respect to a Participant pursuant to a Domestic Relations Order,
unless such order is determined to be a Qualified Domestic Relations Order as defined in the
Definitions Section of the Plan.



Generally, a Domestic Relations Order cannot be a Qualified Domestic Relations Order until January
1, 1985. However, in the case of a Domestic Relations Order entered before January 1, 1985, the
Plan Administrator:





1) shall treat such order as a Qualified Domestic Relations Order if the Plan Administrator
is paying benefits pursuant to such order on January 1, 1985, and



63









 






2) may treat any other such order entered before January 1, 1985, as a Qualified Domestic
Relations Order even if such order does not meet the requirements of Code Section 414(p).


Notwithstanding any provision of the Plan to the contrary, a distribution to an Alternate Payee
under a Qualified Domestic Relations
Order shall be permitted even if the Participant affected by such order is not otherwise entitled
to a distribution, and even if such
Participant has not attained the earliest retirement age as defined in Code Section 414(p).




7.21 BONDING



Every Fiduciary and every person who handles funds or other property of the Plan shall be bonded to
the extent required by ERISA Section 412 and the regulations thereunder for purposes of protecting
the Plan against loss by reason of acts of fraud or dishonesty on the part of the person, group, or
class, alone or in connivance with others, to be covered by such bond. The amount of the bond shall
be fixed at the beginning of each Plan Year and shall not be less than 10 percent of the amount of
funds handled. The amount of funds handled shall be determined by the funds handled the previous
Plan Year or, if none, the amount of funds estimated, in accordance with rules provided by the
Secretary of Labor, to be handled during the current Plan Year. Notwithstanding the foregoing, no
bond shall be less than $1,000 nor more than $500,000, except that the Secretary of Labor shall
have the right to prescribe an amount in excess of $500,000.




7.22 INVESTMENT AUTHORITY



A. Plan Investments — Except as provided in Plan Section 7.22(B) (relating to individual direction
of investments by Participants),
the Adopting Employer, not the Trustee (or Custodian, if applicable), shall have exclusive
management and control over the
investment of the Fund into any permitted investment. The Adopting Employer shall be responsible
for establishing a funding
policy statement on behalf of the Plan and shall provide a copy of such funding policy statement to
the Discretionary Trustee, if
any. Notwithstanding the foregoing, if the Trustee is designated as a Discretionary Trustee in the
Adoption Agreement, such
Discretionary Trustee may enter into an agreement with the Adopting Employer whereby the
Discretionary Trustee will manage
the investment of all or a portion of the Fund. Any such agreement shall be in writing and set
forth such matters as the
Discretionary Trustee deems necessary or desirable.



B. Direction Of Investments By Participants — Unless otherwise indicated in the Adoption Agreement,
each Participant shall have
the responsibility for directing the Trustee (or Custodian, if provided for under a separate
agreement between the Adopting
Employer and the Custodian), regarding the investment of all or part of their Individual Account.
If all of the requirements of
ERISA Section 404(c)(1) are satisfied, then to the extent so directed, the Adopting Employer, Plan
Administrator, Trustee, the
Custodian (if applicable), and all other Fiduciaries are relieved of Fiduciary liability under
ERISA Section 404, provided that it
shall be the Adopting Employer’s responsibility to direct the Trustee (or Custodian, if applicable)
as to permissible investments
into which Participants may direct their individual investments.



The Plan Administrator shall direct that a Separate Fund be established in the name of each
Participant who directs the investment
of part or all of their Individual Account. Each Separate Fund shall be charged or credited (as
appropriate) with the earnings,
gains, losses, or expenses attributable to such Separate Fund. No Fiduciary shall be liable for any
loss that results from a
Participant’s individual direction. The assets subject to individual direction shall not be
invested in collectibles as that term is
defined in Code Section 408(m).



The Plan Administrator shall establish such uniform and nondiscriminatory rules relating to
individual direction as it deems
necessary or advisable including, but not limited to, rules describing 1) which portions of
Participants’ Individual Accounts can be
individually directed, 2) the frequency of investment changes, 3) the forms and procedures for
making investment changes, and 4)
the effect of a Participant’s failure to make a valid direction.



The Plan Administrator may, in a uniform and nondiscriminatory manner, limit the available
investments for Participants’
individual direction to certain specified investment options (including, but not limited to,
certain mutual funds, investment
contracts, deposit accounts, and group trusts). The Plan Administrator may permit, in a uniform and
nondiscriminatory manner, a
Beneficiary of a deceased Participant or the Alternate Payee under a Qualified Domestic Relations
Order to individually direct
investments in accordance with this Plan Section 7.22(B).

Notwithstanding any provision hereof to the contrary, if the Adoption Agreement permits
Participants to direct investments and
also names a Directed Trustee, such Participants shall furnish investment instruction to the Plan
Administrator under procedures
adopted by the Adopting Employer and/or the Plan Administrator consistent with the Plan, and it
shall be the responsibility of the
Plan Administrator to provide direction to the Directed Trustee regarding the investment of such
amounts. If a Participant who has
the right to direct investments under the terms of the Plan fails to provide such direction to the
Plan Administrator, the Plan
Administrator shall direct the investment of such Participant’s Individual Accounts. The Plan
Administrator shall maintain records
showing the interest of each Participant and/or Beneficiary in the Fund unless the Directed Trustee
enters into a written agreement
with the Adopting Employer to keep separate accounts for each such Participant or Beneficiary.




C. Investment Managers





1. Definition of Investment Manager — The Adopting Employer may appoint one or more
investment managers to make
investment decisions with respect to all or a portion of the Fund. The investment manager
shall be any firm or individual



64









 







registered as an investment adviser under the Investment Advisers Act of 1940, a bank as
defined in said Act, or an insurance company qualified under the laws of more than one state
to perform services consisting of the management, acquisition, or disposition of any assets
of the Plan.




2. Investment Manager’s Authority — A separate Investment Fund shall be established
representing the assets of the Fund
invested at the direction of the investment manager. The investment manager so appointed
shall direct the Trustee (or
Custodian, if applicable) with respect to the investment of such Investment Fund. The
investments which may be acquired at the direction of the investment manager are those
described in Plan Section 7.22(D).




3. Written Agreement — The appointment of any investment manager shall be by written
agreement between the Adopting Employer and the investment manager and a copy of such
agreement (and any modification or termination thereof) must be given to the Trustee (or
Custodian, if applicable). The agreement shall set forth, among other matters, the effective
date of the investment manager’s appointment and an acknowledgment by the investment manager
that it is a Fiduciary of the Plan under ERISA.




4. Concerning the Trustee (or Custodian, if applicable) — Written notice of each appointment
of an investment manager shall be given to the Trustee (or Custodian, if applicable) at least
60 days in advance of the effective date of such appointment. Such notice shall specify which
portion of the Fund will constitute the Investment Fund subject to the investment manager’s
direction. If the separate Investment Fund subject to the direction of the Investment Manager
is a permissible investment option to the Trustee (or Custodian, as applicable) pursuant to
Plan Section 7.22(D), the Trustee (or Custodian, if applicable) shall comply with the
investment direction given to it by the investment manager and will not be liable for any
loss which may result by reason of any action (or inaction) it takes at the direction of the
investment manager.


D. Permissible Investments — The Trustee (or Custodian, if applicable) may invest the assets of the
Plan in property of any character, real or personal, including, but not limited to, the following:
stocks, including Qualifying Employer Securities, and including shares of open-end investment
companies (mutual funds); bonds; notes; debentures; proprietary mutual funds; deposit accounts;
options; limited partnership interests; mortgages; real estate or any interests therein; unit
investment trusts; Treasury Bills, and other U.S. Government obligations; common trust funds,
combined investment trusts, collective trust funds or commingled funds maintained by a bank or
similar financial organization (whether or not the Trustee hereunder); savings accounts,
certificates of deposit, demand or time deposits or money market accounts of a bank or similar
financial organization (whether or not the Trustee hereunder); annuity contracts that are
“guaranteed benefit policies,” as defined in ERISA Section 401(b)(2)(B); unless excluded in the
Adoption Agreement, life insurance policies; or in such other investments as is deemed proper
without regard to investments authorized by statute or rule of law governing the investment of
trust funds but with regard to ERISA and this Plan. Notwithstanding the preceding sentence, the
Prototype Sponsor may, as a condition of making the Plan available to the Adopting Employer, limit
the types of property in which the assets of the Plan may be invested. The list of permissible
investment options shall be further limited in accordance with any applicable law, regulations, or
other restrictions applicable to the Trustee or Custodian, including, but not limited to, internal
operational procedures adopted by such Trustee (or Custodian, if applicable). The actions of a
Discretionary Trustee named in the Adoption Agreement shall also be subject to the funding policy
statement provided by the Adopting Employer. If any Trustee (or Custodian, if applicable) invests
all or any portion of the Fund pursuant to written instructions provided by the Adopting Employer
(including an investment manager appointed by the Adopting Employer pursuant to Plan Section
7.22(C)) or any

Participant pursuant to Plan Section 7.22(B), the Trustee (or Custodian, if applicable) will be
deemed to have invested pursuant to the Adopting Employer’s funding policy statement.



To the extent the assets of the Plan are invested in a group trust, including a collective trust
fund or commingled funds maintained
by a bank or similar financial organization, the declaration of trust of such composite trust shall
be deemed to be a part of the Plan,
and any investment in such composite trust shall be subject to all of the provisions of such
declaration of trust, as the same may be
amended or supplemented from time to time.



If the responsibility for directing investments for Elective Deferrals (and earnings) is executed
by someone other than the
Participants, the acquisition of Qualifying Employer Securities will be limited to ten percent of
the fair market value of the assets
of the Plan, to the extent required by ERISA Section 407(b)(2).




E. Matters Relating To Insurance





1. If elected by the Plan Sponsor in the Adoption Agreement, a life insurance contract may be
purchased on behalf of a
Participant. No life insurance contract may be purchased unless the insured under the
contract is the Participant or, where this Plan is a profit sharing or 401(k) plan, the
Participant’s Spouse or another individual in whom the Participant has an insurable interest.
If a life insurance contract is to be purchased for a Participant, the aggregate premium for
certain life insurance for each Participant must be less than a certain percentage of the
aggregate Employer Contributions and Forfeitures allocated to a Participant’s Individual
Account at any particular time as follows.




a. Ordinary Life Insurance — For purposes of these incidental insurance provisions,
ordinary life insurance contracts are contracts with both nondecreasing death benefits
and nonincreasing premiums. If such contracts are purchased, less than 50 percent of
the aggregate Employer Contributions and Forfeitures allocated to any Participant’s
Individual Account will be used to pay the premiums attributable to them.




b. Term and Universal Life Insurance — No more than 25 percent of the aggregate
Employer Contributions and Forfeitures allocated to any Participant’s Individual
Account will be used to pay the premiums on term life insurance contracts, universal
life insurance contracts, and all other life insurance contracts which are not
ordinary life.



65









 






c. Combination — The sum of 50 percent of the ordinary life insurance premiums and all
other life insurance premiums will not exceed 25 percent of the aggregate Employer
Contributions and Forfeitures allocated to any Participant’s Individual Account.




If this Plan is a profit sharing plan, the above incidental benefits limits do not apply to
life insurance contracts purchased by
an Employee who has been a Participant in the Plan for five or more years or purchased with
Employer Contributions and
Forfeitures that have been in the Participant’s Individual Account for at least two full Plan
Years, measured from the date
such contributions were allocated. For purposes of this Plan Section 7.22(E)(1), rollover and
transfer contributions shall be
considered Employer Contributions, and therefore may be used to pay contract premiums. No
part of the Deductible
Employee Contribution account will be used to purchase life insurance.




2. Any dividends or credits earned on insurance contracts for a Participant shall be
allocated to such Participant’s Individual
Account derived from Employer Contributions for whose benefit the contract is held.




3. Subject to Plan Section 5.10, the contracts on a Participant’s life will be converted to
cash or an annuity or distributed to the Participant upon separation from service with the
Employer. In addition, contracts on the joint lives of a Participant and another person may
not be maintained under this Plan if such Participant ceases to have an insurable interest in
such other person.




4. Subject to Plan Section 7.22(D), the Trustee (or Custodian, if applicable) shall apply for
and will be the owner of any insurance contract(s) purchased under the terms of this Plan.
The insurance contract(s) must provide that proceeds will be payable to the trust fund.
However, the Trustee (or Custodian, if applicable) shall be required to pay over all proceeds
of the contract(s) to the Participant’s Designated Beneficiary in accordance with the
distribution provisions of this Plan. A Participant’s Spouse will be the designated
beneficiary of the proceeds in all circumstances unless a Qualified Election has been made in
accordance with Plan Section 5.10. Under no circumstances shall the Fund retain any part of
the proceeds. In the event of any conflict between the terms of this Plan and the terms of
any insurance contract purchased hereunder, the Plan provisions shall control.




5. Subject to Plan Section 7.22(D), the Plan Administrator may direct the Trustee (or
Custodian, if applicable) to sell and
distribute insurance or annuity contracts to a Participant (or other party as may be
permitted) in accordance with applicable
law or regulations.




6. Notwithstanding any other provision herein, and except as may be otherwise provided by
ERISA, the Employer shall
indemnify and hold harmless the insurer, its officers, directors, employees, agents, heirs,
executors, successors, and assigns, from and against any and all liabilities, damages,
judgments, settlements, losses, costs, charges, or expenses (including legal expenses) at any
time arising out of or incurred in connection with any action taken by such parties in the
performance of their duties with respect to this Plan, unless there has been a final
adjudication of gross negligence or willful misconduct in the performance of such duties.




Further, except as may be otherwise provided by ERISA, the Employer will indemnify the
insurer from any liability, claim,
or expense (including legal expense) that the insurer incurs by reason of, or which results
in whole or in part from the
reliance of the insurer on the facts and other directions and elections the Employer
communicates or fails to communicate.



7.23 PROCEDURES AND OTHER MATTERS REGARDING DOMESTIC RELATIONS ORDERS



A. To the extent provided in any Qualified Domestic Relations Order, the former Spouse of a
Participant shall be treated as a
surviving Spouse of such Participant for purposes of any benefit payable in the form of either a
Qualified Joint and Survivor
Annuity or Qualified Preretirement Survivor Annuity.



B. The Plan shall not be treated as failing to meet the requirements of the Code, which generally
prohibits payment of benefits before the Participant’s Termination of Employment or Severance from
Employment, as applicable, with the Employer, solely by reason of payments to an Alternate Payee
pursuant to a Qualified Domestic Relations Order.



C. In the case of any Domestic Relations Order received by the Plan,





1. the Plan Administrator shall promptly notify the Participant and any other Alternate Payee
of the receipt of such order and the Plan’s procedure for determining the qualified status of
Domestic Relations Orders, and




2. within a reasonable period after receipt of such order, the Plan Administrator shall
determine whether such order is a
Qualified Domestic Relations Order and notify the Participant and each Alternate Payee of
such determination.


The Plan Administrator shall establish reasonable procedures to determine the qualified status of
Domestic Relations Orders and
to administer distributions under such qualified orders.



D. During any period in which the issue of whether a Domestic Relations Order is a Qualified
Domestic Relations Order is being
determined by the Plan Administrator, by a court of competent jurisdiction, or otherwise, the Plan
Administrator shall segregate in
a separate account in the Plan or in an escrow account the amounts which would have been payable to
the Alternate Payee during
such period if the order had been determined to be a Qualified Domestic Relations Order. If within
18 months the order or
modification thereof is determined to be a Qualified Domestic Relations Order, the Plan
Administrator shall pay the segregated
amounts (plus any interest thereon) to the person or persons entitled thereto. If within 18 months
either 1) it is determined that the
order is not a Qualified Domestic Relations Order, or 2) the issue as to whether such order is a
Qualified Domestic Relations
Order is not resolved, then the Plan Administrator shall pay the segregated amounts (plus any
interest thereon) to the person or
persons who would have been entitled to such amounts if there had been no order. Any determination
that an order is a Qualified





66









 







Domestic Relations Order which is made after the close of the 18-month period shall be applied
prospectively only.




7.24 INDEMNIFICATION OF PROTOTYPE SPONSOR



Notwithstanding any other provision herein, and except as may be otherwise provided by ERISA, the
Employer shall indemnify and
hold harmless the Prototype Sponsor, its officers, directors, employees, agents, heirs, executors,
successors, and assigns, from and
against any and all liabilities, damages, judgments, settlements, losses, costs, charges, or
expenses (including legal expenses) at any time arising out of or incurred in connection with any
action taken by such parties in the performance of their duties with respect to this Plan, unless
there has been a final adjudication of gross negligence or willful misconduct in the performance of
such duties. Further, except as may be otherwise provided by ERISA, the Employer will indemnify the
Prototype Sponsor from any liability, claim, or expense (including legal expense) that the
Prototype Sponsor incurs by reason of, or which results in whole or in part from, the reliance of
the Prototype Sponsor on the facts and other directions and elections the Employer, Plan
Administrator, or Investment Fiduciary communicates or fails to communicate.




7.25 MILITARY SERVICE



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




SECTION EIGHT: TRUSTEE AND CUSTODIAN




8.01 FINANCIAL ORGANIZATION AS CUSTODIAN



This Section 8.01 applies where the Adopting Employer, by execution of the Adoption Agreement,
appoints the entity named therein as Custodian for the Plan, and the entity accepts such
appointment, all subject to the terms of the Basic Plan Document. The Adopting Employer represents
and warrants to the entity that it has all requisite right, power, and authority and has taken all
required actions necessary under the Plan and applicable law to designate the financial
organization as Custodian of the Plan pursuant to the terms of the Basic Plan Document. The
Employer, Plan Administrator, any Trustee, any other Investment Fiduciary, and the Custodian so
appointed shall be bound by all the terms of this Basic Plan Document and Adoption Agreement.
Notwithstanding any provision hereof regarding the responsibilities of or granting powers to the
Custodian, the Custodian shall serve as a non-discretionary, directed Custodian of the Fund, shall
have no discretionary authority with respect to the management or administration of the Plan or the
Fund, and will act only as directed by the entity or individual who has such authority.



A. Responsibilities of the Custodian — The Custodian’s responsibilities may be further limited by
the Plan Trustee(s) and,
notwithstanding any provision hereof to the contrary, may also be further limited by the terms of a
separate agreement between the
Custodian and the Adopting Employer. Subject to the previous sentence, the responsibilities of the
Custodian shall be limited to
the following:





1. To receive Plan contributions and to hold, invest and reinvest, and distribute the Fund as
authorized by the Adopting
Employer or its designee without distinction between principal and interest; provided,
however, that nothing in this Plan shall require the Custodian to maintain physical custody
of stock certificates (or other indicia of ownership of any type of asset) representing
assets within the Fund.




2. To maintain accurate records of contributions, investments, earnings, receipts,
disbursements, withdrawals, and other
transactions with respect to the Fund, and all accounts, books, and records relating thereto
shall be open at all reasonable
times to inspection and audit by any person designated by the Employer; provided, however,
that the Custodian is given
reasonable advance notice of such inspection by the Employer. On direction of the Adopting
Employer or Plan
Administrator, and if agreed to in writing by the Custodian, the Custodian may provide annual
or interim accountings,
valuations, or other reports concerning the assets of the custodial account subject to
payment of all required additional fees
for such reports. The Custodian’s accounting will be at the Custodial Account level rather
than the Participant level, and the
Custodian will not be responsible for Participant-level record-keeping, reporting, or
communication unless it agrees to do so
in a separate written agreement with the Adopting Employer or Plan Administrator. The
Custodian will also furnish the
Adopting Employer with such other information as the Custodian possesses and which is
necessary for the Adopting
Employer to comply with the reporting requirements of ERISA, as applicable. An accounting
will be deemed to have been
approved by the Adopting Employer unless the Adopting Employer or Plan Administrator objects
to the contents of an
accounting within sixty (60) days of its mailing or electronic transmission by the Custodian.
Any objections must set forth the specific grounds on which they are based. Upon approval,
the Custodian shall be forever released from any and all liability with respect to the
Account.




3. To make disbursements from the Fund to Participants or Beneficiaries upon the proper
authorization of the Plan
Administrator.




4. To furnish to the Plan Administrator an annual statement which reflects the value of the
investments in the custody of the
Custodian as of the end of the period and as of any other times as the Custodian and Plan
Administrator may agree to in
writing, including an agreement regarding the application of additional fees for such
additional report.








67









 










B. Powers of the Custodian — Except as otherwise provided in this Plan, and subject to receipt of
instructions from the Adopting
Employer, Plan Administrator, or Investment Fiduciary, as appropriate, the Custodian shall have the
power, but, in the absence of
proper direction as provided in Section 8.01(A) above, not the duty to take any action with respect
to the Fund which it deems
necessary or advisable to discharge its responsibilities under this Plan including, but not limited
to, the following powers:





1. To invest all or a portion of the Fund (including idle cash balances) in time deposits,
savings accounts, money market
accounts, or similar investments bearing a reasonable rate of interest in the Custodian’s own
savings department or the
savings department of another financial organization;




2. To vote upon any stocks, bonds, or other securities; to give general or special proxies or
powers of attorney with or without power of substitution; to exercise any conversion
privileges or subscription rights and to make any payments incidental thereto; to oppose, or
to consent to, or otherwise participate in, corporate reorganizations or other changes
affecting corporate securities, and to pay any assessment or charges in connection therewith;
and generally to exercise any of the powers of an owner with respect to stocks, bonds,
securities, or other property;




3. To hold securities or other property of the Fund in its own name, in the name of its
nominee, or in bearer form; and




4. To make, execute, acknowledge, and deliver any and all documents of transfer and
conveyance and any and all other
instruments that may be necessary or appropriate to carry out the powers herein granted.



8.02 TRUSTEE



This Section 8.02 applies where either a financial organization and/or one or more individuals
has/have indicated in the Adoption Agreement that it will serve as Trustee with respect to all or a
portion of the assets of the Fund. The responsibilities and powers of the Trustee may not be
expanded except with its prior written consent and, notwithstanding any provision hereof to the
contrary, may be further limited by the terms of a separate agreement between the Trustee and the
Adopting Employer. Notwithstanding any provision hereof regarding the responsibilities of or
granting powers to the Trustee, a Directed Trustee shall have no discretionary authority with
respect to the management or administration of the Plan or the Fund, and will act only as directed
by the entity or individual who has such authority.




A. Establishment Of The Trust





1. The Adopting Employer and the Trustee hereby agree to the establishment of a trust
consisting of the Fund. The Trustee shall carry out the duties and responsibilities herein
specified, but shall be under no duty to determine whether the amount of any contribution by
the Employer or any Participant is in accordance with the terms of the Plan nor shall the
Trustee be responsible for the collection of any contributions required under the Plan.




2. The Fund shall be held, invested, reinvested and administered by the Trustee in accordance
with the terms of the Plan and this Agreement solely in the interest of Participants and
their Beneficiaries and for the exclusive purpose of providing benefits to Participants and
their Beneficiaries and defraying reasonable expenses of administering the Plan. Except as
provided in Section 8.02(G)(2), no assets of the Plan shall inure to the benefit of the
Employer.




3. The Trustee shall pay benefits and expenses from the Fund only upon the written direction
of the Plan Administrator. The Trustee shall be fully entitled to rely on such directions
furnished by the Plan Administrator, and shall be under no duty to ascertain whether the
directions are in accordance with the provisions of the Plan.



B. Investment Of The Fund





1. The Adopting Employer shall have the exclusive authority and discretion to select the
permissible investment funds
(“Permissible Investment Funds”) available for investment under the Plan. In making such
selection, the Employer shall use the care, skill, prudence and diligence under the
circumstances then prevailing that a prudent person acting in a like capacity and familiar
with such matters would use in the conduct of an enterprise of a like character and with like
aims. The available investments under the Plan shall be sufficiently diversified so as to
minimize the risk of large losses, unless under the circumstances it is clearly prudent not
to do so. The Employer shall notify the Trustee in writing of the selection of the
Permissible Investment Funds currently available for investment under the Plan, and any
changes thereto.




2. Unless otherwise designated by the Employer in the Adoption Agreement, each Participant
shall have the exclusive right, in accordance with the provisions of the Plan, to direct the
investment by the Trustee of all amounts allocated to the separate accounts of the
Participant under the Plan among any one or more of the available Permissible Investment
Funds. All investment directions by Participants shall be timely furnished to the Trustee by
the Plan Administrator, except to the extent such directions are transmitted telephonically
or otherwise by Participants directly to the Trustee or its delegate in accordance with rules
and procedures established and approved by the Plan Administrator and communicated to the
Trustee. In making any investment of the assets of the Fund, the Trustee shall be fully
entitled to rely on such directions furnished to it by the Plan Administrator or by
Participants in accordance with the Plan Administrator’s approved rules and procedures, and
shall be under no duty to make any inquiry or investigation with respect thereto.




3. Notwithstanding Section 7.22(A) of the Plan, to the extent so designated by the Employer
in the Adoption Agreement, the Trustee shall invest amounts allocated to the separate
accounts of Participants under the Plan as directed by the Plan
Administrator or other named fiduciary for the Plan (including any investment manager as
defined in Section 3(38) of
ERISA) identified by the Employer in the Adoption Agreement. In making any investments of the
assets of the Fund, the
Trustee shall be fully entitled to rely on such directions properly furnished to it by the
Plan Administrator or named fiduciary
and shall be under no duty to make any inquiry or investigation with respect thereto.








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4. The Plan or Plan Administrator may designate a default fund under the Plan in which the
Trustee shall deposit contributions to the Fund on behalf of Participants who have been
identified by the Plan Administrator as having not specified investment choices under the
Plan. If the Trustee receives any asset that is not accompanied by instructions directing its
investment, the Trustee shall immediately notify the Plan Administrator of that fact, and the
Trustee may, in its discretion, return or hold all or a portion of the received asset outside
of the Fund without liability for loss of income or appreciation pending receipt of proper
investment directions. Otherwise, it is specifically intended under the Plan and this
Agreement that the Trustee shall have no discretionary authority to determine the investment
of the assets of the Fund.




5. Except as may be authorized by regulations promulgated by the Secretary of Labor, the
Trustee shall not maintain the indicia of ownership in any assets of the Fund outside of the
jurisdiction of the district courts of the United States.


C. Powers Of The Trustee — Subject to the provisions of Sections 8.02(B)(1), 8.02(B)(2) &
8.02(B)(3), the Trustee shall have the
authority, in addition to any authority given by law, to exercise the following powers in the
administration of the Fund:





1. to invest and reinvest all or a part of the Fund in accordance with Participants’
investment directions in any available Investment Fund selected by the Employer without
restriction to investments authorized for fiduciaries, including, without limitation on the
amount that may be invested therein, any common, collective or commingled trust fund. Any
investment in, and any terms and conditions of, any common, collective or commingled trust
fund available only to employee trusts which meets the requirements of the Code, or
corresponding provisions of subsequent income tax laws of the United States, shall constitute
an integral part of this Section 8.02 and the Plan;




2. to dispose of all or any part of the investments, securities, or other property which may
from time to time or at any time
constitute the Fund, and to make, execute and deliver to the purchasers thereof good and
sufficient deeds of conveyance therefore, and all assignments, transfers and other legal
instruments, either necessary or convenient for passing the title and ownership thereto, free
and discharged of all trusts and without liability on the part of such purchasers to see to
the application of the purchase money;




3. to hold that portion of the Fund as the Trustee may deem necessary for ordinary
administration, the transfer of assets to
another trust or fiduciary, pending investment instructions, and for the disbursement of
funds in cash, without liability for
interest, by depositing the same in any bank (including deposits that bear no interest or a
reasonable rate of interest in a bank or similar financial institution supervised by the
United States or a State, even where a bank or financial institution is the Trustee, or
otherwise is a Fiduciary of the Plan, subject to the rules and regulations governing such
deposits, and without regard to the amount of any such deposit);




4. to cause any investment of the Fund to be registered in the name of the Trustee or the
name of its nominee or nominees or to retain such investment unregistered or in a form
permitting transfer by delivery; provided that the books and records of the Trustee shall at
all times show that all such investments are part of the Fund;




5. except as provided further in Section 8.02(E) hereof with respect to shares of Qualifying
Employer Securities that are held by the Fund, to vote in person or by proxy with respect to
all mutual fund shares which are held by the Plan solely in accordance with directions
furnished to it by the Employer, and to vote in person or by proxy with respect to all other
securities credited to a Participant’s separate accounts under the Plan solely in accordance
with directions furnished to it by the Participant;




6. to consult and employ any suitable agent to act on behalf of the Trustee and to
contract for legal, accounting, clerical and other services deemed necessary by the Trustee
to manage and administer the Fund according to the terms of the Plan and this Agreement;




7. upon the written direction of the Plan Administrator, to make loans from the Fund to
Participants in amounts and on terms approved by the Plan Administrator in accordance with
the provisions of the Plan; provided that the Plan Administrator shall have the
responsibility for collecting all loan repayments required to be made under the Plan and for
furnishing the Trustee with copies of all promissory notes evidencing such loans; and




8. to pay from the Fund all taxes imposed or levied with respect to the Fund or any part
thereof under existing or future laws, and to contest the validity or amount of any tax,
assessment, claim or demand respecting the Fund or any part thereof.



D. Duties And Responsibilities Of The Trustee





1. The Trustee, the Employer and the Plan Administrator shall each discharge their assigned
duties and responsibilities under this Agreement and the Plan solely in the interest of
Participants and their Beneficiaries in the following manner:




(a) for the exclusive purpose of providing benefits to Participants and their
Beneficiaries and defraying reasonable expenses of administering the Plan;




(b) with the care, skill, prudence, and diligence under the circumstances then
prevailing that a prudent person acting in a like capacity and familiar with such
matters would use in the conduct of an enterprise of a like character and with like
aims;




(c) by diversifying the available investments under the Plan so as to minimize the
risk of large losses, unless under the circumstances it is clearly prudent not to do
so; and




(d) in accordance with the provisions of the Plan and this Section 8.02 insofar as
they are consistent with the provisions of ERISA.




2. The Trustee shall keep full and accurate accounts of all receipts, investments,
disbursements and other transactions hereunder, including such specific records as may be
agreed upon in writing between the Employer and the Trustee. All such accounts, books and
records containing Plan information shall be open to inspection and audit at all reasonable
times by any



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authorized representative of the Employer or the Plan Administrator. A Participant may
examine only those individual account records pertaining directly to him.




3. Within 120 days after the end of each Plan Year or within 120 days after its removal or
resignation, the Trustee shall file with the Plan Administrator a written account of the
administration of the Fund showing all transactions effected by the Trustee subsequent to the
period covered by the last preceding account to the end of such Plan Year or date of removal
or resignation and all property held at its fair market value at the end of the accounting
period. Upon approval of such accounting by the Plan Administrator, neither the Employer nor
the Plan Administrator shall be entitled to any further accounting by the Trustee. The Plan
Administrator may approve such accounting by written notice of approval delivered to the
Trustee or by failure to express objection to such accounting in writing delivered to the
Trustee within 90 days from the date on which the accounting is delivered to the Plan
Administrator.




4. The Trustee shall not be required to determine the facts concerning the eligibility of any
Participant to participate in the Plan, the amount of benefits payable to any Participant or
Beneficiary under the Plan, or the date or method of payment or disbursement. The Trustee
shall be fully entitled to rely solely upon the written advice and directions of the Plan
Administrator as to any such question of fact.




5. Unless resulting from the Trustee’s negligence, willful misconduct, lack of good faith, or
breach of its fiduciary duties under this Agreement or ERISA, the Employer shall indemnify
and save harmless the Trustee from, against, for and in respect of any and all damages,
losses, obligations, liabilities, liens, deficiencies, costs and expenses, including without
limitation, reasonable attorney’s fees incident to any suit, action, investigation, claim or
proceedings suffered, sustained, incurred or required to be paid by the Trustee in connection
with the Plan or this Section 8.02.



E. Voting And Other Rights Of Qualifying Employer Securities





1. Each Participant or Beneficiary of a deceased Participant (referred to herein collectively
as Participant) shall have the right to direct the Trustee as to the manner of voting and the
exercise of all other rights which a shareholder of record has with respect to shares (and
fractional shares) of Qualifying Employer Securities which have been allocated to the
Participant’s separate account including, but not limited to, the right to sell or retain
shares in a public or private tender offer.




2. All shares (and fractional shares) of Qualifying Employer Securities for which the Trustee
has not received timely Participant directions shall be voted or exercised by the Trustee in
the same proportion as the shares (and fractional shares) of Qualifying Employer Securities
for which the Trustee received timely Participant directions, except in the case where to do
so would be inconsistent with the provisions of Title I of ERISA. All reasonable efforts
shall be made to inform each Participant that shares of Employer Stock for which the Trustee
does not receive Participant direction shall be voted pro rata in proportion to the shares
for which the Trustee has received Participant direction.




3. Notwithstanding anything to the contrary, in the event of a tender offer for Qualifying
Employer Securities, the Trustee shall interpret a Participant’s silence as a direction not
to tender the shares of Qualifying Employer Securities allocated to the Participant’s
separate account and, therefore, the Trustee shall not tender any shares (or fractional
shares) of Qualifying Employer Securities for which it does not receive timely directions to
tender such shares (or fractional shares) from Participants, except in the case where to do
so would be inconsistent with the provisions of Title I of ERISA. Furthermore, tender offer
materials provided to Participants shall specifically inform Participants that the Trustee
shall interpret a Participant’s silence as a direction not to tender the Participant’s shares
of Qualifying Employer Securities.




4. Each Participant exercising his authority under this Article shall be considered a named
fiduciary of the Plan within the meaning of ERISA section 402(a)(2) with respect to the
voting directions or response to an offer provided by the Participant (including in the case
where a Participant’s silence is treated by the Trustee as a direction not to tender as
provided under Section 8.02(E)(3) hereof).




5. Information relating to the purchase, holding and sale of securities and the exercise of
voting, tender and other similar rights with respect to Qualifying Employer Securities by
Participants and beneficiaries shall be maintained in accordance with procedures that are
designed to safeguard the confidentiality of such information, except to the extent necessary
to comply with Federal laws or State laws not preempted by ERISA. The Trustee shall be the
fiduciary who is responsible for ensuring that such procedures are sufficient to safeguard
the confidentiality of the information described above, and that such procedures are
followed.




6. Notwithstanding any provision contained in the Plan to the contrary, this Section 8.02(E)
shall govern the procedures to be followed in connection with the voting of Qualifying
Employer Securities held by the Plan and the disposition of Qualifying Employer Securities
pursuant to any tender or exchange offer therefor. In the event of any conflict or
inconsistency between the provisions of this Section 8.02(E) and any other provisions of the
Plan, the provisions of this Section 8.02(E) shall control.



F. Appointment Of Investment Managers





1. Subject to Plan Section 7.22(D), the Plan Administrator may appoint one or more Investment
Managers with respect to some or all of the assets of the Fund as contemplated by section
402(c)(3) of ERISA. Any such investment manager shall acknowledge to the Plan Administrator
in writing that it accepts such appointment and that it is an ERISA fiduciary with respect to
the Plan and the Fund. The Plan Administrator shall provide the Trustee with a copy of the
written agreement (and any amendments thereto) between the Plan Administrator and the
Investment Manager. By notifying the Trustee of the appointment of an Investment Manager, the
Plan Administrator shall be deemed to certify that such Investment Manager meets the
requirements of section 3(38) of ERISA. The authority of the Investment Manager shall
continue until the Plan Administrator rescinds the appointment or the Investment Manager has
resigned.



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2. The assets with respect to which a particular Investment Manager has been appointed shall
be specified by the Plan
Administrator and shall be segregated in a separate account for the Investment Manager (the
“Separate Account”) and the
Investment Manager shall have the power to direct the Trustee in every aspect of the
investment of the assets of the Separate Account. The Investment Manager will be the
fiduciary responsible for the selecting, negotiating, placing (including the execution of)
investment contracts, and valuing of all investments held under the Separate Account. The
Trustee may rely on such valuations including but not limited to the Investment Manager’s
responsibility for determining, and promptly informing Trustee, if assets should be carried
on the Plans’ books at any value other than contract value. The Investment Manager shall be
responsible for making any proxy voting or tender offer decisions with respect to securities
held in the Separate Account and the Investment Manager shall maintain a record of the
reasons for the manner in which it voted proxies or responded to tender offers. The Trustee
shall not be liable for the acts or omissions of an Investment Manager and shall have no
liability or responsibility for acting or not acting pursuant to the direction of, or failing
to act in the absence of, any direction from an Investment Manager, unless the Trustee knows
that by such action or failure to act it would be itself committing a breach of fiduciary
duty or participating in a breach of fiduciary duty by such Investment Manager, it being the
intention of the parties that the Trustee shall have the full protection of section 405(d) of
ERISA.



G. Prohibition Of Diversion



1. Except as provided in Section 8.02(G)(2) of this Article, at no time prior to the satisfaction
of all liabilities with respect to
Participants and their Beneficiaries under the Plan shall any part of the corpus or income of the
Fund be used for, or diverted
to, purposes other than for the exclusive benefit of Participants or their Beneficiaries, or for
defraying reasonable expenses of
administering the Plan.



2. The provisions of Section 8.02(G)(1) notwithstanding, contributions made by the Employer under
the Plan may be returned to
the Employer under the following conditions:





(a) If a contribution is made by mistake of fact, such contribution may be returned to the
Employer within one year of the
payment of such contribution;




(b) Contributions to the Plan are specifically conditioned upon their deductibility under the
Code. To the extent a deduction is disallowed for any such contribution, it may be returned
to the Employer within one year after the disallowance of the
deduction. Contributions which are not deductible in the taxable year in which made but are
deductible in subsequent
taxable years shall not be considered to be disallowed for purposes of this subsection; and




(c) Contributions to the Plan are specifically conditioned on initial qualification of the
Plan under the Code. If the Plan is
determined to be disqualified, contributions made in respect of any period subsequent to the
effective date of such
disqualification may be returned to the Employer within one year after the date of denial of
qualification, but only if the
application for the 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 the Treasury may prescribe.



H. Communication With Plan Administrator And Adopting Employer



1. Whenever the Trustee is permitted or required to act upon the directions or instructions of the
Plan Administrator, the Trustee
shall be entitled to act upon any written communication signed or electronic communication
reasonably believed to be sent by
any person or agent designated to act as or on behalf of the Plan Administrator. Such person or
agent shall be so designated
either under the provisions of the Plan or in writing by the Employer and their authority shall
continue until revoked in writing. The Trustee shall incur no liability for failure to act on such person’s or agent’s instructions or
orders without written
communication, and the Trustee shall be fully protected in all actions taken in good faith in
reliance upon any instructions,
directions, certifications and communications believed to be genuine and to have been signed or
communicated by the proper
person.



2. The Adopting Employer shall notify the Trustee in writing as to the appointment, removal or
resignation of any person
designated to act as or on behalf of the Plan Administrator. After such notification, the Trustee
shall be fully protected in
acting upon the directions of, or dealing with, any person designated to act as or on behalf of the
Plan Administrator until it
receives notice to the contrary. The Trustee shall have no duty to inquire into the qualifications
of any person designated to
act as or on behalf of the Plan Administrator.



I. Trustee’s Compensation — The Trustee shall be entitled to reasonable compensation for its
services as may be agreed upon by the Trustee and the Adopting Employer. The Trustee shall also be
entitled to reimbursement for all expenses properly and actually
incurred on behalf of the Plan. Such compensation or reimbursement shall be paid to the Trustee out
of the Fund unless paid directly by the Employer. The Trustee’s compensation shall also include any
earnings attributable to outstanding benefit checks issued to participants (with the earnings
period beginning on the date the check is written and ending on the date the check is presented for
payment) and assets received by the Trustee pending receipt of proper investment instructions
pursuant to Section 8.02(B)(4) (with the earnings period beginning on the date the assets are
received and ending on the date in which proper investment instructions are received). The
approximate earnings rate on such amounts shall generally be based upon the federal funds rate.



J. Resignation And Removal Of Trustee



1. The Trustee may resign at any time by written notice to the Employer which shall be effective 30
days after delivery unless
prior thereto a successor trustee shall have been appointed.



2. The Trustee may be removed by the Employer at any time upon 30 days written notice to the
Trustee; such notice, however, may be waived by the Trustee.




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3. The appointment of a successor trustee hereunder shall be accomplished by and shall take effect
upon the delivery to the
resigning or removed Trustee, as the case may be, of written notice of the Employer appointing such
successor trustee, and an
acceptance in writing of the office of successor trustee hereunder executed by the successor so
appointed. Any successor trustee
may be either a corporation authorized and empowered to exercise trust powers or one or more
individuals. All of the provisions
set forth herein with respect to the Trustee shall relate to each successor trustee so appointed
with the same force and effect as if
such successor trustee had been originally named herein as the Trustee hereunder. If within 30 days
after notice of resignation
has been given under the provisions of this Article a successor trustee has not been appointed, the
resigning Trustee or the
Employer may apply to any court of competent jurisdiction for the appointment of a successor
trustee.



4. Upon the appointment of a successor trustee, the resigning or removed Trustee shall transfer and
deliver the Fund to such
successor trustee, after reserving such reasonable amount as it shall deem necessary to provide for
its expenses in the settlement
of its account, the amount of any compensation due to it and any sums chargeable against the Fund
for which it may be liable. If
the sums so reserved are not sufficient for such purposes, the resigning or removed Trustee shall
be entitled to reimbursement for
any deficiency from the successor trustee and the Employer who shall be jointly and severally
liable therefor.



K. Amendment And Termination Of The Trust And Plan



1. The Employer may, by delivery to the Trustee of an instrument in writing, amend, terminate or
partially terminate this
Agreement at any time; provided, however, that no amendment shall increase the duties or
liabilities of the Trustee without the
Trustee’s consent; and, provided further, that no amendment shall divert any part of the Fund to
any purpose other than providing
benefits to Participants and their Beneficiaries or defraying reasonable expenses of administering
the Plan.



2. If the Plan is terminated in whole or in part, or if the Employer permanently discontinues its
contributions to the Plan, the Trustee
shall distribute the Fund or any part thereof in such manner and at such times as the Plan
Administrator shall direct in writing. In
the absence of receipt of such written directions after the effective date of such termination, the
Trustee may distribute the Fund
in accordance with the provisions of the Plan.




8.03 NO OBLIGATION TO QUESTION DATA



The Employer shall furnish the Trustee (or Custodian, if applicable) and Plan Administrator the
information which each party deems
necessary for the administration of the Plan including, but not limited to, changes in a
Participant’s status, eligibility, mailing addresses and other such data as may be required. The
Trustee (or Custodian, if applicable) and Plan Administrator shall be entitled to act on such
information as is supplied them and shall have no duty or responsibility to further verify or
question such information.




8.04 DEGREE OF CARE — LIMITATIONS OF LIABILITY



The Trustee (or Custodian, if applicable) shall be under no duty to take any action other than its
express responsibilities under this Plan unless the responsible party under the terms of the Plan
shall furnish the Trustee (or Custodian, if applicable) with written instructions; provided that in
no event may the Trustee’s (or Custodian’s, if applicable) responsibilities be expanded except with
its prior written consent. Any instructions hereunder may be delivered to the Trustee (or
Custodian, if applicable) directly by the responsible party or by other mutually agreed upon
parties. The Trustee (or Custodian, if applicable) shall not be liable for any action taken or
omitted by it in good faith in reliance upon any instructions received hereunder or any other
notice, request, consent, certificate, or other instrument or paper reasonably believed by it to be
genuine and to have been properly executed. A Directed Trustee (or Custodian, if applicable) shall
have no duty to inquire into the purpose or propriety of any order, instruction, or other
communication received hereunder and may conclusively presume that any such order, instruction, or
other communication is accurate and complete. The Trustee (or Custodian, if applicable) shall not
be responsible for determining that all instructions provided to the Trustee (or Custodian, if
applicable) are being given by the appropriate party and are in proper form under the provisions of
the Plan and applicable law. The Trustee (or Custodian, if applicable) may conclusively presume
that any instructions received have been duly authorized by the Employer, Investment Fiduciary,
Plan Administrator, Trustee, or Participant, as applicable, pursuant to the terms of the Plan and
applicable law.



The Trustee (or Custodian, if applicable) shall not be responsible for the validity or effect or
the qualification under the Code or the
Plan. The Trustee (or Custodian, if applicable) shall not be required to take any action upon
receipt of any notice from the IRS or other taxing authority (unless such notice relates to the
performance of the Trustee (or Custodian, if applicable) responsibilities in Plan Sections 8.01(A)
or 8.02(A)) except to promptly forward a copy thereof to the Employer. Further, it is specifically
understood that the Trustee (or Custodian, if applicable) shall have no duty or responsibility with
respect to the determination of matters pertaining to the eligibility of any Employee to become a
Participant or remain a Participant hereunder, the amount of benefit to which a Participant or
Beneficiary shall be entitled to receive hereunder, whether a distribution to Participant or
Beneficiary is appropriate under the terms of the Plan, the size and type of any policy to be
purchased from any insurer for any Participant hereunder, or any other similar matters, it being
understood that all such responsibilities under the Plan are vested in the Plan Administrator.




8.05 MISCELLANEOUS



A. Governing Law — Notwithstanding any other section or provision of this Plan, the construction,
validity and administration of this
Plan Section Eight shall be governed by the laws of the Commonwealth of Pennsylvania, except to the
extent that such laws have
been specifically superseded by ERISA.






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B. Necessary Parties — To the extent permitted by law, only the Employer and the Trustee (or
Custodian, if applicable) shall be
necessary parties in any application to the courts for an interpretation of Section 8.01 or 8.02 or
for an accounting by the Trustee
(or Custodian, if applicable), and no other Plan Fiduciary, Participant, Beneficiary, or other
person having an interest in the Fund
shall be entitled to any notice or service of process. Any final judgment entered in such an action
or proceeding shall, to the extent
permitted by law, be conclusive upon all persons claiming in Plan Sections 8.01 or 8.02.



C. Force Majeure — The Trustee (or Custodian, if applicable) shall not be responsible or liable for
the failure or delay in performance of its obligations arising out of or caused, directly or
indirectly, by circumstances beyond its reasonable control, or that could not be
avoided by the exercise of due care, such as an act of God or any mechanical, electronic, or
communications failure.




SECTION NINE: ADOPTING EMPLOYER SIGNATURE



Section Nine of the Plan Adoption Agreement must contain the signature of an authorized
representative of the Adopting Employer evidencing the Employer’s agreement to be bound by the
terms of the Basic Plan Document, Adoption Agreement, and, if applicable, separate trust or
custodial agreement.





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