Ex-10.01



 




Exhibit 10.01



J. ALEXANDER’S CORPORATION

EMPLOYEE STOCK OWNERSHIP PLAN




(As Amended and Restated)




Effective Date: January 1, 2002




 









 





J. ALEXANDER’S CORPORATION

EMPLOYEE STOCK OWNERSHIP PLAN




Amended and Restated

Effective January 1, 2002




Table of Contents




	 	 	 	 	 	 	 	 	 	 	 	 	 
	ARTICLE I	 	 	 	 
	 	 	Purpose	 	 	3	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	ARTICLE II	 	 	 	 
	 	 	Definitions	 	 	4	 
	 	 	 	 	2.1	 	Definitions	 	 	4	 
	 
	 	 	 	 	 	(a)	 	Account	 	 	4	 
	 
	 	 	 	 	 	(b)	 	Acquisition Loan	 	 	4	 
	 
	 	 	 	 	 	(c)	 	Additions	 	 	4	 
	 
	 	 	 	 	 	(d)	 	Administrator	 	 	4	 
	 
	 	 	 	 	 	(e)	 	Adopting Company	 	 	4	 
	 
	 	 	 	 	 	(f)	 	Affiliated Company	 	 	4	 
	 
	 	 	 	 	 	(g)	 	Authorized Leave of Absence	 	 	4	 
	 
	 	 	 	 	 	(h)	 	Beneficiary	 	 	5	 
	 
	 	 	 	 	 	(i)	 	Board of Directors	 	 	5	 
	 
	 	 	 	 	 	(j)	 	Break in Service	 	 	5	 
	 
	 	 	 	 	 	(k)	 	Cash Sub-Account	 	 	5	 
	 
	 	 	 	 	 	(l)	 	Change of Control	 	 	5	 
	 
	 	 	 	 	 	(m)	 	Code	 	 	6	 
	 
	 	 	 	 	 	(n)	 	Committee	 	 	6	 
	 
	 	 	 	 	 	(o)	 	Company	 	 	7	 
	 
	 	 	 	 	 	(p)	 	Company Stock	 	 	7	 
	 
	 	 	 	 	 	(q)	 	Company Stock Sub-Account	 	 	7	 
	 
	 	 	 	 	 	(r)	 	Compensation	 	 	7	 
	 
	 	 	 	 	 	(s)	 	Determination Date	 	 	8	 
	 
	 	 	 	 	 	(t)	 	Direct Rollover	 	 	8	 
	 
	 	 	 	 	 	(u)	 	Disability Benefit Date	 	 	8	 
	 
	 	 	 	 	 	(v)	 	Distributee	 	 	8	 
	 
	 	 	 	 	 	(w)	 	Distribution Calendar Year	 	 	8	 
	 
	 	 	 	 	 	(x)	 	Early Retirement Date	 	 	8	 
	 
	 	 	 	 	 	(y)	 	Effective Date	 	 	8	 
	 
	 	 	 	 	 	(z)	 	Eligible Retirement Plan	 	 	8	 
	 
	 	 	 	 	 	(aa)	 	Eligible Rollover Distribution	 	 	9	 
	 
	 	 	 	 	 	(bb)	 	Employee	 	 	9	 
	 
	 	 	 	 	 	(cc)	 	Employer	 	 	9	 
	 
	 	 	 	 	 	(dd)	 	ERISA	 	 	9	 
	 
	 	 	 	 	 	(ee)	 	Fiduciaries	 	 	9	 
	 
	 	 	 	 	 	(ff)	 	Financed Shares	 	 	9	 
	 
	 	 	 	 	 	(gg)	 	5-Percent Owner	 	 	10	 






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	 	 	 	 	 	(hh)	 	Flexible Benefit Plan	 	 	10	 
	 
	 	 	 	 	 	(ii)	 	Forfeiture	 	 	10	 
	 
	 	 	 	 	 	(jj)	 	Former Participant	 	 	10	 
	 
	 	 	 	 	 	(kk)	 	401(a)(9) Account Balance	 	 	10	 
	 
	 	 	 	 	 	(ll)	 	Highly Compensated Employee	 	 	10	 
	 
	 	 	 	 	 	(mm)	 	Hour of Service.	 	 	11	 
	 
	 	 	 	 	 	(nn)	 	Income	 	 	12	 
	 
	 	 	 	 	 	(oo)	 	Key Employee	 	 	12	 
	 
	 	 	 	 	 	(pp)	 	Leased Employee	 	 	13	 
	 
	 	 	 	 	 	(qq)	 	Loan Amortization Account	 	 	13	 
	 
	 	 	 	 	 	(rr)	 	Loan Suspense Account	 	 	13	 
	 
	 	 	 	 	 	(ss)	 	Minimum Benefit	 	 	13	 
	 
	 	 	 	 	 	(tt)	 	Non-Key Employee	 	 	13	 
	 
	 	 	 	 	 	(uu)	 	Normal Retirement Date	 	 	13	 
	 
	 	 	 	 	 	(vv)	 	Participant	 	 	13	 
	 
	 	 	 	 	 	(ww)	 	Plan	 	 	14	 
	 
	 	 	 	 	 	(xx)	 	Plan Year	 	 	14	 
	 
	 	 	 	 	 	(yy)	 	Qualified Participant	 	 	14	 
	 
	 	 	 	 	 	(zz)	 	Required Beginning Date	 	 	14	 
	 
	 	 	 	 	 	(aaa)	 	Savings Incentive Plan	 	 	14	 
	 
	 	 	 	 	 	(bbb)	 	Section 415 Compensation	 	 	14	 
	 
	 	 	 	 	 	(ccc)	 	Stock Purchase Account	 	 	14	 
	 
	 	 	 	 	 	(ddd)	 	Top-Heavy Plan	 	 	14	 
	 
	 	 	 	 	 	(eee)	 	Top-Heavy Plan Year	 	 	15	 
	 
	 	 	 	 	 	(fff)	 	Trust	 	 	15	 
	 
	 	 	 	 	 	(ggg)	 	Trustee	 	 	15	 
	 
	 	 	 	 	 	(hhh)	 	Valuation Calendar Year	 	 	15	 
	 
	 	 	 	 	 	(iii)	 	Valuation Date	 	 	15	 
	 
	 	 	 	 	 	(jjj)	 	Year of Eligibility Service	 	 	15	 
	 
	 	 	 	 	 	(kkk)	 	Year of Vesting Service	 	 	15	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	ARTICLE III	 	 	 	 
	 	 	Participation	 	 	17	 
	 	 	 	 	3.1	 	Participation	 	 	17	 
	 	 	 	 	3.2	 	Termination of Participation	 	 	17	 
	 	 	 	 	3.3	 	Participation upon Re-Employment	 	 	17	 
	 	 	 	 	3.4	 	Agreement to Terms of Plan	 	 	17	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	ARTICLE IV	 	 	 	 
	 	 	Contributions and Forfeitures	 	 	18	 
	 	 	 	 	4.1	 	Employer Contributions	 	 	18	 
	 	 	 	 	4.2	 	Employee Contributions	 	 	18	 
	 	 	 	 	4.3	 	Forfeitures	 	 	19	 
	 	 	 	 	4.4	 	Employer Top-Heavy Special Contributions	 	 	21	 
	 	 	 	 	4.5	 	Rollover Contributions	 	 	21	 
	 	 	 	 	4.6	 	Time of Payment of Employer Contributions	 	 	22	 
	 	 	 	 	4.7	 	Acquisition Loans	 	 	22	 






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	ARTICLE V	 	 	 	 
	 	 	Allocations to Participant’s Accounts	 	 	23	 
	 	 	 	 	5.1	 	Individual Accounts	 	 	23	 
	 	 	 	 	5.2	 	Account Adjustments	 	 	23	 
	 
	 	 	 	 	 	(a)	 	Forfeitures and Employer Contributions	 	 	23	 
	 
	 	 	 	 	 	(b)	 	Stock Purchase Account	 	 	23	 
	 
	 	 	 	 	 	(c)	 	Loan Amortization Account	 	 	23	 
	 
	 	 	 	 	 	(d)	 	Sub-Accounts of Participant’s Account	 	 	24	 
	 
	 	 	 	 	 	(e)	 	Financed Shares	 	 	25	 
	 
	 	 	 	 	 	(f)	 	Income	 	 	26	 
	 
	 	 	 	 	 	(g)	 	Dividends on Company Stock	 	 	26	 
	 	 	 	 	5.3	 	Maximum Additions	 	 	27	 
	 	 	 	 	5.4	 	Allocation of Top-Heavy Special Contribution to Provide Minimum Benefits	 	 	28	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	ARTICLE VI	 	 	 	 
	 	 	Benefits	 	 	29	 
	 	 	 	 	6.1	 	Time for Distribution	 	 	29	 
	 	 	 	 	6.2	 	Method of Payment	 	 	35	 
	 	 	 	 	6.3	 	Normal Retirement Benefit	 	 	35	 
	 	 	 	 	6.4	 	Early Retirement Benefit	 	 	36	 
	 	 	 	 	6.5	 	Delayed Retirement Benefit	 	 	36	 
	 	 	 	 	6.6	 	Total and Permanent Disability Benefit	 	 	36	 
	 	 	 	 	6.7	 	Death Benefit	 	 	36	 
	 	 	 	 	6.8	 	Vested Benefit	 	 	36	 
	 	 	 	 	6.9	 	Designation of Beneficiary	 	 	37	 
	 	 	 	 	6.10	 	Additional Benefits	 	 	38	 
	 	 	 	 	6.11	 	Form of Distribution	 	 	38	 
	 	 	 	 	6.12	 	Distribution of Dividends on Company Stock	 	 	38	 
	 	 	 	 	6.13	 	Pre-Retirement Distribution Rights	 	 	39	 
	 	 	 	 	6.14	 	Valuation Date	 	 	39	 
	 	 	 	 	6.15	 	Direct Rollover	 	 	39	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	ARTICLE VII	 	 	 	 
	 	 	Trust; Voting Rights	 	 	41	 
	 	 	 	 	7.1	 	Assets Held in Trust	 	 	41	 
	 	 	 	 	7.2	 	Voting Rights	 	 	41	 
	 	 	 	 	7.3	 	Tender Offer	 	 	42	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	ARTICLE VIII	 	 	 	 
	 	 	Administration	 	 	44	 
	 	 	 	 	8.1	 	Allocation of Responsibility Among Fiduciaries for Plan and Trust Administration	 	 	44	 
	 	 	 	 	8.2	 	Appointment of Committee	 	 	44	 
	 	 	 	 	8.3	 	Claims and Review Procedures	 	 	44	 
	 	 	 	 	8.4	 	Committee Powers and Duties	 	 	46	 






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	 	 	 	 	8.5	 	Rules and Decisions	 	 	47	 
	 	 	 	 	8.6	 	Committee Procedures	 	 	47	 
	 	 	 	 	8.7	 	Authorization of Member to Sign Documents	 	 	47	 
	 	 	 	 	8.8	 	Duty to Keep Records and File Reports	 	 	47	 
	 	 	 	 	8.9	 	Authorization of Benefit Payments	 	 	48	 
	 	 	 	 	8.10	 	Application and Forms for Benefits	 	 	48	 
	 	 	 	 	8.11	 	Facility of Payment	 	 	48	 
	 	 	 	 	8.12	 	Indemnification of Committee Members	 	 	48	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	ARTICLE IX	 	 	 	 
	 	 	Miscellaneous	 	 	49	 
	 	 	 	 	9.1	 	Nonguarantee of Employment	 	 	49	 
	 	 	 	 	9.2	 	Rights to Trust Assets	 	 	49	 
	 	 	 	 	9.3	 	Nonalienation of Benefits	 	 	49	 
	 	 	 	 	9.4	 	Discontinuance of Employer Contributions	 	 	49	 
	 	 	 	 	9.5	 	Single Plan and Trust of Employers	 	 	49	 
	 	 	 	 	9.6	 	Leased Employees	 	 	50	 
	 	 	 	 	9.7	 	Applicable Law	 	 	50	 
	 	 	 	 	9.8	 	Acquisition by or of Adopting Company	 	 	50	 
	 	 	 	 	9.9	 	No Restrictions on Financed Shares	 	 	50	 
	 	 	 	 	9.10	 	Qualified Military Service	 	 	51	 
	 	 	 	 	9.11	 	Certain Judgments, Orders, Decrees and Settlements	 	 	51	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	ARTICLE X	 	 	 	 
	 	 	Amendments and Action by Employer	 	 	52	 
	 	 	 	 	10.1	 	Amendments	 	 	52	 
	 	 	 	 	10.2	 	Limitation on Amendments	 	 	52	 
	 	 	 	 	10.3	 	Action by Employer	 	 	52	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	ARTICLE XI	 	 	 	 
	 	 	Successor Employer and Merger or Consolidation of Plan	 	 	53	 
	 	 	 	 	11.1	 	Successor Employer	 	 	53	 
	 	 	 	 	11.2	 	Plan Assets	 	 	53	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	ARTICLE XII	 	 	 	 
	 	 	Plan Termination	 	 	54	 
	 	 	 	 	12.1	 	Right to Terminate	 	 	54	 
	 	 	 	 	12.2	 	Partial Termination	 	 	54	 
	 	 	 	 	12.3	 	Liquidation of the Trust	 	 	54	 
	 	 	 	 	12.4	 	Manner of Distribution	 	 	54	 
	 	 	 	 	12.5	 	Company Stock in Loan Suspense Account	 	 	54	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	ARTICLE XIII	 	 	 	 
	 	 	Top-Heavy Provisions	 	 	55	 
	 	 	 	 	13.1	 	Top-Heavy Plan Requirements	 	 	55	 
	 	 	 	 	13.2	 	Definitions	 	 	55	 
	 	 	 	 	13.3	 	Determination of Top-Heavy Status	 	 	56	 






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PREAMBLE




     WHEREAS, effective as of January 1, 1992, Volunteer Capital Corporation (which subsequently
changed its name to J. Alexander’s Corporation), a Tennessee corporation (the “Company”),
established the Volunteer Capital Corporation Employee Stock Ownership Plan (the “Plan”) to enable
its eligible employees to share in the growth and prosperity of the Company; and



     WHEREAS, the Company amended the Plan on February 17, 1993, and in connection with the receipt
of a favorable determination letter dated April 1, 1994, the Plan was again amended to comply with
Internal Revenue Service requirements on June 29, 1994; and



     WHEREAS, the Plan was further amended on February 17, 1998 and December 30, 1998, and the name
of the Plan was changed to be J. Alexander’s Corporation Employee Stock Ownership Plan; and



     WHEREAS, the Plan was further amended and restated (the “1997 Restatement”) to update the Plan
for the remaining changes required by legislation referred to as the Uniformed Services Employment
and Reemployment Act of 1994, the Small Business Job Protection Act of 1996, the Taxpayer Relief
Act of 1997, the Internal Revenue Service Restructuring and Reform Act of 1998, the Uruguay Round
Agreement Act (“GATT”), and the Community Renewal Tax Relief Act of 2000 (collectively, “GUST”), as
well as various regulatory provisions, and several other technical changes as required in order to
comply with Internal Revenue Service rulings regarding the GUST amendments, and to make certain
changes permitted or required by the Economic Growth and Tax Relief Reconciliation Act of 2001
(“EGTRRA”), with respect to which the Plan received a favorable determination letter; and



     WHEREAS, the Plan was further amended on December 31, 2002 to adopt the remaining EGTRRA
changes that were are not already incorporated in the 1997 Restatement; and



     WHEREAS, the Plan was further amended on December 30, 2003 to revise the Plan’s minimum
distribution provisions to conform with the requirements of final regulations promulgated under
Section 401(a)(9) of the Internal Revenue Code of 1986, as amended (the “Code”); and



     WHEREAS, the Plan was further amended on April 26, 2006 to (among other things) incorporate
the requirements of Section 401(a)(31)(B) of the Code, as amended by EGTRRA, by lowering the Plan’s
mandatory cash out threshold from $5,000 to $1,000; and



     WHEREAS, the Plan was further amended on December 20, 2006 to freeze participation in the Plan
so that no new participants may enter the Plan after December 31, 2006; and



     WHEREAS, the Company desires to further amend and restate the Plan to incorporate the
amendments to the Plan since the 1997 Restatement, after which the Company intends to apply



1









 







to the Internal Revenue Service for a determination letter in accordance with the five-year
determination letter cycle provided for in Revenue Procedure 2005-66.



     NOW, THEREFORE, in consideration of the premises, effective as of January 1, 2002 (except for
such other dates as may be noted for certain provisions), the Company hereby amends and restates
the Plan to provide as hereinafter set forth in this document.



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ARTICLE I

Purpose




     The Plan and Trust are for the purpose of enabling employees of the Company and of any other
Adopting Company to share in the growth and prosperity of the Company and to accumulate capital for
their future economic security. The Plan and Trust are intended to be a stock bonus plan and trust
meeting the requirements of Sections 401(a) and 501(a) of the Internal Revenue Code of 1986, and
the Employee Retirement Income Security Act of 1974, as amended, (“ERISA”) so the Plan will be a
qualified plan and the Trust will be exempt from taxation. A primary purpose of the Plan is to
enable Participants to acquire a proprietary interest in the Company and, in furtherance of that
goal, contributions of the Employer to the Trust will be invested primarily in Company Stock. The
Plan and Trust obtained a loan from the Company to finance the acquisition of Company Stock and
purchased Company Stock from certain shareholders of the Company on or about June 25, 1992. The
loan was paid off on December 8, 2005 and the last of the Company Stock held in the Loan Suspense
Account has been allocated to the Participants’ Company Stock Sub-Accounts. The Plan is an
employee stock ownership plan, as described in Section 4975(e)(7) of the Code and in Section
407(d)(6) of ERISA, which is a stock bonus plan qualified under Section 401(a) of the Code.




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ARTICLE II

Definitions




     2.1 Definitions. The following words and phrases, when used herein, unless the
context clearly indicates otherwise, shall have the following meanings:




     (a) Account. The Account maintained for a Participant to record his share of
contributions by the Employer and adjustments thereto. A Participant’s Account is composed
of two sub-accounts, the Company Stock Sub-Account and the Cash Sub-Account.




     (b) Acquisition Loan. A loan incurred by the Trustee to acquire Company Stock
pursuant to Section 4975(d)(3) of the Code.




     (c) Additions. The sum of Employer contributions pursuant to Section 4.1
(including cash contributions to the Stock Purchase Account and the Loan Amortization
Account) and Forfeitures which would be allocated to the Participant’s Account for a Plan
Year if such contributions and Forfeitures were combined and allocated directly to the
Account in proportion to Compensation. If no more than one-third (1/3) of the Employer
contributions for the Plan Year to the Loan Amortization Account which are deductible under
paragraph (9) of Section 404(a) of the Code are allocated to Highly Compensated Employees,
the annual Additions for such Plan Year shall not include either (i) Forfeitures of Financed
Shares, or (ii) Employer contributions to the Loan Amortization Account which are applied to
pay interest on an Acquisition Loan and deductible under Section 404(a)(9)(B) of the Code.




     (d) Administrator. The Committee.




     (e) Adopting Company. Any organization or corporation affiliated with the
Company which is authorized by the Board of Directors to adopt the Plan, and which adopts
the Plan. The term shall also include the Company and any organization or corporation into
which an Adopting Company may be merged or consolidated or by which it may be succeeded, and
which may adopt the Plan.




     (f) Affiliated Company. Any corporation which is a member of a controlled
group of corporations of which an Adopting Company is a member, or any unincorporated trade
or business which is under the common control of or with any Adopting Company, or any
affiliated service group of which an Adopting Company is a member, which are required to be
aggregated with Employer under Section 414(b), (c), (m) or (o) of the Code.




     (g) Authorized Leave of Absence. Any absence authorized by the Employer under
the Employer’s personnel practices. An absence due to service in the Armed Forces of the
United States shall be considered an Authorized Leave of Absence provided that the Employee
does not voluntarily enlist.



4









 






     (h) Beneficiary. The person or persons (including a trust or estate)
designated by a Participant in accordance with the provisions of Section 6.9 to receive any
death benefit which shall be payable under this Plan.




     (i) Board of Directors. Except where the context clearly indicates otherwise,
the duly constituted Board of Directors of the Company.




     (j) Break in Service. A twelve consecutive-month period computed on the basis
of the Plan Year, in which an Employee has not completed more than 500 Hours of Service.
For purposes of this Section 2.1(j), but not for any other purpose, an Employee on an
Authorized Leave of Absence or who is absent for the reasons described in the following
sentence shall be deemed to have completed the number of Hours of Service as he is regularly
scheduled to complete while at work. In the case of an Employee’s absence from work for any
period




     (i) by reason of the pregnancy of the individual,




     (ii) by reason of the birth of the child of the individual,




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




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




the hours so treated as Hours of Service shall not exceed 501 Hours of Service and shall be
credited only in the Plan Year in which such absence commences if the Participant would be
prevented from incurring a Break in Service in that Plan Year solely because of such
crediting, or in any other case, in the immediately following Plan Year.




     (k) Cash Sub-Account. The portion of a Participant’s Account which reflects
his share of




     (i) the amount, if any, of Employer contributions made in cash;




     (ii) any cash dividends on Company Stock that have been allocated to his
Company Stock Sub-Account (other than currently distributable dividends or dividends
used to repay an Acquisition Loan);




     (iii) cash Forfeitures; and




     (iv) proceeds of the sale of Company Stock allocated to his Company Stock
Sub-Account.




     (l) Change of Control. A Change of Control shall occur if any one of the
following should occur:



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     (i) any “person” (as such term is defined in Sections 13(d) and 14(d)(2) of the
Securities Exchange Act of 1934, as amended) becomes the beneficial owner, directly
or indirectly, of securities of the Company representing 20% or more of either the
then issued and outstanding common stock or the combined voting power of the
Company’s then outstanding securities;




     (ii) the shareholders of the Company approve




     (A) any merger, consolidation or other business combination of the
Company with any other “person” (as defined in Sections 13(d) and 14(d)(2)
of the Securities Exchange Act of 1934, as amended) or affiliate thereof,
other than a merger or consolidation that would result in the outstanding
common stock of the Company immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted into common
stock of the surviving entity or a parent or affiliate thereof) at least
sixty percent (60%) of the outstanding common stock of the Company or such
surviving entity or a parent or affiliate thereof outstanding immediately
after such merger, consolidation or other business combination, or




     (B) any sale, lease, exchange or other transfer (in one transaction or
a series of related transactions) of all, or substantially all, of the
assets of the Company; or




     (iii) during any period of two consecutive years, individuals who at the
beginning of such period were members of the Board of Directors of the Company cease
for any reason to constitute at least a majority thereof (unless the re-election, or
the nomination for election by the Company’s stockholders, of each new director was
approved by a vote of at least two-thirds of the directors then still in office who
were directors at the beginning of the period).




     Notwithstanding the occurrence of any of the foregoing events, the Board of Directors
may determine that an event otherwise constituting a Change of Control of the Company shall
not be considered a Change of Control for purposes of this Plan. Such determination by the
Board of Directors shall be effective only if it is made by the Board of Directors prior to
the occurrence of the event which would otherwise be a Change of Control, or after such
event if made by the Board of Directors a majority of which is composed of the same members
as constituted the Board of Directors immediately prior to the event that would otherwise be
a Change of Control of the Company.




     (m) Code. The Internal Revenue Code of 1986, as amended.




     (n) Committee. The persons appointed pursuant to the provisions of Article
VIII.



6









 






     (o) Company. J. Alexander’s Corporation, a Tennessee corporation, and any
successor, purchaser, or transferee of the operating assets and business of J. Alexander’s
Corporation, which elects to continue the Plan.




     (p) Company Stock. Common stock issued by the Company, or by any Affiliated
Company, which stock is readily tradable on an established securities market. Non-callable
preferred stock shall be treated as Company Stock if such stock is convertible at any time
into stock which meets the requirements of the preceding sentence and if such conversion is
at a conversion price which (as of the date of the acquisition by the Plan) is reasonable.
For this purpose preferred stock shall be treated as non-callable if, after the call, there
will be a reasonable opportunity for a conversion which meets the requirements of the last
preceding sentence.




     (q) Company Stock Sub-Account. The portion of a Participant’s Account,
expressed in whole and fractional shares of Company Stock, which represents his share of (i)
Company Stock purchased with his Cash Sub-Account; (ii) Employer contributions made in the
form of Company Stock; (iii) Financed Shares released from the Loan Suspense Account; (iv)
Forfeitures of Company Stock; and (v) any Company Stock attributable to earnings on such
Company Stock Sub-Account.




     (r) Compensation. The total of all amounts paid for employment by the Employer
to or for the benefit of a Participant during the Plan Year (as shown on the Form W-2 filed
for federal income tax purposes), such as salary, bonus, wage, commission, and overtime
payments. Compensation shall not include any of the following (even if includible in gross
income);




     (i) reimbursements or other expense allowances and moving expenses (including
indemnity payments for loss on sale of an Employee’s home);




     (ii) fringe benefits (cash and non-cash), deferred compensation and welfare
benefits; and




     (iii) any contribution made under this Plan or any other qualified retirement
plan (except as provided below).




Notwithstanding the foregoing, Compensation shall include (i) any salary reduction or other
elective deferrals to the Savings Incentive Plan, (ii) salary reduction contributions or
other elective deferrals under the Flexible Benefit Plan, (iii) any other amount that is
contributed or deferred at the election of the Participant as described in Sections 125,
402(g)(3) or 457 of the Code, and (iv) elective amounts that are not includible in the gross
income of the Participant by reason of Section 132(f)(4) of the Code.




Compensation in excess of the first $225,000 (for 2007, to be adjusted from time to time
pursuant to Section 401(a)(17)(B) of the Code) for any Participant shall not be taken into
account.



7









 






     (s) Determination Date. The last day of the Plan Year preceding the Plan Year
for which a determination is made whether the Plan is a Top-Heavy Plan.




     (t) Direct Rollover. A Direct Rollover is a payment by the Plan to the
Eligible Retirement Plan specified by the Distributee.




     (u) Disability Benefit Date. The first day of the calendar month following a
determination by the Committee that the Participant is unable to engage in any substantial
gainful activity by reason of a medically determinable physical or mental impairment which
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.




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




     (w) Distribution Calendar Year. Effective January 1, 2003, a Distribution
Calendar Year is a calendar year for which a minimum distribution is required pursuant to
Section 6.1(e) and Section 401(a)(9) of the Code.




     (x) Early Retirement Date. The date, prior to the Normal Retirement Date,
which shall be the later of (i) the date on which a Participant attains age 60, or (ii) the
date on which he has earned five (5) Years of Vesting Service.




     (y) Effective Date. January 1, 2002.




     (z) Eligible Retirement Plan. Any of the following:




     (i) a qualified trust as described in Code Section 401(a) which is exempt from
tax under Code Section 501(a);




     (ii) an individual retirement account as described in Code Section 408(a);




     (iii) an individual retirement annuity as described in Code Section 408(b);




     (iv) an annuity plan as described in Code Section 403(a);




     (v) an annuity contract as described in Code Section 403(b); and




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



8









 






The foregoing definition of “Eligible Retirement Plan” shall also apply in the case of a
distribution to a surviving spouse, or to a spouse or former spouse who is the alternate
payee under a qualified domestic relations order as defined in Section 414(p) of the Code.




     (aa) Eligible Rollover Distribution. Any distribution of all or any portion of
the balance to the credit of the Distributee, except that an Eligible Rollover Distribution
does not include any of the following:




     (i) any distribution that is one of a series of substantially equal periodic
payments (not less frequently than annually) over the life (or life expectancy) of
the Distributee or the joint lives (or joint life expectancies) of the Distributee
and the Distributee’s designated Beneficiary,




     (ii) a distribution over a period certain of ten years or more,




     (iii) a distribution to the extent such distribution is required under Code
Section 401(a)(9) for Participants who have attained age 701/2.




     (iv) the portion of any distribution that is not includible in gross income
(determined without regard to the exclusion for net unrealized appreciation with
respect to Employer securities), or




     (v) any distribution which is made upon the hardship of the Participant.




     (bb) Employee. Any person employed by the Employer; provided, however, that
the term “Employee” shall not include (i) Leased Employees (except as otherwise required
pursuant to Section 9.6 of this Plan), (ii) any person included in a unit of
employees whose terms and conditions of employment are covered by a collective bargaining
agreement, or (iii) an individual who is classified in the records of the Employer as an
independent contractor, regardless of whether such individual is later determined by the
Internal Revenue Service or a federal or state court to be a common law employee of the
Employer.




     (cc) Employer. The Company and any Adopting Company.




     (dd) ERISA. Public Law No. 93-406, the Employee Retirement Income Security Act
of 1974, as amended from time to time.




     (ee) Fiduciaries. The Employer, the Committee and the Trustee, each of which,
for purposes of the Plan and ERISA, shall be named Fiduciaries; provided, however, that the
Employer is not necessarily acting in a fiduciary capacity in all its transactions with the
Plan.




     (ff) Financed Shares. Company Stock purchased by the Trustee with the proceeds
of an Acquisition Loan.



9









 






     (gg) 5-Percent Owner. Any Employee who owns (or is considered to own under the
constructive ownership rules of Section 318 of the Code) more than five percent (5%) of the
outstanding stock of the Adopting Company which employs him or stock possessing more than
five percent (5%) of the total voting power of the Adopting Company which employs him. In
making the foregoing determination, the beneficial interest in stock of any Adopting Company
which may be owned by the Trust shall not be attributed to any Employee.




     (hh) Flexible Benefit Plan. J. Alexander’s Corporation Flexible Benefit Plan,
a cafeteria plan pursuant to Section 125 of the Code, as amended from time to time.




     (ii) Forfeiture. The non-vested portion of a Participant’s Account which is
forfeited pursuant to Section 4.3(a) of the Plan.




     (jj) Former Participant. A Participant whose employment with the Employer has
terminated, but who has an Account balance under the Plan which has not been paid.




     (kk) 401(a)(9) Account Balance. Effective January 1, 2003, the Account balance
as of the last Valuation Date in the calendar year immediately preceding the Distribution
Calendar Year (the “Valuation Calendar Year”) increased by the amount of any contributions
made and allocated or Forfeitures allocated to the Account balance as of dates in the
Valuation Calendar Year after the Valuation Date and decreased by distributions made in the
Valuation Calendar Year after the Valuation Date. The 401(a)(9) Account Balance for the
Valuation Calendar Year includes any amounts rolled over or transferred to the Plan either
in the Valuation Calendar Year or in the Distribution Calendar Year if distributed or
transferred in the Valuation Calendar Year.




     (ll) Highly Compensated Employee. A Highly Compensated Employee for the
purposes of determinations regarding the current Plan Year is any Employee who:




     (1) was a 5-Percent Owner at any time during the Plan Year or the preceding
Plan Year; or




     (2) received Section 415 Compensation from the Employer in excess of $100,000
for the preceding Plan Year. The $100,000 amount is to be used for 2007 Plan Year
determinations. Such amount is indexed and shall be adjusted pursuant to Treasury
Regulations.




Furthermore, solely for purposes of this Section 2.1(ll), “Employer” shall include any
Affiliated Company.



10









 






     (mm) Hour of Service.




     (1) Each hour for which an Employee is directly or indirectly paid or entitled
to payment by the Employer for the performance of duties. These hours shall be
credited to the Employee for the computation period or periods in which the duties
are performed; and




     (2) Each hour for which an Employee is directly or indirectly paid or entitled
to payment by the Employer for reasons (such as vacation, sickness or disability)
other than for the performance of duties, provided that no hours shall be credited
to an Employee on account of payments made or due under a plan maintained solely for
the purpose of complying with applicable workmen’s compensation, unemployment
compensation or disability insurance laws, and further provided that no more than
501 Hours of Service shall be credited under this Section 2.1(mm)(2) to an Employee
on account of any single continuous period during which the Employee performs no
duties (whether or not such period occurs in a single computation period). These
hours shall be credited to the Employee for the computation period or periods in
which the units of time on the basis of which such payments are calculated occur,
beginning with the first unit of time to which the payment relates; provided,
however, that if such payment is not calculated on the basis of units of time, such
hours shall be credited to the computation period in which the condition for which
the Employee is paid or entitled to payment occurs, or if the period during which
such condition occurs extends beyond one computation period, such hours shall be
allocated between the first two of such computation periods on a reasonable and
consistently applied basis as determined by the Committee; and




     (3) Each hour for which back pay, irrespective of mitigation of damages, has
been either awarded or agreed to by the Employer. These hours shall 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.




     For the purpose of determining the Hours of Service which must be credited to an
Employee for a given computation period, the following method shall be utilized:




     (a) The number of Hours of Service for Employees for whom time records are kept
shall be determined from Employer records.




     (b) The number of Hours of Service for Employees paid on a salaried basis for
whom no time records are kept shall be determined on the basis of the payroll
periods for which the Employee is paid or entitled to payment, at the rate of 45
Hours of Service for each weekly payroll period in the case of a weekly payroll
period, 90 Hours of Service for each bi-weekly payroll period in the case of a
bi-weekly payroll period, 95 Hours of Service for each semi-monthly payroll



11









 






period in the case of a semi-monthly payroll period, and 190 Hours of Service
for each monthly payroll period in case of a monthly payroll period. An Employee
shall be credited with the full number of Hours of Service corresponding to a
payroll period for each payroll period for which the Employee would be required to
be credited with at least one Hour of Service under (1), (2) or (3) above.




     In the case of a payment which is made or due on account of a period during which an
Employee performs no duties, and which results in the crediting of Hours of Service or in
the case of an award or agreement for back pay which results in the crediting of Hours of
Service, the number of such Hours of Service to be credited shall be determined in
accordance with Section 2530.200b-2(b) of the Regulations of the Department of Labor issued
on December 28, 1976, as the same may be amended from time to time, which Regulations are
hereby incorporated herein by reference as fully as though copied herein verbatim.




     In calculating the number of Hours of Service with which an Employee is to be credited
for purposes of determining his eligibility to participate under Article III and his vested
benefit under Section 6.8, service with any Affiliated Company shall be counted.




     (nn) Income. The net gain or loss of the Trust from investments based upon
fair market value, as reflected by




     (i) interest payments and dividends from all sources other than (A) Company
Stock and (B) amounts held in the Loan Amortization Account,




     (ii) realized and unrealized gains and losses on securities other than Company
Stock,




     (iii) other investment transactions, and




     (iv) expenses paid from the Trust.




     (oo) Key Employee. Any Employee or former Employee (and his Beneficiaries)
who, at any time during the Plan Year which includes the Determination Date, is:




     (a) An officer of any Affiliated Company having annual Section 415 Compensation
greater than $145,000 (for 2007, to be adjusted pursuant to Section 416(i)(1) of the
Code) for such Plan Year;




     (b) A 5-percent Owner; or




     (c) a 1-percent Owner (defined as any person who would be a 5-percent Owner if
“one percent (1%)” were substituted for “five percent (5%)” each place it appears in
Section 2.1(gg) having annual Section 415 Compensation of more than $150,000.



12









 






For purposes of determining the number of officers taken into account pursuant to Section
1.416-1 of the Treasury Regulations, employees described in Section 414(q)(5) of the Code
shall be excluded.




     (pp) Leased Employee. Any person who is not an employee of the Employer and
who provides services to the Employer if




     (i) such services are provided pursuant to an agreement between the Employer
and a leasing organization,




     (ii) such person has performed such services for the Employer (or for an
Affiliated Company) on a substantially full-time basis for a period of at least one
year, and




     (iii) such services are performed under primary direction or control by the
Employer.




The determination of whether such person is a Leased Employee shall be made in accordance
with Section 414(n) of the Code.




     (qq) Loan Amortization Account. The single account for the Plan which shall be
credited with Employer cash contributions made for the purpose of repayment of an
Acquisition Loan (including interest), and other adjustments as provided in Section 5.2(c).




     (rr) Loan Suspense Account. The single account for the Plan which shall be
credited with Financed Shares not yet allocated to Participants’ Company Stock Sub-Accounts,
and other adjustments as provided in Section 5.2(e).




     (ss) Minimum Benefit. For any Top-Heavy Plan Year, the minimum benefit
required by Section 416 of the Code to be provided to each Participant as described in
Section 5.4.




     (tt) Non-Key Employee. Any Employee who is not a Key Employee.




     (uu) Normal Retirement Date. The date on which a Participant attains age 65.




     (vv) Participant. A person participating in the Plan in accordance with the
provisions of Article III. Effective December 31, 2006, notwithstanding any other provision
in the Plan to the contrary, no Employee who is not a Participant on December 31, 2006,
shall become a Participant after that date. However, Participants shall continue to receive
credit for Years of Vesting Service in accordance with Section 2.1(kkk) of the Plan and for
the purpose of receiving allocations of discretionary Employer contributions under Section
4.1 of the Plan.



13









 






     (ww) Plan. J. Alexander’s Corporation Employee Stock Ownership Plan, as set
forth herein and amended from time to time.




     (xx) Plan Year. The twelve-month period from January 1 through December 31.




     (yy) Qualified Participant. A participant who has attained age 55 and has
completed ten (10) years of participation in the plan subsequent to December 31, 1991, and
who is entitled to elect to receive a pre-retirement distribution from his Account pursuant
to Section 6.13.




     (zz) Required Beginning Date. Effective January 1, 2003, the date specified in
Section 6.1(e) hereof for commencement of distributions to Participants during their
lifetime.




     (aaa) Savings Incentive Plan. J. Alexander’s Corporation Savings Incentive and
Salary Deferral Plan, a profit sharing and 401(k) plan originally established effective
January 1, 1985, as amended from time to time.




     (bbb) Section 415 Compensation. The total “wages” paid for employment by the
Employer (and all Affiliated Companies) to or for the benefit of a Participant during the
Plan Year (as shown on the Form W-2 filed for federal income tax purposes). For purposes of
this determination, “wages” shall mean wages as defined in Section 3401(a) of the Code for
purposes of income tax withholding at the source, and all other payments of compensation to
the Employee by the Employer for which the Employer is required to furnish the Employee a
written statement under Sections 6041(d) and 6051(a)(3) of the Code, 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, and excluding from wages amounts paid
or reimbursed by the Employer for moving expenses incurred by an Employee to the extent that
at the time of the payment it is reasonable to believe that these amounts are deductible by
the Employee under Section 217 of the Code. The term “Section 415 Compensation” shall
include (i) salary reductions or elective deferrals to the Savings Incentive Plan, (ii)
salary reduction contributions or other elective deferrals under the Flexible Benefit Plan,
(iii) any other amount that is contributed or deferred at the election of the Employee as
described in Sections 125, 402(g)(3) or 457 of the Code, and (iv) elective amounts that are
not includible in the gross income of the Employee under Section 132(f)(4) of the Code.




     (ccc) Stock Purchase Account. The single account for the Plan which shall be
credited with cash contributions by the Employer made for the purpose of purchasing Company
Stock and which shall be debited when Company Stock is purchased.




     (ddd) Top-Heavy Plan. The meaning given that term by Section 416(g) of the
Code, as described with particularity in Article XIII.



14









 






     (eee) Top-Heavy Plan Year. Any Plan Year for which the Plan is a Top-Heavy
Plan.




     (fff) Trust. The fund known as the J. Alexander’s Corporation Employee Stock
Ownership Trust, maintained in accordance with the terms of the Trust Agreement, as from
time to time amended, which constitutes a part of this Plan.




     (ggg) Trustee. The corporation, individual or individuals appointed by the
Board of Directors of the Company to administer the Trust.




     (hhh) Valuation Calendar Year. Effective January 1, 2003, the calendar year
immediately preceding the Distribution Calendar Year.




     (iii) Valuation Date. The last day of each Plan Year or the date on which a
special valuation is made pursuant to Section 6.14.




     (jjj) Year of Eligibility Service. A twelve consecutive-month period in which
an Employee has completed 1,000 Hours of Service. The initial computation period shall be
measured from the date employment commenced and subsequent computation periods shall be
based on the Plan Year beginning with the Plan Year which includes the first anniversary of
the date employment commenced.




     In the case of an Employee who, under the Plan, does not have any nonforfeitable right
to an accrued benefit, Years of Eligibility Service before any period of consecutive
one-year Breaks in Service shall not be taken into account if the number of consecutive
Breaks in Service equals or exceeds the greater of five (5) or the number of such Years of
Eligibility Service prior to the period of consecutive Breaks in Service.




     Years of Eligibility Service prior to January 1, 1992 shall be taken into account.




     (kkk) Year of Vesting Service. A Plan Year in which an Employee has completed
1,000 Hours of Service, except:




     (1) In the case of any Employee who has five consecutive one-year Breaks in
Service, Years of Vesting Service after such consecutive Breaks in Service shall not
be taken into account for purposes of determining the nonforfeitable percentage of
his Account as it existed prior to the period of consecutive Breaks in Service.




     (2) In the case of an Employee who, under the Plan, does not have any
nonforfeitable right to an accrued benefit, Years of Vesting Service before any
period of consecutive one-year Breaks in Service shall not be taken into account if
the number of consecutive Breaks in Service equals or exceeds the greater of five
(5) or the number of such Years of Vesting Service prior to the period of
consecutive Breaks in Service.



15









 






     Years of Vesting Service prior to January 1, 1987, shall be excluded without exception.
Years of Vesting Service as of December 31, 1991 shall be determined based on the number of
calendar years commencing on January 1, 1987 and anniversaries thereof during which the
Employee was credited with at least one Hour of Service. Such determination shall be made
in accordance with paragraphs 1 and 2 of this Section 2.1(kkk). For all Employees,
regardless of their hire date, all Years of Vesting Service commencing on or after January
1, 1992, shall be determined under the foregoing rules of this Section 2.1(kkk) excluding
this last paragraph.



16









 





ARTICLE III

Participation




     3.1 Participation. Any Employee shall be eligible to participate in the Plan upon
completing one Year of Eligibility Service and attaining age twenty-one. An eligible Employee
shall become a Participant as of January 1 of the Plan Year in which he met the requirements, if he
met the requirements in the first six months of the Plan Year, or as of January 1 of the next
succeeding Plan Year, if he met the requirements in the last six months of the Plan Year. An
Employee otherwise entitled to commence participation on the above entry date shall not commence
participation on that date if he terminates his employment (i) prior to the above entry date, in
the case of an Employee who was hired during the last six months of a Plan Year, or (ii) prior to
the first anniversary date of his employment commencement date, in the case of an Employee who was
hired during the first six months of a Plan Year; but such Employee shall, if he should be
re-employed, be treated in the same manner as a former Participant pursuant to Section 3.3.



     Notwithstanding the foregoing, no Employee shall become a Participant unless such Employee
shall submit to the Committee, in the manner and form specified by the Committee, any application
for participation in the Plan which the Committee may require from time to time.



     Effective December 31, 2006, notwithstanding any other provision in the Plan to the contrary,
no Employee who is not a Participant on December 31, 2006, shall become a Participant after that
date. However, Participants shall continue to receive credit for Years of Vesting Service in
accordance with Section 2.1(kkk) and for the purpose of receiving allocations of discretionary
Employer contributions under Section 4.1.



     3.2 Termination of Participation. Participation in the Plan shall cease upon a
termination of employment as an Employee with the Employer.



     3.3 Participation upon Re-Employment. A former Employee who is re-employed shall be
credited with Years of Eligibility Service and Years of Vesting Service prior to the termination of
his employment to the extent provided in Sections 2.1(jjj) and 2.1(kkk).



     A former Employee who is re-employed and whose Years of Eligibility Service prior to
re-employment are excluded pursuant to Section 2.1(jjj) shall be treated as a new Employee and
shall not participate until he has satisfied the conditions for participation pursuant to the
requirements of Section 3.1. Any other former Employee who is re-employed shall become a
Participant effective on the date of re-employment.



     3.4 Agreement to Terms of Plan. Upon becoming a Participant, an Employee shall be
bound by the terms of the Plan and Trust, including all amendments thereto.



17









 





ARTICLE IV

Contributions and Forfeitures




     4.1 Employer Contributions. The Employer expects to contribute to the Plan each year.
The amount of such contributions shall be determined annually by the Employer, and except as
hereinafter provided in the event of a Change of Control, the Employer shall not be required to
make such Employer contributions in any particular year. Unless otherwise designated by the
Employer, Employer contributions shall be conditioned upon the deductibility of the contribution
under Section 404 of the Code. Such contributions shall be returned to the Employer under the
conditions specified in Section 7.1.



     Employer contributions shall be made in cash, shares of Company Stock, or such other property
as the Employer may from time to time determine. The Employer may direct all or any portion of a
cash contribution to the Stock Purchase Account, which shall be used to purchase Company Stock on
or before the time specified in Section 4.6 for payment of Employer contributions to the Trust.
The Employer may further direct all or any portion of a cash contribution to the Loan Amortization
Account, which shall be used to repay principal and interest on any Acquisition Loan.



     Upon the occurrence of a Change of Control at a time when an Acquisition Loan remains
outstanding, the Employer shall be immediately obligated to make an Employer contribution to the
Loan Amortization Account for the Plan Year during which the Change of Control occurs equal to the
lesser of the following sums:




     (i) an amount sufficient to enable the Trust to pay the entire outstanding principal
and interest on the Acquisition Loan, or




     (ii) an amount sufficient to enable all Participants to receive an allocation for that
Plan Year of the maximum Additions to their Account permitted pursuant to Section 5.3;



provided, however, that the Company shall have no such obligation if the Board of Directors
nullifies the occurrence of the Change of Control in the manner provided in Section 2.1(l).



     Any amounts so contributed to the Loan Amortization Account shall be paid by the Trustee to
the holder of the Acquisition Loan and any Financed Shares which would otherwise be allocated to
Participants so as to create an annual Addition in excess of the limitations of Section 5.3 shall
be reallocated to other Participants in proportion to their Compensation to the extent that such
reallocation does not cause the annual Additions for such other Participants to exceed the
limitations of Section 5.3.



     4.2 Employee Contributions. No Participant shall be required or permitted to make
contributions to the Plan.



18









 





     4.3 Forfeitures. [This version of Section 4.3 is effective for distributions prior to
March 28, 2005.]




     (a) If a Participant terminates employment for any reason, other than normal
retirement, early retirement, delayed retirement, disability or death, the portion of his
Account which is not a “vested benefit” as described in Section 6.8 shall be subject to
becoming a Forfeiture. Such non-vested portion of a Participant’s Account shall become a
Forfeiture at the time provided in Section 4.3(b) for a cash out of his nonforfeitable
benefit.




     (b) After termination of employment with Employer and with all Affiliated Companies
(other than for disability, normal retirement, early retirement, delayed retirement, or
death), but no later than the end of the Plan Year following the Plan Year in which such
termination occurs, the Participant shall be entitled to receive a “cash out” of such
Participant’s “vested benefit” as determined pursuant to Section 6.8; provided, however,
that corporate officers of the Company may receive the cash out referred to in this Section
4.3(b) only if such “vested benefit” is not greater than $10,000. Distribution to a
corporate officer of the Company of a vested benefit greater than $10,000 shall occur at the
time provided in the last paragraph of this Section 4.3(b). Such cash out of the vested
benefit shall not be made in the absence of written consent thereto by the Participant if
the vested benefit (as determined pursuant to Section 6.8) attributable to Employer
contributions is greater than $5,000. For the sole purpose of determining whether the
vested benefit is less than $5,000 or $10,000, as the case may be, Company Stock in the
Participant’s Company Stock Sub-Account shall be valued at its market value on the first
trading date of the Plan Year during which the distribution is scheduled to occur. A
Participant having a vested benefit of zero shall be deemed to have been cashed out
hereunder on the date of his termination of employment. Upon such a deemed payment, the
Participant’s nonvested Account balance shall become a Forfeiture upon the date of the cash
out. Such Forfeiture shall then be allocated to the Accounts of other Participants as
provided in Section 5.2.




     A Participant having a vested benefit of zero who is deemed to receive a cash out upon
termination of employment, and who later resumes employment covered under the Plan before
the last day of the Plan Year in which the Participant incurs five (5) consecutive Breaks in
Service commencing after the deemed distribution, shall have restored the Participant’s
previous balance in his Account at the time of the cash out, with no adjustment for Income
or other earnings, and all Years of Service, whether before or after the cash out date,
shall be counted for purposes of determining the Participant’s vested percentage in the
restored Account balance. The number of shares in Company Stock restored to his Company
Stock Sub-Account shall be the number of shares which can be purchased, based on the market
value per share on the date of the deemed repayment, for a sum equal to the market value of
the shares in the Participant’s Company Stock Sub-Account on the date of the deemed cash
out.



19









 






     Forfeitures which have become available for allocation during the Plan Year in which a
deemed repayment occurs shall first be allocated to the extent required to restore the
Participant’s previously nonvested Account balance in full, and any remaining Forfeitures
shall be allocated as provided in Section 5.2. If available Forfeitures are insufficient to restore the Participant’s previously nonvested Account balance, the
difference shall be provided by a special Employer contribution. The foregoing special
contribution and allocation of Forfeitures shall not be considered as part of the annual
Addition for that Participant in connection with the limitations of Section 5.3 hereof.




     If a distribution is not made at the time specified in the first paragraph of this
Section 4.3(b) because the Participant is a corporate officer of the Company and such
Participant’s vested benefit is greater than $10,000, as determined by reference to the
market value of the Company Stock on the first trading date of the Plan Year during which
the distribution would have been made if such Participant’s vested benefit had been less
than $10,000, such Participant shall be entitled to elect to receive a distribution of his
vested benefit during the third Plan Year following the Plan Year during which he terminated
employment with the Employer and with all Affiliated Companies.



     4.3 Forfeitures. [This version of Section 4.3 is effective for distributions on or
after March 28, 2005.]




     (a) If a Participant terminates employment for any reason, other than normal
retirement, early retirement, delayed retirement, disability or death, the portion of his
Account which is not a “vested benefit” as described in Section 6.8 shall be subject to
becoming a Forfeiture. Such non-vested portion of a Participant’s Account shall become a
Forfeiture at the time provided in Section 4.3(b) for a cash out of his nonforfeitable
benefit.




     (b) After termination of employment with the Employer and with all Affiliated Companies
(other than for disability, normal retirement, early retirement, delayed retirement, or
death), but no later than the end of the Plan Year following the Plan Year in which such
termination occurs, the Participant shall be entitled to receive a “cash out” of such
Participant’s “vested benefit” as determined pursuant to Section 6.8 provided that corporate
officers of the Company may receive the cash out referred to in this Section 4.3(b) only if
such “vested benefit” is not greater than $10,000. Distribution to a corporate officer of
the Company of a vested benefit greater than $10,000 shall occur at the time provided in the
last paragraph of this Section 4.3(b). Such cash out of the vested benefit shall not be
made in the absence of written consent thereto by the Participant if the vested benefit (as
determined pursuant to Section 6.8) is greater than $1,000. If the vested benefit is not
greater than $1,000, the Participant shall receive a mandatory distribution of the vested
benefit in a lump sum, regardless of whether the Participant consents to such distribution,
during the Plan Year following the Plan Year in which termination of employment occurs. For
the sole purpose of determining whether the vested benefit is not greater than $1,000 or
$10,000, as the case may be, Company Stock in the Participant’s Company Stock Sub-Account
shall be valued at its market



20









 






value on the first trading date of the Plan Year during which the distribution is scheduled to occur. A Participant having a vested benefit of zero shall
be deemed to have been cashed out hereunder on the date of his termination of employment.
Upon such a deemed payment, the Participant’s nonvested Account balance shall become a
Forfeiture upon the date of the cash out. Such Forfeiture shall then be allocated to the Accounts of other
Participants as provided in Section 5.2.




     A Participant having a vested benefit of zero who is deemed to receive a cash out upon
termination of employment, and who later resumes employment covered under the Plan before
the last day of the Plan Year in which the Participant incurs five (5) consecutive Breaks in
Service commencing after the deemed distribution, shall have restored the Participant’s
previous balance in his Account at the time of the cash out, with no adjustment for Income
or other earnings, and all Years of Service, whether before or after the cash out date,
shall be counted for purposes of determining the Participant’s vested percentage in the
restored Account balance. The number of shares in Company Stock restored to his Company
Stock Sub-Account shall be the number of shares which can be purchased, based on the market
value per share on the date of the deemed repayment, for a sum equal to the market value of
the shares in the Participant’s Company Stock Sub-Account on the date of the deemed cash
out.




     Forfeitures which have become available for allocation during the Plan Year in which a
deemed repayment occurs shall first be allocated to the extent required to restore the
Participant’s previously nonvested Account balance in full, and any remaining Forfeitures
shall be allocated as provided in Section 5.2. If available Forfeitures are insufficient to
restore the Participant’s previously nonvested Account balance, the difference shall be
provided by a special Employer contribution. The foregoing special contribution and
allocation of Forfeitures shall not be considered as part of the annual Addition for that
Participant in connection with the limitations of Section 5.3 hereof.




     If a distribution is not made at the time specified in the first paragraph of this
Section 4.3(b) because the Participant is a corporate officer of the Company and such
Participant’s vested benefit is greater than $10,000, as determined by reference to the
market value of the Company Stock on the first trading date of the Plan Year during which
the distribution would have been made if such Participant’s vested benefit had been less
than $10,000, such Participant shall be entitled to elect to receive a distribution of his
vested benefit during the third Plan Year following the Plan Year during which he terminated
employment with the Employer and with all Affiliated Companies.



     4.4 Employer Top-Heavy Special Contributions. For each Top-Heavy Plan Year the
Employer shall make a special contribution to the Trust as may be required in an amount sufficient
to satisfy the allocation of the Minimum Benefit to each Non-Key Employee pursuant to Section 5.4.



     4.5 Rollover Contributions. No rollover contributions to the Plan shall be permitted.



21









 





     4.6 Time of Payment of Employer Contributions. All contributions by the Employer
shall be paid to the Trustee, and payment for each fiscal year shall be made not later than the
date prescribed by law for filing the Employer’s federal income tax return, including extensions
which have been granted for the filing of such return.



     4.7 Acquisition Loans. The Trustee may, with the direction of the Committee, incur
Acquisition Loans from time to time to purchase Financed Shares of Company Stock for the Trust or
to repay a prior Acquisition Loan. The Trustee shall not enter into any Acquisition Loans without
the approval of the Board of Directors. The following provisions shall apply with respect to any
such Acquisition Loan:




     (a) the Acquisition Loan must be at a reasonable rate of interest and without recourse
against the Trust;




     (b) any collateral pledged to the creditor by the Trust shall consist only of the
Company Stock purchased with the proceeds of the loan and Company Stock that was used as
collateral for a prior Acquisition Loan repaid with the proceeds of the current Acquisition
Loan (provided, however, that, in addition to such collateral, the Company may guarantee or
provide collateral for repayment of the loan);




     (c) under the terms of the Acquisition Loan, the creditor shall not have any right to
assets of the Trust other than (1) collateral given for the loan, (2) Employer contributions
to the Loan Amortization Account, and (3) amounts earned on such collateral and on the
investment of contributions to the Loan Amortization Account;




     (d) upon the payment of any portion of the balance due on the Acquisition Loan, the
Company Stock originally pledged as collateral for such repaid portion shall be released
from the encumbrance and allocated as provided in Section 5.2(e);




     (e) the Acquisition Loan must be for a specific term and may not be payable at the
demand of any person except in the case of default;




     (f) in the event of default on the Acquisition Loan, the value of the Plan assets
transferred in satisfaction of the loan must not exceed the amount of default. If the
lender is a “disqualified person,” as defined in Section 4975(e)(2) of the Code, the
Acquisition Loan must provide for a transfer of Plan assets upon default only upon and to
the extent of the failure of the Plan to meet the payment schedule of the loan; and




     (g) the proceeds of the Acquisition Loan must be used within a reasonable time after
their receipt to acquire Company Stock. Financed Shares shall be initially credited to the
Loan Suspense Account and shall be transferred for allocation to the Company Stock
Sub-Accounts of Participants only as payments of principal and interest are made on the
Acquisition Loan by the Trustee, as provided in Section 5.2(e).



22









 





ARTICLE V

Allocations to Participant’s Accounts




     5.1 Individual Accounts. The Administrator shall create and maintain adequate records
to disclose the interest in the Trust of each Participant, Former Participant, and Beneficiary.
The maintenance of individual accounts is only for accounting purposes, and a segregation of the
assets of the Trust to each Account shall not be required.



     5.2 Account Adjustments. The Accounts of Participants and Former Participants shall
be adjusted in accordance with the following:




     (a) Forfeitures and Employer Contributions. As of the last day of each Plan
Year, the Account of each Participant who is an Employee on the last day of such Plan Year
shall be credited with his share (as determined below) of the contributions (which
contributions shall be combined with any Forfeitures which have become available for
allocation during such Plan Year) made by the Employer for the Plan Year; provided, however,
that a Participant who terminated employment during such Plan Year by reason of normal
retirement, early retirement, delayed retirement, disability or death shall not be excluded
from receiving an allocation of the Employer contribution and Forfeitures.




     Notwithstanding the foregoing, for any Plan Year in which a Change of Control occurs,
all Participants who are Employees on the date of the Change of Control shall receive an
allocation of the Employer contribution and Forfeitures for that Plan Year.




     Contributions in cash to the Stock Purchase Account or to the Loan Amortization Account
shall not be allocated to the Accounts of Participants, but Company Stock purchased from the
Stock Purchase Account and Company Stock released from the Loan Suspense Account as a result
of such contributions shall be allocated to the Company Stock Sub-Accounts of Participants
as provided in Section 5.2(d)(1). Company Stock contributed in kind, purchased from the
Stock Purchase Account, or released from the Loan Suspense Account shall be allocated as of
each Valuation Date to such Participants in the proportion that each Participant’s
Compensation for such Plan Year bears to the total Compensation of all Participants entitled
to share in the contribution.




     (b) Stock Purchase Account. A single Stock Purchase Account shall be
established for Employer contributions in cash earmarked for investment in Company Stock.
The Stock Purchase Account shall be credited at the time of Employer contributions
designated for such Stock Purchase Account pursuant to Section 4.1. It shall be debited at
the time and in the amount of purchases of Company Stock from such Stock Purchase Account.
Any earnings on assets in the Trust represented by cash contributions to the Stock Purchase
Account prior to use of such assets to purchase Company Stock shall be allocated for each
Plan Year as Income.




     (c) Loan Amortization Account. A Loan Amortization Account shall be
established in the case of an Acquisition Loan to purchase Financed Shares of Company



23









 






Stock pursuant to Section 4.7, which Account shall be debited for the repayment by the
Trust of the Acquisition Loan (including principal and interest) and shall be credited
with all Employer contributions in cash earmarked to meet the obligations of the Trust under
the Acquisition Loan, with earnings on such contributions, and with cash dividends on
Company Stock held in the Trust used to repay the Acquisition Loan pursuant to Section
5.2(g).




     (d) Sub-Accounts of Participant’s Account. Each Participant’s Account shall be
composed of both a Company Stock Sub-Account and a Cash Sub-Account as follows:




     (1) The Company Stock Sub-Account of each Participant will be credited (as of
the last day of the Plan Year) with his allocated share of Company Stock (including
fractional shares) purchased and paid for by the Trust, purchased through the Stock
Purchase Account, released from the Loan Suspense Account as hereinafter provided,
or contributed in kind by the Employer; with stock dividends on Company Stock held
in his Company Stock Sub-Account; and with Forfeitures of Company Stock from the
Company Stock Sub-Accounts of terminated Participants. Contributions in kind of
Company Stock, Company Stock purchased from the Stock Purchase Account, and
Forfeitures of Company Stock shall be allocated among the Company Stock Sub-Accounts
of Participants in proportion to Compensation in the ratios described in Section
5.2(a). Company Stock purchased and paid for by the Trust (other than Financed
Shares or Company Stock from the Stock Purchase Account) shall be allocated among
such Company Stock Sub-Accounts of Participants in the same ratios that the balances
of their respective Cash Sub-Accounts bear to each other immediately before such
purchase. Financed Shares released from the Loan Suspense Account shall be
allocated in the manner provided in Section 5.2(e).




     Any shares of Company Stock sold by the Trust shall be deemed to come from the
Company Stock Sub-Accounts of the Participants on a pro rata basis and shall be
debited (as of the last day of the Plan Year) from such Company Stock Sub-Accounts.
Any distribution in kind of Company Stock during the Plan Year shall be debited from
the Company Stock Sub-Account of the Participant receiving the distribution. The
Committee shall maintain adequate records of the aggregate cost basis of Company
Stock allocated to each Participant’s Company Stock Sub-Account.




     (2) The Cash Sub-Account of each Participant shall be credited (or debited) as
of the last day of the Plan Year with its share of the Income of the Trust, with the
proceeds of any Company Stock in such Participant’s Company Stock Sub-Account which
is sold, with cash dividends on Company Stock in his Company Stock Sub-Account (or
debited with distributions of such dividends) pursuant to Section 5.2(g), and with
contributions in cash or property (other than Company Stock) in excess of the total
amount thereof allocated to the Loan



24









 






Amortization
Account and to the Stock Purchase Account. The Cash Sub-Account shall be debited for any purchase (other than from the Stock Purchase
Account or through an Acquisition Loan) of Company Stock in the same ratios that the
balances of the respective Cash Sub-Accounts of the Participants bear to each other
immediately before such purchase.




     (e) Financed Shares. Company Stock acquired by the Trust through an
Acquisition Loan (“Financed Shares”) shall be held in the Loan Suspense Account, and the
total number of shares to be allocated each Plan Year to the Company Stock Sub-Accounts of
Participants shall be determined by multiplying the total number of shares purchased with
the Acquisition Loan (or, in years subsequent to such purchase, the number of Financed
Shares held in the Loan Suspense Account immediately preceding the date of such allocation)
by a fraction, the numerator of which is the total amount of principal and interest payments
made on the Acquisition Loan by the Trust for the Plan Year and the denominator of which is
the sum of the numerator plus the principal and interest payments to be made for all future
Plan Years on the Acquisition Loan. In the discretion of the Committee, the number of shares to be allocated shall be determined solely with reference to principal payments in
the above formula if (1) the loan provides for payments of principal and interest at a
cumulative rate that is not less rapid at any time than level annual payment of such amounts
for ten (10) years, (2) the disregarded interest is determined to be interest under standard
loan amortization tables, and (3) the term of the loan does not exceed ten (10) years,
whether initially or by reason of renewal, extension or refinancing of the Acquisition Loan.




     Financed Shares thus released from the Loan Suspense Account shall be allocated to the
Company Stock Sub-Accounts of those Participants entitled to share in such allocation under
Section 5.2(a) in the following manner:




     (1) First, with respect to Financed Shares released by reason of Employer
contributions used to repay the Acquisition Loan, in the manner provided in Section
5.2(a); and




     (2) Second, with respect to Financed Shares released by reason of the
application of dividends on Company Stock, in accordance with the provisions of
Section 5.2(g).




     If an interim Valuation Date is selected pursuant to Section 6.14, the foregoing
allocation rules shall be applied for the period commencing on January 1 of that Plan Year
and ending on the interim Valuation Date, taking into account only principal and interest
paid on the Acquisition Loan and Compensation of Participants during that period. A similar
allocation shall be made for the period commencing on the interim Valuation Date and ending
on December 31 of that Plan Year, taking into account only principal and interest paid on
the Acquisition Loan and Compensation of Participants during that period.



25









 






     (f) Income. The Income of the Trust for each Plan Year shall be allocated to
the Cash Sub-Accounts of each Participant and Former Participant on the last day of each
Plan Year in proportion to the Cash Sub-Account balances of such Participants at the
beginning of the Plan Year (or if all such Cash Sub-Account balances are zero, in proportion
to the Company Stock Sub-Account balances at the beginning of the Plan Year), but after
first reducing each such beginning Cash Sub-Account balance by the sum of (i) distributions
from the Cash Sub-Account during the Plan Year and (ii) debits to the Cash Sub-Account for
purchases of Company Stock as provided in Section 5.2(d)(2); or if all Cash Sub-Account
balances are zero, after first reducing each Company Stock Sub-Account by the amount of any
charge to such Company Stock Sub-Account during the Plan Year. Additionally, an allocation
of Income shall be made to a Participant’s Cash Sub-Account on any other Valuation Date
specified in Section 2.1(iii).




     (g) Dividends on Company Stock. Cash dividends on Company Stock shall be
allocated in the following manner:




     (1) Dividends paid on shares of Company Stock allocated to Participants’
Company Stock Sub-Accounts or held in the Loan Suspense Account shall (as required
by applicable Acquisition Loan documentation or, if not so required, as determined
by the Committee) be used by the Trustee, as directed by the Committee, to repay the
balance of an outstanding Acquisition Loan. Any Financed Shares released from the
Loan Suspense Account by reason of such dividends shall be allocated in the
following manner:




     (i) First, if cash dividends paid with respect to shares allocated to a
Participant’s Company Stock Sub-Account are used to repay an Acquisition
Loan, then Company Stock with a fair market value equal to the amount of
such dividends must be allocated to such Participant’s Company Stock
Sub-Account.




     (ii) Second, if any Financed Shares released by reason of such
dividends (whether paid on Company Stock allocated to Company Stock
Sub-Accounts or on Company Stock held in the Loan Suspense Account) remain
after the allocation described in clause (i), these shares shall be
allocated to the Company Stock Sub-Accounts of Participants, pro rata,
according to the balance of each Company Stock Sub-Account as of the
immediately preceding Valuation Date, reduced in each case by the amount of
any charge to said Company Stock Sub-Account since the next preceding
Valuation Date.




     (2) Except as provided in Section 5.2(g)(1) in the case of dividends used to
repay an Acquisition Loan, any cash dividends with respect to shares of Company
Stock allocated to Participants’ Company Stock Sub-Accounts (including cash
dividends described in Section 5.2(g)(3), paid with regard to Company Stock which is
distributed during the Plan Year) or held in the Loan



26









 






Suspense Account shall be allocated among and credited to Cash Sub-Accounts of
the Participants; provided, however, that the dividends so allocated (whether paid
with respect to Company Stock allocated to Company Stock Sub-Accounts or held in the
Loan Suspense Account) shall be allocated among and credited to Cash Sub-Accounts,
pro rata, according to the number of shares of Company Stock held in the respective
Company Stock Sub-Accounts on the date the dividends are paid. Cash dividends on
Company Stock otherwise not yet allocated to the Company Stock Sub-Accounts of
Participants shall be allocated for each Plan Year as Income.




     (3) No allocation of cash dividends on Company Stock, and no allocation of
Financed Shares released from the Loan Suspense Account by reason of such dividends,
shall be made to the Account of a Participant for a Plan Year to the extent the
Participant receives during that Plan Year a distribution of Company Stock with
regard to which the dividends were paid. Any such cash dividends or Financed Shares
released from the Loan Suspense Account by reason of such dividends shall be
allocated as Income in accordance with Section 5.2(f).




     (4) Cash dividends which are distributed to Participants pursuant to Section
6.12 shall be debited from the Cash Sub-Accounts of the distributees, unless such
cash dividends are paid directly to Participants by the Company.



     5.3 Maximum Additions. Notwithstanding anything contained herein to the contrary, the
total Additions made to the Account of a Participant for any Plan Year shall not exceed the lesser
of $45,000 (for 2007, to be adjusted from time to time pursuant to Section 415(d) of the Code) or
100 percent (100%) of the Participant’s Section 415 Compensation for such Plan Year.



     If, in any year, as the result of the allocation of Forfeitures, a reasonable error in
estimating a Participant’s Section 415 Compensation, or other limited facts and circumstances, the
Additions would exceed the limitation for any Participant, such excess shall be reallocated to
eligible Participants as a Forfeiture for the Plan Year. If such reallocated Additions cause the
limitation to be exceeded for all Participants, such excess shall be held in a suspense account.
The amounts in such suspense account shall be allocated as of each Valuation Date until the account
is exhausted, the allocation to be analogous to that provided in Section 5.2(a). Income shall not
be allocated to such suspense account. If a suspense account is in existence at any time during a
particular Plan Year, other than the first Plan Year for which the suspense account is created, all
amounts in the suspense account must be allocated and reallocated to Participants’ Accounts
(subject to the limitations of Section 415 of the Code) before any Employer contributions which
would constitute Additions may be made for that Plan Year.



     In addition to this Plan, the Employer maintains the Savings Incentive Plan with a limitation
year corresponding to the Plan Year. If a Participant is also a participant in the Savings
Incentive Plan, the limitation upon the annual additions which may otherwise be credited to his
Savings Incentive Plan account shall be first reduced by the total Additions for the



27









 




Plan Year credited to such Participant’s Account under this Plan, and the Additions to this
Plan shall not be reduced by reason of any annual additions to the Savings Incentive Plan.




     5.4 Allocation of Top-Heavy Special Contribution to Provide Minimum Benefits. For
Top-Heavy Plan Years, the Employer contributions made pursuant to Section 4.1 and the special
contribution described in Section 4.4 shall first be allocated to the Account of each Non-Key
Employee who has not terminated employment with the Employer at the end of the Plan Year in an
amount sufficient to provide the Minimum Benefit described by the following test. The sum of
Employer contributions and Forfeitures allocated during the Plan Year to the Account maintained for
each Participant who is a Non-Key Employee shall be at least as great as a percentage of such
Non-Key Employee’s Section 415 Compensation. Such percentage shall be equivalent to the highest
ratio for a Key Employee for that Plan Year of




     (i) the sum of Employer contributions and Forfeitures allocated to the Account of the
Key Employee, to




     (ii) the Section 415 Compensation of the Key Employee (restricted to $225,000 as of
January 1, 2007) as adjusted from time to time to Section 401(a)(17) of the Code);


provided, however, that the percentage shall not exceed three percent (3%). This Minimum Benefit
shall be provided in every Top-Heavy Plan Year to all Participants who are Non-Key Employees and
who have not terminated employment with Employer at the end of the Plan Year.




     The provisions of this Section 5.4 shall not apply, and no Employer special contribution
pursuant to Section 4.4 shall be required, for any Non-Key Employee to the extent that such Non-Key
employee is a participant in the Savings Incentive Plan or another defined contribution plan
included with this Plan in a Required or Permissive Aggregation Group (as those terms are defined
in Section 13.2(c) and (d) and the Employer has provided an allocation of the minimum benefit
applicable to top-heavy plans in such other defined contribution plan.




28









 








ARTICLE VI

Benefits




     6.1 Time for Distribution. [This version of Section 6.1 is effective prior to January
1, 2003.] Distribution of benefits to a Participant or Beneficiary shall occur at the date
specified in whichever is applicable of paragraphs (a), (b) or (c), subject to the override
provisions of paragraphs (d), (e), (f) and (g) of this Section 6.1:




     (a) Retirement. Distribution shall occur no later than the end of the 60-day
period after the close of the Plan Year in which a Participant retires on or after his Early
Retirement Date or his Normal Retirement Date.




     (b) Death or Disability. Distribution shall occur no later than the end of the
60-day period after the close of the Plan Year in which occurs a Participant’s Disability
Benefit Date or in which a Participant terminates employment with the Employer (or a Former
Participant’s employment with an Affiliated Company) by reason of his death.




     (c) Other Termination. If the Participant’s employment with the Employer and
with all Affiliated Companies is terminated other than for disability, normal retirement,
early retirement, delayed retirement or death, distribution shall occur at the time provided
in Section 4.3(b) for a “cash out” of such Participant’s benefits.




     (d) Administrative Extension. In the event that due to administrative delays
it is not possible for the Committee to calculate the value of the benefit to be distributed
to a Participant pursuant to paragraph (a), (b) or (c) above, then distribution shall be
deferred until such calculation can be made, but may not be deferred for a longer time than
is prescribed in applicable regulations under ERISA or the Code.




     (e)
Age
701/2. Except for a 5-Percent Owner, distribution shall commence not
later than the April 1 next following the later of the calendar year in which a Participant
attains age 701/2 or retires; provided, however, that a Participant who was born before July
1, 1928, may elect to have his distribution commence not later than the April 1 next
following the calendar year in which such Participant attains age 701/2 whether or not he
remains in the employ of the Employer. For a 5-Percent Owner, distribution shall commence
not later than the April 1 next following the calendar year in which such Participant
attains age 701/2 whether or not he remains in the employ of the Employer. A Participant
receiving distributions pursuant to this Section 6.1(e) as of January 1, 1997, who has not
retired and who is not a 5-Percent Owner, may elect to cease receiving such distributions
until the April 1 next following the calendar year in which such Participant retires.



     Such distribution of a Participant’s benefits shall be made in accordance with the following
requirements and shall otherwise comply with Section 401(a)(9) of the Code and the Treasury
Regulations thereunder (including Section 1.401(a)(9)-2 of the Treasury Regulations). In
accordance with Section 401(a)(9) of the Code and the Treasury Regulations thereunder, for



29









 




purposes of determining the maximum period over which distributions must be made under
Section 401(a)(9) of the Code, a Participant (or his spouse, if applicable) may elect whether or
not life expectancy will be recalculated as permitted under Section 401(a)(9)(D) of the Code;
provided, however, that such election must be made no later than the first required distribution
date under Section 401(a)(9) of the Code, after which such election shall be irrevocable. Absent
such an election, life expectancies shall be recalculated.




     With respect to distributions under this 6.1(e) made for calendar years commencing on or after
January 1, 2002, the Plan will apply the minimum distribution requirements of Section 401(a)(9) of
the Code in accordance with the Regulations under Section 401(a)(9) that were proposed in January
2001, notwithstanding any provision of the Plan to the contrary. This amendment shall continue in
effect until the end of the last calendar year beginning before the effective date of final
regulations under Section 401(a)(9) of the Code or such other date as may be specified in guidance
published by the Internal Revenue Service.




     (f) Option to Delay. Except for a distribution on account of a Participant’s
death, no distribution whose value exceeds $5,000 shall be made prior to the Participant’s
Normal Retirement Date without the written consent of the Participant.




     (g) Normal Retirement Date Override. Subject to any election described in
paragraph (f), distribution to a Participant whose termination of employment has occurred
shall commence no later than 60 days after the end of the Plan Year in which occurs his
Normal Retirement Date.



     The foregoing paragraphs (d), (e), (f) and (g) are applicable notwithstanding anything to the
contrary contained in paragraphs (a), (b) and (c).



     The Plan shall give written notice to a Participant or Beneficiary, eligible for a
distribution of benefits pursuant to this Section 6.1. Such notice shall be given to an eligible
Participant or Beneficiary no less than 30 days but no more than 90 days prior to the proposed date
of distribution. Distribution of such benefits in excess of $5,000 during this period shall comply
with the requirements of Section 4.3(b). However, if the distribution is one to which Sections
401(a)(11) and 417 of the Code do not apply, such distribution may commence less than 30 days after
such notice provided that the Committee clearly informs the Participant or Beneficiary that he has
a right to a period of at least 30 days after receiving such notice to consider the decision of
whether or not to elect a distribution and that the Participant or Beneficiary, after receiving
such notice, affirmatively elects a distribution.



     6.1 Time for Distribution. [This version of Section 6.1 is effective as of January 1,
2003 but does not apply to distributions on or after March 28, 2005.] Distribution of benefits to
a Participant or Beneficiary shall occur at the date specified in whichever is applicable of
paragraphs (a), (b) or (c), subject to the override provisions of paragraphs (d), (e), (f) and (g)
of this Section 6.1:



30









 






     (a) Retirement. Distribution shall occur no later than the end of the 60-day
period after the close of the Plan Year in which a Participant retires on or after his Early
Retirement Date or his Normal Retirement Date.




     (b) Death or Disability. Distribution shall occur no later than the end of the
60-day period after the close of the Plan Year in which occurs a Participant’s Disability
Benefit Date or in which a Participant terminates employment with the Employer (or a Former
Participant’s employment with an Affiliated Company) by reason of his death. If the
Participant dies before the date distributions begin, distribution of the Participant’s
Account balance must be completed by December 31 of the calendar year containing the fifth
(5th) anniversary of the Participant’s death.




     (c) Other Termination. If the Participant’s employment with the Employer and
with all Affiliated Companies is terminated other than for disability, normal retirement,
early retirement, delayed retirement or death, distribution shall occur at the time provided
in Section 4.3(b) for a “cash out” of such Participant’s benefits.




     (d) Administrative Extension. In the event that due to administrative delays
it is not possible for the Committee to calculate the value of the benefit to be distributed
to a Participant pursuant to paragraph (a), (b) or (c) above, then distribution shall be
deferred until such calculation can be made, but may not be deferred for a longer time than
is prescribed in applicable regulations under ERISA or the Code.




     (e)
Age
701/2. The requirements of this Section 6.1(e) shall take precedence
over any inconsistent provisions of the Plan. The Required Beginning Date is the date
distribution is required to commence pursuant to this paragraph and shall be applicable to
all Participants during their lifetimes, subject to earlier commencement of distributions as
may be otherwise required pursuant to Section 6.1(a), (b) or (c). Except for a 5-Percent
Owner, distribution shall commence not later than the April 1 next following the later of
the calendar year in which a Participant attains age 701/2 or the calendar year in which he
retires. For a 5-Percent Owner, distribution shall commence not later than the April 1 next
following the calendar year in which such Participant attains age 701/2 whether or not he
remains in the employ of the Employer. A Participant who was receiving distributions
pursuant to this Section 6.1(e) as of January 1, 1997, who has not retired and who is not a
5-Percent Owner shall continue to receive minimum distributions calculated as provided below
in this Section 6.1(e) until such Participant retires; provided, however, that such a
Participant who is not a 5-Percent Owner may elect to cease receiving such distributions
until the April 1 next following the calendar year in which such Participant retires.




     Distributions to a Participant who has attained age 701/2 and who is receiving minimum
distributions pursuant to the immediately preceding paragraph shall be made in accordance
with Treasury Regulations under Section 401(a)(9) of the Code (the “Treasury Regulations”).
A Distribution Calendar Year is a calendar year for which a minimum distribution is required
pursuant to this Section 6.1(e) and Section 401(a)(9) of the Code. For distributions
beginning before the Participant’s death, the first Distribution



31









 






Calendar Year is the calendar year immediately preceding the calendar year which contains the Participant’s
Required Beginning Date and the last Distribution Calendar Year is the calendar year that
includes the Participant’s date of death. The required minimum distribution for such
Participant’s first Distribution Calendar Year must 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, must be made on or before December 31 of that Distribution Calendar
Year.




     During the Participant’s lifetime, the minimum amount which must be distributed for
each Distribution Calendar Year is the lesser of:




     (1) the quotient obtained by dividing the Participant’s 401(a)(9) Account
Balance by the distribution period in the Uniform Lifetime Table set forth in
Section 1.401(a)(9)-9 of the Treasury Regulations, using the Participant’s age as of
the Participant’s birthday in the Distribution Calendar Year; or




     (2) 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 401(a)(9) Account Balance by the number in the Joint and Last Survivor
Table set forth in Section 1.401(a)(9)-9 of the Treasury Regulations, using the
Participant’s and spouse’s attained ages as of the Participant’s and spouse’s
birthdays in the Distribution Calendar Year.




     Upon death of the Participant after distributions have commenced pursuant to this
Section 6.1(e), the remaining amount in the Participant’s Account on the regular Valuation
Date next preceding the date of the Participant’s death (unless a different Valuation Date
is designated pursuant to Section 6.1) shall be payable in a single lump-sum payment to the
Beneficiary as designated pursuant to Section 6.9. This amount must be distributed by
December 31 of the calendar year immediately following the calendar year in which the death
of the Participant occurred.




     (f) Option to Delay. Except for a distribution on account of a Participant’s
death, no distribution whose value exceeds $5,000 shall be made prior to the Participant’s
Normal Retirement Date without the written consent of the Participant.




     (g) Normal Retirement Date Override. Subject to any election described in
paragraph (f), distribution to a Participant whose termination of employment has occurred
shall commence no later than 60 days after the end of the Plan Year in which occurs his
Normal Retirement Date.



     The foregoing paragraphs (d), (e), (f) and (g) are applicable notwithstanding anything to the
contrary contained in paragraphs (a), (b) and (c).



32









 





     The Plan shall give written notice to a Participant or Beneficiary, eligible for a
distribution of benefits pursuant to this Section 6.1. Such notice shall be given to an eligible
Participant or Beneficiary no less than 30 days but no more than 90 days prior to the proposed date
of distribution. Distribution of such benefits in excess of $5,000 during this period shall comply
with the requirements of Section 4.3(b). However, if the distribution is one to which
Sections 401(a)(11) and 417 of the Code do not apply, such distribution may commence less than 30
days after such notice provided that the Committee clearly informs the Participant or Beneficiary
that he has a right to a period of at least 30 days after receiving such notice to consider the
decision of whether or not to elect a distribution and that the Participant or Beneficiary, after
receiving such notice, affirmatively elects a distribution.



     6.1 Time for Distribution. [This version of Section 6.1 is effective for
distributions on or after March 28, 2005.] Distribution of benefits to a Participant or
Beneficiary shall occur at the date specified in whichever is applicable of paragraphs (a), (b) or
(c), subject to the override provisions of paragraphs (d), (e), (f) and (g) of this Section 6.1:




     (a) Retirement. Distribution shall occur no later than the end of the Plan
Year following the Plan Year in which a Participant retires on or after his Early Retirement
Date (subject to the right of the Participant as provided in Section 6.1(f) to delay the
distribution until his Normal Retirement Date if the value of the vested benefit is greater
than $1,000). If a Participant retires on or after his Normal Retirement Date, distribution
shall occur no later than the end of the 60-day period after the close of the Plan Year in
which the Participant retired regardless of whether the Participant consents to the timing
of the distribution.




     (b) Death or Disability. Distribution shall occur no later than the end of the
Plan Year following the close of the Plan Year in which occurs a Participant’s Disability
Benefit Date (subject to the consent requirements of Section 6.1(f)), and distribution shall
occur no later than the end of the Plan Year following the close of the Plan Year in which a
Participant terminates employment with the Employer (or a Former Participant’s employment
with an Affiliated Company) by reason of his death (regardless of whether the Beneficiary
consents to the timing of such distribution). If the Participant dies before the date
distributions begin, distribution of the Participant’s Account balance must be completed by
December 31 of the calendar year containing the fifth (5th) anniversary of the Participant’s
death.




     (c) Other Termination. If the Participant’s employment with the Employer and
with all Affiliated Companies is terminated other than for disability, normal retirement,
early retirement, delayed retirement or death, distribution shall occur at the time provided
in Section 4.3(b) for a “cash out” of such Participant’s benefits, subject to the right of
the Participant (as provided in Sections 4.3(b) and 6.1(f)) to delay the distribution until
his Normal Retirement Date if the present value of his vested benefit is greater than
$1,000.



33









 






     (d) Administrative Extension. In the event that due to administrative delays
it is not possible for the Committee to calculate the value of the benefit to be distributed
to a Participant pursuant to paragraph (a), (b) or (c) above, then distribution shall be
deferred until such calculation can be made, but may not be deferred for a longer time than
is prescribed in applicable regulations under ERISA or the Code.




     (e)
Age
701/2. The requirements of this Section 6.1(e) shall take precedence
over any inconsistent provisions of the Plan. The Required Beginning Date is the date
distribution is required to commence pursuant to this paragraph and shall be applicable to
all Participants during their lifetimes, subject to earlier commencement of distributions as
may be otherwise required pursuant to Section 6.1(a), (b) or (c). Except for a 5-Percent
Owner, distribution shall commence not later than the April 1 next following the later of
the calendar year in which a Participant attains age 701/2 or the calendar year in which he
retires. For a 5-Percent Owner, distribution shall commence not later than the April 1 next
following the calendar year in which such Participant attains age 701/2 whether or not he
remains in the employ of the Employer. A Participant who was receiving distributions
pursuant to this Section 6.1(e) as of January 1, 1997, who has not retired and who is not a
5-Percent Owner shall continue to receive minimum distributions calculated as provided below
in this Section 6.1(e) until such Participant retires; provided, however, that such a
Participant who is not a 5-Percent Owner may elect to cease receiving such distributions
until the April 1 next following the calendar year in which such Participant retires.




     Distributions to a Participant who has attained age 701/2 and who is receiving minimum
distributions pursuant to the immediately preceding paragraph shall be made in accordance
with Treasury Regulations under Section 401(a)(9) of the Code (the “Treasury Regulations”).
A Distribution Calendar Year is a calendar year for which a minimum distribution is required
pursuant to this Section 6.1(e) and Section 401(a)(9) of the Code. 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 and the last Distribution Calendar Year is the calendar year that
includes the Participant’s date of death. The required minimum distribution for such
Participant’s first Distribution Calendar Year must 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, must be made on or before December
31 of that Distribution Calendar Year.




     During the Participant’s lifetime, the minimum amount which must be distributed for
each Distribution Calendar Year is the lesser of:




     (1) the quotient obtained by dividing the Participant’s 401(a)(9) Account
Balance by the distribution period in the Uniform Lifetime Table set forth in
Section 1.401(a)(9)-9 of the Treasury Regulations, using the Participant’s age as of
the Participant’s birthday in the Distribution Calendar Year; or



34









 






     (2) 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 401(a)(9) Account Balance by the number in the Joint and Last Survivor
Table set forth in Section 1.401(a)(9)-9 of the Treasury Regulations, using the Participant’s and spouse’s attained ages as of the Participant’s and
spouse’s birthdays in the Distribution Calendar Year.




     Upon the death of the Participant after distributions have commenced pursuant to this
Section 6.1(e), the remaining amount in the Participant’s Account on the regular Valuation
Date next preceding the date of the Participant’s death (unless a different Valuation Date
is designated pursuant to Section 6.1) shall be payable in a single lump-sum payment to the
Beneficiary as designated pursuant to Section 6.9. This amount must be distributed by
December 31 of the calendar year immediately following the calendar year in which the death
of the Participant occurred.




     (f) Option to Delay. Except for a distribution on account of a Participant’s
death, no distribution whose value exceeds $1,000 shall be made prior to the Participant’s
Normal Retirement Date without the written consent of the Participant.




     (g) Normal Retirement Date Override. Subject to any election described in
paragraph (f), distribution to a Participant whose termination of employment has occurred
shall commence no later than 60 days after the end of the Plan Year in which occurs his
Normal Retirement Date.



     The foregoing paragraphs (d), (e), (f) and (g) are applicable notwithstanding anything to the
contrary contained in paragraphs (a), (b) and (c).



     The Plan shall give written notice to a Participant or Beneficiary, eligible for a
distribution of benefits pursuant to this Section 6.1. Such notice shall be given to an eligible
Participant or Beneficiary no less than 30 days but no more than 90 days prior to the proposed date
of distribution. Distribution of such benefits in excess of $1,000 during this period shall comply
with the written consent requirement of Section 6.1(f). However, if the distribution is one to
which Sections 401(a)(11) and 417 of the Code do not apply, such distribution may commence less
than 30 days after such notice provided that the Committee clearly informs the Participant or
Beneficiary that he has a right to a period of at least 30 days after receiving such notice to
consider the decision of whether or not to elect a distribution and that the Participant or
Beneficiary, after receiving such notice, affirmatively elects a distribution.



     6.2 Method of Payment. The benefits provided hereunder shall be payable in one lump
sum payment (but allowing for separate distributions of cash and Company Stock within the same
calendar year).



     6.3 Normal Retirement Benefit. Each Participant in the employment of the Employer on
his Normal Retirement Date (and each Former Participant who on his Normal Retirement Date is
employed by an Affiliated Company), shall be eligible to retire on that date and shall be 100%
vested in his Account balance.



35









 





     6.4 Early Retirement Benefit. Each Participant in the employment of the Employer on
his Early Retirement Date (and each Former Participant who on his Early Retirement Date is employed by an Affiliated Company), shall be eligible to retire on that date and shall be 100%
vested in his Account balance.



     6.5 Delayed Retirement Benefit. A Participant who remains in employment with the
Employer (and a Former Participant, with an Affiliated Company) beyond his Normal Retirement Date
shall be eligible to retire on his Delayed Retirement Date, which shall be the date on which he
actually retires, and he shall be entitled to a benefit of the amount in his Account.



     6.6 Total and Permanent Disability Benefit. Each Participant who terminates
employment with the Employer by reason of his total and permanent disability (and each Former
Participant who terminates employment with an Affiliated Company by reason of his total and
permanent disability) shall, upon his Disability Benefit Date, be 100% vested in his Account
balance.



     6.7 Death Benefit. If a Participant’s employment with Employer (or a Former
Participant’s employment with an Affiliated Company) is terminated by death, such Participant shall
be 100% vested in his Account balance and such Account balance shall be payable as a benefit to his
Beneficiary as designated pursuant to Section 6.9. The payment of death benefits to a Beneficiary
shall be made in one lump-sum payment (but allowing separate distributions of cash and Company
Stock within the same calendar year).



     6.8 Vested Benefit. If any Participant’s employment with Employer and with all
Affiliated Companies is terminated other than by normal retirement, early retirement, delayed
retirement, disability or death, he shall be entitled to a “vested benefit” which shall include a
percentage of his Account, based on his Years of Vesting Service, according to the vesting table
provided in either Section 6.8(a) or Section 6.8(b), depending upon whether the Plan is a Top-Heavy
Plan for the Plan Year during which such termination occurs:




     (a) Except as provided in Section 6.8(b) and (c) the percentage shall be as follows:



	 	 	 	 	 
	 	 	Percentage of
	Years of Vesting Service	 	Account
	 
	 	 	 	 
	Less than 5
	 	 	0	%
	5 or more
	 	 	100	%







     (b) For a Plan Year for which the Plan is a Top-Heavy Plan, the percentage shall be as
follows:



	 	 	 	 	 
	 	 	Percentage of
	Years of Vesting Service	 	Account
	 
	 	 	 	 
	Fewer than 3
	 	 	0	%
	3 or more
	 	 	100	%






36









 







     (c) such termination of employment (other than by reason of death, disability, normal
retirement, early retirement or delayed retirement) in any year which is not a Top-Heavy
Plan Year, each Participant who had three (3) or more Years of Vesting Service at any time
during a Top-Heavy Plan Year shall be entitled to elect a vested benefit determined in
accordance with the table in Section 6.8(b). Any other Employee who was a Participant
during a Top-Heavy Plan Year shall be entitled to a vested benefit determined in accordance
with the table in Section 6.8(a), except that such percentage shall not be less than the
percentage under the table in Section 6.8(b) which would have applied if his termination of
employment had occurred on the last day of the last Top-Heavy Plan Year prior to his actual
termination of employment.




     (d) The remainder of a Participant’s Account which does not constitute his vested
benefit shall be treated as a Forfeiture at the time and in the manner specified pursuant to
Sections 4.3 and 5.2(a).




     (e) For purposes of determining whether an Employee is entitled to receive any vested
benefit under this Article VI, and the time of payment of such vested benefit under Section
4.3(c), he shall not be deemed to have terminated his employment under the Plan until he is
no longer employed by any Affiliated Company to which he may have been transferred,
irrespective of whether he shall have ceased to be classified as an Employee following such
transfer.



     6.9 Designation of Beneficiary. Subject to the rights of a surviving spouse described
herein, each Participant (or Former Participant) may from time to time designate a Beneficiary or
Beneficiaries to whom his Plan benefits are to be paid if he dies before receipt of all such
benefits. Each Beneficiary designation, or revocation thereof, shall be in a form prescribed by
the Committee and will be effective only when filed with the Committee. Unless the conditions
which follow for the designation of a Beneficiary other than the spouse are satisfied, the
Beneficiary of a Participant who is married on the date of his death shall be the surviving spouse,
whether or not so designated in the form, and even if no such form is filed. Designation of a
Beneficiary other than such Participant’s spouse for any portion of the benefits shall be valid
only if either




     (i) the spouse consents in writing thereto, acknowledging the effect of such
designation, the particular non-spouse Beneficiary and the form of benefit payment;




     (ii) the spouse consents in writing thereto, acknowledging the effect of such
designation and the form of benefit payment, and the consent by the spouse expressly permits
future changes of Beneficiary without further consent by the spouse;




     (iii) the Participant, although married at the time of the designation, is ultimately
not survived by his spouse or is divorced from his spouse;




     (iv) the surviving spouse cannot be located; or



37









 






     (v) the Participant and spouse are legally separated as evidenced by a court order.



     Spousal consent pursuant to (i) or (ii) shall be witnessed by a notary public or Plan
representative, and shall be irrevocable. If the Participant is survived by a spouse other than
the spouse who consented to designation of another as Beneficiary, the consent of the former spouse
shall be ineffective. If the Participant has no designation of a Beneficiary in effect at the time
of his death, and is not survived by a spouse, or if the surviving spouse cannot be located, any
Plan benefits shall be payable in the following order of priority: (a) to the children, including
adopted children, of the Participant in equal shares, per stirpes; or if none survive, (b) to the
surviving natural parents of the Participant, in equal shares; or if neither survives, (c) to the
estate of the Participant.



     6.10 Additional Benefits. Whenever benefits are computed according to the balance of
a Participant’s Account on a Valuation Date, and thereafter additional amounts are allocated to
such Participant’s Account from contributions, Forfeitures, Income, dividends or other investment
earnings, such additional amounts shall be paid as additional benefits and shall be payable in the
same manner as the other benefits payable from such Account. If the allocation of such Income or
other investment earnings produces a net loss, the benefits paid shall be reduced notwithstanding
the initial computation of benefits according to the balance of a Participant’s Account on a
Valuation Date.



     6.11 Form of Distribution. Distributions from the Company Stock Sub-Account shall be
made in full shares of Company Stock. Balances representing fractional shares may be paid in cash.
Distributions from the Cash Sub-Account shall be made in cash; provided, however, that the
Participant shall have the right to elect that the entire amount of his Account be distributed to
him in the form of Company Stock (except for fractional shares). The Committee shall advise the
Participant in writing of his right to elect to receive Company Stock and of the proposed
distribution date at which time, within reasonable limits, a distribution in cash will be made from
the Cash Sub-Account if the Participant does not elect in writing to receive Company Stock. Such
election by the Participant to receive Company Stock from his Cash Sub-Account shall be irrevocable
and shall be valid only if received by the Committee at least thirty (30) days prior to the
proposed distribution date. In the event that a distribution of Company Stock is to be made from
the funds in the Participant’s Cash Sub-Account, any balance in a Participant’s Cash Sub-Account
may be applied to provide whole shares of Company Stock for distribution at the then fair market
value.



     6.12 Distribution of Dividends on Company Stock. The Committee may, in its sole
discretion, distribute to Participants cash dividends received by the Trust on Company Stock
allocated to each such Participant’s Company Stock Sub-Account, provided that such distribution
must be made no later than ninety (90) days after the close of the Plan Year in which such
dividends are paid to the Trust; or such cash dividends may, in the discretion of the Board of
Directors, be paid directly to the Participants instead of to the Trust.



38









 





     6.13 Pre-Retirement Distribution Rights. If a Participant has attained age 55 and has
completed 10 years of participation in this Plan subsequent to December 31, 1991, and thus has
become a Qualified Participant, the Committee shall offer such Qualified Participant during his
first “election period” (as defined below) and successive “election periods” the right to elect a
distribution of a portion of the Company Stock credited to his Account. The “election period”
shall be the first 90 days immediately following the end of each Plan Year in the “qualified
election period.” The “qualified election period” shall commence with the first Plan Year after
the Participant becomes a Qualified Participant and end with the fifth Plan Year thereafter. For
example, a Participant who first becomes a Qualified Participant in the Plan Year ending December
31, 2007, will first be entitled to elect a distribution in the period from January 1, 2008 through
March 30, 2008. If the Qualified Participant elects such a distribution, the distribution will be
made within 90 days after the end of that election period. The amount which may be elected for
distribution during the first such “election period” is 25% of the number of shares of Company
Stock then credited to that Qualified Participant’s Account. The amount which may be elected for
distribution upon future elections, during successive election periods, shall be determined by
multiplying the number of shares of Company Stock credited to the Qualified Participant’s Account
(including shares of Company Stock which have been previously distributed pursuant to this
subsection) by 25% or, with respect to a Qualified Participant’s final election, 50%, reduced by
the amount of any prior distributions elected by such Participant pursuant to this subsection.
Notwithstanding the foregoing, if the fair market value of the Company Stock allocated to the ESOP
Account of a Qualified Participant is less than five hundred dollars ($500.00) as of the Valuation
Date immediately preceding the first day of an election period, then such Qualified Participant
shall not be entitled to elect to receive a distribution for that election period.



     6.14 Valuation Date. The Valuation Date which shall be the basis for determining
benefits payable to any Participant or Beneficiary shall be the last Valuation Date preceding the
date of the Participant’s termination of employment with the Employer, with additional benefits and
Income added (or a loss subtracted) as of subsequent Valuation Dates preceding the date of
distribution as provided in Section 6.10. At any time the Employer may select an interim Valuation
Date in addition to the regular Valuation Dates (the last day of each Plan Year), in which case the
Employer shall notify the Trustee in writing within sixty (60) days either preceding or following
such interim Valuation Date. Any such interim Valuation Date shall be selected and applied by the
Employer uniformly to all Participants so as to avoid the prohibited discrimination described in
Section 401(a)(4) of the Code.



     6.15 Direct Rollover. Notwithstanding any provision of the Plan to the contrary that
would otherwise limit a Distributee’s election under this Section 6.15, a Distributee may elect, at
the time and in the manner prescribed by the Committee, to have any portion of an Eligible Rollover
Distribution paid directly to an Eligible Retirement Plan specified by the Distributee in a Direct
Rollover provided that the recipient Eligible Retirement Plan accepts rollover contributions, and
in the case of an eligible governmental plan described in clause (vi) of Section 2.1(z), such
governmental plan separately accounts for amounts transferred into such plan from this Plan. The
Plan provisions otherwise applicable to distributions continue to apply to this Direct Rollover
option. The Distributee shall, in the time and manner prescribed by the



39









 




Committee, specify the amount to be directly transferred and the Eligible Retirement Plan to
receive the transfer. Any portion of a distribution which is not transferred shall be distributed
to the Distributee in the form specified in Section 6.11.





40









 








ARTICLE VII

Trust; Voting Rights




     7.1 Assets Held in Trust. All contributions under this Plan shall be paid to the
Trustee and deposited in the Trust. All assets of the Trust, including investment income, shall be
retained for the exclusive benefit of Participants and Beneficiaries and shall be used to pay
benefits to such persons or to pay administrative expenses of the Plan to the extent not paid by
the Employer. No part of the Trust shall revert to or inure to the benefit of the Employer, except
that upon the Employer’s request, a contribution which was made under a mistake of fact or
conditioned upon the deductibility of any contribution under Section 404 of the Code shall be
returned to the Employer within one (1) year after the payment of the contribution or the
disallowance of the deduction (to the extent disallowed), whichever is applicable.



     The maximum amount that may be returned to the Employer in the case of a mistake of fact or
disallowance of the deduction is the excess of




     (i) the amount contributed over, as relevant,




     (ii) (A) the amount which would have been contributed had no mistake of fact occurred,
or




          (B) the amount that would have been contributed had the contribution been limited to
the amount that is deductible after any disallowance by the Internal Revenue Service.


Income attributable to the excess contribution may not be returned to the Employer, but losses
attributable thereto must reduce the amount to be so returned. If the withdrawal of the amount
attributable to the mistaken or nondeductible contribution would cause the balance of the Account
of any participant to be reduced to less than the balance which would have been in the Account had
the mistaken or nondeductible amount not been contributed, then the amount to be returned to the
Employer must be limited so as to avoid such reduction.




     7.2 Voting Rights. All Company Stock held in the Trust shall be voted as hereinafter
provided for pass-through voting by Participants or for direction of voting by the Committee under
this Section 7.2 or Section 7.3. Each Participant, Former Participant and Beneficiary of a
deceased Participant shall be entitled to direct the Trustee as to the exercise of voting rights
regarding any corporate matter which involves the voting of Company Stock then allocated to his
Company Stock Sub-Account. If Participants are entitled to so direct the Trustee as to the voting
of Company Stock allocated to their Company Stock Sub-Accounts, all such Company Stock as to which
instructions have been received (which may include an instruction to abstain) shall be voted in
accordance with such instructions. The Trustee shall abstain from voting the allocated shares of
Company Stock as to which no written instructions are received.



     The Committee shall provide, or cause to be provided, to each Participant, Former Participant
and Beneficiary of a deceased Participant notice of any meeting of the shareholders



41









 




of the Company at which Company Stock is entitled to be voted. Such notice shall include such information statements as are required to be sent to shareholders of the Company generally,
and the time and manner for furnishing such notice or information statements shall be in compliance
with both applicable law and the Company’s charter and by-laws as generally applicable to security
holders. The Committee shall request written instructions from each Participant, Former
Participant and Beneficiary as to the voting of the shares of Company Stock allocated to his
Company Stock Sub-Account. The Committee shall tabulate the written instructions received on or
prior to the date established by the Committee and communicated to the Participants for returning
the written instructions and shall instruct the Trustee as to the voting of the shares of Company
Stock represented by such written instructions.




     In the event that no shares of Company Stock are allocated to the Company Stock Sub-Accounts
on the record date, the Committee shall not be required to provide notice of the meeting or
information statements and the Trustee shall vote all Company Stock as the Trustee, in his
discretion, shall determine.



     After the first allocation of shares of Company Stock to the Company Stock Sub-Accounts, the
Trustee shall vote any shares of Company Stock in the Loan Suspense Account in accordance with the
instructions of the Committee. The Committee shall determine its instructions based upon the
percentage of shares of Company Stock to be voted, for and against each issue to be considered at
the meeting, including in the tabulation of such percentages only those shares of Company Stock
allocated to Company Stock Sub-Accounts as to which written instructions were received from
Participants by the Committee.



     7.3 Tender Offer. In the event of any of the following actions by a third party:




     (1) a tender offer or an exchange offer for stock of the Company;




     (2) a proposal for the merger or consolidation of the Company with such third party; or




     (3) a proxy solicitation for the purpose of electing directors who propose to approve
acts described in (1) or (2);


then, except as hereinafter provided under this Section 7.3, the Trustee shall tender or not tender
Company Stock, vote in favor of or against the proposal for merger or consolidation, or respond to
the proxy solicitation for election of directors, as instructed by the Committee. The Committee
shall provide or cause to be provided to each Participant, Former Participant and Beneficiary of a
deceased Participant any information relevant to the investment decision, as is provided to
stockholders of the Company generally, together with a form for written instructions as to the
shares of Company Stock allocated to the Company Stock Sub-Account of each Participant, Former
Participant and Beneficiary. With respect to that Company Stock, the Committee shall instruct the
Trustee in accordance with such written instructions as are received by the Committee on or prior
to the date established by the Committee and communicated to the Participants, Former Participants
and Beneficiaries for returning the written instructions.




42









 








     With respect to (i) any Company Stock allocated to the Company Stock Sub-Accounts as to which
the Committee receives no written instructions, and to (ii) all Company Stock in the Loan Suspense
Account or not otherwise allocated either to the Company Stock Sub-Accounts (herein collectively
referred to as “unallocated shares”), the Committee shall instruct the Trustee either to tender, to
vote in favor of the proposal, or to vote for directors who support such action, in the same
proportion of the total of such unallocated shares as the number of shares of Company Stock
allocated to the Company Stock Sub-Accounts which are tendered, voted in favor of the proposal, or
voted for directors who support such action, pursuant to written instructions from Participants,
Former Participants and Beneficiaries, bears to the total number of shares of Company Stock
allocated to the Company Stock Sub-Accounts of all Participants, Former Participants and
Beneficiaries. The Committee shall instruct the Trustee not to tender, or to vote in opposition to
the proposal for merger or consolidation, or to vote in favor of directors who oppose such tender
offer or proposal, in the same proportion of the total of such unallocated shares as the number of
shares of Company Stock allocated to the Company Stock Sub-Accounts which are not tendered, voted
in opposition to the proposal, or voted for directors who oppose such tender offer or proposal,
pursuant to written instructions or lack of any instructions from Participants, Former Participants
and Beneficiaries, bears to the total number of shares of Company Stock allocated to the Company
Stock Sub-Accounts of all Participants, Former Participants and Beneficiaries.



     Unless an interim Valuation Date is selected pursuant to Section 6.14, if no Company Stock has
been allocated to the Company Stock Sub-Accounts, then the Trustee shall tender or not tender all
shares of Company Stock, vote in favor of or against the proposal for merger or consolidation, or
vote for or against directors who support such tender offer or proposal, as the Trustee, in his
discretion, shall determine.



43









 





ARTICLE VIII

Administration




     8.1 Allocation of Responsibility Among Fiduciaries for Plan and Trust Administration.
The Fiduciaries shall have only those specific powers, duties, responsibilities and obligations
which are specifically given them under this Plan or the Trust. Any person or group of persons may
serve in more than one Fiduciary capacity with respect to the Plan. The Committee shall be the
Administrator of the Plan, and shall have the sole responsibility for the administration of the
Plan. The Trustee shall have the responsibility for the administration of the Trust and the
management of the assets held under the Trust, except as specifically provided in the Trust, and
subject to the purpose of the Plan as described in Article I to invest primarily in Company Stock.



     The Board of Directors may appoint an investment committee and, by written notice to the
Trustee, direct that investment authority as to all or any portion of the assets of the Trust shall
be vested in such investment committee as a named Fiduciary; and the Trustee shall be subject to
the direction of such committee regarding the investment of such assets within the limitations
provided in the Trust. The Trustee shall not be liable for claims arising as a result of following
the directions of the investment committee, as specifically provided in the Trust. Each Fiduciary
shall be responsible for the proper exercise of its own powers, duties and responsibilities, but
shall not be responsible for any act or failure to act of another Fiduciary. Named Fiduciaries
with respect to the Plan may designate persons other than named Fiduciaries to carry out fiduciary
responsibilities under the Plan.



     8.2 Appointment of Committee. A Committee consisting of no more than three persons
shall be appointed by and serve at the pleasure of the Board of Directors. The Board of Directors
may name the Company to assume the duties of the Committee. All usual and reasonable expenses of
the Committee shall be paid by the Employer, or upon the direction of the Committee, shall be paid
by the Trustee out of the Trust. No member of the Committee who is an Employee shall receive
compensation for his services on the Committee.



     8.3 Claims and Review Procedures. The Committee shall establish reasonable procedures
concerning the filing of claims for benefits hereunder, and shall administer such procedures
uniformly. If a claim is wholly or partially denied, the Committee shall furnish the claimant,
within a reasonable period of time, but not later than 90 days after receipt of the claim by the
Committee, a notice of such denial (unless the Committee determines that special circumstances
require an extension of time for processing the claim), setting forth at least the following
information in language calculated to be understood by the claimant:




     (a) the specific reason or reasons for the denial;




     (b) specific reference to pertinent Plan provisions on which the denial is based;



44









 






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




     (d) an explanation of the claims review procedure in the Plan, including the applicable
time limits and the Participant’s right to bring a civil action under ERISA.



     If special circumstances require an extension of time for processing the initial claim, a
written notice of the extension, which provides the reason for the extension and the date by which
a decision is expected to be rendered, shall be furnished to the Participant before the end of the
initial 90 days. In no event shall such extension exceed a period of 90 days after the end of the
initial period.



     In the event a claim for benefits is denied, or if the Participant has had no response to such
claim within 90 days of its submission (subject to extension as provided above), in which case the
claim for benefits shall be deemed to have been denied, the Participant or his duly authorized
representative, may request in writing to the Committee a review of such adverse benefit
determination. Such written request must be made not more than 60 days following the receipt of
written notice of the adverse benefit decision (or 60 days from the date such claim is deemed to be
denied). In pursuing such appeal, the Participant or his duly authorized representative:




     (a) shall be permitted to submit written comments, records or other information relating to
the claim; and




     (b) shall be provided, upon request and free of charge, reasonable access to, and
copies of, all documents, records and other information relevant to the claim (i.e., relied
upon in making the benefit determination, or submitted, considered or generated in the
course of making the benefit determination).



     The review on appeal of the initial adverse benefit decision shall be conducted by the
Committee. The review shall take into account all information submitted by the Participant
relating to the claim, regardless of whether such information was submitted or considered in the
initial decision. The decision on review shall be made within a reasonable period of time, but not
later than 60 days following receipt of the request for review (subject to extension for an
additional period of 60 days if required by special circumstances). If an extension of time is
required due to special circumstances, the Committee shall notify the Participant in writing, prior
to the expiration of the time limit specified in the preceding sentence, of the extension, the
special circumstances requiring the extension and the date by which the Committee expects to make
the benefit decision. In no event shall such an extension exceed a period of 60 days after the end
of the initial period. If the benefit decision or review is not furnished to the Participant
within the time limit specified, the claim shall be deemed denied on review.



     The decision on review shall be made in writing, shall be written in a manner calculated to be
understood by the claimant, and shall include the following:



45









 






     (a) the specific reason or reasons for the denial;




     (b) specific reference to the pertinent Plan provisions on which the denial was based;




     (c) a statement that the Participant is entitled to receive, upon request and free of
charge, reasonable access to and copies of all materials and required information relevant
to the claim; and




     (d) a statement of the Participant’s right to bring an action under ERISA.



     Any decision by the Committee pursuant to the claims procedure described in this Section 8.3
shall be conclusive and binding on all persons and shall be subject to judicial review only when it
is shown by clear and convincing evidence that the Committee acted in an arbitrary and capricious
manner.



     8.4 Committee Powers and Duties. The Committee shall have all power and authority
(including absolute discretion with respect to the exercise of that power and authority) necessary,
properly advisable, desirable or convenient for the performance of its duties. In performing its
duties, the Committee shall have discretionary authority to grant or deny benefits under this Plan.
Notwithstanding the foregoing sentence, the Committee shall have no power to add to, subtract from
or modify any of the terms of the Plan, or to change or add to any benefits provided by the Plan,
or to waive or fail to apply any requirements of eligibility for a benefit under the Plan. Any
decision by the Committee shall be conclusive and binding on all persons subject to the claims
review procedures described in Section 8.3 and subject to judicial review only where it is shown by
clear and convincing evidence that the Committee acted in an arbitrary and capricious manner. The
duties of the Committee shall include, but not be limited to, the following:




     (a) to construe and interpret the Plan, decide all questions of eligibility and
determine the amount, manner and time of payment of any benefits hereunder;




     (b) to prescribe procedures to be followed by Participants or Beneficiaries in filing
applications for benefits;




     (c) to appoint or employ individuals to assist in the administration of the Plan and
any other agents it deems advisable, including legal and actuarial counsel;




     (d) to formulate written procedures to determine the qualified status of domestic
relations orders pursuant to Section 414(p)(6) of the Code and to administer payment of
benefits in accordance with such orders as are concluded to be qualified;




     (e) to determine whether to offer to Participants the right to elect a distribution in
the form of cash;



46









 






     (f) to authorize delivery and payment by the Trustee of Company Stock and cash under
the Plan; and




     (g) to compile the instructions from Participants regarding the voting of Company Stock
as described in Section 7.2 and regarding the response to a third party tender offer or
other corporate transaction described in Section 7.3, and to direct the Trustee in
accordance with those instructions.



     8.5 Rules and Decisions. The Committee may adopt such rules as it deems necessary,
desirable, or appropriate. All rules and decisions of the Committee shall be uniformly and
consistently applied to all Participants in similar circumstances. When making a determination or
calculation, the Committee shall be entitled to rely upon information furnished by a Participant or
Beneficiary, the Employer, the legal counsel of the Employer, or the Trustee.



     Any decision by the Committee shall be conclusive and binding upon all persons, subject to the
claims review procedure described in Section 8.3 and subject to judicial review where it is shown
by clear and convincing evidence that the Committee acted in an arbitrary and capricious manner.



     8.6 Committee Procedures. The Committee may act at a meeting or in writing without a
meeting. The Committee may elect one of its members as chairman, appoint a secretary, who may or
may not be a Committee member, and advise the Trustee of such actions in writing. The Committee
may adopt such by-laws or regulations as it deems desirable for the conduct of its affairs. All
decisions of the Committee shall be made by the vote of the majority including actions in writing
taken without a meeting. A dissenting Committee member who, within a reasonable time after he has
knowledge of any action or failure to act by the majority, registers his dissent in writing
delivered to the other Committee members, the Employer, and the Trustee, shall not be responsible
for any such action or failure to act.



     8.7 Authorization of Member to Sign Documents. The Committee may authorize any one or
more of its members (or any person or persons, if the Company is the Committee) to execute any
document or documents on behalf of the Committee. The Committee shall notify the Trustee in
writing of such action and the name or names of the person or persons so designated. The Trustee
thereafter may accept and rely upon any document executed by such member or members as representing
action by the Committee until the Committee shall file with the Trustee a written revocation of
such designation.



     8.8 Duty to Keep Records and File Reports. The Committee shall keep records and other
data as may be necessary for proper administration of the Plan, including the balance of the
Accounts for each Participant. The Committee shall file or cause to be filed all annual reports,
financial and other statements as may be required by any federal or state statute, agency or
authority within the time prescribed by law or regulation for filing such documents. The Committee
shall furnish such reports, statements and other documents to Participants and Beneficiaries of the
Plan as may be required by any federal or state statute or regulation.



47









 





     8.9 Authorization of Benefit Payments. The Committee shall issue directions to the
Trustee concerning all benefits which are to be paid from the Trust Fund pursuant to the provisions
of the Plan.



     8.10 Application and Forms for Benefits. The Committee may require a Participant to
complete and file with the Committee an application for a benefit and all other forms approved by
the Committee, and to furnish all pertinent information requested by the Committee. The Committee
may rely upon all such information so furnished it, including the Participant’s current mailing
address.



     8.11 Facility of Payment. Whenever, in the Committee’s opinion, a person entitled to
receive any payment of a benefit or installment thereof hereunder is under a legal disability or is
incapacitated in any way so as to be unable to manage his financial affairs, the Committee may
direct the Trustee to make payments to such person or to his legal representative or to a relative
or friend of such person for his benefit, or the Committee may direct the Trustee to apply the
payment for the benefit of such person in such manner as the Committee considers advisable. Any
payment of a benefit or installment thereof in accordance with the provisions of this Section shall
be a complete discharge to the Trustee of any liability for the making of such payment under the
provisions of the Plan.



     8.12 Indemnification of Committee Members. The Employer shall indemnify and hold
harmless each member of the Committee, and any person signing documents on behalf of the Committee,
against any and all liability, claims, damages and expense, including fees of individuals appointed
pursuant to Section 8.4(c), which the member may incur in administration of the Plan, unless
arising from the gross negligence or willful misconduct of such member. This indemnification shall
be limited to the costs and expenses not covered under any fiduciary insurance provided by the
Employer.



48









 





ARTICLE IX

Miscellaneous




     9.1 Nonguarantee of Employment. Nothing contained in this Plan shall be construed as
a contract of employment between the Employer and any Employee, or as a right of any Employee to be
continued in the employment of the Employer, or as a limitation of the right of the Employer to
discharge any of its Employees, with or without cause.



     9.2 Rights to Trust Assets. No Employee or Beneficiary shall have any right to, or
interest in, any assets of the Trust Fund upon termination of his employment or otherwise, except
as provided in this Plan. All payments of benefits as provided for in this Plan shall be made
solely out of the assets of the Trust and none of the Fiduciaries shall be personally liable
therefor in any manner.



     9.3 Nonalienation of Benefits. Benefits payable under this Plan shall not be subject
in any manner to anticipation, alienation, execution, or levy of any kind, either voluntary or
involuntary, including any such liability which is for alimony or other payments for the support of
a spouse or former spouse, or for any other relative of the Participant prior to actually being
received by the person entitled to the benefit under the terms of the Plan; and any attempt to
anticipate, alienate, sell, transfer, assign, pledge, encumber, charge or otherwise dispose of any
right to benefits payable hereunder, shall be void. The Trust shall not in any manner be liable
for, or subject to, the debts, contracts, liabilities, engagements or torts of any person entitled
to benefits thereunder. The foregoing prohibition on alienation of benefits shall not apply to
prevent payments by the Trustee in recognition of the rights of a spouse, former spouse, child or
other dependent of the Participant embodied in a qualified domestic relations order as defined in
Section 206(d)(3) of ERISA and in Section 414(p)(1) of the Code (“QDRO”). No such QDRO shall
require payment of any form or amount of benefit, or time of payment thereof, except as otherwise
permitted under this Plan; provided, however, that such payment may be required by the QDRO prior
to termination of employment of the Participant at any time after the Participant attains age 50.



     In the event a Participant’s benefits are garnished or attached by order of any court, or if
there are multiple claimants to the same benefits, the Committee may bring an action for
declaratory judgment in a court of competent jurisdiction to determine the proper recipient of the
benefits to be paid by the Plan. During the pendency of said action, any benefits that become
payable may be paid into the court as they become payable, to be distributed by the court to the
recipient it deems proper.



     9.4 Discontinuance of Employer Contributions. In the event of permanent
discontinuance of contributions to the Plan by the Employer, the Accounts of all Participants
shall, as of the date of such discontinuance, become nonforfeitable.



     9.5 Single Plan and Trust of Employers. The Plan of each Employer which adopts this
Plan shall be administered as a single Plan, and a single Trust Fund shall be used for the
investment of all Plan assets and the payment of benefits hereunder. All Forfeitures subject to



49









 




allocation during a Plan Year shall be allocated to all Participants in accordance with
Section 5.2(a), and not exclusively to those Participants who are employees of the Adopting Company
which was the employer of the Former Participant incurring the Forfeiture.




     9.6 Leased Employees. Notwithstanding any other provisions of the Plan, for purposes
of determining the number or identity of Highly Compensated Employees and for purposes of the
pension requirements of Section 414(n)(3) of the Code, the employees of the Employer shall include
“Leased Employees.”



     9.7 Applicable Law. The Plan hereby created shall be construed, administered and
governed in all respects in accordance with ERISA and, to the extent not superseded by federal law,
in accordance with the laws of the State of Tennessee; provided, however, that if any provision is
susceptible of more than one interpretation, such interpretation shall be given thereto as is
consistent with the Plan being a qualified plan within the meaning of the Code.



     9.8 Acquisition by or of Adopting Company. If an Affiliated Company should adopt this
Plan, or if the Company or an Adopting Company should acquire substantially all the assets of
another company or a division thereof, any employees who are hired by Company or by an Adopting
Company as a result of such acquisition shall become eligible to participate in this Plan in
accordance with Section 3.1, subject to such terms as the Board of Directors may determine by
resolution. The Board of Directors may in its sole discretion treat service with the previous
employer prior to such previous employer’s becoming an Affiliated Company or prior to the
acquisition, as the case may be, as service with the Company to whatever extent it deems advisable
for purposes of determining under this Plan eligibility for participation, vesting, and eligibility
to share in the Employer contributions, or any combination of the foregoing; provided, however,
that all employees of such previous employer who continue in the employment of Company or of an
Adopting Company shall be treated uniformly; and provided further that the crediting of such prior
service shall not discriminate in favor of Highly Compensated Participants. The Board of Directors
shall determine, by appropriate resolutions, the extent to which such prior service shall be
included in determining hereunder Hours of Service and Years of Service, and to what extent such
inclusion shall be restricted to the purpose of determining eligibility for participation, vesting,
or eligibility to share in Employer contributions, or any combination thereof. Any Board
resolutions required by this Section 9.8 may be adopted either before or after the acquisition of
assets or adoption of this Plan by the Affiliated Company. Except to the extent required under
ERISA, no such prior service shall be so included unless appropriate resolutions are adopted by the
Board of Directors.



     9.9 No Restrictions on Financed Shares. Except as required by the securities laws or
other applicable laws, no Company Stock originally acquired as Financed Shares shall be subject to
a put, call or other option, or buy-sell, right of first refusal, or similar arrangement while held
by and when distributed from the Plan, whether or not the Plan is then an employee stock ownership
plan as described in Section 4975(e)(7) of the Code.



50









 





     9.10 Qualified 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 Section 414(u) of the Code.



     9.11 Certain Judgments, Orders, Decrees and Settlements. The Plan shall be permitted
to offset all or a portion of a Participant’s vested benefit against an amount that the Participant
is ordered or required to pay to the Plan if the order or requirement to pay arises in connection
with:




     (a) the Participant’s conviction for a crime involving the Plan;




     (b) a civil judgment (or consent order or decree) entered by a court in an action
brought in connection with a violation of the fiduciary provisions of ERISA; or




     (c) a settlement agreement between the Secretary of Labor and the Participant in
connection with a violation (or alleged violation) of the fiduciary provisions of ERISA.



     To be effective, the judgment, order, decree or settlement agreement establishing such
liability must expressly provide that the Participant’s vested benefit under the Plan be offset to
satisfy such liability. If the Participant is married at the time his benefit under the Plan is
offset to satisfy the liability, spousal consent to such offset is required to the extent otherwise
required under this Plan unless the spouse is also required to pay an amount to the Plan in the
judgment, order, decree or settlement or unless the judgment, order, decree or settlement provides
a fifty percent (50%) survivor annuity or its equivalent to the spouse. The provisions of this
Section 9.11 are to be interpreted in accordance with Section 401(a)(13)(C) of the Code.



51









 





ARTICLE X

Amendments and Action by Employer




     10.1 Amendments. Each Employer reserves the right to amend its Plan provided such
amendment does not cause any part of the Trust to be used for, or diverted to, any purpose other
than the exclusive benefit of Participants, Former Participants or their Beneficiaries, except as
may be necessary to make the Plan comply with ERISA. Amendment of the Plan by the Company shall
similarly amend the Plan of each Adopting Company, except that any Adopting Company may exclude its
Plan from such amendment by resolution of its Board of Directors.



     10.2 Limitation on Amendments. No amendment to this Plan shall have the effect of
reducing the amount then credited to the Accounts of any Participant or of causing the
nonforfeitable percentage of the accrued benefit derived from Employer contributions (determined as
of the later of the date such amendment is adopted, or the date such amendment becomes effective)
of any Participant under the Plan to be less than his nonforfeitable percentage computed under the
Plan without regard to such amendment. For the purposes of this Section 10.2, a Plan amendment
which has the effect of eliminating or reducing an early retirement benefit or eliminating an
optional form of benefit (as provided in Treasury regulations) with respect to benefits
attributable to service before the amendment shall be treated as reducing the amount credited to
the Accounts of a Participant.



     10.3 Action by Employer. Any action by the Employer may be by resolution of its Board
of Directors, or by any person or persons duly authorized by resolution of said Board to take such
action.



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ARTICLE XI

Successor Employer and Merger or Consolidation of Plan




     11.1 Successor Employer. In the event of the dissolution, merger, consolidation or
reorganization of the Employer, provision may be made by which the Plan and Trust will be continued
by the successor; and, in that event, such successor shall be substituted for the Employer under
the Plan. The substitution of the successor shall constitute an assumption of Plan liabilities by
the successor and the successor shall have all of the powers, duties and responsibilities of the
Employer under the Plan.



     11.2 Plan Assets. In the event of any merger or consolidation of the Plan with, or
transfer in whole or in part of the assets and liabilities of the Trust to another trust fund held
under, any other plan of deferred compensation maintained or to be established for the benefit of
all or some of the Participants of this Plan, the assets of the Trust applicable to such
Participants shall be transferred to the other trust fund only if:




     (a) each Participant would (if either this Plan or the other plan then terminated)
receive a benefit immediately after the merger, consolidation or transfer which is equal to
or greater than the benefit he would have been entitled to receive immediately before the
merger, consolidation or transfer (if this Plan had then terminated);




     (b) resolutions of the Board of Directors of the Employer under this Plan, or of any
new or successor employer of the affected Participants, shall authorize such transfer of
assets; and, in the case of the new or successor employer of the affected Participants, its
resolutions shall include an assumption of liabilities with respect to such Participants’
inclusion in the new employer’s plan; and




     (c) such other plan and trust are qualified under Sections 401(a) and 501(a) of the
Internal Revenue Code.



     The requirement of subparagraph (a) of this Section 11.2 shall be satisfied, in the case of a
spin-off of part of the assets and liabilities of this Plan, if after the spin-off:




     (1) The sum of the account balances for each Participant in the resulting plans
equals the account balance of the Participant in the Plan before the spin-off, and




     (2) The assets in each of the plans immediately after the spin-off equals the
sum of the account balances for all participants in that plan.



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ARTICLE XII

Plan Termination




     12.1 Right to Terminate. In accordance with the procedures set forth in this Article,
the Employer may terminate the Plan at any time. In the event of the dissolution, merger,
consolidation or reorganization of the Employer, the Plan shall terminate and the Trust shall be
liquidated unless the Plan is continued by a successor to the Employer in accordance with Section
11.1, or unless the Employer elects to continue the Trust and make distribution to the Participants
or their beneficiaries at the times and in the manner set forth in Article VI hereof.



     12.2 Partial Termination. Upon termination of the Plan with respect to a group of
Participants which constitutes a partial termination of the Plan, the Trustee shall, in accordance
with the directions of the Committee, allocate and segregate for the benefit of the Participants
then or theretofore employed by the Employer with respect to which the Plan is being terminated,
the proportionate interest of such Participants in the Trust. The funds so allocated and
segregated shall be used by the Trustee to pay benefits to or on behalf of Participants in
accordance with Section 12.3.



     12.3 Liquidation of the Trust. Upon termination or partial termination of the Plan,
the Accounts of all Participants affected thereby shall become fully vested to the extent funded,
and the Committee shall direct the Trustee to distribute the assets remaining in the Trust (after
payment of any expenses properly chargeable thereto) to Participants, Former Participants and
Beneficiaries in proportion to their respective Account balances unless the Employer elects to
continue the Trust as provided in Section 12.1. Any amounts which may remain unallocated in the
suspense account described in Section 5.3 shall be returned to the Employer.



     12.4 Manner of Distribution. To the extent that no discrimination in value results,
any distribution after termination of the Plan may be made, in whole or in part, in cash, in
securities or other assets in kind, as the Committee, in its discretion, may determine; provided,
however, that all distributions from the Company Stock Sub-Accounts shall be in the form of Company
Stock. All non-cash distributions shall be valued at fair market value at the date of
distribution.



     12.5 Company Stock in Loan Suspense Account. Upon termination of the Plan or a
permanent discontinuance of Employer contributions, any Company Stock remaining in the Loan
Suspense Account shall be first utilized to repay the outstanding balance of the Acquisition Loan.
Any shares of Company Stock which may remain in the Loan Suspense Account after such repayment
shall be allocated to the Company Stock Sub-Accounts of Participants eligible to share in the
Employer contributions for that Plan Year pursuant to Section 5.2(a), in the proportion that each
such Participant’s Compensation for the Plan Year bears to the total Compensation of all
Participants entitled to share in Employer contributions for that Plan Year.



54









 





ARTICLE XIII

Top-Heavy Provisions




     13.1 Top-Heavy Plan Requirements. For any Top-Heavy Plan Year, the Plan shall provide
the following:




     (a) Special vesting requirements of Section 416(b) of the Code pursuant to Section
6.8(b) of the Plan;




     (b) A Minimum Benefit required by Section 416(c) of the Code pursuant to Sections 4.4
and 5.4 of the Plan; and



     13.2 Definitions. In making the determination in Section 13.3, the following terms,
in addition to those set forth in Article II, shall have the following meanings:




     (a) “Aggregation Group” shall mean a Required Aggregation Group or a Permissive
Aggregation Group.




     (b) The “Interest” of each Participant in the Plan is the sum of




     (i) the Aggregate Account Balance as of the most recent Valuation Date
occurring within the twelve (12) month period ending on the Determination Date;




     (ii) an adjustment for any contributions actually made after such Valuation
Date but before the Determination Date; and




     (iii) any distributions to such Participant or his Beneficiary made within the
Plan Year that includes the Determination Date and any distributions made for a
reason other than separation from service, death, or disability, within the four (4)
preceding Plan Years (including in both cases distributions under a terminated plan
which, if it had continued in existence, would be part of a Required Aggregation
Group);




and a similar amount calculated for any defined contribution plan other than the Plan.




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




     (d) “Required Aggregation Group” shall mean




     (i) each plan of an Affiliated Company in which a key employee is a participant
and



55









 






     (ii) each other plan of an Affiliated Company which enables any plan described
in (i) to meet the requirements of Section 401(a)(4) or 410 of the Code.



     13.3 Determination of Top-Heavy Status.




     (a) The Plan shall be a Top-Heavy Plan for any Plan Year in which, as of the
Determination Date, either




     (i) the Plan is not part of a Required Aggregation Group and the sum of the
Interests of all Key Employees in the Plan exceeds sixty percent (60%) of the sum of
the Interests of all Participants (including for this purpose any individual who was
a Participant during the five year period ending on the Determination Date), unless
the Plan is part of a Permissive Aggregation Group which is not a Top-Heavy Group,
or




     (ii) the Plan is part of a Required Aggregation Group which is a Top-Heavy
Group, unless such Required Aggregation Group is itself part of a Permissive
Aggregation Group which is not a Top-Heavy Group.




     (b) An Aggregation Group is a Top-Heavy Group if the sum (as of the Determination Date)
of




     (i) the present value of the cumulative accrued benefits for key employees
(including any part of the accrued benefit distributed in the five year period
ending on the Determination Date) under all defined benefit plans included in the
group, and




     (ii) the Interests of key employees under all defined contribution plans
included in the group,



     exceeds sixty percent (60%) of a similar sum determined for all participants in such plans
(including for this purpose any individual who was a participant during the five year period ending
on the Determination Date).




     (c) In making the determination under this Section 13.3, the following rules are
applicable:




     (i) The Interest or accrued benefit of an individual shall not be taken into
account if that individual did not perform any services for the Employer at any
time during the one-year period ending on the Determination Date.




     (ii) If any Non-Key Employee for the Plan Year was a Key Employee in any prior
Plan Year, his Interest or accrued benefit shall not be taken into account.



56









 






     (iii) In an Aggregation Group, the Determination Date for each plan for
purposes of the test for a Top-Heavy Group shall be those determination dates that
fall within the same calendar year.





     (iv) Benefits paid on account of death of a Participant shall be treated as
distributions in computing the Interest or accrued benefit of a Participant to the
extent that such death benefits do not exceed the Interest or accrued benefit
(excluding previous distributions) of the Participant immediately prior to death.



     IN WITNESS WHEREOF, J. Alexander’s Corporation, a Tennessee corporation, has caused this
instrument to be executed this 26th day of January, 2007, and effective as of January 1, 2002
(except for such other dates as may be noted) by its duly authorized officers.



	 	 	 	 	 
	 	J. ALEXANDER’S CORPORATION

 	 
	 	By:  	/s/ J.
Michael Moore	 
	 	 	Title: 	VP of Administration and Human Resources 
	 	 	 	 
	 



ATTEST:


/s/ Ruth
A. Tidwell










57